Date: 20050427
Docket: T-543-04
Citation: 2005 FC 572
Ottawa, Ontario, April 27, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
DEBBIE STEPHANIE GIESBRECHT VELETA
BRANDON JAKE GIESBRECHT VELETA
THOMAS ALEXANDER GIESBRECHT VELETA
JOSEPH TOBY GIESBRECHT VELETA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants are four children, each of whom was born outside of Canada in the years between 1993 and 2001. Their applications for proof of Canadian citizenship were rejected by a Citizenship Officer because the children's grandfather, David Giesbrecht, who was born in Mexico, was born out of wedlock. The Officer found that having been born out of wedlock, David Giesbrecht did not acquire Canadian citizenship under the laws in effect at the time. As a consequence, he was unable to pass on Canadian citizenship to his descendants.
[2] This is an application for judicial review of the Citizenship Officer's decision. The applicants assert that the Officer erred in failing to find that David Giesbrecht's parents' religious marriage and subsequent marital relationship constituted a valid marriage, with the result that David Giesbrecht was in fact born in wedlock. The applicants also claim that the Officer erred in failing to consider David Giesbrecht's claim to Canadian citizenship through his Canadian-born mother.
[3] The applicants further assert that the decision to deny them citizenship on the basis that their paternal grandfather was born out of wedlock violates their right to equal treatment guaranteed by both section 15 of the Canadian Charter of Rights and Freedoms and section 1(b) of the Bill of Rights.
Background
[4] The facts giving rise to this application are straightforward and essentially uncontested. It is the legal conclusions to be drawn from these facts that are more complex and are in dispute.
[5] The Giesbrecht family are Mennonites. The children's paternal great-grandparents, Peter Giesbrecht and Anna Peters, were both born in Canada, but moved to Mexico in the early 1920's. The couple apparently remained in Mexico for the balance of their lives.
[6] Peter and Anna were married in a religious ceremony in Mexico in 1924. They had seven children, with their son David being born in 1933. The couple went through a civil marriage ceremony in Mexico in 1937.
[7] Mexican law does not recognize religious marriages. Only civil marriages are recognized in that country.
[8] David Giesbrecht obtained a certificate of Canadian citizenship in 1966, with an effective date of September 27, 1957. David's son, Jacob (the children's father) obtained his own certificate of Canadian citizenship in 1982.
[9] In the early 1990's, it came to the attention of the respondent that David Giesbrecht's parents were not married in a civil ceremony until several years after his birth.
[10] In considering the children's applications for proof of Canadian citizenship in this case, the officer found that because David Giesbrecht was apparently born out of wedlock, he was not entitled to Canadian citizenship. As a consequence, the officer concluded that neither David Giesbrecht's son Jacob, nor Jacob's children, were entitled to derive Canadian citizenship through him.
[11] It is the officer's decision to refuse the applications for proof of the Canadian citizenship of Jacob's children that forms the subject matter of this application.
Issues
[12] The applicants raise the following issues on this application:
1. Did the Officer err in failing to find that David Giesbrecht's parents' religious marriage and subsequent marital relationship constituted a valid marriage, with the result that David Giesbrecht was in fact born in wedlock?
2. Did the Officer err in failing to consider David Giesbrecht's claim to Canadian citizenship through his Canadian-born mother?
3. Does denying the applicants citizenship on the basis that their paternal grandfather was born out of wedlock violate their right to equal treatment guaranteed by section 15 of the Canadian Charter of Rights and Freedoms? and
4. Does denying the applicants citizenship on the basis that their paternal grandfather was born out of wedlock violate their right to equal treatment guaranteed by section 1(b) of the Bill of Rights?
Did the Officer Err in Failing to Find That David Giesbrecht's Parents' Religious Marriage and Subsequent Marital Relationship Constituted a Valid Marriage, with the Result That David Giesbrecht Was in Fact Born in Wedlock?
[13] The applicants submit that their paternal great-grandparents' religious marriage, and subsequent marital relationship, constituted a valid marriage for the purposes of Canadian citizenship. As a result, they say, David Giesbrecht was born in wedlock, thereby entitling his son Jacob, and the applicants themselves, to Canadian citizenship.
[14] In support of this contention, the applicants refer to a number of Ontario cases which establish that a marriage will not be invalidated, even for breach of the Ontario Marriage Act, R.S.O. 1990, c. M.3, as long as the parties entered into the marriage in good faith, and cohabited thereafter as husband and wife: see Luu v. Ma [1999] O.J. No. 493, Freidman v. Smookler [1964] 1 O.R. 577 (H.C.) and Alspector v. Alspector [1957] O.R. 454 (Ont. C.A.).
[15] While I have reviewed these decisions, I am not persuaded that they are of any assistance to the applicants in this case. Section 31 of the Ontario Marriage Act provides that:
If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as man and wife, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence. (emphasis added)
[16] There is nothing in the record before me that would suggest that Anna and Peter Giesbrecht ever intended that their religious marriage comply with the Marriage Act of Ontario, or that they had any connection whatsoever with the Province of Ontario.
[17] Moreover, it is well established that the formal validity of a marriage is governed by the law of the country where the marriage contract was entered into (the "lex loci celebrationis"): James G. McLeod, The Conflict of Laws (Calgary: Carswell Legal Publications, 1983) at 253.
[18] Indeed, as the Privy Council noted in Berthiaume v. Dastous, [1930] 1 D.L.R. 849:
If there is one question better settled in international law than any other, it is that as regards marriage ... locus regit actum. If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceedings or ceremony which constituted marriage according to the laws of the place would or would not constitute marriage in the country of the domicil of one or other of the spouses. If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremony or proceedings if conducted in the place of the parties' domicil would be considered a good marriage.
[19] In this case, the marriage in issue - that of Peter and Anna Giesbrecht - took place in Mexico. It is common ground that Mexico does not recognize religious marriage ceremonies, and only recognizes civil marriages. As a consequence, I find that the Citizenship Officer did not err in finding that Peter and Anne Giesbrecht were not legally married in Mexico until 1937, and that, as a result, their son David was indeed born out of wedlock.
Did the Officer Err in Failing to Consider David Giesbrecht's Claim to Canadian Citizenship Through His Canadian-born Mother?
[20] The applicants say that if David Giesbrecht was born out of wedlock, he was entitled to Canadian citizenship through his Canadian-born mother, and that the Officer erred in failing to consider this possibility in assessing their applications.
[21] In support of this submission, the applicants rely on Section 4(b) of the Canadian Citizenship Act, S.C. 1946, c. 15 ("1947 Citizenship Act"), which provided that:
| |
|
|
|
| |
|
4. Une personne, née avant l'entrée en vigueur de la présente Loi [avant le 1er janvier 1947], est citoyen canadien de naissance...
b) lorsqu'elle est née hors du Canada ailleurs que sur un navire canadien et que son père ou, dans le cas d'une personne née hors du mariage, sa mère
(i)est né (ou née) au Canada ou sur un navire canadien et n'était pas devenu étranger (ou devenue étrangère) lors de la naissance de ladite personne, ou
...
si, avant l'entrée en vigueur de la présente Loi [avant le 1er janvier 1947], ladite personne n'était pas devenue étrangère, et a été licitement admise au Canada en vue d'une résidence permanente ou est mineure.
|
|
| |
4. A person, born before the commencement of this Act, is a natural born Canadian citizen...
(b) if he was born outside of Canada elsewhere than on a Canadian ship and his father, or in the case of a person born out of wedlock, his mother,
(i) was born in Canada or on a Canadian ship and had not become an alien at the time of that person's birth ...
if, at the commencement of this Act, that person has not become an alien, and has either been lawfully admitted to Canada for permanent residence or is a minor.
|
|
| |
[22] According to the applicants, David Giesbrecht met the requirements of this provision, in that he was born outside Canada, out of wedlock, to a Canadian mother who had not become an alien at the time of his birth. Further, on January 1, 1947, David was a minor, and having been an alien since birth, had not "become" an alien.
[23] The Minister says that David Giesbrecht was not a British subject at the time of his birth. As an alien, he therefore did not acquire Canadian citizenship with the coming into force of the 1947 Citizenship Act. Even if the Citizenship Officer should have addressed the question of David's entitlement to claim Canadian citizenship through his mother, in light of his conclusion that David was born out of wedlock, by law, David was not entitled to derive his citizenship in this manner. As a result, this error had no effect on the ultimate result in this case.
[24] The relevant portion of the Citizenship Officer's January 13, 2004 decision provides:
David Giesbrecht was born in Mexico on September 27, 1933 to Peter Giesbrecht who was born in Manitoba on December 21st, 1902. David's claim to Canadian citizenship under section 4(1)(b) of the Former Act was based on his birth outside Canada in wedlock to a Canadian father.
[25] Having concluded that David Giesbrecht was not born in wedlock, the Officer found that he was not entitled to Canadian citizenship. It does not appear that the Officer ever turned his mind to the question of whether David could have been entitled to claim Canadian citizenship through his mother.
[26] While I am satisfied that the Officer should have addressed this question, I am not persuaded that the application for judicial review should be allowed on this basis. As will be explained below, this is because I am satisfied that had the Officer addressed the issue, the result would have been the same.
[27] David Giesbrecht was born in 1933. At the time, the relevant citizenship legislation in force in Canada was the Naturalization Act, 1914, R.S.C. 1927, c. 138. The Naturalization Act did not provide for Canadian citizenship, there being no such thing at the time. Instead, the legislation stipulated who was and was not a British subject.
[28] The operative portion of the Naturalization Act is section 3. Section 3 of the Act provided that various categories of individuals were deemed to be natural-born British subjects. These categories included those born within "His Majesty's dominions", and anyone born outside of His Majesty's dominions whose father was a British subject at the time of the birth of the person in question. This was subject to several conditions, none of which are relevant here.
[29] There was no provision in the Naturalization Act for a child to acquire the status of British subject through his or her mother, regardless of whether the child was born in or out of wedlock.
[30] Thus, when David Giesbrecht was born, the only way that he could have acquired the status of British subject would have been through his father, and then only if he was born in wedlock.
[31] Having already concluded that David was born out of wedlock, in Mexico, he was therefore not a British subject at the time of his birth. According to a form completed by David Giesbrecht in 1981, his birth in Mexico made him a citizen of that country.
[32] Canadian citizenshipwas created with the coming into force of the 1947 Citizenship Act on January 1 of that year. On that date, as a child born outside Canada, out of wedlock, to a mother born in Canada, David Giesbrecht became entitled to Canadian citizenship, provided that he had not "become an alien".
[33] In 1947, David Giesbrecht was a citizen of Mexico. He was not a British subject. As a result, he was an alien. He had not, however, become an alien. If I were to accept the applicants' argument, this distinction should have entitled David Giesbrecht to claim Canadian citizenship through his mother.
[34] I am not, however, persuaded that the applicants' interpretation of section 4(b) of the 1947Citizenship Act is correct.
[35] The Supreme Court of Canada has clearly stated that when approaching a question of statutory interpretation, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: see Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paragraph 21.
[36] Regard must also be had to the provisions of section 12 of the Interpretation Act, R.S., c. I-23, s. 1., which provides that "Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".
[37] The 1947 Citizenship Act established a legislative regime governing the granting of, revocation of and entitlement to Canadian citizenship. A review of the legislation as a whole discloses that while it was not necessary to have been born in Canada in order to be entitled to Canadian citizenship, nevertheless, it was essential that the person in question have a close connection to this country, whether as a function of having been born to a Canadian living abroad, by naturalization, or by some other route.
[38] The applicants argue that the requirement that one had not become an alien in section 4(b) of the 1947Citizenship Act should be interpreted to mean that individuals who were aliens in 1947, and who had always been aliens, were entitled to Canadian citizenship, provided they were able to meet the other requirements of the section.
[39] With all due respect, this interpretation simply does not make sense. Further, it is inconsistent with the scheme of the Act, when read as a whole. The applicants' interpretation would have the effect of conferring Canadian citizenship on those who were aliens from birth, while denying citizenship to those who had been British subjects from birth, as a result of having been born in Canada, but who had become aliens by January 1, 1947.
[40] In other words, those with less of a connection to Canada would have a greater right to Canadian citizenship than would those with a more substantial connection to this country. This is clearly inconsistent with the scheme of the 1947 Citizenship Act as a whole.
[41] As a result, I find that in order to be entitled to Canadian citizenship under section 4(b)(i) of the 1947Citizenship Act, the requirement that the individual in question not have "become an alien" should properly be interpreted to mean that the person in question "was not an alien".
[42] As a citizen of Mexico, David Giesbrecht was an alien on January 1, 1947. Thus he was not entitled to derive Canadian citizenship through his mother.
[43] As noted earlier, while it would have been preferable for the Citizenship Officer to have addressed this issue in his decision, the fact is that under the provisions of the citizenship legislation in place at the relevant times, David Giesbrecht was not entitled to Canadian citizenship.
[44] As a result, and subject to the applicants' equality arguments, which remain to be addressed, David Giesbrecht's grandchildren were not entitled to derive Canadian citizenship through their grandfather.
[45] In these circumstances, I see no benefit to setting aside the decision on this basis, as, by law, the result would inevitably be the same: see Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202. at p. 228 and Yassine v. Canada(Minister of Manpower and Immigration), (1994), 172 N.R. 308 (FCA).
Does Denying the Applicants Citizenship on the Basis That Their Paternal Grandfather Was Born out of Wedlock Violate Their Right to Equal Treatment Guaranteed by Section 15 of the Canadian Charter of Rights and Freedoms?
[46] By Notice of Constitutional Question, the applicants challenge the validity, applicability or constitutional effect of paragraphs 3(1)(d), 3(1)(e) and 5(2)(b) of the Citizenship Act, R.S.C., c. C-29 ("1977 Citizenship Act"). The applicants submit that these provisions violate section 15 of the Canadian Charter of Rights and Freedoms, insofar as they continue the discriminatory effects of the 1947 Citizenship Act and of the Citizenship Act, R.S., c. 33, s. 1 ("1970 Citizenship Act"), wherein individuals born out of wedlock were treated differently than those born in wedlock.
[47] According to the applicants, the present Citizenship Act restricts their entitlement to Canadian citizenship based upon limitations contained in predecessor legislation. As former Citizenship Acts drew distinctions based upon the sex and marital status of an applicant's parents, these discriminatory distinctions are perpetuated in the current citizenship legislation.
[48] The analytical framework to be applied in assessing whether legislative provisions violate section 15 of the Charter is that articulated by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. Applying this framework to the facts of this case, the applicants say, leads to the conclusion that the effect of the current law is to deny the applicants citizenship in a manner that reflects stereotypical views of a group based upon their personal characteristics, thus promoting the view that those born out of wedlock are less worthy of recognition as members of Canadian society.
[49] This is not a reasonable limitation in a free and democratic society, say the applicants, and thus cannot be saved under the provisions of section 1 of the Charter.
Relevant Legislative Provisions
[50] The applicants challenge the constitutionality of paragraphs 3(1)(d), 3(1)(e) and 5(1)(b) of the 1977 Citizenship Act. These paragraphs provide:
| |
|
|
|
| |
s. 3(1) Subject to this Act, a person is a citizen if
(d) the person was a citizen immediately before February 15, 1977; or
(e) the person was entitled, immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the former Act.
5(2)(b) The Minister shall grant citizenship to any person who
(b) was born outside of Canada, before February 15, 1977, of a mother who was a citizen at the time of his birth, and was not entitled, immediately before before February 15, 1977, to become a citizen under subparagraph 5(1)(b)(i) of the former Act, if, before before February 15, 1979, or within such extended period as the Minister may authorize, an application for citizenship is made to the Minister by a person authorized by regulation to make the application.
|
|
| |
|
3. (1) Sous réserve des autres dispositions de la présente loi, a qualité de citoyen toute personne:
d) ayant cette qualité au 14 février 1977;
e) habile, au 14 février 1977, B devenir citoyen aux termes de l'alinéa 5(1)b) de l'ancienne loi.
5.(2) Le ministre attribue en outre la citoyenneté :
b) sur demande qui lui est présentée par la personne qui y est autorisée par règlement et avant le 15 février 1979 ou dans le délai ultérieur qu'il autorise, à la personne qui, née à l'étranger avant le 15 février 1977 d'une mère ayant à ce moment-là qualité de citoyen, n'était pas admissible à la citoyenneté aux termes du sous-alinéa 5(1)b)(i) de l'ancienne loi.
|
|
| |
[51] Also of significance to this application are the provisions of paragraph 3(1)(b) of the
1977 Citizenship Act. It was this provision that was used to deny the applicants' claim to Canadian citizenship. Paragraph 3(1)(b) provides:
s. 3(1) Subject to this Act, a person is a citizen if
(b) the person was born outside of Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen. |
3. (1) Sous réserve des autres dispositions de la présente loi, a qualité de citoyen toute personne : b) née à l'étranger après le 14 février 1977 d'un père ou d'une mère ayant qualité de citoyen au moment de la naissance; |
Analysis
[52] Section 15(1) of the Charter provides that:
| 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. |
15. (1) 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. |
[53] Before turning to the question of whether the applicants have been denied the equal benefit of the law in violation of section 15 of the Charter, a threshold issue arises. That is, given that section 15 of the Charter only came into effect in 1985, the Court must determine whether what the applicants are seeking in this case is either a retrospective or retroactive application of the Charter.
[54] "Retroactive" legislation changes the past effects of past situations, whereas "retrospective" legislation changes the future effects of past situations: see Ruth Sullivan, Sullivan & Dreidger on the Construction of Statutes (Markham: Butterworths Canada Ltd., 2002) at p. 548.
[55] The starting point of this analysis must be the decision of the Supreme Court of Canada in Benner v. Canada(Secretary of State) [1997] 1 S.C.R. 358. In Benner, the Supreme Court was called upon to address the claim to Canadian citizenshipof a man born in 1962, in wedlock, to a Canadian mother and an American father. Under the 1977 Citizenship Act, a child born of an alien mother and a Canadian father was entitled to Canadian citizenship as of right, whereas a child born of a Canadian mother and an alien father was required to undergo a security check in order to claim Canadian citizenship.
[56] This distinction operated to Mr. Benner's disadvantage as he had been charged with a number of criminal offenses, and was thus unable to pass the security check.
[57] The Supreme Court noted that the Charter cannot be applied retrospectively. In assessing whether what Mr. Benner was seeking was a retrospective application of section 15 of the Charter, the Court said that it really depended on how the issue was characterized. That is, the Court had to decide whether it was being asked to go back and redress an old event, one that took place before the Charter created the right that was sought to be vindicated, or whether it was being asked to assess the current application of a law that happened to have been passed prior to the coming into force of the Charter.
[58] Recognizing that this distinction will not always be clear, the Court went on to say that in addressing this question, a Court will have to determine whether the most significant feature of the case is the past event, or the current condition resulting from it.
[59] This will be largely dependant on the facts of the specific case under consideration.
[60] In Benner, the Court found that what was in issue was Mr. Benner's status as a child born outside of Canada, before 1977, to a Canadian mother and an American father. This was an immutable characteristic, one which was acquired at birth.
[61] Although Mr. Benner was born prior to section 15 of the Charter coming into effect, his status as the child of a Canadian mother and an American father was a continuing status. The critical question for the Court was not when Mr. Benner acquired this status, but rather, when the status was held against him. In Mr. Benner's case, this occurred when his application for proof of citizenship was considered and rejected. That event took place after the coming into force of Section 15, and was thus subject to Charter scrutiny.
[62] The Court further rejected the argument that Mr. Benner was attempting to raise the infringement of someone else's rights to his own benefit. In this regard, Justice Marceau in the Federal Court of Appeal had found that it was not Mr. Benner's sex that was important, but rather it was the sex of his Canadian parent that was the determining factor. In contrast, the Supreme Court of Canada found that it was Mr. Benner himself who was the primary target of the sex-based discrimination. In coming to this conclusion, the Court was careful to note that this did not create a general doctrine of 'discrimination by association', observing that the link between parent and child was of a particularly unique and intimate nature.
[63] The Court went on to observe:
[85] Where access to benefits such as citizenship is restricted on the basis of something
so intimately connected to and so completely beyond the control of an applicant as the gender
of his or her Canadian parent, that applicant may, in my opinion, invoke the protection of s. 15.
As Linden J.A. noted in dissent in the Federal Court of Appeal, at p. 277, "[i]n 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".
[64] In Augier v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 761, Justice Mosely was called upon to address the claim of an individual born in 1966, outside of Canada, to a Canadian father and an alien mother. In concluding that Mr. Augier was entitled to the protection of section 15 of the Charter, Justice Mosely noted that the legislation in issue drew a formal distinction between Mr. Augier and others on the basis of the marital status of his parents at the time of his birth, in combination with the sex of his Canadian parent. In Justice Mosely's view, the legislation treated Mr. Augier as less worthy of Canadian citizenship because he was born out of wedlock.
[65] In contrast to the situations in Benner and Augier, I am of the view that, in this case, the applicants are indeed trying to rely on the infringement of someone else's rights for their own benefit. InBenner and Augier, the applicants themselves were deemed less worthy of Canadian citizenship by virtue of the circumstances of their own births, whereas in this case, the applicants are not the primary target of the discrimination mandated by the former legislation.
[66] The primary target of the discriminatory legislative provisions relating to entitlement to citizenship in this case was the children's grandfather, David Giesbrecht. It was David Giesbrecht who was deemed less worthy of Canadian citizenship because of the fact that he was born out of wedlock, and not the applicants themselves.
[67] The applicants must find a foundation for their claims to citizenship in the laws in effect at the time that their applications for proof of their citizenship were rejected, that is, in 2004: Mack v. Canada (Attorney General), (2002), 60 O.R. (3d) 737 (Ont. C.A.).
[68] In this case, the applicants were denied Canadian citizenship under paragraph 3(1)(b) of the current Citizenship Act.
[69] Unlike the legislative provisions in issue in Benner and Augier, paragraph 3(1)(b) does not draw any distinction based upon the marital status of an applicant's parents. In this case, the applicants were denied citizenship certificates, not because their grandfather was born out of wedlock, but because the children were born outside of Canada, and neither of their parents were Canadian citizens.
[70] While I am in no way seeking to minimize the discrimination that people born out of wedlock faced in the first half of the last century, the fact is that what the applicants are seeking here is to right a historical wrong, one that occurred long before section 15 of the Charter came into effect.
[71] Indeed, the real source of the discrimination in issue here are the provisions of the 1914 Naturalization Act, which prevented David Giesbrecht from becoming a British subject. This resulted in him being an alien when the 1947 Citizenship Act came into force, and thus not entitled to Canadian citizenship.
[72] In this case, the applicants are seeking to give the Charter not just retrospective effect, but retroactive effect. That is, they are seeking to change the historical consequences of repealed legislation, so as to confer ex post facto Canadian citizenship upon David Giesbrecht. The Charter does not operate retroactively: see Benner, at para. 40, and Mack.
[73] As the Ontario Court of Appeal noted in Mack, the negative effects of discrimination can be felt for generations. That does not mean, however, that the descendants of past victims of discrimination are entitled to relief under section 15, when such relief depends on a retroactive application of the Charter.
[74] As a consequence, I find that section 15 of the Charter does not assist the applicants.
Does Denying the Applicants Citizenship on the Basis That Their Paternal Grandfather Was Born out of Wedlock Violate Their Right to Equal Treatment Guaranteed by Section 1(b) of the Bill of Rights?
[75] Section 1(b) of the Bill of Rights provides:
| 1. It is hereby recognized and declared that in Canada there have existed and continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (b) the right of the individual to equality before the law and the protection of the law... |
1. Il est par les présentes reconnu et déclaré que les droits de l'homme et les libertés fondamentales ci-après énoncés ont existé et continueront à exister pour tout individu au Canada quels que soient sa race, son origine nationale, sa couleur, sa religion ou son sexe: b) le droit de l'individu à l'égalité devant la loi et à la protection de la loi ... |
[76] As was noted in the preceding section, I am of the view that the discrimination in issue in this case has its origins in the adverse differential treatment afforded to those born out of wedlock by the 1914 Naturalization Act.
[77] Enacted in 1960, the Bill of Rights has quasi-constitutional status, and as such, can render other statutes inoperative, to the extent that those other statues are inconsistent with its provisions, unless the other legislation expressly declares that it operates notwithstanding the Bill of Rights: Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40, at para. 32.
[78] However, the 1914 Naturalization Act was repealed long before 1960. As a result, once again, in order to grant the applicants the relief they seek, retroactive application of the Bill of Rights would be required.
[79] There is a strong presumption against the retroactive operation of legislation, and that presumption is not rebutted by the wording of the Bill of Rights. As a result, I am satisfied that the Bill of Rights cannot assist the applicants in this case.
[80] Moreover, what the applicants are seeking in this case is the right to equal benefit of the law. As the Federal Court of Appeal made clear in Bear v. Canada (Attorney General), [2003] F.C.J. No. 96, leave to appeal denied [2003] S.C.C.A. No. 115, unlike section 15 of the Charter, section 1(b) of the Bill of Rights does not guarantee individuals the equal benefit of the law, but merely guarantees equality in the administration of the law.
[81] As a result, I find that the applicants are not entitled to any relief under the provisions of the Bill of Rights.
Conclusion
[82] For these reasons, the application is dismissed.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed.
"Anne Mactavish"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-543-04
STYLE OF CAUSE: DEBBIE STEPHANIE GIESBRECHT VELETA ET AL.
Applicants
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO
DATE OF HEARING: APRIL 6, 2005
REASONS FOR ORDER
AND ORDER: MACTAVISH J.
DATED: APRIL 27, 2005
APPEARANCES:
Mr. Gregory J. Willoughby
Mr. Sean Stynes FOR APPLICANTS
Mr. Greg George
Ms. Allison Phillips FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Gregory J. Willoughby
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario FOR RESPONDENT
Email this Content