[2013] 3 F.C.R. 640
2012 FC 98
T-405-11
Ian William Jabour (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
T-406-11
Adam George Jabour (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Jabour v. Canada (Citizenship and Immigration)
Federal Court, Near J.—Halifax, December 15, 2011; Ottawa, January 25, 2012.
Citizenship and Immigration — Status in Canada — Citizens — Judicial review of citizenship officer’s refusal to issue citizenship certificates to applicants — Applicants, father born in United States — Father entitled to citizenship as person born abroad to citizen pursuant to Citizenship Act, s. 3(1)(g) — Citizenship officer finding applicants falling under Act, s. 3(3)(a) first generation limit, not meeting requirements of Act, s. 3(1)(b) — Applicants arguing first generation limit applying prospectively to persons born after coming into force date of An Act to amend the Citizenship Act (Bill C-37) — Whether citizenship officer erring in refusing to issue citizenship certificates — Citizenship officer not erring in refusing proof of citizenship — S. 3(3)(a) clearly excluding applicants as they were second generation born outside Canada — Applicants not meeting s. 3(1) requirements — Transitional provision in s. 3(4) not applying to applicants, not recognizing new rights arising from retroactivity provided for elsewhere in Act, s. 3 — Persons of second generation born abroad prior to coming into force of Bill C-37 not excluded from first generation limit — Application dismissed.
Construction of Statutes — Applicants, father born in United States — Father entitled to citizenship as person born abroad to citizen pursuant to Citizenship Act, s. 3(1)(g) — Citizenship officer refusing to issue citizenship certificates to applicants based on first generation limit imposed by Act, s. 3(3)(a) — Applicants arguing first generation limit applicable prospectively to persons born after coming into force date of An Act to amend the Citizenship Act — Use of words “on the coming into force of that subsection, is a citizen” in Act, s. 3(4), distinct from “before the coming into force”, not automatically leading to conclusion Parliament intended transitional provision be applied to applicants based on retroactive acquisition of father’s citizenship — Parliament would have worded s. 3(4) differently if words “on the coming into force” intended to have significance suggested by applicants.
These were consolidated applications for judicial review of a citizenship officer’s refusal to issue citizenship certificates to the applicants.
The applicants’ paternal grandmother lost her Canadian citizenship in 1949 when she became a naturalized citizen of the United States. The applicants and their father were born in the United States. When it came into force, Bill C-37 restored the citizenship of the applicants’ grandmother. Their father was entitled to a citizenship certificate as a person born outside Canada to a citizen parent pursuant to paragraph 3(1)(g) of the Citizenship Act. The applicants were not issued certificates because paragraph 3(3)(a) of the Act limits citizenship by descent to the first generation born outside Canada. Since their father was also born outside Canada and issued a certificate, the applicants could not meet the requirements for citizenship prescribed by paragraph 3(1)(b) of the Act.
The applicants asserted that they should not have been excluded from citizenship based on the first generation limit imposed by paragraph 3(3)(a) in light of the transitional provision in subsection 3(4) of the Act, which provides that subsection 3(3) does not apply to a person who, on the coming into force of that subsection, is a citizen. The applicants argued that the first generation limit was only to be applied prospectively to persons born after the coming into force date of Bill C-37.
At issue was whether the citizenship officer erred in refusing to issue citizenship certificates to the applicants based on paragraph 3(3)(a).
Held, the application should be dismissed.
The citizenship officer did not err in refusing proof of citizenship to the applicants. A straightforward reading of paragraph 3(3)(a) clearly excluded the applicants from citizenship, as they were the second generation born outside Canada. They could not meet the requirements under subsection 3(1) to be recognized as citizens because their father has citizenship based on paragraph 3(1)(g). The use of the words “on the coming into force of that subsection, is a citizen” in subsection 3(4), distinct from the terminology “before the coming into force” employed elsewhere in the Act, does not automatically lead to the conclusion that Parliament intended the transitional provision to be applied to the applicants based on the retroactive acquisition of their father’s citizenship. The motivation behind the transitional provision was the loss of citizenship by those in the second or subsequent generations born abroad, rather than the recognition of new rights arising from the retroactivity provided for in other components of section 3 of the Act. If the words “on the coming into force” in subsection 3(4) were intended to have the significance suggested by the applicants, Parliament could have worded the transitional provision differently. For example, it could have stated that anyone born abroad in the second or subsequent generation prior to the coming into force date is excluded from the first generation limit. It chose not to do so. Instead, the exception in subsection 3(4) is associated with preventing the loss of citizenship by those having previously retained it. While a main aim of Bill C-37 was to address the issue of “lost Canadians”, it also sought to protect the value of citizenship by limiting it to the first generation born abroad and ensure simplicity and clarity missing in previous enactments.
STATUTES AND REGULATIONS CITED
Bill C-37, An Act to amend the Citizenship Act, 2nd Sess., 39th Parl., 2008.
Canadian Citizenship Act (The), S.C. 1946, c. 15.
Citizenship Act, R.S.C., 1985, c. C-29, s. 3 (as am. by S.C. 1995, c. 5, s. 25; 2007, c. 24, s. 1; 2008, c. 14, ss. 2, 13).
Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).
CASES CITED
applied:
Rabin v. Canada (Citizenship and Immigration), 2010 FC 1094.
considered:
Azziz v. Canada (Citizenship and Immigration), 2010 FC 663, 368 F.T.R. 281; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418, 154 D.L.R. (4th) 193; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, 259 D.L.R. (4th) 193, [2005] 5 C.T.C. 215; Jabel Image Concepts Inc. v. Canada, 2000 CanLII 15319, [2000] G.S.T.C. 45, 257 N.R. 193 (F.C.A.).
referred to:
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577.
AUTHORS CITED
Canada. Legislative Summary LS-591E. Bill C-37: An Act to amend the Citizenship Act, prepared by Penny Becklumb, Law and Government Division, 9 January 2008, revised 23 September 2008.
Canada. Parliament. Standing Senate Committee on Social Affairs, Science and Technology. Proceedings, No. 5 (April 10, 2008), at page 5:12 (Hon. Diane Finley).
Citizenship and Immigration Canada. Operational Bulletin 102, “Implementation of Bill C-37, an Act to Amend the Citizenship Act”, February 26, 2009, online: <http://www.cic.gc.ca/english/resources/manuals/bulletins/2009/ob102.asp>.
APPLICATIOnS for judicial review of a citizenship officer’s refusal to issue citizenship certificates to the applicants. Application dismissed.
APPEARANCES
Bruce C. Allen and Blair Hodgman for applicants.
Jonathan Shapiro and Lori Rasmussen for respondent.
SOLICITORS OF RECORD
Allen & Hodgman, Chester, Nova Scotia, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment and judgment rendered in English by
[1] Near J.: The applicants, brothers Ian William Jabour and Adam George Jabour, are contesting a citizenship officer’s refusal to issue them citizenship certificates on the basis that they do not meet the requirements of the Citizenship Act, R.S.C., 1985, c. C-29 (the Act).
[2] Their applications for judicial review (T-405-11 and T-406-11), as brought under section 18.1 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. idem, s. 14)], were consolidated into one by an order dated April 12, 2011.
[3] For the following reasons, this application is dismissed.
I. Facts
[4] The applicants’ paternal grandmother, Alice Brady (known as Alice Jabour following her marriage), was born in Vancouver, British Columbia on June 25, 1921. Since Canada did not have citizenship legislation at the time, she was initially considered a British subject.
[5] The coming into force of The Canadian Citizenship Act, S.C. 1946, c. 15 (1947 Act) described her as a natural-born Canadian citizen. However, she lost this citizenship in 1949 when she became a naturalized citizen of the United States of America.
[6] Her son, Dale Timothy Jabour, was born in the United States of America on July 8, 1953. His parents were not Canadian citizens at the time of his birth.
[7] The applicants are the sons of Dale Timothy Jabour. Adam was born on December 29, 1984 and Ian was born on October 22, 1991 also in the United States of America.
[8] On July 30, 2010, the applicants applied along with their father for Canadian citizenship certificates (or proof of citizenship). Only their father was ultimately issued a certificate.
[9] When it came into force on April 17, 2009, Bill C-37 (or An Act to amend the Citizenship Act, 2nd Sess., 39th Parl., 2008) restored the citizenship of the applicants’ grandmother, Alice Jabour, back to the date of loss in 1949. As a consequence, their father was entitled to a citizenship certificate as a person born outside Canada to a citizen parent under paragraph 3(1)(g) [as enacted by S.C. 2008, c. 14, s. 2]. His citizenship was also deemed retroactive to his date of birth by the operation of paragraph 3(7)(e) [as enacted idem].
II. Decision under Review
[10] In letters dated February 8, 2011, the citizenship officer refused to issue certificates to the applicants because paragraph 3(3)(a) [as enacted idem, s. 13] of the Act limits citizenship by descent to the first generation born outside Canada. Since their father was also born outside Canada and issued a certificate under paragraph 3(1)(g), the applicants could not meet the requirements for citizenship prescribed by paragraph 3(1)(b).
III. Legislative Scheme
[11] Canadian citizenship legislation has undergone several changes since the introduction of the first 1947 Act. In 1977, parents were allowed to pass citizenship to their children born outside Canada irrespective of their marital status. Prior to this change, women married to foreign nationals were unable to do so since citizenship followed the “responsible parent”, deemed to be the male in a marriage. At that time, citizenship could also be passed to subsequent generations born outside of the country, provided certain retention requirements were met.
[12] The most significant changes, however, came with an attempt to simplify the existing scheme and restore citizenship to those individuals termed “lost Canadians” in 2009 by way of Bill C-37, referred to above. This introduced the amended version of section 3 [as am. by S.C. 1995, c. 5, s. 25; 2007, c. 24, s. 1; 2008, c. 14, ss. 2, 13] central to the application before this Court.
[13] Paragraph 3(1)(b) confers citizenship on those persons born outside the country to a Canadian parent. It provides:
| Persons who are citizens |
3. (1) Subject to this Act, a person is a citizen if … (b) the person was born outside Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen; |
[14] Under paragraph 3(1)(f), persons having ceased to be citizens for reasons other than the following prohibited grounds are entitled to have their citizenship restored. This includes restoration for those who became naturalized citizens of another country:
| Persons who are citizens |
3. … (f) before the coming into force of this paragraph, the person ceased to be a citizen for any reason other than the following reasons and did not subsequently become a citizen: (i) the person renounced his or her citizenship under any of the following provisions: (A) paragraph 19(2)(c) of the Canadian Citizenship Act, S.C. 1946, c. 15, as enacted by S.C. 1951, c. 12, s. 1(3), (B) paragraph 19(2)(c) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, (C) subparagraph 19(1)(b)(iii) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as enacted by S.C. 1967-68, c. 4, s. 5, (D) subparagraph 18(1)(b)(iii) of the former Act, (E) section 8 of the Citizenship Act, S.C. 1974-75-76, c. 108, or (F) section 9 of this Act, (ii) the person’s citizenship was revoked for false representation, fraud or concealment of material circumstances under any of the following provisions: (A) paragraph 21(1)(b) of the Canadian Citizenship Act, S.C. 1946, c. 15, (B) paragraph 19(1)(b) of the Canadian Citizenship Act, S.C. 1946, c. 15, as enacted by S.C. 1950, c. 29, s. 8, (C) paragraph 19(1)(b) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as it read before the coming into force of An Act to amend the Canadian Citizenship Act, S.C. 1967-68, c. 4, (D) paragraph 19(1)(a) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as enacted by S.C. 1967-68, c. 4, s. 5, (E) paragraph 18(1)(a) of the former Act, (F) section 9 of the Citizenship Act, S.C. 1974-75-76, c. 108, or (G) section 10 of this Act, or (iii) the person failed to make an application to retain his or her citizenship under section 8 as it read before the coming into force of this paragraph or did make such an application that subsequently was not approved; |
[15] The restoration of citizenship occurs to the date those persons ceased to be citizens by the wording of paragraph 3(7)(c):
| 3. … |
|
| Deemed application |
(7) Despite any provision of this Act or any Act respecting naturalization or citizenship that was in force in Canada at any time before the day on which this subsection comes into force … (c) a person referred to in paragraph (1)(f) who, at the time he or she ceased to be a citizen, was a citizen by way of grant is deemed to have been granted citizenship under that paragraph at that time; |
[16] In addition, persons born outside the country to a parent who was a Canadian citizen at the time of their birth before 1977 but had not become a citizen prior to the coming into force of Bill C-37 could obtain citizenship under paragraph 3(1)(g):
| Persons who are citizens |
3. … (g) the person was born outside Canada before February 15, 1977 to a parent who was a citizen at the time of the birth and the person did not, before the coming into force of this paragraph, become a citizen; |
[17] Paragraph 3(7)(e) deems them to be citizens from their date of birth:
| 3. … |
|
| Deemed application |
(7) Despite any provision of this Act or any Act respecting naturalization or citizenship that was in force in Canada at any time before the day on which this subsection comes into force … (e) a person referred to in paragraph (1)(g) or (h) is deemed to be a citizen from the time that he or she was born; |
[18] Nevertheless, the passing of citizenship by descent to children born outside Canada is now limited to the first generation by the operation of paragraph 3(3)(a):
| 3. … |
|
| Not applicable — after first generation |
(3) Subsection (1) does not apply to a person born outside Canada (a) if, at the time of his or her birth or adoption, only one of the person’s parents is a citizen and that parent is a citizen under paragraph (1)(b), (c.1), (e), (g) or (h), or both of the person’s parents are citizens under any of those paragraphs; or |
[19] Bill C-37 did provide transitional provision 3(4) as an exception for those persons born abroad to succeeding generations who were already considered citizens. It enables them to retain their existing citizenship as follows:
| 3. … |
|
| Exception — transitional provision |
(4) Subsection (3) does not apply to a person who, on the coming into force of that subsection, is a citizen. |
IV. Issue
[20] The sole issue raised by these applications is:
(a) Did the citizenship officer err in refusing to issue citizenship certificates to the applicants based on paragraph 3(3)(a)?
V. Standard of Review
[21] The parties disagree as to the appropriate standard.
[22] The applicants assert that the citizenship officer’s decision should be reviewed based on correctness as it turns on the interpretation of the exception provided in subsection 3(4) of the Act. They refer to the factors relevant to standard of review analysis as described in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. The applicants note that there is no privative clause and the ministerial function of the Case Processing Centre (CPC) in Nova Scotia is to issue proof of citizenship rather than to act as a tribunal. They insist that this is a matter of statutory construction, not specialized knowledge of the subject-matter of the Act. While the CPC has expertise in fact-finding, this does not extend to the questions of law of general significance raised in the present case.
[23] By contrast, the respondent contends that the decision is deserving of the deference afforded by the reasonableness standard. Despite the absence of a privative clause, citizenship officers have special expertise in the exact issue under review—whether an individual has established they are a Canadian citizen based on the legislative requirements and should be issued a certificate. The Act establishes a discrete and specialized regime. Citizenship officers do not consider questions of law of central importance to the legal system outside of their specialized area of expertise in the administration of this regime. The respondent also highlights recognition in Dunsmuir, above, at paragraph 56 that some questions of law may be more appropriately decided on the basis of reasonableness.
[24] The parties direct the Court’s attention to two cases referring to the standard of review and decisions made under this Act. While instructive, neither provides an extensive analysis of the issue.
[25] For example, Azziz v. Canada (Citizenship and Immigration), 2010 FC 663, 368 F.T.R. 281, at paragraphs 27–28, simply states:
Having analyzed the standard of review based on the usual tests, I am of the opinion that the correctness standard applies to the questions of law raised in this case, while the reasonableness standard applies to the findings of fact regarding which the analyst has recognized expertise. The questions of procedural fairness or bias are subject to the standard of correctness.
In this respect, an analyst’s decision concerning the sufficiency of the evidence submitted by an applicant to confirm the citizenship of a person is reasonableness (Worthington v. Canada, 2008 FC 409, [2009] 1 F.C.R. 311 at paragraph 63).
[26] Since the decision proceeds to address the sufficiency of evidence to conclude that the individual was not a Canadian citizen under the Act based on the reasonableness standard, it does not clarify what, if any, distinct questions of law warranted a determination based on correctness.
[27] In Rabin v. Canada (Citizenship and Immigration), 2010 FC 1094, at paragraphs 16–17, Justice Richard Boivin quoted the passage from Azziz, above, and determined that a “Citizenship Officer’s decision must therefore be reviewed on the standard of reasonableness” without distinguishing questions of law. However, he goes on to assert at paragraph 19 of his decision that “[t]he interpretation of section 3 of the Act — more particularly paragraphs 3(1)(b), 3(1)(g) and 3(3)(a) — is at the heart of this judicial review application.” This assertion is supported by his subsequent references to how the provisions applied to the applicants in that case.
[28] Although Rabin, above, did not consider the impact of subsection 3(4), as brought forward by the applicants in this instance, it appears to address sufficiently similar issues of the interpretation and application of the other statutory requirements. Based on this decision and the role of the citizenship officer in the administration of a discrete regime, I am inclined to agree with the respondent that at least some deference is owed to the decision maker and the reasonableness standard should be applied.
[29] In any event, the intervention of this Court in favour of the applicants’ approach to applying the legislation would not be warranted under either standard.
VI. Analysis
[30] The applicants assert that they should not have been excluded from citizenship based on the first generation limit imposed by paragraph 3(3)(a) in light of transitional provision 3(4). Since the citizenship of their grandmother is restored to the date of loss and their father’s citizenship is retroactive to his date of birth under the deeming provisions of subsection 3(7), they argue citizenship should be regarded as having passed to them irrespective of the new first generation limit.
[31] Although not previously recognized, they would be considered citizens “on the coming into force” of paragraph 3(3)(a) and able to benefit from the exception provided in subsection 3(4). According to the applicants, the transitional provision ensured that the first generation limit was only to be applied prospectively to persons born after the coming into force date of April 17, 2009. This approach is also consistent with the primary goal of Bill C-37 to restore citizenship to “lost Canadians”.
[32] The respondent contends that the exception contained in subsection 3(4) does not apply to the applicants and cannot be used to trump the first generation limit. The aim of the transitional exception was to avoid taking away previously vested citizenship rights, not to provide citizenship retroactively beyond the first generation. This interpretation of subsection 3(4) ensures consistency in the application of the entire Act, given prior retention requirements and the other specific exceptions it contains. The respondent notes that the imposition of the first generation limit would conform to previous jurisprudence. The interpretation adopted also represents good public policy as it promotes fairness and clarity in the application of legislative requirements.
[33] To determine whether the citizenship officer erred in imposing the first generation limit of paragraph 3(3)(a) despite the exception in subsection 3(4), I must consider the words of the provisions as applied to the applicants and “read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paragraph 21; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at paragraph 10).
[34] On its face, paragraph 3(3)(a) clearly excludes the applicants from citizenship, as they are the second generation born outside Canada. They cannot meet the requirements under subsection 3(1) to be recognized as citizens because their father has citizenship based on paragraph 3(1)(g). This straightforward reading of the Act was emphasized by Justice Boivin in similar circumstances in Rabin, above, at paragraph 22:
However, paragraph 3(1)(b) cannot be read in a vacuum. The legal effect of applying for citizenship by virtue of paragraph 3(1)(g) — which is the case for the applicant’s mother — triggers paragraph 3(3)(a) and consequently the non-applicability of paragraph 3(1)(b) to the applicant. The introductory wording of subsection 3(1) of the Act is clear: Subject to this Act (...), as is the wording of paragraph 3(3)(a): Subsection (1) does not apply to a person born outside Canada (...). [Emphasis in original.]
[35] Justice Boivin maintained that paragraph 3(3)(a) applied to the applicant in that case because his mother acquired her citizenship based on paragraph 3(1)(g) and the applicant was part of the second generation born in the United States. He expressly rejected arguments that the applicant should be able to benefit retroactively from his mother’s citizenship as this intent was not clear from the relevant provisions. As stated at paragraphs 27–28 of the decision:
Paragraph 3(3)(a) thus expressly excludes from citizenship by descent persons born outside Canada if, at the time of their birth or adoption, one of their parents is a Canadian citizen under paragraphs (1)(b), (c.1), (e), (g), or (h) of the Act. The evidence establishes that the applicant’s mother’s situation is covered by paragraph 3(1)(g): she was not a citizen prior to the coming into force of Bill C-37 on April 17, 2009, but was eligible to apply for proof of citizenship under paragraph 3(1)(g) of the Act which she did in May 2009. By virtue of paragraph 3(3)(a), paragraph 3(1)(b) of the Act does not apply to the applicant and, as a result, the limitation of citizenship by descent to the first generation born outside Canada to a Canadian parent rule applies to the applicant.
The applicant also raised an argument based on the legal theory of retroactivity by which he should benefit retroactively [from] his mother’s citizenship. The Court is of the view that the relevant statutory provisions of the Act — paras 3(1)(b), 3(1)(g) and 3(3)(a) — read together cannot sustain the applicant’s retroactivity argument. The Court is unable to find any intent or clear indication in the Act with respect to retroactivity as it relates to the applicant in the case at bar. In accordance with the principle of the rule of law, the applicant’s retroactivity argument is unsustainable.
[36] I acknowledge that transitional provision 3(4) was not directly addressed by Justice Boivin in Rabin, above. Given the similarity of the facts scenario and the nature of the retroactivity argument, however, the general principles remain relevant to this analysis.
[37] Rabin supports the imposition of a bar to citizenship after the first generation born abroad to the applicants’ circumstances as described by paragraph 3(3)(a). This in spite of their father’s citizenship having been deemed retroactive to the day he was born.
[38] I must nonetheless consider whether the transitional provision has any bearing in this particular case.
[39] The applicants have stressed the use of the words “on the coming into force of that subsection, is a citizen” as distinct from the terminology “before the coming into force” employed elsewhere in the legislation. They claim this supports their position that with the operation of the other deeming provisions introduced by Bill C-37 they were citizens “on the coming into force”, even though they were not previously recognized in this manner.
[40] There is some logic to this argument. As stated in Jabel Image Concepts Inc. v. Canada, 2000 CanLII 15319, [2000] G.S.T.C. 45 (F.C.A.), at paragraph 12, “[w]hen an Act uses different words in relation to the same subject such a choice by Parliament must be considered intentional and indicative of a change in meaning or a different meaning” [footnote omitted].
[41] However, I am not convinced that this automatically leads to the conclusion that Parliament intended the transitional provision to be applied to the applicants based on the retroactive acquisition of their father’s citizenship. On the contrary, there appears to have been no real consideration of a situation such as the applicants as the reason for including subsection 3(4).
[42] For example, the clause-by-clause analysis of Bill C-37 prepared for Parliament states:
Subsection 3(4) clarifies that, despite subsection 3(3) no one will lose their Canadian citizenship on the coming into force of the bill even if they are already the second or subsequent generation born abroad.
[43] This suggests that the motivation behind the transitional provision was the loss of citizenship by those in the second or subsequent generations born abroad, rather than the recognition of new rights arising from the retroactivity provided for in other components of section 3.
[44] In a statement to the Standing Senate Committee on Social Affairs, Science and Technology on April 10, 2008 [Proceedings, No. 5], the Honourable Diane Finley, the Minister of Citizenship and Immigration, as she then was, listed the impact of Bill C-37 on the citizenship of various individuals [at pages 5:12 and 5:13]:
Those who have Canadian citizenship when the amendments come into force would remain Canadian citizens. Second, anyone who became a citizen under the Canadian Citizenship Act of 1947 and subsequently lost his or her citizenship would have it restored. Third, anyone who was born in Canada on or after January 1, 1947, and who subsequently lost his or her citizenship, would have it restored. Fourth, anyone who was naturalized as a citizen of Canada on or after January 1, 1947 and subsequently [lost] his or her citizenship, would have it restored. Finally, those born abroad to a Canadian citizen on or after January 1, 1947, who were not already citizens would become citizens if they were the first generation born abroad. [Emphasis added.]
[45] While this statement anticipated the granting of citizenship to the applicants’ father, it does not appear to contemplate the acquisition of citizenship among those, such as the applicants, outside the first generation born abroad by implication.
[46] Issued by Citizenship and Immigration Canada (CIC), Operational Bulletin 102 on the “Implementation of Bill C-37, an Act to amend the Citizenship Act”, February 26, 2009, indicated that certain “individuals will not become citizens” (emphasis in original) on April 17, 2009. This included “[p]eople who were born to a Canadian parent in the second or subsequent generation outside Canada, who are not already citizens or who lost their citizenship in the past (including people who did not take the steps needed to retain their citizenship)” (emphasis in original).
[47] To support their claim that the first generation limit would only be applied prospectively, the applicants rely on the Legislative Summary – Bill C-37: An Act to amend the Citizenship Act [LS-591E] prepared by the Parliamentary Information and Research Service (January 9, 2008). Describing exception 3(4), it states [at page 10]:
This new rule cutting off citizenship after one generation born abroad is only applicable to people born after the rule comes into effect. People born before the rule comes into effect and who are second- or subsequent generation Canadians born abroad retain their existing Canadian citizenship (new section 3(4)). In fact, their position is improved under Bill C-37 as they are no longer subject to the requirement to register and retain citizenship by age 28. However, Bill C-37 provides no relief for those people who are the second or subsequent generation born abroad since 14 February 1977 and who have lost their citizenship because they failed to register and retain it before reaching age 28.
[48] Read in isolation the first sentence would seem to support the applicants’ contention, however, the remainder of the paragraph provides greater precision. It only refers to individuals in the second or subsequent generations born abroad whose citizenship was previously subject to retention requirements. Despite the broad assertion, it never expressly addresses a situation analogous to the applicants.
[49] Indeed, the exclusion of those individuals who failed to meet the earlier retention requirements from the acquisition of citizenship reinforces that the applicants should not be given the benefit of retroactivity and automatic recognition of citizenship status. Upholding the necessity of the retention requirement to have maintained citizenship “on the coming into force” of Bill C-37 while at the same time allowing second or subsequent generations born abroad to acquire previously unrecognized rights would be inconsistent.
[50] Moreover, if the use of the terminology “on the coming into force” in subsection 3(4) was intended to have the significance suggested by the applicants, it is not unreasonable to expect some acknowledgement of that purpose in recognizing citizenship for those in second or subsequent generations born in another country more broadly.
[51] To clarify such an intention, Parliament could have worded the transitional provision differently. For example, it could have stated that anyone born abroad in the second or subsequent generation prior to the coming into force date (April 17, 2009) is excluded from the first generation limit, but chose not to do so. Instead, exception 3(4) is associated with preventing the loss of citizenship by those having previously retained it.
[52] Undoubtedly, a main aim of Bill C-37 was to address the issue of “lost Canadians”. However, it also sought to protect the value of citizenship by limiting it to the first generation born abroad and ensure simplicity and clarity missing in previous enactments. Providing avenues to restore citizenship to the applicant’s grandmother and by implication their father, while at the same time restricting any further benefits to those beyond the first generation born abroad and excluding the applicants is reflective of these combined objectives.
[53] The citizenship officer cannot be said to have erred in its approach to refusing proof of citizenship to the applicants based on paragraph 3(3)(a). Those born in the second generation outside of Canada were not expected to be granted citizenship as a result of the amendments. Consequently, subsection 3(4) does not apply to the applicants.
VII. Conclusion
[54] The applicants were precluded from receiving citizenship certificates based on paragraph 3(3)(a) as part of the second generation born abroad. The Citizenship Judge did not err in reaching this conclusion and failing to apply transitional provision 3(4). That provision was not intended for the applicants, but those who had already acquired citizenship and met the retention requirements.
[55] Accordingly, this application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is that this application for judicial review is dismissed.