Judgments

[1994] 1 F.C. 250

A-967-91

Mark Donald Benner (Appellant) (Applicant)

v.

The Secretary of State of Canada and the Registrar of Citizenship (Respondents) (Respondents)

Indexed as: Benner v. Canada (Secretary of State) (C.A.)

Court of Appeal, Marceau, Linden and Létourneau JJ.A.—Vancouver, June 10; Ottawa, June 30, 1993.

Citizenship and Immigration — Status in Canada — Citizens — Appeal from denial of citizenship — Appellant born in 1962 in U.S.A. to Canadian mother married to American father — 1947 Citizenship Act providing person born abroad to Canadian father natural-born Canadian, but not if born to Canadian mother, unless unmarried — 1977 Act providing those born abroad before coming into force of 1977 Act to Canadian fathers remaining automatically entitled to Canadian citizenship, but those claiming citizenship through Canadian mothers married to foreigners required to apply for citizenship, subject to extra procedures — Appellant failing criminal record check — Whether distinctions between maternal and paternal lineage claimants discrimination based on sex, contrary to Charter, s. 15 — Whether alleged discrimination arising at time of birth under 1947 Act or upon 1989 application for citizenship under current Act — If legislation discriminatory, whether saved by Charter s. 1 — Retroactive, retrospective application of Citizenship Act, Charter.

Constitutional law — Charter of Rights — Equality rights — Appeal from denial of citizenship — Appellant born in 1962 in U.S.A. to Canadian mother married to American father — 1947 Citizenship Act providing person born abroad to Canadian father natural-born Canadian, but not if born to Canadian mother unless unmarried — 1977 Act providing those born abroad before coming into force of 1977 Act to Canadian fathers remaining automatically entitled to Canadian citizenship, but those claiming citizenship through Canadian mothers married to foreigners required to apply for citizenship, subject to extra procedures — Appellant failing criminal record check — Whether Charter, s. 15 applied — Whether 1947 or 1977 Act cause of alleged discrimination — Whether treatment in 1989 under current Act or birth in 1962 relevant event giving rise to alleged discrimination — Whether distinctions between maternal and paternal lineage citizenship claimants discrimination based on sex.

Constitutional law — Charter of Rights — Limitation clause — If 1977 Citizenship Act discriminating between maternal and paternal lineage claimants based on sex because only former subject to oath requirements, criminal record check, whether saved by Charter, s. 1 — Whether objectives of application process for maternal lineage claimants (to establish allegiance to Canada, ensure security of nation, safety of people) sufficiently important to warrant overriding constitutionally protected right — Whether requirements of three-part proportionality test met.

Construction of statutes — Retroactivity, retrospectivity — 1947 Citizenship Act conferring automatic citizenship on children born abroad to Canadian fathers, but not on those born to Canadian mothers, unless unmarried — 1977 Act continuing automatic citizenship for paternal lineage claimants, but maternal lineage claimants subject to extra procedures i.e. criminal record check, oath of allegiance — Appellant, born in U.S.A. in 1962, to Canadian mother married to American father applying for Canadian citizenship — Application denied in 1989 because failed criminal record check — Whether treatment under current Act in 1989 or birth in 1962 relevant event giving rise to alleged discrimination i.e. whether 1947 or 1977 Act cause of alleged discrimination — If former, involving retroactive application of Charter — Charter not applying retroactively, retrospectively — Whether constitutional challenge to 1977 Act involving retroactive application of Charter — Legislation conferring citizenship on maternal lineage claimants, or subjecting paternal lineage claimants to same procedures as maternal lineage claimants retroactive as changing legal effect of event taking place before enactment.

This was an appeal from the trial judgment dismissing an appeal from the denial of the appellant’s application for Canadian citizenship. He is an American citizen, born in the U.S.A. in 1962 to a Canadian mother who was married to his American father. Between 1947 and 1977 the Canadian Citizenship Act provided that a person born outside Canada to a father who was a Canadian citizen would be a natural-born Canadian, but not if he was born to a Canadian mother, unless she was unmarried. In 1977 the Citizenship Act was amended. Individuals born outside of Canada prior to 1977 whose fathers were Canadian citizens remained automatically entitled to Canadian citizenship upon registering their birth. Any person born outside Canada before the coming into force of the Act to a Canadian mother married to a non-Canadian father was permitted to apply for citizenship, but extra procedures, including swearing or affirming an oath of citizenship and passing a criminal background check, were required. In addition, the requirements of the Citizenship Regulations had to be satisfied. In 1987 the appellant applied for Canadian citizenship. His application was rejected in 1989 because he failed the criminal clearance procedure under the Act, section 22. On appeal to the Trial Division, the appellant argued that Citizenship Act, paragraphs 3(1)(e), 5(2)(b) and section 22 and Citizenship Regulations, section 20 were discriminatory contrary to Charter, section 15. The Trial Judge held that the Charter did not apply retrospectively and section 15 did not have effect until April 17, 1985. Although a continuing discriminatory practice would not involve retrospective application of the Charter, there was no continuing discriminatory practice as it had been rectified as of February 15, 1977.

The appellant argued that the Act and Regulations discriminated based on sex in that children born abroad of married Canadian mothers are treated less favourably than children born abroad of married Canadian fathers with regard to their entitlement to automatic citizenship by birth.

The issues were whether the distinctions between maternal and paternal lineage applicants constituted discrimination contrary to Charter, section 15; and if so, whether that discrimination was justified under Charter, section 1.

Held (Linden J.A. concurring in the result), the appeal should be dismissed.

Per Marceau J.A.: There was no discrimination based on sex in the 1947 legislation not conferring on children born abroad to Canadian mothers married to foreigners the same entitlement to automatic citizenship by birth that it conferred on children born to Canadian fathers. The 1947 provisions were based on contemporary attitudes—resulting from long-standing stereotyping of women—as to the organization of society, the effects of marriage and the family unit. That the child born abroad in wedlock acquired his father’s citizenship was not directly linked to any prejudice regarding the sex of the parents and had nothing to do with the sex of the child.

The 1977 Act did not discriminate based on sex. A child born abroad to a Canadian mother married to his non-Canadian father was required to seek and be granted citizenship due solely to the fact that he was not then a Canadian citizen by birth under the Act in force at the moment of his birth.

Legislation automatically conferring Canadian citizenship on a child previously born abroad to a Canadian mother and non-Canadian father, would have been retroactive since it would have changed the legal effect of an event that took place before its enactment. Non-acquisition of Canadian citizenship by birth is a legal status definitively and finally settled pursuant to the existing law at the moment of birth. The appellant alleged that he did not seek retroactive application of the Charter since his claim is not based on the 1947 Act, but exclusively on the treatment he received in 1989 under the current Act. It is not the moment when a claimant has been actually affected by the provisions of an Act that is relevant in determining whether he is seeking a retroactive application of the Charter. It is whether the contended discrimination would flow from the provisions themselves i.e. from the previously acquired legal situation that those provisions acted upon. The Charter does not apply retroactively. The impugned provisions applied to maternal offspring because they were not citizens by birth.

Per Linden J.A. (concurring in the result): The appellant’s treatment in 1989 under the current Citizenship Act and the status of the 1977 Act, not the 1947 Act, were the subject of this appeal.

This was not a case of retrospective operation of the Charter. While his citizenship was originally determined when he was born, the appellant was not seeking to have his citizenship changed retroactive to that date. The relevant event was the rejection of the appellant’s citizenship application in 1989 when his right to equality allegedly crystallized and was allegedly violated. The current Citizenship Act came into force on February 15, 1977, was in force in 1985 when section 15 of the Charter came into effect, and remains in force. The 1977 Citizenship Act was therefore subject to Charter scrutiny and is the Act that is challenged. Assessing the validity of the provisions of an existing statute does not involve retrospective application of section 15, particularly where the legislation is challenged as a result of treatment under that statute after the coming into force of section 15.

The Citizenship Act draws a distinction which denies equality under the law and equal benefit of the law to maternal lineage applicants. Although the different treatment for citizenship purposes based on whether an individual was claiming through his mother or father was eliminated as to the future under the 1977 Citizenship Act, the new regime established thereunder for those born prior to 1977 continued that distinction.

While the Citizenship Act differentiates in its treatment of claimants based on the sex of the claimant’s parent, it does not draw a distinction based on the sex of the claimant. The discrimination against the mother is unfairly visited upon the child. This is not a case of one individual asserting the Charter rights of another. It is a case of an individual claiming to be discriminated against as a result of his association with a member of a group—women—subject to discrimination. Discrimination resulting from association is no more tolerable than direct discrimination.

For those born prior to 1977, the double standard that has been established in the 1977 Citizenship Act is discriminatory. In contrast to men, women who are Canadian citizens are not afforded the same opportunity to pass on their citizenship to their children born outside Canada. This distinction is the result of stereotyping and prejudice against women. Remnants of the discriminatory treatment of women have been continued in the new Act in the form of a separate and more onerous path for acquiring citizenship.

The legislation was, however, saved by Charter, section 1. The limit on Charter, section 15 rights was reasonable and demonstrably justified in a free and democratic society. (1) The respondents had established that the objective which the limitation was designed to promote was “of sufficient importance to warrant overriding a constitutionally protected right or freedom”. At a minimum, an objective must be “pressing and substantial” to qualify as sufficiently important. The objectives of the various stages in the application process for those relying on maternal lineage were to establish a commitment or allegiance to Canada and ensure the security of the nation and the safety of its people. They were pressing and substantial. (2) The respondents also satisfied the three-part proportionality test. (i) The measure limiting the Charter right was rationally connected to the intended objective. Swearing an oath is an appropriate way to determine an individual’s allegiance to this country. It is therefore rationally connected to the objective of establishing an individual’s allegiance to Canada. Similarly, the provisions precluding citizenship while charged with or on trial for an indictable offence, or if convicted of an indictable offence during the three years preceding an application for citizenship, is rationally connected to the objective of ensuring the security of the nation and the safety of its people. (ii) The second component of the proportionality test, i.e. that the limiting measures impair the Charter as little as possible, has been modified where the rights of different groups come in conflict and must be mediated. It depends on whether Parliament could “reasonably have chosen an alternative means which would have achieved the identified objective as effectively”. Since the existing citizenship rights of paternal lineage claimants conflicted with the equality rights of maternal lineage applicants, the modified standard of review was attracted. Although a scheme that subjects maternal and paternal lineage claimants to the same requirements would be superior as regards equality, that alternative was not reasonably available to Parliament. Paternal lineage claimants were entitled to register their citizenship under the 1947 Citizenship Act. To subject them to the same oath and criminal clearance requirements as maternal lineage claimants, Parliament would have had to derogate from their existing rights. To avoid that injustice, the government exempted paternal lineage claimants from those requirements. The balance chosen remedied the inequity to Canadian women and their children born outside the country resulting from the 1947 Citizenship Act without undercutting the existing rights of paternal lineage applicants. Parliament could not have chosen an alternative means which would have impaired the right in question less, but which would have achieved the identified objective as effectively. (iii) The effects of the measures were proportional to the significance of the objective to be achieved. Not providing the exemption accorded paternal lineage applicants born prior to 1977 to maternal lineage claimants born prior to 1977 was not a significant incursion into the equality rights of the latter, but it allowed the government to pursue the pressing and substantial objectives of the relevant provisions of the Citizenship Act.

Per Létourneau J.A.: The Charter did not apply. The cause of the alleged discrimination was the 1947 Citizenship Act. A Charter challenge to the 1947 Act would have involved retrospective application of the Charter to a prior legislation on account of a prior event. Section 15 should not be applied retrospectively. Although the 1977 Citizenship Act was clearly meant to have a retrospective application, the Charter, section 15 was not. It did not come into force until three years after the other provisions of the Charter so as to allow the legislatures time to effect any legislative changes needed to satisfy the constitutional guarantees provided by section 15.

The 1977 Act was enacted prior to the Charter and related to an event which took place prior to the Charter. A constitutional attack on that Act would have had to have been based on the argument that the 1977 Act was discriminatory because it did not eliminate the discrimination which occurred in 1962 because of the 1947 Citizenship Act and that would involve a retrospective or retroactive application of the Charter. The appellant was reading the 1977 Act as if the provision of the 1947 Act which created the differential treatment had never existed at all. This is retrospectivity.

For section 15 to apply there must be an actual or an ongoing discrimination which deprives one of equal protection and benefit of the law. The discriminatory legislation was repealed in 1977 and the discriminatory practice ceased as the 1977 Act eliminated for the future the source of discrimination. For those like the appellant who were governed by the 1947 Act, the discrimination crystallized on the date of their birth in a foreign country when they acquired a foreign nationality and the then Canadian Citizenship Act did not give them the right to acquire Canadian citizenship.

The treatment of the appellant under the 1977 Act was not discriminatory. Canadian women were subjected to a different treatment under the old law more on the basis of marital status than on sex. This differential treatment no longer exists for children born abroad after February 14, 1977 to either a Canadian father or mother. Because conferring Canadian citizenship on persons born outside of Canada prior to 1977 to married Canadian mothers would have national and international implications, Parliament made it optional for those aliens to acquire Canadian citizenship and imposed minimal conditions.

The section 22 prohibition against granting citizenship to criminals applied only to aliens. The appellant was an alien and caught by section 22.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Citizenship Act, R.S.C. 1952, c. 33, s. 5.

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], ss. 1, 7, 15.

Citizenship Act, S.C. 1974-75-76, c. 108 (now R.S.C., 1985, c. C-29), ss. 3, 5, 12, 19, 20, 22 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 11).

Citizenship Regulations, C.R.C., c. 400, s. 20.

Criminal Code, R.S.C. 1970, c. C-34, s. 146.

Human Rights Code, R.S.O. 1990, c. H.19, s. 12.

Immigration Act, S.C. 1976-77, c. 52, ss. 27, 43, 44.

Immigration Act, R.S.C., 1985, c. I-2, ss. 41, 42.

The Canadian Citizenship Act, S.C. 1946, c. 15, s. 5 (later Canadian Citizenship Act, R.S.C. 1970, c. C-19), s. 5.

CASES JUDICIALLY CONSIDERED

CONSIDERED:

R. v. Gamble, [1988] 2 S.C.R. 595; (1988), 31 O.A.C. 81; 45 C.C.C. (3d) 204; 66 C.R. (3d) 193; 89 N.R. 161; Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; (1975), 66 D.L.R. (3d) 449; [1976] CTC 1; 75 DTC 5451; 7 N.R. 401; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; Dubois v. The Queen, [1985] 2 S.C.R. 350; (1985), 66 A.R. 202; 23 D.L.R. (4th) 503; [1986] 1 W.W.R. 193; 41 Alta. L.R. (2d) 97; 22 C.C.C. (3d) 513; 48 C.R. (3d) 193; 18 C.R.R. 1; 62 N.R. 50; R. v. Swain, [1991] 1 S.C.R. 933; (1991), 75 O.R. (2d) 388; 71 D.L.R. (4th) 551; 63 C.C.C. (3d) 481; 5 C.R. (4th) 253; 3 C.R.R. (2d) 1; 125 N.R. 1; 47 O.A.C. 81; Glynos v. Canada, [1992] 3 F.C. 691 (C.A.); Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314; (1993), 19 Imm. L.R. (2d) 81 (C.A.); 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; R. v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 14 O.A.C. 335; R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295; (1985), 60 A.R. 161; 18 D.L.R. (4th) 321; [1985] 3 W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385; 85 CLLC 14,023; 13 C.R.R. 64; 58 N.R. 81; Winner v. S.M.T., [1951] S.C.R. 887; [1951] 4 D.L.R. 529; R. v. Stevens, [1988] 1 S.C.R. 1153; (1988), 41 C.C.C. (3d) 193; 64 C.R. (3d) 297; 86 N.R. 85; 28 O.A.C. 243; In re Citizenship Act and in re Noailles, [1985] 1 F.C. 852 (T.D.); R. v. Chaulk, [1990] 3 S.C.R. 1303; [1991] 2 W.W.R. 385; (1990), 69 Man. R. (2d) 161; 62 C.C.C. (3d) 193; 2 C.R. (4th) 1; 1 C.R.R. (2d) 1; 119 N.R. 161; R. v. Turpin, [1989] 1 S.C.R. 1296; (1989), 48 C.C.C. (3d) 8; 69 C.R. (3d) 97; 39 C.R.R. 306; 96 N.R. 115; 34 O.A.C. 115.

REFERRED TO:

Benner v. Minister of Employment and Immigration (1988), 93 N.R. 250 (F.C.A.); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; (1986), 35 D.L.R. (4th) 1; 30 C.C.C. (3d) 385; 87 CLLC 14,001; 55 C.R. (3d) 193; 28 C.R.R. 1; 71 N.R. 161; 19 O.A.C. 239; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; (1990), 76 D.L.R. (4th) 545; 91 CLLC 17,004; 2 C.R.R. (2d) 1; 118 N.R. 1; 45 O.A.C. 1; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; (1991), 77 D.L.R. (4th) 385; 4 C.R.R. (2d) 60; 120 N.R. 241; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; (1991), 84 D.L.R. (4th) 161; 67 C.C.C. (3d) 193; 38 C.P.R. (3d) 451; 8 C.R. (4th) 145; 7 C.R.R. (2d) 36; 130 N.R. 1; 49 O.A.C. 161; R. v. James, [1988] 1 S.C.R. 669; (1988), 63 O.R. (2d) 635; 40 C.C.C. (3d) 576; [1988] 2 C.T.C. 1; 88 DTC 6273; 85 N.R. 1; affg (sub nom. R. v. James, Kirsten and Rosenthal) (1986), 55 O.R. (2d) 609; (1986), 27 C.C.C. (3d) 1; [1986] 2 C.T.C. 288; 86 DTC 6432; 15 O.A.C. 319 (C.A.); Davidson et al. v. Davidson (1986), 33 D.L.R. (4th) 161; [1987] 2 W.W.R. 642; 10 B.C.L.R. (2d) 88; 26 C.C.L.I. 134 (B.C.C.A.).

AUTHORS CITED

Coté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed., Cowansville: Éditions Yvon Blais Inc., 1991.

Driedger, Elmer A. “Statutes: Retroactive Retrospective Reflections” (1978) 56 Can. Bar Rev. 264.

APPEAL from trial judgment ([1992] 1 F.C. 771; (1991), 43 F.T.R. 180 (T.D.)) dismissing appeal from the denial of the appellant’s application for Canadian citizenship. Appeal dismissed.

COUNSEL:

Richard A. Vanderkooy, for appellant (applicant).

Debra M. McAllister and Cheryl D. E. Mitchell for respondents (respondents).

SOLICITORS:

Richard A. Vanderkooy, North Vancouver, for appellant (applicant).

Deputy Attorney General of Canada for respondents (respondents).

The following are the reasons for judgment rendered in English by

Marceau J.A.: I respectfully disagree with my brother Linden J.A. whose reasons for judgment I have had the advantage of reading. In my view, the Trial Judge [[1992] 1 F.C. 771] arrived at the right conclusion and his analysis, for the most part, appears to me quite sound. My disagreement with the views of my colleague can be explained quickly.

1. First, I do not see how it can be said that children born abroad of married Canadian mothers were, before 1977, discriminated against on the basis of sex because the Canadian law then in force, the 1947 Citizenship Act [The Canadian Citizenship Act, S.C. 1946, c. 15 (later R.S.C. 1970, c. C-19)], did not confer on them the same entitlement to automatic citizenship by birth that it conferred on children born of Canadian fathers. It seems to me that one should not confuse “sex” with “parental lineage” and one should not either forget that we are concerned with the children, not the mothers.

The 1947 provisions were clearly based on considerations of the time relative to the organization of society, the effects of marriage and the concept of family units. It is, of course, undeniable that these social considerations were not developed and put into effect without influence from the long standing stereotyping regarding the place of women vis-à-vis that of men. But the idea that the child born abroad in wedlock should be regarded as having acquired the citizenship of his father only was not directly linked to any prejudice regarding the sex of the parents and, in any event, had obviously nothing to do with the sex of the child.

As to the impugned provisions of the 1977 Act [Citizenship Act, S.C. 1974-75-76, c. 108 (now R.S.C., 1985, c. C-29)], I fail to see how they can be attributed, in their purpose any more than in their effect, any discriminatory aspect related to sex. If the child previously born abroad in wedlock of a Canadian mother and a non-Canadian father was required to seek and be granted citizenship, it was solely due to the fact that he or she was not then a Canadian citizen by birth in view of the provisions of the Act that was in force at the moment of his or her birth. Which brings me to my second point.

2. It would have been possible for Parliament, in 1977, to automatically confer Canadian citizenship on a child previously born abroad of a Canadian mother and a non-Canadian father, but legislation to that effect would have been clearly retroactive since it would have changed the legal effect of an event that took place before its enactment, namely the birth outside Canada in wedlock from a non-Canadian father. It is clear that the non-acquisition of Canadian citizenship by birth is not a mere “practice” that has to be “continued” to remain in existence; it is a legal status definitively and finally settled pursuant to the existing law at the moment of birth. I simply do not see how, therefore, one could rely on 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]] to dispute the validity of the choice made by Parliament in refusing to reach back completely and abolish the settled effect of the old law, given that the Charter does not apply retroactively.

The appellant alleges that he does not seek a retroactive application of the Charter, since his claim is not based on the 1947 Act but exclusively on the treatment he received in 1989 under the current Citizenship Act. The allegation is based on yet another confusion, in my view. It is not the moment when a claimant has been actually affected by the provisions of an Act which he or she contends to be discriminatory that is relevant to determine whether he or she seeks a retroactive application of the Charter; it is whether the contended discrimination would flow from the provisions themselves or rather from the previously acquired legal situation that those provisions acted upon. I repeat again what appears to me to be obvious: section 22 of the new Act (the criminal requirements) and section 20 of the associated Regulations [Citizenship Regulations, C.R.C., c. 400] (the oath requirements) were made applicable to maternal offspring born prior to 1977 as a direct and necessary consequence of the fact that they were not citizens by birth.

I would deny the appeal with costs.

* * *

The following are the reasons for judgment rendered in English by

Linden J.A. (concurring in the result): This appeal involves a section 15 Charter challenge to certain provisions of the Citizenship Act, R.S.C., 1985, c. C-29 alleging discrimination on the basis of sex in that children of married Canadian mothers born abroad are treated less favourably than children of married Canadian fathers born abroad with regard to their entitlement to automatic citizenship by birth. This is an important issue, for “[t]o be a Canadian citizen by birth is a most cherished privilege.” (See Décary J.A. in Glynos v. Canada, [1992] 3 F.C. 691 (C.A.), at page 701.)

The Trial Judge of this Court dismissed an appeal from a decision of the Registrar of Citizenship denying an application for Canadian citizenship by the appellant, Mark Donald Benner. The appellant challenges the validity of the paragraphs 3(1)(e) and 5(2)(b) and section 22 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 11] of the Citizenship Act, supra and section 20 of the Citizenship Regulations.

THE LEGISLATION EXPLAINED

Between 1947 and 1977, the Citizenship Act provided in paragraph 5(1)(b) that a person would be a natural-born Canadian if born outside of Canada to a father who was a Canadian citizen, but not to a Canadian mother, unless she was unmarried. Recognizing that this provision was discriminatory in providing automatic citizenship based on paternal lineage, but not on maternal lineage, a new Citizenship Act was introduced in 1977 to address this unjust distinction. Henceforth, children born to both Canadian mothers and fathers would be treated equally. In Glynos v. Canada, supra, at pages 701-702, Mr. Justice Décary reviewed the legislative debates and came to the conclusion that:

Paragraph 5(2)(b) was specifically introduced into the Citizenship Act of 1976 to eliminate the discriminatory policy against women that flowed from the former Act, under which the child of a married Canadian woman born outside Canada could not acquire citizenship through her.

The new Act, in an effort to rectify the past discrimination, at least in part, also permits individuals born prior to 1977 to apply for citizenship based on maternal lineage. However, the present Act continues to differentiate between individuals relying on paternal lineage and those relying on maternal lineage, born before l977. The new Act requires extra procedures on the part of those claiming citizenship through maternal lineage including, for instance, swearing or affirming an oath and passing a criminal background check. To highlight the differences in treatment in the present Act, I will set out the provisions that apply, depending on whether an individual relies on paternal lineage or maternal lineage.

(a)       Paternal lineage

Individuals born outside of Canada prior to 1977, whose fathers were Canadian citizens, were automatically granted Canadian citizenship upon registering their birth under paragraph 5(1)(b) of the 1947 Citizenship Act, which provided:

5. (1) A person born after the 31st day of December 1946 is a natural-born Canadian citizen,

…

(b) if he is born outside of Canada elsewhere than on a Canadian ship, 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, and

(ii) the fact of his birth is registered in accordance with the regulations, within two years after its occurrence or within such extended period as the Minister may authorize in special cases. [Emphasis added.]

In 1977, when Parliament enacted the new Citizenship Act a provision was included to preserve paternal lineage claimants’ entitlement to citizenship. Paragraph 3(1)(e) of the 1977 Act specifically incorporated paragraph 5(1)(b) of the 1947 Act:

3. (1) Subject to this Act, a person is a citizen if

…

(e) the person was entitled, immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the former Act. [Emphasis added.]

As a result of paragraph 3(1)(e) of the 1977 Citizenship Act, individuals born outside of Canada prior to 1977, whose fathers were Canadian citizens, remain automatically entitled to Canadian citizenship upon registering their birth under paragraph 5(1)(b) of the 1947 Citizenship Act.

(b)       Maternal lineage

Individuals born to married parents outside of Canada prior to 1977, whose mothers were Canadian citizens, but whose fathers were not, were not entitled to Canadian citizenship under the 1947 Citizenship Act. In other words, there was no equivalent of paragraph 5(1)(b) of the 1947 Act for maternal lineage claimants. Recognizing the injustice of this discrepancy, Parliament specifically addressed the circumstances of these potential maternal lineage claimants in the new Act. Paragraph 5(2)(b) of the 1977 Citizenship Act provides an opportunity to apply for Canadian citizenship to maternal lineage claimants, born prior to 1977, who were excluded from entitlement under the 1947 Act. Paragraph 5(2)(b) of the 1977 Act states:

5. …

(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 [the Minister has extended the time to February 15, 1992], an application for citizenship is made to the Minister by a person authorized by regulation to make the application. [Emphasis added.]

Thus, maternal lineage claimants born prior to 1977, and therefore coming within paragraph 5(2)(b) of the new Act, are not automatically entitled to register for citizenship as are paternal lineage applicants born before 1977. Rather, as set out in paragraph 5(2)(b), maternal lineage applicants in these circumstances must apply to the Minister to obtain Canadian citizenship. Here we see an application process not required for children relying on paternal lineage. This application process involves a number of steps to which paternal lineage claimants are not subjected. For example, paragraph 3(1)(c) and subsections 12(2) and (3) require an applicant relying on maternal lineage under paragraph 5(2)(b) to take an oath of citizenship:

3. (1) Subject to this Act, a person is a citizen if

…

(c) the person has been granted or acquired citizenship pursuant to section 5 or 11 and, in the case of a person who is fourteen years of age or over on the day that he is granted citizenship, he has taken the oath of citizenship.

…

12. …

(2) Where an application under section 5 or 8 or subsection 11(1) is approved, the Minister shall issue a certificate of citizenship to the applicant.

(3) A certificate issued pursuant to this section does not take effect until the person to whom it is issued has complied with the requirements of this Act and the regulations respecting the oath of citizenship.

Subsection 12(3) also requires maternal lineage applicants to satisfy both the requirements of the Citizenship Act and the Citizenship Regulations. This means that applicants relying on paragraph 5(2)(b) are subject to subsection 20(1) of the Citizenship Regulations which confirms that those applicants must swear or affirm an oath of citizenship. Subsection 20(1) states:

20. (1) Subject to subsection 5(3) of the Act and section 22 of these Regulations, a person who is 14 years of age or over on the day that he has been granted citizenship under subsection 5(2), 5(4), or 10(1) of the Act shall take the oath of citizenship by swearing or affirming it.

Perhaps more significant than the oath requirements placed on maternal lineage applicants born prior to 1977, but not on paternal lineage claimants born before that date, are the conditions regarding national security and criminal record checks potentially leading to a denial of citizenship. Although the “security of the nation” provisions in sections 19 and 20 were not relied on in this case, I should point out that maternal lineage applicants, unlike paternal lineage claimants, are subject to a security check and may have their application for Canadian citizenship dismissed based on the findings. The relevant portions of those two sections provide:

19. …

(2) Where the Minister is of the opinion that a person should not be granted citizenship under section 5 or subsection 11(1) or administered the oath of citizenship or be issued a certificate of renunciation under section 9 because there are reasonable grounds to believe that the person will engage in activity

(a) that constitutes a threat to the security of Canada, or

(b) that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment,

the Minister may make a report to the Review Committee.

…

20. (1) Notwithstanding anything in this Act, a person shall not be granted citizenship under section 5 or subsection 11(1) or administered the oath of citizenship or be issued a certificate of renunciation under section 9 where, after considering the report made by the Review Committee pursuant to subsection 19(6), the Governor in Council declares that there are reasonable grounds to believe that the person with respect to whom the report was made will engage in an activity described in paragraph 19(2)(a) or (b).

(2) Where a person is the subject of a declaration made under subsection (1), any application that has been made by that person under section 5 or 9 or subsection 11(1) is deemed to be not approved and any appeal made by him under subsection 14(5) is deemed to be dismissed.

While sections 19 and 20 did not come into play in this case, the prohibition based on an individual’s criminal record under section 22 was applied to the appellant’s application. Section 22 of the Citizenship Act precludes an individual from being granted Canadian citizenship under a variety of circumstances, including where the applicant is currently incarcerated, on parole, or on probation; where the applicant has been charged with or is on trial for an indictable offence; or, where an applicant has been convicted of an indictable offence during the three years preceding the individual’s application or during the application process. Section 22 provides as follows:

22. (1) Notwithstanding anything in this Act, a person shall not be granted citizenship under section 5 or subsection 11(1) or take the oath of citizenship

(a) while the person is, pursuant to any enactment in force in Canada,

(i) under a probation order,

(ii) a paroled inmate, or

(iii) confined in or is an inmate of any penitentiary, jail, reformatory or prison;

(b) while the person is charged with, on trial for, subject to or a party to an appeal relating to, an offence under subsection 29(2) or (3) or to an indictable offence under any Act of Parliament;

(c) while the person is under investigation by the Minister of Justice, the Royal Canadian Mounted Police or the Canadian Security Intelligence Service for, or is charged with, on trial for, subject to or a party to an appeal relating to, an act or omission referred to in subsection 7(3.71) of the Criminal Code;

(d) if the person has been convicted of an offence in respect of an act or omission referred to in subsection 7(3.71) of the Criminal Code; or

(e) if the person requires but has not obtained the consent of the Minister of Employment and Immigration, under subsection 55(1) of the Immigration Act, to be admitted to and remain in Canada as a permanent resident.

(2) Notwithstanding anything in this Act, but subject to the Criminal Records Act, a person shall not be granted citizenship under section 5 or subsection 11(1) or take the oath of citizenship if,

(a) during the three year period immediately preceding the date of the person’s application, or

(b) during the period between the date of the person’s application and the date that the person would otherwise be granted citizenship or take the oath of citizenship,

the person has been convicted of an offence under subsection 29(2) or (3) or of an indictable offence under any Act of Parliament.

Once again, it must be noted that section 22 governs the applications of maternal lineage applicants born prior to 1977, but does not affect paternal lineage claimants born before that date. As a result, maternal lineage applicants are subject not only to a list of procedural requirements not applicable to paternal lineage applicants, but maternal lineage applicants also face a potential denial of citizenship not faced by paternal lineage claimants. This is based on the principle, as explained by counsel for the Crown, that citizenship follows the father, not the mother, if they are married, a clearly sexist view by modern standards, although perhaps not widely recognized as such in days gone by.

As a result of the provisions set out above, it is immediately apparent that, for those born before 1977, there are now two separate citizenship schemes in place in Canada: one for those relying on maternal lineage and one for those relying on paternal lineage. Those claiming Canadian citizenship based on maternal lineage encounter a more onerous process with more burdensome requirements and more serious implications than individuals relying on a paternal link.

The main issue for this Court is whether, on the facts of this case, these distinctions constitute discrimination contrary to subsection 15(1). Further, if it does, can that discrimination be justified under section 1 of the Charter? There is also a major issue that must be addressed before these, having to do with the retrospective/prospective application of the Charter.

THE FACTS

The route followed by the appellant to have his claim for Canadian citizenship processed is long and circuitous. Many of the details are not directly relevant to a determination of the issues in this case, but they provide a helpful background for understanding the potential administrative hurdles faced by an individual claiming citizenship on the basis of maternal lineage.

Mark Donald Benner was born in the United States of America on August 29, 1962. At the time of his birth, his parents were married, with his mother holding Canadian citizenship and his father being an American citizen. Mr. Benner was separated from his parents during childhood, growing up in California. Having located his mother, who was then living in Toronto, Mr. Benner entered Canada on October 10, 1986. Pursuant to paragraph 27(2)(f) of the Immigration Act [S.C. 1976-77, c. 52], an inquiry into his status in Canada was commenced on July 9, 1987 but was interrupted by a claim for Canadian citizenship by Mr. Benner. The immigration inquiry was adjourned under section 43 (now section 41 [R.S.C., 1985, c. I-2]) of the Immigration Act.

Pursuant to paragraph 5(2)(b) of the Citizenship Act, Mr. Benner applied for citizenship to the Court of Canadian Citizenship on September 24, 1987. Apparently, Mr. Benner did not pay the required fee, did not provide an original or certified copy of his mother’s birth certificate, and failed to submit a photograph of himself as prescribed by the Citizenship Regulations. As a result, when the notification of adjournment of immigration inquiry to verify claim of citizenship was forwarded to the Citizenship Court by Employment and Immigration Canada on November 19, 1987, Mr. Benner did not appear on the Citizenship Registration Index. The Secretary of State subsequently extended the time period for Mr. Benner to complete his citizenship application. However, absent verification of Mr. Benner’s citizenship, the immigration inquiry was resumed six months after its adjournment, as required by subsection 44(2) (now subsection 42(2)) of the Immigration Act. The Adjudicator issued a deportation order against Mr. Benner on January 27, 1988.

On October 27, 1988, Mr. Benner completed his application for Canadian citizenship by paying the stipulated fee and submitting the necessary documentation to the Citizenship Court. At the same time, Mr. Benner appealed to this Court to have the outstanding deportation order set aside. On November 3, 1988, Mr. Justice Mahoney [(1988), 93 N.R. 250 (F.C.A.)] set aside that order, clearing away any potential obstacles to allowing Mr. Benner to have his citizenship claim processed.

During the processing of Mr. Benner’s citizenship application, a criminal clearance procedure for maternal lineage applicants, in accordance with sections 19, 20, and 22, revealed that the appellant had run afoul of the law on several occasions. It must be recalled that this criminal clearance procedure is not statutorily required for those registering on the basis of paternal lineage. Between May and August 1989, the following information was brought to light concerning Mr. Benner’s record:

1) Conviction of theft over $1,000 (subsequently appealed and withdrawn by the Crown);

2) Outstanding charge for second degree murder;

3) Outstanding charge for obstructing justice and personation;

4) Four outstanding warrants for committal.

On August 31, 1989, the Registrar of Canadian Citizenship advised Mr. Benner that the file evidence appeared to prohibit his application by virtue of section 22 of the Citizenship Act. The Registrar indicated that the application would be held in abeyance for thirty days in order to permit Mr. Benner to demonstrate that he was not prohibited from being granted Canadian citizenship. Since no reply was received from Mr. Benner, on October 17, 1989, the Registrar informed him that his application for Canadian citizenship, under paragraph 5(2)(b) of the Citizenship Act, was rejected in accordance with section 22 of the Act. (Although in no way relevant to these proceedings, the Court was informed that Mr. Benner was convicted of manslaughter and is serving a sentence of three years, which will be completed in December, 1993. In addition, a removal order has also now been made against the appellant following his conviction.)

Mr. Benner appealed the Registrar’s decision to the Trial Division, challenging the validity of the paragraphs 3(1)(e) and 5(2)(b) and section 22 of the Citizenship Act, R.S.C., 1985, c. C-29 and section 20 of the Citizenship Regulations dealing with the citizenship of children born outside of Canada to mothers who were, at the time of birth, Canadian citizens. His appeal was dismissed on July 9, 1991 and he has now appealed to this Court.

THE RETROSPECTIVITY/PROSPECTIVITY OF THE CHARTER

The Trial Judge was of the view that Mr. Benner was seeking retrospective application of section 15 of the Charter, and explained [at pages 787-789]:

I am not convinced that the Charter is applicable here.

…

In essence, the applicant is asking this Court to consider whether the preferential treatment accorded to individuals born outside Canada between January 1, 1946 and February 15, 1977 to Canadian mothers (in wedlock) goes far enough to comply with rights currently recognized by the Charter. There is no question that the extension of the entitlement to claim citizenship through parental heritage since the effective date of the 1977 Citizenship Act is not contrary to the Charter. What is at issue, however, is the extent of the rights granted retroactively to those individuals not covered by the repealed 1947 Citizenship Act which was effective until February 15, 1977.

The Charter is clearly not intended to apply retrospectively and subsection 15(1) particularly was not intended to have effect until April 17, 1985 …. Although I could agree that a continuing discriminatory practice under section 15 would generally not involve a retrospective application of the Charter, on these facts, a continuing discriminatory practice does not exist. In fact, the allegedly discriminatory practice was clearly rectified effective February 14, 1977.

This application should, therefore, be dismissed.

It appears from this passage that the Trial Judge understood the appellant to be challenging the treatment of the maternal lineage applicants prior to 1977, which would have required retrospective application of section 15 of the Charter. With respect, however, that is not the claim raised by the appellant in this case. Rather, the appellant maintains that the 1977 Citizenship Act is currently discriminatory and that the Act had a discriminatory effect on him on October 17, 1989, when he was denied Canadian citizenship. The Trial Judge did not consider this argument; rather, he simply assumed that the 1977 Citizenship Act is not discriminatory. Indeed, the Trial Judge stated that, as of February 15, 1977, the new Act rectified what he referred to as the “allegedly discriminatory practice” under the previous Act.

Regardless of whether the Trial Judge is correct on this point, his focus on the old Act is misplaced. The appellant did not apply for citizenship under the 1947 Act and did not allege that he was treated discriminatorily under that Act. If that were the case, it is likely that the argument about retroactivity would have been conceded. On the contrary, the appellant’s claim is based exclusively on the treatment he received in 1989 under the current Citizenship Act. It is this treatment and the status of the 1977 Act that is the subject of this appeal, not the 1947 Act.

The Supreme Court has now addressed the issues of retrospectivity and retroactivity of the Charter on a number of occasions. Before turning to the jurisprudence, though, it may be helpful to distinguish these two concepts. The classic description of the differences between retroactivity and retrospectivity was set out in Driedger, “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. Bar Rev. 264, at pages 268-269:

A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event.

When reading this helpful description, it must be remembered that Professor Driedger was referring to statutes and not to the Constitution. The issue of retrospectivity is more complicated in a Charter setting because the law, and not just the facts, is subject to the Charter.

The Supreme Court has made it clear that, in appropriate circumstances, the Charter does apply in a manner that may be described as retrospective, although that is not really the case. This is so particularly where there is continuing discrimination or an ongoing discriminatory effect. In R. v. Gamble, [1988] 2 S.C.R. 595, at pages 625-627, Madam Justice Wilson made the following comments about the retrospective application of the Charter:

Under both the majority and the minority formulation in Stevens the crucial question becomes: what is the event which is alleged to be in contravention of the Charter?

In approaching this crucial question it seems to me preferable for the courts to avoid an all or nothing approach which artificially divides the chronology of events into the mutually exclusive categories of pre and post-Charter. Frequently an alleged current violation will have to be placed in the context of its pre-Charter history in order to be fully appreciated.

…

Charter standards cannot be applied to events occurring before its proclamation but it would be folly, in my view, to exclude from the Court’s consideration crucial pre-Charter history.

…

A constitutional remedy to be fully appropriate and just may have to take into account pre-Charter events.

Another crucial consideration will be the nature of the particular constitutional right alleged to be violated. I would agree with the statement of Borins Co. Ct. J. in R. v. Dickson and Corman (1982), 3 C.C.C. (3d) 23, at p. 29:

Indeed, it may be that the Constitution defies strict doctrinal characterization as either exclusively retroactive, retrospective or prospective legislation for, as I suggested in the preceding paragraph, different facts may produce different interpretations. The operation of the Constitution in different cases will no doubt involve quite different considerations.

Such an approach seems to me to be consistent with our general purposive approach to the interpretation of constitutional rights. Different rights and freedoms, depending on their purpose and the interests they are meant to protect, will crystallize and protect the individual at different times. Our previous decisions on the retrospective application of the Charter are consistent with an approach which pays attention to differences in the purposes of the relevant rights and freedoms. For example, procedural rights will crystallize at the time of the process: Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181. Rights against unreasonable searches and seizures will crystallize at the time of the search and seizure: R. v. James, [1988] 1 S.C.R. 669. Substantive guarantees that the accused receive the benefit of his or her subjective mistake of fact crystallize at the time the offence was committed: R. v. Stevens, supra. The right against the introduction of self-incriminating evidence is sought to be introduced in a proceeding even although the testimony was originally provided well before the Charter came into force: Dubois v. The Queen, [1985] 2 S.C.R. 350.

Wilson J. continued at page 628 to address section 15 in particular:

Some rights and freedoms in the Charter seem to me to be particularly susceptible of current application even although such application will of necessity take cognizance of pre-Charter events. Those Charter rights the purpose of which is to prohibit certain conditions or states of affairs would appear to fall into this category. Such rights are not designed to protect against discrete events but rather to protect against an ongoing condition or state of affairs. Pre-trial delay under s. 11(b) is a good example …. Section 15 may also fall into this category. Morden J.A. recognized in Re McDonald and The Queen (1985), 21 C.C.C. (3d) 330 (Ont. C.A.) that there was such a thing as a continuing discriminatory practice under s. 15 of the Charter.

Thus, before we even get to the issue of whether this case involves an “ongoing condition or state of affairs”, we must determine whether the relevant events would even involve the retrospective operation of section 15 of the Charter. Is the appellant actually seeking retrospective application of the Charter or is he merely seeking an application of the Charter that involves “cognizance of pre-Charter events”? To answer this question, we must identify the relevant event and then determine, on the facts of this case, when the appellant’s section 15 right to equality crystallized.

The determination of when a right crystallizes was considered in Dubois v. The Queen, [1985] 2 S.C.R. 350, where the Crown introduced into a proceeding subsequent to the coming into force of the Charter, testimony given in a proceeding prior to the coming into force of the Charter. In discussing whether the right in section 13 of the Charter not to have previous testimony used against someone applied to Mr. Dubois’ case, Lamer J. (as he then was) stated at pages 359-360:

The fact of having given previous testimony is no more than a requisite for the operation of s. 13. To quote Martin J.A. in R. v. Antoine (1983), 5 C.C.C. (3d) 97 at pp. 102-03:

An enactment does not, however, operate retrospectively because a part of the requisites for its operation is drawn from a time antecedent to its coming into force, nor because it takes into account past events: …

As section 13 guarantees the right of a person against self-incrimination, rather than the rights of a witness giving testimony, it inures to an individual only at the moment an attempt is made to use previous testimony to incriminate its author. Since in this case the attempt to use Dubois’ previous testimony occurred after the coming into force of the Charter, there arises no issue of retrospectivity.

In other words, whether the Charter is being applied retrospectively depends upon what is determined to be the relevant event and whether that event occurred prior to the coming into force of the Charter.

In this case, the respondent argues that the birth of the appellant is the relevant date since that is the date that Mr. Benner’s citizenship was originally determined. The appellant, however, contends that the date on which his citizenship application was denied is the relevant date. It is true that the appellant’s citizenship was originally determined on the date on which the appellant was born, August 29, 1962. However, the appellant is not seeking to have his citizenship changed retroactive to August 29, 1962. The 1977 Citizenship Act does not provide for a retroactive change to an individual’s citizenship and the appellant does not challenge that. Nor does he contest his citizenship on that date; he accepts that he was then, and remains today, an American citizen. Instead, the appellant applied on October 17, 1989 to obtain Canadian citizenship. The fact that Mr. Benner was not a Canadian citizen prior to 1989 is indirectly relevant to his application for citizenship in 1989 in so far as it explains why he was applying. The status of his citizenship prior to 1989 has no more relevance than that, however, since the appellant is not contending that he was unjustly denied citizenship at any time prior to 1989. Accordingly, while the Court may be cognizant of the appellant’s citizenship at birth, that fact is not the relevant event for the purpose of determining whether the Charter is being applied retrospectively. The relevant event must, instead, be the rejection of Mr. Benner’s citizenship application on October 17, 1989. That is when he claims his right to equality was violated and that is when his right to equality crystallized. I am in agreement with this. Applying the Charter to that event, therefore, does not entail the retrospective operation of the Charter.

Just as the event in question does not attract retrospective application of the Charter, so too, applying the Charter to the relevant law does not involve retrospective application of the Charter. The current Citizenship Act came into force on February 15, 1977, was in force in 1985 when section 15 of the Charter came into effect, and remains in force. The 1977 Citizenship Act is, therefore, subject to Charter scrutiny today. It is this Act—specifically paragraphs 3(1)(e ) and 5(2)(b) and section 22 as well as section 20 of the Citizenship Regulations—that the appellant now challenges. Assessing the validity of the provisions of an existing statute—the Citizenship Act—does not involve retrospective application of section 15 of the Charter. This is especially true where, as I have indicated is the case here, the validity of the legislation is called into question as a result of treatment under that statute after the coming into force of section 15 on April 17, 1985. This case, therefore, is not a case of retrospective operation of the Charter. Accordingly, the Charter issues must be addressed in this case.

SUBSECTION 15(1)

The appellant relies on subsection 15(1) of the Charter to challenge the validity of paragraphs 3(1)(e) and 5(2)(b) and section 22 of the 1977 Citizenship Act and section 20 of the Citizenship Regulations. Subsection 15(1) of the Charter provides:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The proper approach to this subsection was summarized by Chief Justice Lamer in R. v. Swain, [1991] 1 S.C.R. 933, at page 992:

The court must first determine whether the claimant has shown that one of the four basic equality rights has been denied (i.e., equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This inquiry will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics. Next, the court must determine whether the denial can be said to result in “discrimination”. This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others. Furthermore, in determining whether the claimant’s s. 15(1) rights have been infringed, the court must consider whether the personal characteristic in question falls within the grounds enumerated in the section or within an analogous ground, so as to ensure that the claim fits with the overall purpose of s. 15—namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.

The first issue under section 15 is whether a distinction has been drawn, directly or indirectly, which violates one of the four equality rights. As the legislation described above shows, there has long been differential treatment of citizenship on the basis of maternal lineage rather than paternal lineage. That differential treatment was eliminated as to the future under the 1977 Citizenship Act. Nevertheless, that Act, despite its admirable objective of reducing distinctions, establishes a new regime for those born prior to 1977 which continues to distinguish between individuals relying on paternal lineage and those basing their claim on maternal lineage. The procedural requirements for those claiming Canadian citizenship based on maternal lineage are more onerous than the minimal requirements faced by individuals relying on a paternal link. Unlike people founding their claim on paternal lineage, individuals basing their claim for citizenship on maternal lineage risk being denied Canadian citizenship altogether. The Citizenship Act, therefore, draws a distinction which denies equality under the law and equal benefit of the law to maternal lineage applicants.

Not every legislative distinction, of course, will violate subsection 15(1); it is only those distinctions that are discriminatory that will be found to contravene that subsection. In order to determine whether a distinction is discriminatory a court must first determine whether the claim fits within the ambit of section 15 by determining whether the relevant distinction is drawn on an enumerated or analogous ground of discrimination.

Counsel for the appellant relied on sex as the relevant ground of discrimination. Sex is among the prohibited grounds of discrimination enumerated in subsection 15(1). It is now accepted that women have been historically, socially, politically and legally disadvantaged in our society. Although numerically women are in the majority in Canada, they are in most other respects a “discrete and insular minority”, enduring direct and indirect prejudice and stereotyping. In many different areas of the law, women have, in the past, been assigned an inferior legal status to men. Women were at one time denied standing to sue in tort and contract; they were denied the right to vote; they were denied the legal capacity to be senators; and, until 1977, they were denied the legal right to pass on their citizenship to their children, if married and if the child was born outside of Canada. As we have seen, the right of women to pass on their citizenship to their children born outside of Canada has now been included in the Citizenship Act of 1977. However, that Act continues to differentiate between the treatment accorded to children born outside of Canada prior to 1977 depending on the gender of the parent.

In the Court below, the Trial Judge concluded that the Citizenship Act does not discriminate on the basis of sex [at pages 794-795]:

Therefore, although a “distinction” exists between the group of individuals previously entitled to preferential citizenship status before February 14, 1977 and those who were conferred a more limited right to preferred citizenship if born before the effective date of the new legislation, this distinction is not based upon the personal characteristics of the individuals. Rather, it is based on their merits and capacities and, in any event, it cannot be said that it is based on irrelevant personal differences.

The applicant and all others subject to paragraph 5(2)(b) are treated equally be they male, female, married or unmarried. The only distinction that they share is that they were born prior to February 14, 1977 and that they were not granted a preferred status under the previous citizenship legislation.

This description, though, omits the fact that the appellant and all others subject to paragraph 5(2)(b) are relying on maternal lineage as a basis for claiming Canadian citizenship. Individuals basing a claim for Canadian citizenship on paternal lineage are covered by paragraph 3(1)(e) and are not subject to paragraph 5(2)(b) and the additional requirements attaching to that paragraph. By omitting this key fact, the Trial Judge fails to recognize that the sex of the appellant’s parent is a determining criteria distinguishing the appellant and all others subject to paragraph 5(2)(b) from other claimants.

The Trial Judge’s description does highlight the fact that, while the Citizenship Act differentiates in its treatment of claimants based on the sex of the claimant’s parent, it does not draw a distinction based on the sex of the claimant. Indeed, in the case before us the individual claiming citizenship is male, while the basis for the claim of discrimination is that the Act treats women adversely by restricting or preventing them from passing on their citizenship to their children. The question, then, is whether Mr. Benner can properly assert that the Citizenship Act discriminates, on the basis of sex, against women whose children are claiming citizenship, in a manner that directly affects him.

It has recently been opined by this Court that a woman whose child was denied Canadian citizenship pursuant to section 22 of the Citizenship Act could possibly challenge that section. In Glynos v. Canada, [1992] 3 F.C. 691 (C.A.), at page 701, Mr. Justice Décary observed that a woman whose child was denied citizenship under paragraph 5(2)(b) of the Citizenship Act “has an interest as a Canadian woman and mother in knowing whether her son can be declared a citizen by birth and in being part of a proceeding seeking a declaration to that effect.” It must be acknowledged, though, that where a woman has an interest in a determination of the citizenship of her child, it will be the child who is most directly affected by the additional requirements and potential denial of citizenship resulting from the provisions dealing with maternal lineage applicants. In this situation, the discrimination against the mother is unfairly visited upon the child. This is surely as unjust as if the discrimination were aimed at the child directly. I should emphasize that this is not a case where one individual is attempting to assert the Charter rights of another. This case is brought by an individual claiming to be personally discriminated against as a result of their association with a member of a group—women—subject to discrimination.

While being discriminated against as a result of one’s association with someone who is subject to discrimination is not precisely the same as enduring the prejudice and stereotyping directly, it is no more tolerable. It is worthy to note that this view has been enshrined in section 12 of the Ontario Human Rights Code [R.S.O. 1990, c. H.19], which provides:

Discrimination because of Association

12. A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.

A similar result was reached by this Court in a refugee case, Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), where a child of a woman suffering persecution as a member of a particular social group—namely women in China who have more than one child and are faced with forced sterilization—was found to face persecution on the same basis as a result of her relationship to her mother. Consistent with these authorities, therefore, I am of the view that the appellant can challenge paragraphs 3(1)(e ) and 5(2)(b) and section 22 of the Citizenship Act and section 20 of the Citizenship Regulations on the basis that those provisions discriminate against him on the basis of sex, contrary to section 15 of the Charter.

It remains to be determined whether the Act and Regulations are, in fact, discriminatory. The definition of discrimination for the purposes of subsection 15(1) was outlined by Mr. Justice McIntyre in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at page 174:

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

In applying this definition, the impugned distinction must be reviewed by taking into consideration the circumstances of the affected group (R. v. Turpin, [1989] 1 S.C.R. 1296, at page 1332). Where a socially, politically, or historically disadvantaged group is adversely affected by a legislative distinction, a finding of discrimination will normally follow relatively automatically. (Andrews, supra; Turpin, supra; and, Swain, supra.) I have already indicated that women are an independently disadvantaged group in our society. I have also shown that the Citizenship Act and the Citizenship Regulations limit access to Canadian citizenship for individuals relying on maternal lineage, where similar limits are not encountered by individuals basing their claims on paternal lineage. In contrast to men, women who are Canadian citizens are not afforded the same opportunity to pass on their citizenship to their children born outside Canada. This distinction is the result of stereotyping and prejudice against women. The 1947 Citizenship Act did not permit women to pass on their citizenship to their children born outside Canada (unless the mother was not married at the time). As the legislative history cited above exhibits, the 1977 Citizenship Act was designed to overcome that obvious discrimination.

Despite these good intentions, remnants of the discriminatory treatment of women under the 1947 Act have been continued in the new Act in the form of a separate and more onerous path for acquiring citizenship. In my view, for those born prior to 1977, the double standard that has been established in the 1977 Citizenship Act is discriminatory. The scheme in the new Act involves simple registration by those relying on paternal lineage, while for those relying on maternal lineage, the Act demands a complex application process including a requirement of swearing or affirming an oath of citizenship, security checks, criminal record checks and even possible exclusion on the basis of being charged with certain offences. This double standard discriminates against women and is, therefore, contrary to subsection 15(1).

SECTION 1 OF THE CHARTER

Section 1 of the Charter states:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The basic framework for a section 1 analysis set out in R. v. Oakes, [1986] 1 S.C.R. 103 remains in place, but has been elucidated by subsequent decisions. To demonstrate that a limit on a Charter right is reasonable and demonstrably justified in a free and democratic society, the party seeking to uphold the limitation must satisfy two requirements. First, it must be established that the objective which the limitation is designed to promote is “of sufficient importance to warrant overriding a constitutionally protected right or freedom” (R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295, at page 352). At a minimum, an objective must be “pressing and substantial in a free and democratic society” to qualify as sufficiently important (R. v. Oakes, supra, at pages 138-139).

If this requirement is met, the second requirement involves a proportionality test. The proportionality test includes three components. First, the measure limiting the Charter right must be rationally connected to the intended objective. In other words, the measure must be carefully designed to achieve its objective without being arbitrary, unfair, or based on irrational considerations. Second, the limiting measures must impair the Charter right as little as possible. This condition has been modified by decisions subsequent to Oakes, supra (R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; R. v. Chaulk, [1990] 3 S.C.R. 1303; and Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139). The issue of when the modified version of the minimal impairment branch of the proportionality test is applicable and when the conventional Oakes version should be relied upon is not yet settled (see McKinney v. University of Guelph, supra, at pages 398-405; R. v. Chaulk, supra, at pages 1388-1393, per Wilson J.; and R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at page 260, per McLachlin J.). There is general agreement, however, that the modified approach to minimal impairment may be applied where the rights of different groups come in conflict and must, to some extent, be mediated. Under this approach, the minimal impairment condition depends on whether Parliament could “reasonably have chosen an alternative means which would have achieved the identified objective as effectively” (Chaulk, supra, at page 1341, per Lamer C.J.). Third, the effects of the measures must be proportional to the significance of the objective which is to be achieved. An objective that is merely pressing and substantial should not override a Charter right, if the effect of the means used to accomplish that objective severely compromise the rights of an individual or group. A provision limiting a Charter right that fails to satisfy any one of these criteria will not be saved under section 1.

Turning to the facts of the case before me, the first question to be answered is whether the objectives of the impugned provisions are “pressing and substantial in a free and democratic society” (R. v. Oakes, supra, at pages 138-139). Are the objectives of the provisions in question so important as to warrant overriding the equality rights of women? The objectives of the various stages in the application process for those relying on maternal lineage under paragraph 5(2)(b) of the Act may generally be described as establishing a commitment or allegiance to Canada and ensuring the security of the nation and the safety of its people. Described in these terms, the objectives of the impugned provisions are, in my view, pressing and substantial.

The initial stage of the proportionality test involves determining whether the measure limiting the Charter right is rationally connected to the intended objective. The modest requirements set out in the Citizenship Act are carefully designed to achieve their objective without being arbitrary, unfair, or based on irrational considerations. Swearing an oath as a prerequisite to citizenship is a common practice followed in many countries. It is, in essence, a simple inquiry as to whether an individual is committed to the country and shares the basic principles or ideals upon which the country was founded. In Canada, the “Oath or Affirmation of Citizenship” which people must repeat provides as follows:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.

This is certainly an appropriate way to determine an individual’s allegiance to this country. It is, therefore, rationally connected to the objective of establishing an individual’s allegiance to Canada.

Similarly, the stipulation in paragraph 22(1)(b) of the Act that a person shall not be granted citizenship while they are charged with or on trial for an indictable offence, as well as the stipulation in subsection 22(2) that a person shall not be granted citizenship if during the application for citizenship or in the preceding three years they have been convicted of an indictable offence, is rationally connected to the objective of ensuring the security of the nation and the safety of its people. Parliament can properly deny citizenship to those who pose a threat to the security of Canada or who might endanger the safety of Canadians. In Winner v. S.M.T., [1951] S.C.R. 887, the Supreme Court determined that the power to legislate in regard to citizenship lies with Parliament. Mr. Justice Rand explained at pages 918-919:

The first and fundamental accomplishment of the constitutional Act was the creation of a single political organization of subjects of His Majesty within the geographical area of the Dominion, the basic postulate of which was the institution of a Canadian citizenship. Citizenship is membership in a state; and in the citizen inhere those rights and duties, the correlatives of allegiance and protection, which are basic to that status.

The Act makes no express allocation of citizenship as the subject-matter of legislation to either the Dominion or the provinces; but as it lies at the foundation of the political organization, as its character is national, and by the implication of head 25, section 91, “Naturalization and Aliens”, it is to be found within the residual powers of the Dominion. [Citations omitted.]

The scope of Parliament’s power to legislate was elaborated upon by Mr. Justice Dubé in a manner directly relevant to this case. In In re Citizenship Act and in re Noailles, [1985] 1 F.C. 852 (T.D.), at page 855, Dubé J. concluded:

After all, Canada has the right to protect itself by denying the privilege of citizenship to someone who does not meet the criteria legitimately established by an Act of Parliament. It is quite just and reasonable that no one should be able to receive citizenship if during the three-year period immediately preceding his application he has been convicted of an offence or of an indictable offence under any Act of Parliament.

Accepting Parliament’s authority to determine the circumstances in which citizenship will be granted, it is apparent that in enacting the provisions in question, they have exercised their authority in a manner that is rationally connected to achieving the objectives of ensuring the security of Canada and the safety of Canadians.

This brings us to the second part of the proportionality test: the minimal impairment stage. In the circumstances of this case, the rights of two different groups come into conflict, attracting the modified standard of review. It will become clearer in a moment, but for now, suffice it to say that the existing citizenship rights of paternal lineage claimants conflict with the equality rights of maternal lineage applicants. Where competing rights must be balanced, a court may rely on the lesser standard of the modified approach to minimal impairment. Under the modified approach, the question is whether Parliament could reasonably have chosen an alternative means which would have impaired the right in question less or not at all but which would have achieved the identified objective as effectively. Certainly, the objective of ensuring a commitment to Canada and protecting the security of this country and its people could have been achieved more effectively if individuals born before 1977 and claiming citizenship on the basis of paternal lineage were also required to swear or affirm an oath and were subject to the same security and criminal checks and subsequent exclusions as those born before that date and relying on maternal lineage. Since there is obviously no evidence that maternal lineage applicants as a group are less loyal to Canada or are more criminally inclined, there is no reason having to do with that group that justifies their differential treatment relative to paternal lineage applicants. Accordingly, a scheme that subjects maternal lineage and paternal lineage claimants to the same requirements would be clearly superior as regards equality.

However, even though equality would call for paternal lineage claimants born prior to 1977 to be subject to the same requirements as maternal lineage applicants, that alternative was not reasonably available to Parliament. The opportunity for paternal lineage claimants to register their citizenship was established under the 1947 Citizenship Act and continues today by virtue of the prior Act. Paragraph 3(1)(e) of the 1977 Citizenship Act specifically incorporates paragraph 5(1)(b) of the former Act maintaining the existing rights of paternal lineage applicants. In order to place the requirements of swearing or affirming an oath and undergoing criminal background checks on paternal lineage claimants, Parliament would have had to derogate from the existing rights of those claimants. To avoid that injustice, the government instead exempted from those requirements paternal lineage claimants coming within paragraph 5(1)(b) of the 1947 Citizenship Act. This is an imperfect solution, one that draws an unfortunate, discriminatory distinction contrary to subsection 15(1). Nevertheless, faced with selecting between two imperfect alternatives, I cannot say that Parliament has made an unreasonable choice in the circumstances.

In seeking to redress the unjust treatment of Canadian women and their children under the 1947 Citizenship Act, Parliament found itself unable to achieve its objectives of ensuring a commitment to Canada and protecting the safety of its people while both establishing full equality and not derogating from the established rights of paternal lineage claimants born prior to 1977. The balance chosen remedies the inequity to Canadian women and their children born outside the country resulting from the 1947 Citizenship Act without undercutting the existing rights of paternal lineage applicants. In the circumstances, I am not convinced that Parliament could reasonably have chosen an alternative means which would have impaired the right in question less but which would have achieved the identified objective as effectively. This part of the proportionality test is therefore met.

The third part of the proportionality test involves an inquiry into whether the effects of the measures are proportional to the significance of the objective which is to be achieved. Weighing the significance of a legislative objective against the degree to which the Charter rights of an individual or group are impeded is always a difficult and imprecise process. The objectives of the provisions in question include ensuring a commitment to Canada, guarding the security of the nation and protecting the safety of the people of Canada. The importance of those rather broad objectives is obvious. In contrast, the right in question is not interfered with dramatically, but rather is compromised only on the periphery and only indirectly. This is not a situation where a severe penalty is imposed or a significant benefit ordinarily available is denied. Maternal lineage applicants born prior to 1977 are subject to the normal requirements to which all other applicants are subject and are merely denied a special exemption accorded paternal lineage claimants. The existing rights of paternal lineage applicants born prior to 1977 have been respected in a continuing exemption from the ordinary requirements to which all are otherwise subject. Not providing a similar exemption to maternal lineage applicants born prior to 1977 is not a significant incursion into the equality rights of those applicants, yet it permits the government to pursue the pressing and substantial objectives of the relevant provisions of the Citizenship Act. I accept, therefore, that the measures adopted are not disproportional to the significance of the objectives to be achieved.

As I have found the test under section 1 of the Charter to be satisfied, I am of the view that the subsection 15(1) violation can be saved by virtue of section 1. There is, as a result, no need to consider possible remedies. For the foregoing reasons, I would dismiss this appeal with costs.

* * *

The following are the reasons for judgment rendered in English by

Létourneau J.A.: I agree with my colleague Linden J.A. that if this appeal falls to be decided on section 1 of the Canada Charter of Rights and Freedoms, it ought to be dismissed for the reasons that he gives. However, I do not think that section 1 of the Charter can and need be invoked here because I believe that the Charter does not apply to the facts of this case and that there is no discrimination under section 15 of the said Charter.

I need not repeat the facts in detail as my colleague Linden J.A. has adequately summarized them, especially those that are necessary for me to express my views. I need only say that the appellant is an American citizen who is presently incarcerated in a Canadian penitentiary pursuant to a conviction for manslaughter. He claims the right to Canadian citizenship because he was born in the United States to a married Canadian mother. He bases his claim under section 15 of the Charter and alleges to be a victim of discrimination. He was born in California in 1962 and entered Canada in 1986 where he lived under two different names: “Martin Sarkissian” and “Claudio Carbone”.

Whether section 15 of the Charter applies to this case and whether it involves retrospectivity or retroactivity

To apply the Charter to this case is, in my view, to give to it a retrospective or a retroactive effect that the Supreme Court has said it does not have.[1] It is not disputed that the 1977 Citizenship Act now treats alike children born outside of Canada after February 14, 1977 to either a Canadian father or a Canadian mother. This is what paragraph 3(1)(b) says and does.[2] So children born after February 14, 1977 cannot complain of a differential treatment or discrimination under section 15 of the Charter. They have an equal right to Canadian citizenship: all of them are Canadians on account of either their paternal or their maternal lineage.

There is no doubt that under the old Act, the 1947 Citizenship Act, and prior to the new one, the 1977 Citizenship Act, there was, for children born outside of Canada to a Canadian father, a treatment different from the one given to children born outside of Canada to a married Canadian mother. One, the child born to a Canadian father, could obtain the Canadian citizenship. The other, born to a married Canadian mother, could not[3] and the law regarded him or her as a foreign national. I mention in passing that if the child was born outside of Canada, out of wedlock, to a Canadian mother, he could obtain Canadian citizenship. I shall later revisit this issue in the context of the alleged discrimination. The changes brought to the Act in 1977 with respect to children born before February 15, 1977 aimed at eliminating that difference. Henceforth, children born to a married Canadian mother were given the possibility of acquiring Canadian citizenship[4] under certain conditions. In so far as these provisions relating to children born to a married Canadian mother prior to February 15, 1977 are concerned, namely paragraph 5(2)(b), they were remedial in nature.

Counsel for the appellant submitted that paragraph 5(2)(b) of the 1977 Act is retrospective in its application as it determines for the future the legal effect of a prior event, i.e., the birth of the appellant, which occurred in 1962 and thus some 15 years before the statute was enacted. To use his words, paragraph 5(2)(b) is both prospective and retrospective in that it has a prospective application based on a prior event. I do not quarrel with that assertion which is the first step in his reasoning and attempt to show that the application of section 15 of the Charter to the present case carries with it no retrospectivity. From there he goes on to add that section 15 of the Charter is not concerned with the prior event, that is to say the birth of the appellant, but rather is concerned with the result of the 1977 Act, that is to say its prospective application to those born prior to February 15, 1977 outside of Canada to a married mother. Therefore, section 15 of the Charter, he concludes, is not applied retrospectively if it is applied to the facts of this case. This argument, as appealing as it may appear at first blush, does not hold.

What the appellant really complains of is the fact that he was denied Canadian citizenship because he was born in 1962 outside of Canada to a married Canadian mother rather than to a Canadian father. The cause of this alleged discrimination is, without doubt, subparagraph 5(1)(b)(i) of the 1947 Citizenship Act. It is not the 1977 Act which, on the contrary, attempted to correct the effects of the old law. Had Parliament in 1977 corrected the alleged injustice only for those born after February 15 and ignored the plight of the appellant and others in a like situation and had Parliament adopted no remedial measures to correct the wrongs of the past, the appellant would have now to attack the 1947 Act which denied him the right to citizenship. As in the case of R. v. Stevens[5] where it was alleged that subsection 146(1) of the Criminal Code [R.S.C. 1970, c. C-34], enacted prior to the Charter, violated section 7 of the Charter, the appellant would allege that subparagraph 5(1)(b)(i) of the 1947 Citizenship Act violates section 15 of the Charter. As for the case of Stevens, there would be no doubt that this challenge would involve a retrospective application of the Charter to a prior legislation on account of a prior event (his birth in 1962).

The situation is not different with the 1977 Act. Firstly, it is not the 1977 Act which causes the alleged discrimination and which treated the appellant as an alien: it is subparagraph 5(1)(b)(i) of the old 1947 Act. The new legislation merely attempts to remedy that. It acknowledges the foreign nationality of the appellant and simply takes over where the 1947 Act left him: an alien or foreign national who, from that moment, is given the right and possibility of acquiring Canadian citizenship on a basis he did not have before. Secondly, the 1977 Act is also legislation enacted prior to the Charter which relates to an event which took place prior to the Charter. In addition, if the 1977 Citizenship Act were silent as to the claimant and contained no remedial measures for past discrimination, the claimant, if he could launch a constitutional attack on that Act, would have to argue that the Act is discriminatory because it did not apply retroactively or retrospectively to his case. In other words, he would have to say that the 1977 Act is discriminatory because it does not eliminate the discrimination which occurred in 1962 because of the 1947 Citizenship Act. Whichever way I look at the 1977 Act, I fail to see how a Charter challenge to that Act would not be retrospective or would be less retrospective than a Charter challenge to the 1947 Act in relation to the same 1962 event.

If there had been no remedial measures adopted in the 1977 Act to redress the wrongs caused in the past by the repealed 1947 Act, it is my view that the appellant would have had no foundation for a complaint under the Charter as the Charter would not apply to suppress the legal consequences attached by the 1947 Act to his birth in 1962. It would be ironic if, because of the remedial procedures found in the 1977 Act, foreign nationals like the appellant could now be said to have a foundation for a complaint under the Charter while they would have had none if they had been totally ignored in the 1977 Act!

Indeed, what the appellant is now asking on the basis of the Charter is to read the 1977 Citizenship Act as if the provision of the 1947 Act which created the differential treatment had never existed at all. If this is not retrospectivity, and asking that the Charter be applied retrospectively, one is left to wonder what is. These words of Professor Côté, in my view, adequately describe what the rule is in such matter and what the appellant is asking this Court to do:

To summarize: when the question arises as to whether or not an enactment produces a retroactive effect, the question must be examined successively from the standpoint of positive and negative retroactivities. The principle of non-retroactivity applies whatever the form of the retroactivity at issue. As a result, the issue is, firstly, whether the rule stated in the enactment applies to the basis of facts arising entirely before its commencement (is there positive retroactivity?) and, secondly, if the suppression of the rules resulting from adoption of the new enactment results in challenging effects already produced as a result of the rules that have been suppressed (is there negative retroactivity?). [My underlining.][6]

To use the words of Dickson J. [as he then was] in Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, the appellant wants the Charter to,

… reach into the past and declare that the law or the rights of parties as of an earlier date shall be taken to be something other than they were as of that earlier date.[7]

My conclusion that the application of section 15 of the Charter to the facts of this case would give the Charter a retrospective effect is consistent with the decision of the Supreme Court of Canada in R. v. Gamble.[8] Speaking for the majority, Wilson J. wrote:

Different rights and freedoms, depending on their purpose and the interests they are meant to protect, will crystallize and protect the individual at different times. Our previous decisions on the retrospective application of the Charter are consistent with an approach which pays attention to differences in the purposes of the relevant rights and freedoms. For example, procedural rights will crystallize at the time of the process: Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181. Rights against unreasonable searches and seizures will crystallize at the time of the search and seizure: R. v. James, [1988] 1 S.C.R. 669. Substantive guarantees that the accused receive the benefit of his or her subjective mistake of fact crystallize at the time the offence was committed: R. v. Stevens, supra. The right against the introduction of self-incriminating evidence crystallizes at the time the evidence is sought to be introduced in a proceeding even although the testimony was originally provided well before the Charter came into force: Dubois v. The Queen, [1985] 2 S.C.R. 350.

Some rights and freedoms in the Charter seem to me to be particularly susceptible of current application even although such application will of necessity take cognizance of pre-Charter events. Those Charter rights the purpose of which is to prohibit certain conditions or states of affairs would appear to fall into this category. Such rights are not designed to protect against discrete events but rather to protect against an ongoing condition of state of affairs. Pre-trial delay under s. 11(b) is a good example: R. v. Antoine. Section 15 may also fall into this category. Morden J.A. recognized in Re McDonald and The Queen (1985), 21 C.C.C. (3d) 330 (Ont. C.A.) that there was such a thing as a continuing discriminatory practice under s. 15 of the Charter.[9]

As it appears from this statement, it is important to determine the point in time at which the right to equality without discrimination under section 15 crystallizes. It also appears that there may be a continuing discriminatory practice which would call for an application of section 15 of the Charter although this would require that the Court take cognizance of pre-Charter events. To say that, however, is not to say that section 15 of the Charter applies every time one can establish that he still suffers from past discrimination. For section 15 to apply, there has to be an actual or an on-going discrimination which deprives one of equal protection and benefit of the law. It is not enough for one to say that one still suffers from a discriminatory event or legislation which took place or existed prior to the Charter. Otherwise, just about every instance of past discrimination since the turn of the century could be reviewed under section 15, provided the victims still suffer from that past discrimination.

In the case at bar, the discriminatory legislation, to wit subparagraph 5(1)(b)(i) of the 1947 Citizenship Act, was repealed in 1977 and the discriminatory practice ceased as paragraph 3(1)(b) of the 1977 Act eliminated for the future the source of discrimination. For those like the appellant who were governed by the old 1947 Act, the discrimination crystallized on the date of their birth in a foreign country when they acquired a foreign nationality and the then Canadian Citizenship Act did not give them the right to acquire Canadian citizenship. In the case of the appellant, it was on August 29, 1962. It is at that point that the 1947 Citizenship Act attached legal consequences to that momentary fact.

In conclusion, the Charter does not apply to the facts of this case.

Whether section 15 of the Charter ought to be applied retrospectively to the facts of this case

Should this Court find that an application of the Charter to the facts of this case would involve retrospectivity, the appellant contends that, because paragraph 5(2)(b) of the 1977 Citizenship Act is retrospective, the Charter also ought to be retrospective or ought to be applied retrospectively to retrospective provisions or legislations. With respect, one does not necessarily entail the other.

According to a basic and sound rule of interpretation reaffirmed by Dickson J. in Gustavson Drilling (1964) Ltd. v. Minister of National Revenue,[10]

… statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act.[11]

Paragraph 5(2)(b) of the 1977 Citizenship Act clearly was meant to have a retrospective application. However, the contrary intention clearly appears with regard to section 15 of the Charter as that section was not proclaimed into force in 1982 at the same time as the other provisions of the Charter. Indeed, it came into force only in 1985 in order to allow the various legislatures to bring whatever change was needed to their legislation to satisfy the constitutional guarantees provided by section 15.[12] This seems to me to be inconsistent with the type of retrospectivity sought by the appellant.

Whether the treatment afforded the appellant under the 1977 Citizenship Act is discriminatory

Assuming that I am wrong on the question of retroactivity and that section 15 of the Charter does apply to the facts of this case, I believe that the treatment afforded the appellant by paragraph 5(2)(b) of the 1977 Citizenship Act is not discriminatory.

Firstly, it is not every difference in treatment that necessarily results in inequality.[13] Nor, as my colleague Linden J.A. puts it, is it every legislative distinction that will violate subsection 15(1). It has to be a distinction which discriminates on one of the enumerated grounds in subsection 15(1) or on an analogous ground.

The appellant has contended before us that there was discrimination on the basis of sex because his Canadian mother could not pass on to him her citizenship while, had he been born to a Canadian father, he would have acquired the Canadian citizenship. Under the 1947 Citizenship Act, had the appellant been born, out of wedlock, to a Canadian mother, he could have acquired the Canadian citizenship from his mother.[14] In other words, an unmarried Canadian mother could pass on her citizenship, but a married Canadian mother could not. However, a Canadian father, whether married or not, could always pass on his citizenship. Consequently, it is more on the basis of their marital status than their sex that Canadian women were subjected to a different treatment under the old law. All of this is in a sense irrelevant now because, as I have already mentioned, this differential treatment no longer exists in the 1977 Citizenship Act for the children born outside of Canada after February 14 to either a Canadian father or mother.[15]

What we really have to consider now is the treatment given in 1977 to the appellant by paragraph 5(2)(b) of the 1977 Act. It is worth remembering that the appellant, as a result of the 1947 Act, was a foreign national and an alien when the 1977 Citizenship Act was enacted. When confronted with this fact in 1977, Parliament had three options: (1) ignore the issue altogether; (2) confer Canadian citizenship on all the aliens born outside of Canada prior to February 15, 1977 to married Canadian mothers; or (3) allow these children the possibility of acquiring Canadian citizenship.

Parliament was very much aware of the second option which involved retroactively conferring and imposing Canadian citizenship on foreign nationals. This would have eliminated the distinction created in 1947 between the children born to a married Canadian mother and those born to a Canadian father whose Canadian citizenship was legally maintained by paragraph 3(1)(e) of the 1977 Act.[16] However, Parliament was sensitive to the national and international as well as individual implications that a retroactive legislation could have. For instance, one could lose his foreign nationality if his country of origin did not allow its nationals to have a double nationality. One could avoid compulsory military service. In other words, one could be relieved of duties imposed by his country of origin or could become, by virtue of a new nationality imposed upon him, subject to all kinds of obligations that he does not necessarily want.

That Parliament was eager to assume its international obligations and not to interfere with the political status of foreign nationals and with something as fundamental and stable[17] as citizenship is evident from this excerpt of a letter sent by the then Secretary of State to a member of Parliament in response to a query made on that very issue:

Thank you for your letter of February 28, 1975 concerning the non-retroactivity of clause 3(1)(b) of Bill C-20 in respect to children born outside of Canada of a Canadian mother and non-Canadian father.

In the field of nationality and citizenship statutes the question of making retroactive legislation is one which has been considered on many occasions and one to which we have given a lot of thought. In this respect, the impact of automatic conferral of citizenship upon a person by retroactive legislation must, in addition to its national application, be considered in an international scope. Laws, of course, emerge out of custom and consent. Generally speaking, it has been found in the field of nationality that retroactive legislation is very easily interpreted as being a form of despotic infringement prejudicially affecting an existing status, i.e., non-Canadian or a foreign citizenship which might be lost or a privilege which a person enjoys as a citizen of another country, but which he would not enjoy if he were a dual national because of retroactive law.

The moral basis then for non-retroactivity is that one does not do unwanted and unasked for “favours” to persons because what one may think is a favour, another may regard as a “wrong”. Further, one never knows the unforeseen consequences of the retroactive conferral upon persons of citizenship which they may not even want. [My underlining.][18]

This is why, in the end, Parliament made it optional for those aliens to acquire Canadian citizenship and imposed minimal conditions. In my view, the solution adopted by Parliament in 1977 in the Citizenship Act created no discrimination. On the contrary, bearing in mind the social, national and international consequences of citizenship, it dealt fairly and sensibly with a past heritage. As foreign nationals or aliens, these children born outside of Canada before February 15, 1977 to a married Canadian mother were given the same treatment afforded other aliens. If anything, these children were given a preferential treatment over other aliens. It was not necessary for them to have been lawfully admitted in Canada for permanent residence and to have resided at least three years within the four years immediately preceding the date of their application.[19]

Whether section 22 of the 1977 Citizenship Act is discriminatory and contrary to section 15 of the Charter

The appellant contends also that the prohibition against the granting of citizenship to criminals pursuant to section 22 of the 1977 Act is discriminatory.[20] In other words, he submits that criminals born outside of Canada to a married Canadian mother ought to be treated in the same way as criminals born outside of Canada to a Canadian father. These criminals ought to be granted citizenship and you cannot grant it to one category, those with a paternal link, and not to the others who have a maternal link.

The appellant may be right in his submission if both categories of children who have later become criminals are Canadian citizens. However, section 22 is of no assistance to the appellant because it begs the very question that this Court is called upon to decide: are children born outside Canada to a married Canadian mother Canadian citizens or aliens? Section 22 applies to aliens. If the appellant is not an alien, the section does not apply. If, on the contrary, he is an alien, then he is caught by it. It is no doubt proper for Parliament to refuse to admit in Canada aliens with a criminal record or who display a criminal behavior. In the case of Chiarelli v. Canada (Minister of Employment and Immigration),[21] Sopinka J. wrote:

Thus, in determining the scope of principles of fundamental justice as they apply to this case, the Court must look to the principles and policies underlying immigration law. The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. At common law an alien has no right to enter or remain in the country: R. v. Governor of Pentonville Prison, [1973] 2 All E.R. 741; Prata v. Minister of Manpower & Immigration, [1976] 1 S.C.R. 376.

La Forest J. recently reiterated this principle in Kindler v. Canada (Minister of Justice), supra, at p. 834:

The Government has the right and duty to keep out and to expel aliens from this country if it considers it advisable to do so. This right, of course, exists independently of extradition. If an alien known to have a serious criminal record attempted to enter into Canada, he could be refused admission. And by the same token, he could be deported once he entered Canada.

…

If it were otherwise, Canada could become a haven for criminals and others whom we legitimately do not wish to have among us.

…

One of the conditions Parliament has imposed on a permanent resident’s right to remain in Canada is that he or she not be convicted of an offence for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non-arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non-citizen to remain in the country.[22]

It is all the more so when it comes to the granting of citizenship which is, for instance, for an alien who has been lawfully admitted to Canada for permanent residence, the culmination of his journey toward becoming a national of Canada. In the present case, the appellant is an alien and the validly enacted section 22 of the 1977 Citizenship Act applies to him.

Conclusion

For these reasons, I would dismiss this appeal with costs.

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