T-3143-77
Marie Yolene Germain and Wilson Germain
(Petitioners)
v.
Guy Malouin and Minister of Manpower and
Immigration (Respondents)
and
Attorney General of Canada (Mis -en-cause)
Trial Division, Walsh J.—Montreal, October 24;
Ottawa, October 31, 1977.
Immigration — Prerogative writs — Mandamus — Father
sponsoring illegitimate daughter for immigration — Spon
sored application denied — Illegitimate child of a man not
included in Regulation's definition of "daughter" or "son" —
Whether or not discrimination as to sex contrary to Canadian
Bill of Rights rendering Regulation ultra vires — Canadian
Bill of Rights, S.C. 1960, c. 44, s. 1 — Immigration Act,
R.S.C. 1970, c. 1-2, s. 57 — Immigration Regulations, Part I,
SOR/62-36, as amended by SOR/74-113, ss. 2(b)(i),
2(b)(ii)(A).
Wilson Germain, a Canadian citizen, sponsored or nominat
ed his illegitimate daughter for permanent residence, but was
advised that neither could she be admitted nor her demand
considered because of her illegitimacy. This is a petition for a
writ of mandamus to consider his daughter's application for
permanent residence without taking Regulation 2(b) into con
sideration because, petitioners argue, it is illegal and dis
criminatory against male persons and illegitimate children, in
contravention of the Canadian Bill of Rights.
Held, the petition is dismissed. It is the female petitioner who
is seeking admission as a landed immigrant, and while there is
discrimination between a female born in lawful wedlock and
one who is illegitimate, resulting from the definition of "daugh-
ter" in Regulation 2(b), this is not discrimination as to sex
contrary to the Canadian Bill of Rights rendering the Regula
tion ultra vires. Further, it does not result in unequal treatment
before the law for the child in question for she can still be
admitted as an immigrant. It is only the father and mother who
are treated unequally with respect to their rights to sponsor or
nominate the child as a landed immigrant. Finally, there is
serious doubt as to whether mandamus is the appropriate
remedy, rather than a declaratory judgment.
Praia v. Minister of Manpower and Immigration [1972]
F.C. 1405, [1976] 1 S.C.R. 376, followed. Re Schmitz
[1972] F.C. 1351, followed. Attorney General of Canada
v. Bliss [1978] 1 F.C. 208, followed. Ulin v. The Queen
[1973] F.C. 319, followed. Minister of Manpower and
Immigration v. Tsiafakis [1977] 2 F.C. 216, distin
guished. Attorney General of Canada v. Lavell [1974]
S.C.R. 1349, considered.
APPLICATION.
COUNSEL:
Julius H. Grey for petitioners.
Suzanne Marcoux-Paquette for respondents
and mis -en-cause.
SOLICITORS:
Lazare & Altschuler, Montreal, for petition
ers.
Deputy Attorney General of Canada for
respondents and mis -en-cause.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is a petition for the issue of a
writ of mandamus to compel respondents to con
sider the application for permanent residence of
the petitioner Marie Yolene Germain without
taking into consideration Regulation 2(b) of the
Immigration Regulations, Part P on the ground
that this Regulation is illegal and discriminatory
against persons of the male sex and against illegiti
mate children in contravention of the Canadian
Bill of Rights 2 .
The facts are not in dispute. Petitioner Wilson
Germain is not married to the mother of his
daughter co-petitioner Marie Yolene Germain who
applied for permanent residence in Canada on
January 19, 1976, as a sponsored dependant or
nominated relative pursuant to sections 31 and 33
of the Regulations. Petitioner Wilson Germain is a
Canadian citizen joined in the demand as father of
Marie Yolene Germain. He was advised however
that his said daughter could not be admitted nor
could her demand be considered because of her
illegitimacy pursuant to the said section 2(b) of
the Regulations. A mandamus is sought to give
petitioners the right to a study of said application.
' SOR/62-36, as am. by SOR/74-113.
2 S.C. 1960, c. 44.
The said section 2(b) reads as follows:
2. In these Regulations,
(b) "daughter" means a female who is
(i) the issue of lawful wedlock and who would possess the
status of legitimacy if her father had been domiciled in a
province of Canada at the time of her birth,
(ii) the issue of a woman who
(A) has been admitted to Canada for permanent resi
dence, or
(B) is admissible to Canada as an immigrant and
accompanies the said issue to Canada for permanent
residence; or
(iii) adopted;
Since petitioners do not dispute that the female
petitioner was born out of wedlock and would not
possess the status of legitimacy if her father had
been domiciled in a province of Canada at the time
of her birth it is clear that she is inadmissible
under the Regulation, if the Regulation is valid
and not ultra vires as being discriminatory, as
petitioners contend.
The Regulation was made presumably pursuant
to section 57 of the Immigration Act' which reads
as follows:
57. The Governor in Council may make regulations for
carrying into effect the purposes and provisions of this Act and,
without restricting the generality of the foregoing, may make
regulations respecting
(a) the terms and conditions under which persons who have
received financial assistance to enable them to obtain passage
to Canada or to assist them in obtaining admission to
Canada may be admitted to Canada;
(b) literacy, medical and other examinations or tests and the
prohibiting or limiting of admission of persons who are
unable to pass them;
(c) the terms, conditions and requirements with respect to
the possession of means of support or of passports, visas or
other documents pertaining to admission;
(d) the admission to Canada of persons who have come to
Canada otherwise than by continuous journey from the
countries of which they are nationals or citizens;
(e) the prohibiting or limiting of admission of persons
brought to Canada by any transportation company that fails
to comply with any provision of this Act or any regulation,
order or direction made under it;
(/) the prohibiting or limiting of admission of persons who
are nationals or citizens of a country that refuses to readmit
any of its nationals or citizens who are ordered deported; and
3 R.S.C. 1970, c. I-2.
(g) the prohibiting or limiting of admission of persons by
reason of
(i) nationality, citizenship, ethnic group, occupation, class
or geographical area of origin,
(ii) peculiar customs, habits, modes of life or methods of
holding property,
(iii) unsuitability having regard to the climatic, economic,
social, industrial, educational, labour, health or other con
ditions or requirements existing, temporarily or otherwise,
in Canada or in the area or country from or through which
such persons come to Canada, or
(iv) probable inability to become readily assimilated or to
assume the duties and responsibilities of Canadian citizen
ship within a reasonable time after their admission.
and it is contended that such a discrimination
based on legitimacy or illegitimacy does not come
within any subparagraphs of the said section. If
justified at all therefore it would have to be made
on the basis that it is a Regulation "for carrying
into effect the purposes and provisions of this
Act". No definition of the word "daughter"
appears in the Act, this definition only appearing
in the Regulation, and it is on the basis of the
definition that the female petitioner's application
has been refused consideration.
Moreover, it was argued that since if the female
petitioner was seeking admission because her
mother had been admitted to Canada for perma
nent residence she would have been admissible
under section 2(b)(ii)(A) of the Regulations
despite her illegitimacy, whereas since it is her
father who has been admitted for permanent resi
dence and joins with her in the petition to have her
admitted she is ineligible because of her illegitima
cy by virtue of section 2(b)(i) of the Regulations,
this constitutes a discrimination rendering this sec
tion of the Regulations invalid. Section 1 of the
Canadian Bill of Rights reads as follows:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be
deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and
the protection of the law;
(c) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(J) freedom of the press.
It is to be noted that the word "sex" only appears
in the introductory clause and that none of the
paragraphs would be applicable with the possible
exception of paragraph (b) "the right of the
individual to equality before the law". It is argued
that the male petitioner is by this Regulation
deprived of equality before the law as a result of
not being given equal rights by the Regulation to
those which the mother of the child would have
had to sponsor the daughter had the mother been
the permanent resident of Canada.
Counsel for respondents suggested that there
was a reason for the distinction in that any man
could claim to be the father of a son or daughter
whom he wished to sponsor for admission to
Canada, and if this were not so it would be almost
impossible to disprove it, whereas in the case of a
mother claiming maternity of an illegitimate child
such relationship would be possible to verify.
While this may be the reason why the distinction
was made in the Regulation it would not be suffi
cient to justify a discriminatory regulation if it is
found that such a regulation could not have been
legally adopted. At this stage of proceedings,
where the application has not even been considered
on its merits, since it was merely rejected by the
application of Regulation 2(b) it is not possible to
state if supporting proof could have been submit
ted by the male petitioner as to his paternity of his
daughter, which he might have recognized at the
time of her birth for example in her birth certifi
cate, in the same manner as this would have been
the normal proof submitted by a female admitting
maternity of an illegitimate child.
The parties are in agreement that the fact that
both father and daughter are co-petitioners is not
an issue, and that even if mandamus were granted
the Minister would have the right to refuse admis
sion on other grounds or conversely if the man-
damus is refused this would not prevent the female
petitioner from seeking admission as an immigrant
under other sections of the Regulations.
Both parties referred to extensive jurisprudence
and authorities in support of their contentions.
Petitioner referred to an article by Louis-Philippe
Pigeon (now Judge Pigeon of the Supreme Court)
entitled "Rédaction et Interprétation des Lois"
(Quebec, 1965) in which he stated at page 27
under the heading
[TRANSLATION] Discriminatory Provisions
There is another important observation to make on the
question of the power of making regulations. It is the following:
the power to make regulations does not permit the establish
ment of discriminatory provisions. Otherwise said, a regulation
should, unless the text which authorizes it states the contrary,
apply to everyone in the same manner. If one wishes to be able
to make distinctions this must be stated.
Reference was also made to the judgment of
Associate Chief Justice Noël as he then was in the
case of Ulin v. The Queen 4 which dealt with a
Regulation made under the Canadian Citizenship
Act requiring an applicant for citizenship to
renounce his previous nationality. The learned
Associate Chief Justice stated at page 325:
If the legislator intended to require more than an oath of
allegiance in order to obtain Canadian citizenship, it would
have been a simple matter to so enact such other requirements
as are considered necessarily and substantially required for the
protection of the quality of Canadian citizenship. Parliament,
however, has not done so and the Governor in Council is not
empowered, under the guise of carrying into effect the purposes,
and provisions of the Act to enact such a substantive require
ment as a declaration of renunciation merely by regulation.
The portion of the Regulations containing this
requirement was therefore found to be ultra vires.
It was argued that nothing in section 57(g) of the
Act (supra) authorizes the limitation of admission
of persons who are illegitimate. While this is
undoubtedly so this is not quite the issue in the
present petition. The female petitioner is not being
prohibited nor are limitations being placed on her
admission as a result of her illegitimacy, but it is
her father who is being prohibited from sponsoring
her for this reason. If the argument were to be
sustained that, since there is no specific au
thority in the Act for making regulations as to who
may sponsor or nominate a relative, these regula
tions cannot validly be made then all of the Regu
lations 31 and 33 would be ultra vires. I am of the
view however that they can be justified by virtue of
the preamble to section 57 which authorizes the
making of Regulations "for carrying into effect
4 [1973] F.C. 319.
the purposes and provisions of this Act" and then
uses the words "without restricting the generality
of the foregoing" before outlining the nature of
specific Regulations which may be made, and I do
not believe that petitioners seriously dispute this,
the principal argument being based on the wording
of Regulation 2(b) which is allegedly discriminato
ry with respect to who may "sponsor" or "nomi-
nate" although not with respect to the person who
may be sponsored or nominated.
Similar reference was also made by counsel for
petitioners to an article by Elmer A. Driedger,
former Deputy Minister of Justice, entitled "The
Meaning and Effect of the Canadian Bill of
Rights: A Draftsman's Viewpoint"' in which the
learned author states at pages 312-313:
True, the Bill of Rights itself precludes a regulation-making
authority from making a regulation inconsistent with the Bill of
Rights. But the situation is not that the regulation is inopera
tive on the ground that it offends the Bill of Rights; it is ultra
vires the statute because there is now no power to make such a
regulation. In the case of future statutes granting legislative
power, the Bill of Rights withholds power to make offending
laws and the result is the same.
and again at page 313:
Statutes granting powers must now be so construed as not to
authorize the abrogation, abridgment or infringement of the
Bill of Rights, whether by subsidiary laws, by decisions deter
mining rights or by any other action. This is accomplished by
reading the provisions of the Bill of Rights into the statutes
conferring powers; these provisions then operate to amend,
qualify or restrict the power.
Again at page 318:
The right protected by the Bill is "equality before the law".
Apart from the meaning or effect of the whole phrase, the first
and more fundamental question, I suggest, is: What is the
meaning of the word equality as used in the Bill of Rights?
Since the objective of the Bill is to produce equality, must we
not say, first of all, that "equality" means such equality as
Parliament can create, and that the lack of equality, or "in-
equality", aimed at by the Bill, is such inequality as Parliament
can remove or empower the courts to remove.
5 (1977) 9 Ottawa L. Rev. 303.
At pages 319-320 in commenting on the Lave!!
case 6 he states:
The Lave!! case was right in holding, in effect, that the Bill of
Rights did not apply to the Indian Act (a decision seemingly
contrary to the Drybones case [R. v. Drybones [1970] S.C.R.
282]), but it could have been held that within the area of
Parliament's legislative and geographical jurisdiction, there is
discrimination as between Indians on the ground of sex.
While the majority decision in the Lave!! case held
that the Canadian Bill of Rights should not be
construed so as to render inoperative one of the
conditions imposed in the Indian Act for the use
and occupation of Crown lands reserved for Indi-
ans, the comments of Laskin J. as he then was in a
dissenting decision at page 1387 are of consider
able interest. He there stated:
I do not think it is possible to leap over the telling words of s.
1, "without discrimination by reason of race, national origin,
colour, religion or sex", in order to explain away any such
discrimination by invoking the words "equality before the law"
in clause (b) and attempting to make them alone the touch
stone of reasonable classification. That was not done in the
Drybones case; and this Court made it clear in Curr v. The
Queen [[1972] S.C.R. 889], that federal legislation, which
might be compatible with the command of "equality before the
law" taken alone, may nonetheless be inoperative if it manifests
any of the prohibited forms of discrimination. In short, the
proscribed discriminations in s. 1 have a force either independ
ent of the subsequently enumerated clauses (a) to (f) or, if they
are found in any federal legislation, they offend those clauses
because each must be read as if the prohibited forms of
discrimination were recited therein as a part thereof.
At page 1375 he stated:
[If,] as in Drybones, discrimination by reason of race makes
certain statutory provisions inoperative, the same result must
follow as to statutory provisions which exhibit discrimination
by reason of sex.
In the same case although Pigeon J. agreed with
the majority judgment he states at page 1390:
My difficulty is Laskin J.'s strongly reasoned opinion that,
unless we are to depart from what was said by the majority in
Drybones, these appeals should be dismissed because, if dis
crimination by reason of race makes certain statutory provi
sions inoperative, the same result must follow as to statutory
provisions which exhibit discrimination by reason of sex. In the
end, it appears to me that, in the circumstances, I need not
reach a firm conclusion on that point.
6 See The Attorney General of Canada v. Lave!! [1974]
S.C.R. 1349.
Respondents' counsel referred to the case of Re
Schmitz' the decision of my brother Collier J. on a
citizenship application in which it was contended
that section 10(1)(b) and (c)(iii) of the Canadian
Citizenship Act is discriminatory when compared
with section 10(1)(c)(i) of the Act since under the
former sections an alien female who becomes the
wife of a Canadian citizen may apply for Canadi-
an citizenship after residing in Canada for one
year while an alien male must, under the latter
section have resided in Canada for five of the last
eight years preceding his application, and he has
therefore been denied equality before the law.
After stating that the different status given to an
alien female who becomes the wife of a Canadian
citizen reflects the historical antecedents of the
law by which a wife may be deemed to take the
citizenship and domicile of her husband, he states
at pages 1352-53:
I am not convinced that there is discrimination by reason of
sex which results in inequality before the law. It seems to me in
section 10 of the Canadian Citizenship Act there is a differen
tiation or distinction made in respect to the status of females.
The foreign female who is or becomes the wife of a Canadian
citizen is given a different status in respect to citizenship and
this seems to me to be the result of the historical process and
concepts in which a wife may be deemed to take the citizenship
and domicile of her husband. It accords with the theory,
historically at least, if not subscribed to by females today, that
the husband is the head of the house.
There is nothing in the Bill of Rights which forbids differen
tiation in respect to status as between married and single
women under the Canadian Citizenship Act.
Even if there were discrimination by reason of sex, as argued
by the appellant, I am unable to see what the Court can do in
this case. It seems clear from the majority judgment of the
Supreme Court in R. v. Drybones [1970] S.C.R. 282 that if
there is discrimination in a law then the offensive part must be
declared to be inoperative. It is not contended by the appellant
here that there should be no required period of residence in
Canada; he merely argues that the period of residence for a
male spouse should be the same as that for a female spouse: one
year. To my mind, if I made such a declaration, the Court
would be at the least amending the legislation passed by
Parliament and not merely holding it to be inoperative.
7 [1972] F.C. 1351.
There is, it seems to me, a further problem (again assuming
discrimination): which part of section 10 is to be declared
offensive, the requirement of one year's residence on the part of
the female spouse or the five-year residence requirement on the
part of most other persons? To hold one way or the other
would, to my mind, be amendment of the legislation, which is
not contemplated by the Bill of Rights.
Reference was also made to the case of Attorney
General of Canada v. Bliss 8 a decision of the
Federal Court of Appeal in which it had been
contended that section 46 of the Unemployment
Insurance Act was contrary to the Canadian Bill
of Rights since it denies all types of benefits to
female claimants during a fourteen-week period
during which pregnancy benefits would ordinarily
be paid. The appellant was not entitled to the
pregnancy benefits having insufficient contribu
tions but would have been eligible for the said
ordinary benefits. Pratte J. stated at pages
212-213:
The Canadian Bill of Rights does not expressly prohibit dis
crimination. That word is used only in the English version of
section 1 which proclaims the existence of certain rights and
freedoms and it is not used in the enumeration of those rights
and freedoms but, rather, in that part of the section which
indicates that those rights and freedoms shall benefit everyone,
irrespective of his race, national origin, colour, religion or sex.
The question to be determined in this case is therefore, not
whether the respondent has been the victim of discrimination
by reason of sex but whether she has been deprived of "the
right ... to equality before the law" declared by section 1(b) of
the Canadian Bill of Rights. Having said this, I wish to add
that I cannot share the view held by the Umpire that the
application of section 46 to the respondent constituted discrimi
nation against her by reason of sex. Assuming the respondent to
have been "discriminated against", it would not have been by
reason of her sex. Section 46 applies to pregnant women, it has
no application to women who are not pregnant, and it has no
application, of course, to men. If section 46 treats unemployed
pregnant women differently from other unemployed persons, be
they male or female, it is, it seems to me, because they are
pregnant and not because they are women.
and again at pages 213 - 214:
The expression "equality before the law" in section 1(b) of
the Canadian Bill of Rights cannot be interpreted literally as
meaning that all persons must have, under all statutes, exactly
the same rights and obligations. Otherwise, the Canadian Bill
of Rights would sterilize most federal legislation since the
rights, duties and obligations of individuals under the law
always vary according to their situation. As was decided by the
Supreme Court of Canada in Prata v. M.M. & I. [1976] 1
S.C.R. 376 and in R. v. Burnshine [1975] 1 S.C.R. 693, section
1(b) of the Canadian Bill of Rights does not require that all
8 [1978] 1 F.C. 208.
federal statutes must apply to all individuals in the same
manner.
and again at page 214:
When a statute distinguishes between persons so as to treat
them differently, the distinctions may be either relevant or
irrelevant. The distinction is relevant when there is a logical
connection between the basis for the distinction and the conse
quences that flow from it; the distinction is irrelevant when that
logical connection is missing. In the light of those consider
ations, the right to equality before the law could be defined as
the right of an individual to be treated as well by the legislation
as others who, if only relevant facts were taken into consider
ation, would be judged to be in the same situation. According
to that definition, which, I think, counsel for the respondent
would not repudiate, a person would be deprived of his right to
equality before the law if he were treated more harshly than
others by reasons of an irrelevant distinction made between
himself and those other persons. If, however, the difference of
treatment were based on a relevant distinction (or, even on a
distinction that could be conceived as possibly relevant) the
right to equality before the law would not be offended.
In finding that section 46 of the Act was not ultra
vires since there were, relevant reasons for its
existence he concludes at page 216:
Parliament chose to provide that the period of employment
required to qualify for the pregnancy benefits, which are in
certain respects more generous than the ordinary benefits,
should be longer than the period required for those other
benefits. That decision may be thought to have been unwise,
but nevertheless, it cannot be said that it was founded on
irrelevant considerations; it follows that, in my view, the legisla
tion adopted to implement that decision was "enacted for the
purpose of achieving a valid federal objective", (see Prata v.
M.M. & I. [1976] 1 S.C.R. 376 at 382), and did not infringe
anyone's right to "equality before the law".
In the case of Prata v. Minister of Manpower
and Immigration 9 it was held, affirming the judg
ment of the Federal Court of Appeal that a certifi
cate filed by the Minister and the Solicitor Gener
al under the provisions of section 21 of the
Immigration Appeal Board Act had the effect of
removing the jurisdiction from the Immigration
Appeal Board to consider an appeal under the
provisions of section 15 of that Act. It had been
contended that this section 21 certificate was
invalid being contrary to the Canadian Bill of
Rights in that it deprived the appellant of a right
to a fair hearing. In rendering the judgment of the
Court Martland J. stated at page 382:
9 [1976] 1 S.C.R. 376.
It is contended that the application of s. 21 has deprived the
appellant of the right to "equality before the law" declared by
s. 1(b) of the Canadian Bill of Rights. The effect of this
contention is that Parliament could not exclude from the
operation of s. 15 persons who the Crown considered should
not, in the national interest, be permitted to remain in Canada,
because such persons would thereby be treated differently from
those who are permitted to apply to obtain the benefits of s. 15.
The purpose of enacting s. 21 is clear and it seeks to achieve a
valid federal objective. This Court has held that s. 1(b) of the
Canadian Bill of Rights does not require that all federal
statutes must apply to all individuals in the same manner.
Legislation dealing with a particular class of people is valid if it
is enacted for the purpose of achieving a valid federal objective
(R. v. Burnshine [supra]).
In the Appeal Court judgment in the same case 10
Chief Justice Jackett stated at page 1414:
Application of a substantive rule of law to one class of persons
and not to another cannot, as it seems to me, of itself, be
objectionable discrimination from the point of view of section
1(b) of the Canadian Bill of Rights. This is not to say that
there might not be a law that is essentially discriminatory by
reference to some other prejudice, in the same sense as a law
can be discriminatory "by reason of race, national origin,
colour, religion or sex". Such a law, to the extent that it was
thus discriminatory, would not, I should have thought, be a law
based on acceptable legislative objectives adopted by Parlia
ment and would, to that extent, run foul of section 1(b) of the
Canadian Bill of Rights.
It must be borne in mind that it is the female
petitioner who is seeking admission to Canada as a
landed immigrant, and while there is certainly
discrimination between a female born in lawful
wedlock and one who is illegitimate resulting from
the definition of "daughter" in Regulation 2(b) ",
this is not a discrimination based on sex. My
brother Collier J. found in the Schmitz case
(supra) that differentiation between married
women and those who are not married was not
ultra vires in the Canadian Citizenship Act stating
[at p. 1353]:
There is nothing in the Bill of Rights which forbids differen
tiation in respect to status as between married and single
women under the Canadian Citizenship Act.
I would make the same statement to the effect that
there is nothing in the Canadian Bill of Rights
1 ° [1972] F.C. 1405.
" The same applies in the case of a "son" as a result of the
definition in Regulation 2(d).
which forbids differentiation between legitimate
and illegitimate persons.
Petitioner's principal argument is however that
there is a discrimination in the Regulations be
tween the right of the male petitioner to sponsor a
son or daughter born out of wedlock under section
31 of the Regulations or to nominate him or her
under section 33 and the right of the mother to
make a similar sponsorship or nomination after she
herself has been admitted to Canada for perma
nent residence even though the daughter or son
was born out of wedlock.
The word "child" is not defined in the Act, and
the differentiation only arises in the definitions of
"daughter" and "son" in the Regulations. The
distinction between a legitimate and an illegiti
mate daughter (or between a legitimate and
illegitimate son) is clearly not a discrimination as
to sex however, nor does it result in unequal
treatment before the law for the child in question
who can still be admitted as an immigrant. It is
only the father and mother who are treated une
qually with respect to their rights to sponsor or
nominate the child for admission as a landed
immigrant.
Regulations 31 and 33 confer a privilege on the
parent sponsoring or nominating a relative, subject
to the conditions set out therein. As Mr. Justice
Pratte stated in the passage quoted from the Bliss
case (supra) even in a statute the right to equality
before the law depends on whether relevant or
irrelevant factors are taken into consideration and
if the difference of treatment is based on a relevant
distinction or even a distinction that could be
conceived as possibly relevant the right to equality
before the law is not offended. Counsel for
respondents has given a possible explanation as to
why the distinction was made, and the distinction
may well be a relevant one. As Chief Justice
Jackett said in the Prata case (supra) at page
1414:
Certainly, the phrase "equality before the law" has always
suggested to me that one person must not be treated differently
from another under the law. It is a novel thought to me that it
is inconsistent with the concept of "equality before the law" for
Parliament to make a law that, for sound reasons of legislative
policy, applies to one class of persons and not to another class.
As it seems to me, it is of the essence of sound legislation that
laws be so tailored as to be applicable to such classes of persons
and in such circumstances as are best calculated to achieve the
social, economic or other national objectives that have been
adopted by Parliament.
Reference might also be made to the passage
referred to from the judgment of Martland J. in
the Prata case (supra).
While there may be some doubt therefore as to
the justification for the distinction made in the
definition of "daughter" in Regulation 2(b) (and
"son" in Regulation 2(d)), I do not conclude that
this constitutes a discrimination based on sex so as
to deny the male petitioner herein equality before
the law under the provisions of section 1 (b) of the
Canadian Bill of Rights thereby making this
Regulation ultra vires.
Moreover, there is serious doubt as to whether a
writ of mandamus is the appropriate procedure in
any event rather than a declaratory judgment. In
this connection petitioners rely on the case of
Minister of Manpower and Immigration v.
Tsiafakis 12 in which the Federal Court of Appeal
in sustaining the judgment of the Trial Division
held that the right to sponsor was not a prelim
inary question and a prospective sponsor had a
right to make an application in the prescribed
form and to have the right determined on the basis
of that application, even if it was likely that the
application would then be rejected as the person
sought to be sponsored did not appear to come
within the category of a person who could be
sponsored. In that case the immigration officer
had refused to provide the necessary form, and the
applicant was therefore deprived of the possibility
of appealing to the Immigration Appeal Board
from a dismissal of the application, since without
the form no valid application could be made. A
mandamus was therefore issued to compel the
immigration officer to furnish the applicant with
the necessary form as required by the Regulation.
In rendering judgment Le Dain J. said at page
222:
12 [1977] 2 F.C. 216.
Mandamus lies to compel the performance of a public duty
which a public authority refuses or neglects to perform
although duly called upon to do so. It is clear that the respond
ent requested the immigration officer to provide her with the
prescribed form for making an application for admission of her
parents as sponsored dependants and that he refused to do so.
The question is whether he had a duty to provide her with the
form.
The situation in that case is clearly distinguishable
from the present circumstances in which the
application was duly made, but not granted, as
petitioners themselves concede it could not be on
the basis of a proper interpretation of the defini
tion of "daughter" in section 2(b) of the Regula
tions. What petitioners are seeking therefore is an
order to the immigration officer that he should not
take this Regulation into account as it is dis
criminatory and ultra vires. The immigration offi
cer was bound to take it into account and of course
had no right to consider the question of the validi
ty of the Regulation. It is difficult to see therefore
how it can be said that he failed to perform his
duty. Moreover, as Collier J. pointed out in the
Schmitz case (supra) the relief sought would have
required him to make a declaration having the
effect of amending legislation passed by Parlia
ment and not merely holding it to be inoperative,
and there would be a further question as to which
of the two differing sections should be amended,
and that to make a decision of this sort would
certainly not be contemplated by the Canadian
Bill of Rights. The same situation applies here,
although perhaps not quite so strongly since it is a
regulation and not an Act of Parliament which it is
contended results in discrimination. Nevertheless,
the Court cannot substitute itself for the Governor
General in Council by attempting to decide wheth
er, to avoid discrimination, the definition of
"daughter" should be changed so as to make it
clear that an illegitimate daughter can be spon
sored or nominated by either the father or mother
who has been admitted to Canada for permanent
residence, or alternatively whether it should be
changed to state that no illegitimate daughter can
be sponsored or nominated by either the father or
mother (although this latter possibility seems un
likely). If a mandamus were issued to require the
immigration officer not to take Regulation 2(b)
into account at all, he would then be left without
any Regulation defining "daughter" to be used in
connection with the application of section 31 or 33
for sponsorship or nomination of the daughter,
with the probable result that an illegitimate
daughter could be sponsored or nominated in all
cases since normally the word "daughter" would
not be limited to one born in wedlock. This would
be equivalent to amending the Regulation which
the Court cannot do.
For all of the above reasons I believe that the
application must fail and will be dismissed.
ORDER
Petitioners' application for a writ of mandamus
is dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.