Augier v. Canada (Minister of Citizenship and Immigration), 2004 FC 613

Date: 20040517

Docket: T-2143-02

Citation: 2004 FC 613

Ottawa, Ontario, this 17^th day of May, 2004

Present:           The Honourable Mr. Justice Mosley                                   

BETWEEN:

                                                   GIDEON MC.GUIRE AUGIER

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                 AMENDED REASONS FOR ORDER AND ORDER

[1]                This proceeding began as a contested application for judicial review in respect of a decision of a citizenship officer, dated December 16, 2002, denying Mr. Augier's application for proof of Canadian citizenship. On the eve of the hearing, the parties submitted a draft consent order. Having carefully considered the matter and for the reasons set out below, I am satisfied that the order should issue. The applicant seeks an order that s. 5(1)(b)(i )of the Citizenship Act, R.S.C. 1970, c. C-19 (the "1970 Act") permits Canadian citizenship to be derived through both the father and mother of a child born out of wedlock, or in the alternative, that s. 5(2)(b) of the current Citizenship Act, R.S.C. 1985, c. C-29 (the "current Act") is unconstitutional and should be read in a manner that would allow him to claim citizenship through his Canadian father.

BACKGROUND

[2]                Mr. Augier's mother is Bonita E. Augier. She came to Canada on September 28, 1964 as a permanent resident. She was trained as a registered nurse in England and has worked in this profession since arriving in Canada. As the applicant's mother attests in an affidavit filed in support of Mr. Augier's application for proof of citizenship, she became pregnant in July of 1965 while having a relationship with the applicant's father, Cecil Bloyce Russell, who lived in Guelph, Ontario. Mr. Russell was from the United Kingdom and allegedly became a naturalized Canadian citizen prior to 1965.

[3]                The applicant's mother broke off relations with Mr. Russell and decided to return to St. Lucia to give birth. On May 9, 1966 the applicant was born in that country. Ms. Augier returned to Canada shortly after her son's birth, so that she could work and support her son, who was left in the care of her brother in St. Lucia. Ms. Augier arranged for her brother and the applicant to come to Canada as permanent residents and in August 1970 the applicant arrived in Canada as a young boy and has lived here since that time.

[4]                His mother obtained Canadian citizenship in 1989. Mr. Russell, born in 1899 in the United Kingdom, is alleged to have been a Canadian citizen at the time of the applicant's birth. Mr. Russell passed away on November 29, 1969. As mentioned, the applicant's parents were not married at the time of his birth.

[5]                Mr. Augier has lived in Canada, as a permanent resident, since he was four years old and has seven children born in Canada. He applied for a grant of citizenship pursuant to s. 5(1) of the current Act but was denied in October 2001 because he had not met the residency requirement and also because he was prohibited from receiving citizenship under s. 22 of the current Act.

[6]                The applicant next applied for proof of Canadian citizenship in September 2002, claiming to have derived Canadian citizenship from his natural father. Along with his application, he submitted an affidavit from his mother, with several attached exhibits, setting out his personal circumstances. In particular, he attached a September 11, 2002 judgment from the Ontario Superior Court of Justice, finding that Mr. Russell is his biological father and an Ontario death certificate stating that Mr. Russell was a Canadian citizen.

The Citizenship Officer's Decision

[7]                The officer determined that since the applicant was born out of wedlock, outside of Canada on May 9, 1966, pursuant to the legislation then in force, Canadian citizenship could only be derived from his mother. If the applicant's parents had been married at the time of his birth, then he could have derived Canadian citizenship from his father. Since the applicant was born on May 9, 1966 in St. Lucia and his natural parents were not married at the time of his birth, Canadian citizenship could only be derived through his mother, who was not a Canadian citizen at the time of the applicant's birth. Therefore, the officer refused his application for proof of citizenship.

ISSUES

[8]                1. Did the officer err in law in her interpretation of s. 5(1)(b)(i) of the 1970 Act?

2. If the officer did not so err in law, does the denial of Canadian citizenship to the applicant contravene section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,

c. 11 (the "Charter")?

ANALYSIS

No error in interpretation of s. 5(1)(b)(i) of the 1970 Act

[9]                Canada's first enactment dealing with citizenship was the Canadian Citizenship Act, S.C. 1946, c. 15, in force as of January 1, 1947. This was replaced by the 1970 Act. Substantial revisions were then made and proclaimed in force as of February 15, 1977: Citizenship Act, S.C. 1974-75-76, c. 108. The current Act largely resembles the 1977 statute. The current Act sets out that individuals born outside of Canada after February 14, 1977 are Canadian citizens if either of their parents was a Canadian citizen at the time of their birth. There is no reference to the marital status of the parents: see s. 3(1)(b) of the current Act. However, for individuals born outside of Canada before February 15, 1977, the process for acquiring Canadian citizenship is governed by s. 3(1)(e), in combination with s. 5(1)(b) of the former Act, namely the 1970 Act and s. 5(2)(b). The following provisions of the current Act are therefore relevant to this judicial review:

[10]            Subparagraph 5(1)(b)(i) of the 1970 Act is also relevant to this proceeding. The parties do not dispute that the applicant has met the second branch of this section, that is s. 5(1)(b)(ii), however, I include it as well below:

[11]            The applicant submits that s. 5(1)(b)( i) of the 1970 Act should be interpreted in a manner that is consistent with the Charter and that this is preferable to finding that legislation is in violation of the Charter and of no force and effect. The applicant argues that it appears that Parliament failed to address children born out of wedlock to Canadian fathers and non-Canadian mothers in the 1977 amendments, as there is no provision in the current Act which enables such children to register for Canadian citizenship.

[12]            The applicant urges an interpretation of s. 5(1)(b)(i ) of the 1970 Act that covers children born of either Canadian fathers or Canadian mothers, out of wedlock. Interpreted in this manner, the applicant says that he falls within the second category of applicants for Canadian citizenship under the current Act, noted by the Supreme Court of Canada in Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; that is, a child born abroad before February 15, 1977 of a Canadian father or an out of wedlock Canadian mother. (See para. 37 of Benner, supra).   

[13]            In my opinion, as the legislation currently reads, the officer was correct to find that citizenship cannot be granted to an individual born outside of Canada prior to February 15, 1977 of a Canadian father and a non-Canadian mother, when such parents were not married at the time of the child's birth. The wording of s. 5(1)(b)(i ) of the 1970 Act cannot support the interpretation urged by the applicant. That provision states that a person is a natural-born Canadian citizen if he is born outside of Canada and "his father, or in the case of a child born out of wedlock, his mother, at the time of that person's birth, is Canadian citizen". The words "or in the case of..." indicate that if the after-described situation exists, that is, being a child born out of wedlock, then the following condition, rather than the preceding condition, must be met. This is the only way, in my opinion, that the wording of such provision can be interpreted.

[14]            Subsection 5(2)(b) of the current Act was added to the legislative scheme with the 1977 amendments to address the injustice of a child not having the option of claiming citizenship from his Canadian mother when she was married to a non-Canadian father. The 1977 amendments also removed the stipulation of being born in wedlock for children born abroad after February 14, 1977, however, it did not provide redress for persons in the applicant's situation born abroad, out of wedlock of Canadian fathers and non-Canadian mothers before February 15, 1977.

Charteranalysis

[15]            The applicant relies on the Supreme Court of Canada decision of Benner, supra, where the scheme in the current Act which stipulated different requirements for children claiming citizenship through Canadian mothers from those claiming through Canadian fathers was held to be discriminatory and unconstitutional. The applicant argues that, like Mr. Benner, he has been denied equal benefit of the law because if his mother and not his father had been a Canadian citizen at the time of his birth, he would have been entitled to claim citizenship through her. The applicant claims that similar discrimination exists in his situation based on the gender of his Canadian parent and his parents' marital status at the date of his birth.   

[16]            The Benner decision establishes that the alleged Charter violation in the present case is not barred due to retroactivity or lack of standing. On both of these issues, the situation before me is akin to that of Benner. In Benner, supra, the Supreme Court noted that the 1977 amendments to the citizenship legislation allowed children to claim citizenship from either or both parents, regardless of the parents' marital status. Such change in the law, however, applies only to children born after February 14, 1977.

[17]            Previously, children born of Canadian mothers in wedlock could not derive citizenship from their mother, unless she was unwed at the time of the child's birth. Therefore, s. 5(2)(b) was added in 1977, and remains in the current Act. This permitted children born of married Canadian mothers, who previously were denied through s. 5(1)(b)(i ) of the 1970 Act, to apply for citizenship that would be granted upon the person swearing an oath of allegiance and passing a criminal and security clearance. However, children born in wedlock of Canadian fathers did not have to swear such an oath or undergo background checks, and were recognized as citizens upon registration of their birth. The Supreme Court of Canada found that this distinction violated section 15 of the Charter and was not saved by section 1.

[18]            The applicant's situation, however, is not directly analogous to the one faced by the Court in Benner, supra, as here, the alleged discrimination rises from a possible stereotypical application or view of children born out of wedlock and that as a result of such status, individuals born to unwed, non-citizen mothers are prohibited by the legislation from claiming Canadian citizenship through their Canadian fathers. If the Canadian father and non-Canadian mother were married at the time of the individual's birth, prior to February 15, 1977, then such an individual could have claimed citizenship through his father. Marital status of the individual's parents is therefore a key, differential factor in this case, rather than merely the gender of the Canadian parent.

[19]            The Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 set out the current approach in analysing whether a legislative provision violates section 15(1) of the Charter:

(1) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

(2) Is the claimant subject to differential treatment based on one or more enumerated or analogous grounds?

(3) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving or concern, respect, and consideration?

[20]            In Law, supra, Justice Iacobucci listed four contextual factors that will aid in answering this last question: (1) pre-existing disadvantage, stereotyping or prejudice; (2) correspondence between the distinction and the claimant's actual characteristics or circumstances; (3) the existence of ameliorative purposes or effects of the impugned law upon a more disadvantaged person or group; and (4) the nature of the interest affected.

[21]            In my opinion, the provision at issue in this case clearly draw a formal distinction between Mr. Augier and others on the basis of two personal characteristics, namely, the relationship status of his parents at the time of his birth and the gender of his Canadian parent at birth. Marital status has been interpreted as an analogous ground of discrimination: see Miron v. Trudel, [1995] 2 S.C.R. 418 and Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325. And as set out in Benner, supra, the applicant's right to make a claim for Canadian citizenship is made dependent on the gender of his Canadian parent, a personal characteristic that is intimately connected to and beyond the control of the applicant. Hence, the first two branches of the Law, supra, test are met.

[22]            Does s. 5(2)(b) discriminate against the applicant, by imposing a burden or withholding a benefit, in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that he is less capable or worthy of recognition or value as a member of Canadian society, equally deserving or concern, respect, and consideration? In answering this question, I am guided by the following words of Justice Iacobucci in Law, supra, at paragraphs 60 and 61:

... Although I stress that the inquiry into whether legislation demeans the claimant's dignity must be undertaken from the perspective of the claimant and from no other perspective, a court must be satisfied that the claimant's assertion that differential treatment imposed by legislation demeans his or her dignity is supported by an objective assessment of the situation. All of that individual's or that group's traits, history, and circumstances must be considered in evaluating whether a reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity.

... The appropriate perspective is subjective-objective. Equality analysis under the Charter is concerned with the perspective of a person in circumstances similar to those of the claimant, who is informed of and rationally takes into account the various contextual factors which determine whether an impugned law infringes human dignity, as that concept is understood for the purpose of s. 15(1).

[23]            In my opinion, a reasonable person in circumstances similar to the applicant would find that s. 5(2)(b) of the current Act reflects a demeaning and prejudicial view of the applicant's worth, simply because he was born "out of" wedlock. He is denied the benefit of applying for Canadian citizenship through his claimed Canadian father, a benefit which similarly situated individuals born outside of Canada prior to February 15, 1977 whose parents were married, receive and enjoy. Furthermore, this benefit is denied on the basis of the gender of his parent, as unwed Canadian fathers cannot pass their citizenship to their children, whereas unwed Canadian mothers can do so.

[24]            Subsection 5(2)(b) of the current Act is implicated in this proceeding. As that section currently reads, children of Canadian mothers who would not have been entitled to claim citizenship by virtue of s. 5(1)(b)(i ) of the 1970 Act are given the benefit of claiming citizenship, however, children of Canadian fathers similarly precluded by virtue of s. 5(1)(b)(i ) of the 1970 Act are denied this benefit. Therefore, section 5(2)(b) of the current Act, as it now reads, infringes the applicant's right to equal treatment under the law pursuant to s. 15 of the Charter.

[25]            As the respondent has conceded that the impugned legislative scheme, that is s. 5(2)(b) of the current Act as it now reads, infringes the applicant's section 15(1) Charter right to equal treatment under the law and is not justified by section 1, there is no need to undertake a section 1 analysis. For the reasons set out by the Supreme Court in Benner, supra, such breach is not justifiable pursuant to section 1 of the Charter.     

Remedy

[26]            The respondent has conceded that subsection 5(2)(b) of the current Act is unconstitutional in that it infringes s. 15(1) of the Charter and, pursuant to Benner, supra, is not justified by section 1 of the Charter. The respondent has also agreed that an order should issue from this Court declaring that s. 5(2)(b) of the current Act should be read by including the words "or a father". By issuing such a declaration, persons in the applicant's situation, that is individuals born outside of Canada before February 15, 1977, out of wedlock to Canadian fathers, would be able to claim citizenship through s. 5(2)(b) of the current Act rather than be denied through s. 3(1)(e) of that same Act.

[27]            Therefore, an order will issue that s. 5(2)(b) of the current Act is unconstitutional, pursuant to section 52 of Part VII of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11. However, when s. 5(2)(b) is read with the words "or a father", and in the French version with the words "ou d'un père", this subsection is saved and no constitutional violation occurs. Therefore, s. 5(2)(b) of the current Act shall be read as follows:

[28]       The applicant not seeking costs, none are awarded.

ORDER

THIS COURT ORDERS that this application for judicial review is allowed, the citizenship officer's decision, dated December 16, 2002, is set aside and the applicant's application for proof of Canadian citizenship is remitted to a different officer for reconsideration with the following directions:

1. The applicant is to be given the opportunity to present further evidence regarding his relationship to his putative father and this individual's citizenship at the time of the applicant's birth, if such further evidence is deemed necessary by the deciding officer;

2. It is declared that subsection 5(2)(b) of the Citizenship Act, R.S.C. 1985, c. C-29, is unconstitutional as it currently reads, however, when read in the following manner, this provision is constitutional. Subsection 5(2)(b) shall henceforth be read as follows:

   "Richard G. Mosley"

F.C.J.

                                                  FEDERAL COURT

                                           SOLICITORS OF RECORD

DOCKET:                  T-2143-02

STYLE OF CAUSE: GIDEON MC.GUIRE AUGIER

AND

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   April 19, 2004

REASONS FOR ORDER

AND ORDER BY:    The Honourable Mr. Justice Mosley

DATED:                     May 17, 2004

APPEARANCES:

Barbara Jackman                                               FOR THE APPLICANT

Negar Heshami                                                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

BARBARA JACKMAN                                               FOR THE APPLICANT

Barrister & Solicitor

Toronto, Ontario

MORRIS ROSENBERG                                              FOR THE RESPONDENT

Deputy Attorney General of Canada

Toronto, Ontario