Date: 20031216
Docket: T-210-03
Citation: 2003 FC 1475
BETWEEN:
JOHN KEITH WILSON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] Does John Keith Wilson stand before me as a natural-born Canadian, who wants to come home, or does he stand before me as an American? The Minister is required to issue a certificate of citizenship to any citizen who applies for one. The Citizenship officer refused to issue a certificate on the grounds that he is not a Canadian citizen. Mr. Wilson has brought on an application for judicial review, claiming that any law which deters him in his quest violates the Canadian Charter of Rights and Freedoms.
[2] The facts before the Citizenship Officer are straightforward. The law, which offers a fascinating glimpse of the development of Canadian sovereignty in the 20th century, is not. After dealing with the facts, I shall break down the law into previous Citizenship Acts, the current Act, and the Canadian Charter of Rights and Freedoms.
THE FACTS
[3] Mr. Wilson was born in the State of Michigan in 1946. His father and mother were both Canadian-born, but were living in the United States when they married in 1940. His father became a naturalized United States citizen in 1941. The record does not indicate that his mother ever took active steps to become an American citizen.
[4] The only indication in the record that John Keith Wilson took any steps with respect to Canadian citizenship is his application for a certificate of citizenship in 2002.
PREVIOUS CITIZENSHIP ACTS
[5] In 1914 the Imperial Parliament enacted the British Nationality and Status of Aliens Act, 1914, 4 & 5 Geo., c-17, and the Parliament of Canada enacted the Naturalization Act, 1914, R.S.C. 1927, c. 138.
[6] For the purposes at hand it is not necessary to consider the Imperial Act. The Naturalization Act, 1914, was the Act in force at the time of Mr. Wilson's birth in 1946. It is significant to note that there was no separate and distinct Canadian citizenship at that time. There were only British subjects who were either natural-born, or naturalized.
[7] Mr. Wilson, who was "born out of His Majesty's dominions" and whose "father was born within His Majesty's allegiance" was not a natural-born British subject because his father was not "at the time of [his] birth a British subject" (s. 3(b)).
[8] The fact that Mr. Wilson's father took out American citizenship also affected his mother. Their marriage turned her into an alien. However, she was entitled to make a declaration that she desired to retain British nationality and thereupon would remain a British subject (s. 13). It is not known whether she took such steps.
[9] The next statute is the Canadian Citizenship Act, S.C. 1946, conveniently called the 1947 Act as it came into force 1 January of that year. It is this Act which conferred Canadian citizenship upon British subjects born in or resident in Canada.
[10] A person such as Mr. Wilson, born outside Canada, was considered to be a natural-born Canadian citizen if "his father, or in the case of a person born out of wedlock, his mother", was born in Canada and had not become an alien at the time of that person's birth.
[11] Mr. Wilson complains that this is gender discrimination, and indeed it is. However, unless his mother had taken steps to maintain her British nationality, at the time of his birth he and his parents were all aliens (s. 4(b)).
[12] Section 6 of the 1947 Act is also relevant in that it provided that a minor, foreign-born, otherwise entitled to citizenship ceased to be a Canadian citizen unless lawfully admitted to Canada for permanent residence or unless while 21 he or she asserted Canadian citizenship by a Registered Declaration of Retention and if a citizen of another country divested himself or herself of that citizenship. As Mr. Wilson was born in the United States of an American father I cannot but assume that he is an American citizen.
[13] There is no indication that Mr. Wilson did anything in this regard, and indeed there was nothing he could do because he was born in wedlock, and his father was an alien.
[14] Section 11 of the 1947 Act gave the Minister discretion to grant citizenship to a woman who by virtue of the Naturalization Act, 1914 had ceased to be a British subject by reason only of her marriage to an alien. The record is silent as to whether Mr. Wilson's mother made any such application.
[15] Section 11 also gave the Minister discretion upon application to grant citizenship to a minor in special cases. Again, there is no indication that Mr. Wilson did anything in this regard.
[16] The last act before the current Act was the Canadian Citizenship Act, R.S.C. 1970, c. C-19. Under section 4 Mr. Wilson was not a natural-born Canadian citizen because he was born outside Canada, was an alien, and his father was an alien. Under section 10(3) it was open to Mr. Wilson's mother to apply for citizenship which the Minister, in his discretion, could have granted on the grounds that she had become an alien solely be reason of her marriage and because she would have been a natural-born Canadian had the Act come into force immediately before the said marriage. Again there is no evidence on this point.
THE CURRENT ACT
[17] The current Act, the Citizenship Act, 1974-75-76, c. 108, is often called the 1977 Act as it has application as of 14 February 1977.
[18] Under section 5(2) a person born outside Canada before 15 February 1977, such as Mr. Wilson, of a mother who was a citizen at the time of his birth (1946) and who was not entitled to become a citizen under the former Act because his father was an alien, was entitled as of right to citizenship. However, Mr. Wilson's mother was not a Canadian citizen at the time of his birth, because there was no Canadian citizenship before 1947, and unless she took steps to the contrary she had lost her status as a British subject in virtue of her husband taking out American papers in 1941.
CANADIAN CHARTER OF RIGHTS AND FREEDOMS, CONSTITUTION ACT, 1982
[19] Section 15(1) of the Charter, which came into force in 1985, provides:
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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.
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La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques.
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Section 1 guarantees these rights and freedoms "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". It is obvious that entitlement to citizenship through one's father and not one's mother, unless born out of wedlock, as provided in the 1914 Act, and 1947 Act and the 1970 Act violates section 15 of the Charter. However, all these statutes were repealed long before section 15 came into force. Before then it was unlaudable, but not unlawful, to discriminate on the grounds of race, origins, sex or age.
[20] Mr. Wilson asks for a holding that section 3(1)(e) and section 5(2)(b) of the 1977 Act are unconstitutional and in violation of his section 15 rights in that they continue the discrimination set out in section 4(b) of the 1947 Act.
[21] He submits that it is not necessary to apply the Charter retroactively as the discrimination found in the 1947 Act, which carried forward the original discrimination set out in the 1914 Act, continues to this day, and the trigger point was in 2002 when he applied for his certificate of Canadian citizenship, some 7 years after section 15 came into force. At the heart of his argument is Benner v. Canada (Secretary of State and the Registrar of Citizenship), [1997] 1 S.C.R. 358.
[22] Benner was born in 1962 in the United States of a Canadian mother and an American father. He applied for Canadian citizenship in 1988. At that time the Citizenship Act provided that persons born abroad before 15 February 1977 would be granted citizenship on application if his or her father or mother was a Canadian citizen, but would be required to undergo a security check and swear and oath if born of a mother who was a Canadian citizen. The appellant underwent a security check which revealed that he had been charged with several criminal offences, and which led to his application being rejected. Although the Supreme Court confirmed that the Charter had no retroactive effect it was held that the moment of importance was that at which his status was held against him which was when his application for citizenship was rejected. As this occurred after section 15 came into effect the Charter applied.
[23] In my opinion, Benner is distinguishable. The 1977 Act had no application pertinent to Mr. Wilson who was born before 1947. Unlike Benner, Mr. Wilson's mother was not a Canadian citizen at the time of his birth. Furthermore, even if the 1914 Act, the 1947 Act, and the 1970 Act did not give rights depending on whether or not one's father or mother was a Canadian, and whether or not they were married, Mr. Wilson at some point long before 1985 would have had to assert his rights by declaring Canadian citizenship or residing here.
[24] As stated by Iacobucci J. at paragraph 45 of Benner:
The question, then, is one of characterization: is the situation really one of going back to redress an old event which took place before the Charter created the right sought to be vindicated, or is it simply one of assessing the contemporary application of a law which happened to be passed before the Charter came into effect?
[25] In my opinion the 1977 Act snapped the chain of causality, so that Mr. Wilson is really asking us to redress an old event.
[26] I am fortified in this opinion by the decision of Nadon J. (as he then was) in Dubey v. Canada (Minister of Citizenship and Immigration), 2002 FCT 582, 222 F.T.R. 1. He noted that the 1977 Act purported to redress distinctions between Canadian fathers and Canadian mothers for persons born outside Canada after 1 January 1947, and before 15 February 1977. Since the 1977 Act does not deal with people such as Mr. Wilson who were born in 1946, the 1977 Act did not carry forward legislative discrimination which would have to be assessed against the Charter. Whether the trigger point was the date when the 1977 Act came into force, as stated by Nadon J., or earlier dates when Mr. Wilson could or should have done something, but did not, the result is the same. The Acts which did not give Mr. Wilson the status he asserts have no current application and thus are not subject to the Charter.
[27] Consequently, Mr. Wilson's application for judicial review will be dismissed on the basis of the facts in the record. As mentioned throughout, the record is silent with respect to steps which might have been open for Mr. Wilson, or his mother who died in 1982, to take. Nothing herein should be taken as precluding Mr. Wilson from advancing his case on other facts.
"Sean Harrington"
JUDGE
Ottawa, Ontario
December 16, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-210-03
STYLE OF CAUSE: JOHN KEITH WILSON
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 9, 2003
REASONS FOR ORDER : HARRINGTON J.
DATED: DECEMBER 16, 2003
APPEARANCES:
Gregory J. Willoughby FOR APPLICANT
Negar Hashemi
Jamie Todd FOR RESPONDENT
SOLICITORS OF RECORD:
McKenzie Lake
London, ON FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
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