[2001] 3 F.C. 127
A-794-99
2001 FCA 10
Lloyd Lewis McLean (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: McLean v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Noël, Evans and Sharlow JJ.A— Vancouver, February 7 and 8, 2001.
Constitutional law — Charter of Rights — Equality Rights — Appeal from dismissal of application for judicial review of denial of citizenship application — Appellant born in 1943 in U.S.A. in wedlock to American father, Canadian mother — Landed in Canada in 1951 — Ordered deported first of many times in 1972 — Subject of many inquiries at which assertion of Canadian citizenship always negated — 1947 Citizenship Act, s. 4 granting citizenship to children born prior to 1947 outside of Canada in wedlock if father Canadian; s. 5 according same status to those born after 1947 — Citizenship Act, 1976, s. 5(2)(b) removing differential treatment for those born after 1947 — Benner v. Secretary of State holding s. 5(2)(b) unconstitutional as imposing more onerous requirements on those claiming citizenship through mothers — Appellant arguing differential distinction used to deny him citizenship equally contrary to Charter, s. 15 — Arguing Citizenship Act never engaged because never formally applied for recognition of citizenship — Citizenship having implications under variety of statutes — Defining moment when confronted by law taking lack of citizenship into account i.e. when determined not Canadian citizen upon resisting deportation on that basis — Appellant engaging provisions of Citizenship Act well before Charter came into force — Seeking retroactive application of Charter — Appeal dismissed.
Citizenship and Immigration — Status in Canada — Citizens — Appeal from dismissal of application for judicial review of denial of citizenship application — Appellant born in 1943 in U.S.A. in wedlock to American father, Canadian mother — 1947 Citizenship Act, s. 4 granting citizenship to children born prior to 1947 outside of Canada in wedlock if father Canadian; s. 5 according same status to those born after 1947 — Citizenship Act, 1976, s. 5(2)(b) removing differential treatment for those born after 1947 — Benner v. Secretary of State holding s. 5(2)(b) unconstitutional — Appellant arguing differential distinction relied upon to deny him citizenship also contrary to Charter, s. 15 — Reasoning in Benner applies to persons born prior to 1947 in wedlock outside Canada to Canadian-born mothers, but application of Charter would be retroactive.
This was an appeal from the dismissal of an application for judicial review of the denial of a citizenship application. The appellant was born in wedlock in the United States of America in 1943 to an American father and a Canadian mother. The appellant moved to Canada sometime between 1947 and 1949 and was granted landing as a permanent resident in 1951. He was ordered deported in 1972 as a result of narcotics convictions. He was subsequently ordered deported some 12 times and on each occasion he was the subject of an inquiry, at which he asserted that he was a Canadian citizen. Each time he was advised that he was not a Canadian citizen. In 1997 the appellant requested a certificate of proof of citizenship. The request was treated as a citizenship application and was denied. The subsequent application for judicial review was also denied.
Under The Canadian Citizenship Act of 1947, section 4 a child born in wedlock outside of Canada before the commencement of the Act was granted citizenship if his father had been born in Canada. Subparagraph 5(b)(i) (as it then was) extended Canadian citizenship to persons born after the commencement of the Act outside of Canada to a Canadian father. No such right was granted to a child born in wedlock to a Canadian-born mother. In 1977 paragraph 5(2)(b) extended the right of citizenship to those born outside of Canada before February 15, 1977 to a Canadian mother and who was not entitled to become a citizen under subparagraph 5(1)(b)(i). In Benner v. Secretary of State, which involved an individual who was born after 1947, and who qualified under paragraph 5(2)(b), the Supreme Court of Canada held that requiring children of a Canadian mother to complete security checks and take an oath of allegiance imposed more onerous requirements on those claiming Canadian citizenship based on maternal lineage than on those whose claims depended upon paternal lineage thus violating Charter, section 15.
The appellant argued that his application should not have been processed pursuant to paragraph 5(2)(b) because at the relevant time he was a Canadian citizen pursuant to paragraph 3(1)(d), which states that a person is a citizen if the person was a citizen immediately preceding February 15, 1977. The appellant submitted that but for the discrimination based on his maternal lineage, he would have been a citizen prior to 1977 by virtue of section 4 of the 1947 Act. He submitted that Benner stands for more than the constitutionality of paragraph 5(2)(b); it stands for the proposition that it is discriminatory to treat children born abroad as having different rights depending on the gender of the parent on whom they base their claim to citizenship; the differential distinction which is relied upon to deny citizenship in this instance can no more withstand Charter scrutiny than paragraph 5(2)(b) as it read prior to the Benner decision. Finally, the appellant submitted that applying Charter, subsection 15(1) would not result in a retroactive or retrospective application of the Charter.
The issues were: (1) whether the citizenship application was properly processed pursuant to paragraph 5(2)(b); (2) whether the Benner decision is limited to the constitutionality of paragraph 5(2)(b); (3) whether application of Charter, subsection 15(1) in this instance would result in a retroactive or retrospective application of the Charter.
Held, the appeal should be dismissed.
Assuming that the reasoning in Benner applies to persons born prior to January 1, 1947 in wedlock outside Canada to Canadian-born mothers, the appellant had not established that invocation of the Charter would not give rise to its retroactive or retrospective application. The appellant argued that the Citizenship Act had never been engaged per se because he had never formally applied to be granted Canadian citizenship or to be recognized as a Canadian citizen. This distinction is immaterial. One’s citizenship (or lack thereof) has implications not only under the Citizenship Act but also under a variety of other statutes which incorporate this notion. Hence the defining moment, based on the test adopted in Benner, was when appellant was first confronted by a law which took his lack of citizenship into account or, in this case, when he resisted being deported on the ground that he was a Canadian citizen and it was determined that he was not. The moment in question in each case is when the status of those concerned is held against them so as to disentitle them to a benefit. The appellant was confronted by and engaged the provisions of the Act well before the Charter came into force. The Motions Judge did not err when he held that the appellant was seeking to have the Charter applied retroactively.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15(1).
Canadian Citizenship Act (The), S.C. 1946, c. 15, ss. 4, 5.
Citizenship Act, R.S.C., 1985, c. C-29, ss. 3(1)(d), 5(2)(b), 12(1).
Citizenship Act, S.C. 1974-75-76, c. 108.
Immigration Act, R.S.C., 1985, c. I-2.
CASES JUDICIALLY CONSIDERED
APPLIED:
Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; (1997), 143 D.L.R. (4th) 577; 42 C.R.R. (2d) 1; 37 Imm. L.R. (2d) 195; 208 N.R. 81; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255.
APPEAL from the dismissal of an application for judicial review of the rejection of the appellant’s application for citizenship (McLean v. Canada (Minister of Citizenship and Immigration) (1999), 177 F.T.R. 219 (F.C.T.D.)). Appeal dismissed.
APPEARANCES:
Catherine A. Sullivan, for appellant.
Brenda Carbonell for respondent.
SOLICITORS OF RECORD:
Catherine A. Sullivan, Vancouver, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
[1] Noël J.A.: This is an appeal from the decision of Associate Chief Justice Richard (as he then was) rendered November 4, 1999 ((1999), 177 F.T.R. 219 (F.C.T.D.)), dismissing the appellant’s application for judicial review of the decision of George Hill, in his capacity of citizenship officer, rejecting the appellant’s application for Canadian citizenship.
[2] The relevant facts are succinctly set out in the decision under appeal:
The applicant, Lloyd Lewis McLean, is an American citizen. The applicant’s mother was born in the Province of Saskatchewan on December 21, 1922. The applicant’s father was born in the United States in 1921. The applicant’s parents were married in 1942 and subsequently moved to Clinton Iowa, where the applicant was born on November 4, 1943.
The applicant’s parents divorced and the applicant came to Canada with his mother and sister sometime between 1947 and 1949.
On December 13, 1951, the applicant was granted landing as a permanent resident. He lost his status as a permanent resident when he was first ordered deported on March 7, 1972.
The applicant was the subject of a number of inquiries held pursuant to subsection 11(1) of the Immigration Act, 1970. During these inquiries, the applicant argued that he ought not to be deported from Canada on the basis that he was a Canadian citizen. In each of these inquiries, the Adjudicator determined that the applicant was not a Canadian citizen.
By way of letter dated November 3, 1997, the applicant requested that he be issued a certificate of proof of Canadian citizenship on the basis that he was born in the United States in 1943 to a Canadian born mother. This application was made in the belief that he was entitled to Canadian citizenship pursuant to the Supreme Court decision in Benner v. Secretary of State of Canada, [1997] 1 S.C.R. 358.
The respondent treated the application as an application for Canadian citizenship and, by way of a letter dated July 27, 1998, denied the applicant’s application.
[3] The citizenship officer concluded that the appellant did not meet the requirements of paragraph 5(2)(b) of the Citizenship Act, R.S.C., 1985, c. C-29 (the Act) and that the Benner decision [Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358] was of no assistance to him.
[4] The appellant’s judicial review application against the aforesaid decision of the citizenship officer was denied by the Associate Chief Justice and the present appeal ensued.
[5] In order to situate the issue raised by the appeal, it is useful to recall that the concept of Canadian citizenship was introduced on January 1, 1947, with the enactment of The Canadian Citizenship Act [S.C. 1946, c. 15] (the 1947 Act). Sections 4 and 5 of the 1947 Act provided:
4. A person, born before the commencement of this Act, is a natural-born Canadian Citizen:—
…
(b) if he was born outside of Canada … and his father, or in the case of a person born out of wedlock, his mother
(i) was born in Canada … and had not become an alien at the time of that person’s birth…
…
if, at the commencement of this Act, that person has not become an alien, and has either been lawfully admitted to Canada for permanent residence or is a minor.
5. A person, born after the commencement of this Act, is a natural-born Canadian citizen:--
…
(b) if he is born outside of Canada […] and
(i) his father, or in the case of a child born out of wedlock, his mother, at the time of that person’s birth, is a Canadian citizen by reason of having been born in Canada …, or having been granted a certificate of citizenship or having been a Canadian citizen at the commencement of this Act.
[6] A child born outside of Canada in wedlock was therefore granted citizenship if the father was born in Canada; section 4 so provided with respect to children born prior to 1947 and section 5 with respect to those born after 1947. However, no such right was granted to a child born in wedlock to a Canadian-born mother (unless of course the father was also Canadian born).
[7] This differential treatment was partially removed in 1977 [S.C. 1974-75-76, c. 108] when the 1947 Act was repealed and replaced by the current Act. Paragraph 5(2)(b) now provides:
5. (1) …
(2) The Minister shall grant citizenship to any person who
…
(b) was born outside Canada, before February 15, 1977, of a mother who was a citizen at the time of his birth, and was not entitled, immediately before February 15, 1977, to become a citizen under subparagraph 5(1)(b)(i) of the former Act, if, before February 15, 1979, or within such extended period as the Minister may authorize, an application for citizenship is made to the Minister by a person authorized by regulation to make the application. [My emphasis.]
[8] As can be seen, this provision extends the right of citizenship only with respect to those who qualify under subparagraph 5(1)(b)(i) of the 1947 Act [as am. by S.C. 1950, c. 29, s. 2] (i.e. those born after 1947). Children born before 1947, in the same circumstances, are granted no rights to citizenship.
[9] The Benner decision which was referred to in the ruling made by the citizenship officer dealt with an individual who was born after 1947 and therefore who qualified under paragraph 5(2)(b). However, at the relevant time, children born of a Canadian mother (in contrast with children born of a Canadian father) were subjected to the further requirement that they complete security checks and take an oath of allegiance. The Supreme Court of Canada held that these requirements (which have since been removed) violate subsection 15(1) of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] in so far as they impose more onerous requirements on those claiming Canadian citizenship based on maternal lineage than on those claiming Canadian citizenship based on paternal lineage.
[10] I now turn to the decision in issue. The judicial review application was dismissed on four grounds:
(1) The application was properly processed as a request pursuant to paragraph 5(2)(b);
(2) The Benner decision does not support the appellant’s assertion that he is entitled to Canadian citizenship;
(3) Section 15 of the Canadian Charter of Rights and Freedoms does not apply in the applicant’s circumstances;
(4) In any event, granting the appellant Canadian citizenship on the ground that the differential distinctions preventing such a grant is contrary to section 15 of the Charter would involve a retroactive and retrospective application of the Charter.
[11] Counsel for the appellant argued before us that the Motions Judge erred when he held that his application was properly processed pursuant to paragraph 5(2)(b). She asserted that at the relevant time, the appellant was a Canadian citizen pursuant to paragraph 3(1)(d) of the Act and that his application ought to have been treated accordingly:
3. (1) Subject to this Act, a person is a citizen if
…
(d) the person was a citizen immediately before February 15, 1977… .
Relying on the Benner decision, counsel submits that the appellant was and continues to be a Canadian citizen pursuant to paragraph 3(1)(d) because, but for the discrimination based on his maternal lineage, he would have been a citizen prior to 1977 as this provision contemplates, by virtue of section 4 of the 1947 Act.
[12] Counsel adds that the Motions Judge committed a related error when he held that the Benner decision is limited to the constitutionality of paragraph 5(2)(b). According to the appellant, the Benner decision stands for the broader proposition that it is discriminatory to treat children born abroad as having different rights based on the gender of the parent on whom they base their claim to citizenship; the differential distinction which is relied upon to deny citizenship in this instance can no more withstand Charter scrutiny than paragraph 5(2)(b) as it read prior to the Benner decision.
[13] Finally, the appellant submits that the Motions Judge erred when he held that applying subsection 15(1) of the Charter in this instance would result in a retroactive or retrospective application of the Charter. Specifically, counsel argued that it was not open to the Motions Judge to find on the evidence before him that the applicant was “confronted” by his citizenship status and “engaged” the provisions of the Citizenship Act before section 15 of the Charter came into force.
Decision
[14] I am prepared to decide this appeal on the basis that the reasoning in Benner applies to persons born in wedlock outside Canada to Canadian-born mothers prior to January 1, 1947. However, in order to succeed, it was incumbent upon the appellant to convince the Court that his invocation of the Charter, if otherwise justified, would not give rise to its retroactive or retrospective application. That, he has failed to do.
[15] The circumstances which give rise to a retroactive or retrospective application of the Charter were canvassed at length in Benner. The question was said to be (at paragraph 45):
… one of characterization: is the situation really one of going back to redress an old event which took place before the Charter created the right sought to be vindicated, or is it simply one of assessing the contemporary application of a law which happened to be passed before the Charter came into effect?
[16] In Benner, it was argued that the key point in the chronology of events which led to the Charter claim was the appellant’s birth in 1962. That is when the rights granted under the Citizenship Act would have “crystallized”. The argument was quickly rejected (at paragraph 51):
I am uncomfortable with the idea of rights or entitlements crystallizing at birth, particularly in the context of s. 15. This suggests that whenever a person born before April 17, 1985, suffers the discriminatory effects of a piece of legislation, these effects may be immunized from Charter review. Our skin colour is determined at birth — rights or entitlements assigned on the basis of skin colour by a particular law would, by this logic, “crystallize” then. Under the approach proposed by the respondent, individuals born before s. 15 came into effect would therefore be unable to invoke the Charter to challenge even a recent application of such a law. In fact, Parliament or a legislature could insulate discriminatory laws from review by providing that they applied only to persons born before 1985.
[17] Iacobucci J., speaking for a unanimous Court, went on to devise the proper approach (at paragraph 55):
In my opinion, the appellant’s situation is more analogous to that of the plaintiff in Andrews, supra. Mr. Andrews applied to practise law in British Columbia. Section 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, required him to be a Canadian citizen, which he had never been. In holding that this provision violated s. 15(1) of the Charter, this Court did not focus on the date on which Mr. Andrews became an alien (the date of his birth), but rather on the date on which he was confronted by a law which took his lack of Canadian citizenship into account. I believe the same approach is appropriate here …. [My emphasis.]
[18] He added at paragraph 56:
In applying s. 15 to questions of status, or what Driedger, supra, calls “being something”, the important point is not the moment at which the individual acquires the status in question, it is the moment at which that status is held against him or disentitles him to a benefit. Here, that moment was when the respondent Registrar considered and rejected the appellant’s application. Since this occurred well after s. 15 came into effect, subjecting the appellant’s treatment by the respondent to Charter scrutiny involves neither retroactive nor retrospective application of the Charter. [My emphasis.]
[19] In the present case, the Motions Judge found as a fact that the appellant was confronted by and had engaged the provisions of the Act on numerous occasions long before the Charter came into force. The record before him established that the appellant was first deported for narcotics convictions on March 7, 1972. He was subsequently deported 12 times for narcotics convictions and Immigration Act [R.S.C., 1985, c. I-2] matters. Each time the appellant was to be deported he was brought for inquiry under the Immigration Act. At each of these inquiries the appellant asserted that he was a Canadian citizen and had acquired Canadian citizenship from his mother who was Canadian at the time of his birth. Each time the appellant made these assertions he was advised that he was not a citizen and that he could not have acquired that citizenship from his mother. (Appeal Book, tab 6, pages 73, 82, 85, 103, 110, 119, 140, 145, 149, 154 and 162.)
[20] The Motions Judge noted in his reasons that at these inquiries, where a person claims to be a Canadian citizen, the inquiry must be adjourned if it is determined that, but for the person’s claim of citizenship, a removal order would be made. The adjournment is for the purpose of allowing the person to apply for the issuance of a certificate of citizenship pursuant to subsection 12(1) of the Act. In this case, no such application was made during the adjournments, and the adjudicator at each stage upon reviewing the evidence relevant to the appellant’s claim of citizenship concluded that it had not been made out.
[21] Counsel nevertheless argued that there was no evidence that the appellant engaged the provisions of the Citizenship Act per se because he had never formally applied to be granted Canadian citizenship or to be recognized as a Canadian citizen.
[22] This distinction is in my view immaterial. One’s citizenship (or lack thereof) has implications not only under the Citizenship Act but also under a variety of other statutes which incorporate this notion. Hence, the defining moment based on the test adopted by the Supreme Court in Benner, was not the date on which Mr. Benner made an application under the Citizenship Act, but the date on which he was first “confronted by a law which took his lack of Canadian citizenship into account.”
[23] In Benner, that moment happened to be when Mr. Benner applied for citizenship and was refused. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, it was when Mr. Andrews sought admission to the British Columbia Bar and was refused. In this instance, it was when the appellant resisted being deported on the ground that he was a Canadian citizen and it was held that he was not. The moment in question in each case is when the status of those concerned was held against them so as to disentitle them to a benefit.
[24] Applying the test framed by the Supreme Court in Benner to the facts in issue leads to the clear conclusion that the appellant was confronted by and engaged the provisions of the Act well before the Charter came into force. In my view, the Motions Judge committed no error when he held that the appellant was seeking to apply the Charter retroactively.
[25] For these reasons, I would dismiss the appeal. As no costs were sought, none are awarded.
Evans J.A.: I agree.
Sharlow J.A.: I agree.