Worthington v. Canada (Minister of Citizenship and Immigration), 2004 FC 1546

Date: November 3, 2004

Docket: T-247-04

Citation: 2004 FC 1546

Ottawa, Ontario, November 3, 2004

Present:           The Honourable Madam Justice Layden-Stevenson                                  

BETWEEN:

                                          DUANE EDWARD WORTHINGTON and

HELEN CHARLOTTE WORTHINGTON

                                                                                                                                           Applicants

                                                                           and

                                MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                On March 9, 1961, Duane Edward Worthington was born in Tacoma, Washington, United States of America. He was taken to the home of and adopted by Frank and Helen Charlotte Worthington. The adoption became final on March 20, 1962. Duane's birth certificate lists Mr. and Mrs. Worthington as his parents. Frank Worthington, now deceased, was a Canadian citizen, having been born in Grand Forks, British Columbia. Mrs. Worthington is also a Canadian citizen, having been born in Sandon, British Columbia. Both Mr. and Mrs. Worthington resided in the United States but neither of them ever acquired American citizenship.

[2]                The families of Frank and Helen Worthington live in British Columbia. Helen Worthington and - until his death on October 15, 2002 - her husband had intended to return to British Columbia some years ago. They didn't because their son, Duane, is serving a 35-year sentence in a medium security facility in Oxford, Wisconsin for robbery and drug-related offences. His scheduled release date is 2027. Mrs. Worthington - now 81 years old - wishes to relocate to British Columbia. Her son wants to serve the remainder of his sentence in British Columbia in order to be close to his mother and his extended family. To be eligible for the prison transfer program, Duane Worthington must be a Canadian citizen.

[3]                After corresponding with the Canadian Consulate General in Chicago (the Consulate) for some four months, Duane Worthington (whom I will henceforth refer to as Mr. Worthington), on July 4, 2002, submitted an application for citizenship. On July 3, 2003, the Honourable Denis Coderre, then Minister of Citizenship and Immigration, refused the "request for a grant of Canadian citizenship under subsection 5(4) of the Citizenship Act".    In December, 2003, Mr. Worthington applied to the Federal Court for an extension of time within which to bring an application for judicial review of the Minister's decision. The respondent did not oppose the motion and by order dated January 7, 2004, Mr. Worthington was granted an extension of time. The application for judicial review, wherein Mr. Worthington and his mother are the applicants, was filed on February 2, 2004.

FACTS

[4]                On March 22, 2002, the senior program officer at the Consulate, presumably in response to an inquiry from Mr. Worthington, informed him that he [Worthington] had a possible derivative claim to Canadian citizenship. The Consulate also provided information regarding the process - the necessity to complete an application, provide the requisite supporting documentation, and pay the applicable fee. Mr. Worthington, in a letter dated March 27, 2002, indicated that he wished to proceed and inquired as to whether his incarceration constituted a bar to obtaining citizenship. Shortly after, on April 19, 2002, Mr. Worthington informed the Consulate that both parents were Canadian citizens - apparently he initially thought that only his mother was Canadian.

[5]                By correspondence dated April 29, 2002, the Consulate forwarded two applications for citizenship to Mr. Worthington indicating that he should complete the application for a citizenship certificate from outside Canada if his father was still a Canadian citizen at the time of his son's birth. If his father was no longer a citizen when he was born, and his mother remained a citizen, he was to use the application for Canadian citizenship, paragraph 5(2)(b). Mr. Worthington completed the application for a citizenship certificate from outside Canada. The form indicates that the application was made under section 3 [of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act)]. In item 9 of the application, Mr. Worthington indicated that he was applying for delayed registration of birth abroad [as required by paragraph 3(1)(e) and subsection 4(3) of the Act].

[6]                Further exchanges of correspondence ensued but are largely irrelevant.    They consisted primarily of questions from Mr. Worthington and responses from the Consulate regarding the completion of the application form. As noted earlier, the application was submitted on July 4, 2002, along with the supporting documentation and fee. By letter dated August 30, 2002, the Consulate acknowledged receipt of the application and noted that Mr. Worthington had previously failed to mention that he was the adopted child of a Canadian citizen. The Consulate advised that there was, recently, "new legislation to the Act" permitting adopted children of a Canadian parent to apply for citizenship. The adoption papers would be required as well as completion of a new application form. Enclosed was an application for Canadian citizenship - adults (18 years or older) under subsection 5(1).

[7]                Mr. Worthington completed the application as requested. Before submitting it, he forwarded further correspondence to the Consulate on September 11, 2002, in which he advised the Consulate that he was saddened when he learned that he may be regarded as "something less than the child of my parents because we do not share the same DNA". After providing a review of his immediate and extended family circumstances, he stated:

Sir, it would be of great interest to me if you would please respond to this letter, and include the real possibilities and disappointment I may now face because my adoption is an issue. My mom's hopes have been greatly raised because of the seemingly real possibility I would receive Canadian citizenship and I wish to inforn (sic) her with actual facts as to this change of events.

Also, is it possible I could receive the new legislation that applies to adopted children as it has been incorporated into the Citizenship Act, so that I may better understand what has occurred and when this change took place.

Lastly, I'm curious as to why the new application you sent me does not include any references to my Canadian parents and thereby seems to exclude the substantial relationship and connection I have with Canada.

Thank you for your time and support in this matter. I am prepareing (sic) the application you sent me and mom is looking for the adoption papers, I suspect roughly no more than two weeks will transpire before you receive the additional paperwork and $20.00.

[8]                The subsection 5(1) application form was submitted on September 17, 2002. Mr. Worthington received no response from the Consulate in relation to his September 11^th correspondence. On September 17, 2002, Mrs. Worthington wrote to the Consulate and explained the underlying reason for the adoption (inability to have children). She also described the nature of her relationship with her son and her family's inability to view him as "different than a natural child in any sense".

[9]                On December 30, 2002, a case analyst at Citizenship and Immigration Canada (CIC) wrote to Mr. Worthington and explained that special provisions were introduced in July, 2001, to deal with adopted children of Canadian parents. He stated that "[t]hese provisions were enacted to eliminate the distinction between natural-born children and adopted children contained in the Citizenship Act". He went on to say that for those whose adoptions took place between December 31, 1946 and February 15, 1977, the prohibitions set forth in section 22 of the Act apply. After providing an explanation [not totally accurate] of the contents of section 22, he informed Mr. Worthington that CIC could not proceed with his application for Canadian citizenship and requested that he sign and date the enclosed "request for withdrawal" form and return it in the self-addressed envelope.

[10]            Mr. Worthington did not sign the request for withdrawal. He wrote to CIC and expressed confusion regarding the CIC statement that the special provisions were introduced to eliminate the distinction between natural and adopted children, born outside of Canada of Canadian parents, yet he was evidently subject to prohibitions because of his adoption. He further questioned, at some length, the wisdom of the CIC statements.    The essence of his correspondence dated January 12, 2003 is encapsulated in the following sentence:

I find it difficult to believe that any governmental department would sanction the idea that adopted children must be forced to drink from a different citizenship water fountain than that of natural children.

No further communication occurred until Mr. Worthington received the Minister's correspondence dated July 3, 2003.

[11]            The record reveals that, in the interim, there was a flurry of activity at CIC over what to do. Several people were involved in what might aptly be termed brainstorming, some without the benefit of having seen the file. Most individuals, it appears, were operating on the assumption that Mr. Worthington had applied for citizenship under subsection 5(4) of the Act. There was some speculation about whether the matter should be referred to a citizenship judge. That was not done. There is no indication of consensus but the record does contain a recommendation, prepared by the integration branch, regarding Mr. Worthington's application for a special grant of citizenship under the interim measure on adoption (the recommendation). The recommendation provided a statement of the issue (whether the Minister should favourably recommend a special grant of citizenship to an applicant who applied under the interim measure on adoption while incarcerated outside Canada), the factors for consideration, and a recommendation.

[12]            The recommendation - a negative one - was relied upon by the individual who ultimately prepared a memorandum to the Minister (the memorandum). The memorandum followed the same format as the recommendation. It identified the issue then provided the background, considerations, an additional comment with respect to federal/provincial consultations, and a recommendation. Unfortunately, the memorandum omitted critical information - regarding the "considerations" -    that had been contained in the recommendation. I cannot determine whether that omission was intentional or inadvertent. The synopsis, at the beginning of the memorandum states:

Mr. Duane Edward Worthington is requesting a grant of citizenship under subsection 5(4) of the Citizenship Act, based on the interim measures implemented in July, 2001, for persons adopted by a Canadian citizen residing outside of Canada. Mr. Worthington is currently serving a 35-year sentence in Oxford, Wisconsin. He is requesting a grant of citizenship to allow him to be eligible for a prisoner transfer program, which may enable him to serve the remainder of his sentence in a prison in British Columbia. It is recommended that the Minister refuse this request, and that no recommendation be made to the Governor in Council for a grant of citizenship under subsection 5(4).

[13]            Thus, the information presented to the Minister was to the effect that the application was one under subsection 5(4) of the Act. I reiterate that the "considerations" portion of the memorandum omitted critical information - the fact that Mr. Worthington does not come within the provisions of section 22. Counsel for the respondent, prior to the hearing of this application, agreed that the information before the Minister was "erroneous" and that the application should be allowed and the matter remitted for redetermination based on correct information. The applicants' counsel took the position that redetermination is not good enough - Mr. Worthington wants, among other things, an order in the nature of mandamus requiring the Minister to grant Canadian citizenship to him.

ISSUE

The issue to be determined is the nature of the relief that ought to be granted.

THE RELEVANT STATUTORY PROVISIONS

[14]            To appreciate the arguments and analysis, the relevant statutory provisions are, for ease of reference, reproduced here. The CIC Operations Memoranda (CP 01-05) entitled "Interim measure concerning persons adopted by a Canadian citizen residing outside of Canada", in its entirety, is attached to these reasons as Schedule "A".

THE NOTICE OF APPLICATION

The notice of application filed by the applicants states:

This is an application for judicial review in respect of a decision made by the Honourable Denis Codere (sic), former Minister of Citizenship and Immigration.

By letter communicated to the Applicant on July 3^rd, 2002, the Honourable Denis Coderre decided not to grant Canadian citizenship to the Applicant. The Applicant's application for a Certificate of Citizenship was thus denied.

The Applicant makes application for:

1. An order in the nature of Certiorari quashing the decision of the Honourable Denis Coderre dated July 3, 2003 rejecting the Applicant's application;

2. An order in the nature of Mandamus requiring the Respondent Minister of Citizenship and Immigration to grant Canadian Citizenship to the Applicant and to issue a certificate of citizenship to him under s. 12 of the Citizenship Act;

3. Full costs on a solicitor client basis, pursuant to Rule 400 of the Federal Court Rules, 1998;

4. Such further and other relief as this Honourable Court may deem just.

The grounds for the application are:

1. The Respondent's rejection of the Applicant's application for a Certificate of Citizenship is based on discrimination under s. 3 of theCitizenship Act which forces adopted children, such as the Applicant in the case at bar, into the naturalization process thereby infringing their right to equal protection and equal benefit of the law under s. 15 of the Charter, since biological children are not forced into the naturalization process and are given an automatic right to citizenship.

2. The Respondent's decision in rejecting the Applicant's application for citizenship is based on a discriminatory treatment, under the Interim Measure, of the Applicant as a child adopted between December 31^st , 1946 and February 15, 1977, as opposed to a child adopted after February 15, 1977, thereby infringing the Applicant's right to equal protection and equal benefit of the law under s. 15 of the Charter, since children adopted between December 31^st, 1946 and February 15, 1977 are made subject to the prohibitions of law as set forth in s. 22 of the Citizenship Act while the prohibitions provided for in that section do not apply to children adopted after February 14, 1977;

3. The Respondent acted in any other way that was contrary to law.

THE ARGUMENTS

[15]            The applicants' memorandum of fact and law contains a forceful and compelling argument that paragraph 3(1)(e) of the Act is unconstitutional in that it discriminates between natural and adopted children, born abroad, of Canadian citizens. Although not cited as such, it is substantially a recitation of the reasons of Mr. Justice Linden in Canada (Attorney General) v. McKenna, [1999] 1 F.C. 401 (C.A.) (McKenna). The applicants submit that the provision is not saved under section 1 of the Charter because it fails to meet the requirements of rational connection and minimal impairment.

[16]            They also argue that the interim measure makes a distinction between children adopted after February 15, 1977 and those adopted before that date. Children adopted between December 31, 1946 and February 15, 1977 encounter a more onerous process with burdensome requirements such as security and criminal records checks. If such checks reveal that an individual has been charged with an offence, the individual is prevented, by section 22 of the Act, from taking the oath of citizenship. Individuals claiming Canadian citizenship on the basis of their post-1977 adoption need not undergo any of these procedures. The applicants argue that this distinction constitutes discrimination based on age (an enumerated ground) and is therefore prohibited, to the extent of its inconsistency, by virtue of section 15 of the Charter. In the applicants' view, the rational connection requirement is not met and the interim measure cannot be saved by section 1 of the Charter.

[17]            In the alternative, the applicants maintain that Mr. Worthington does not come within the provisions of section 22 of the Act in any event. A person incarcerated under foreign law cannot fall within the ambit of section 22 because the prohibition applies only to those incarcerated "pursuant to any enactment in force in Canada" or under "any Act of Parliament". The CIC correspondence of December 30, 2002, states that a person shall not be granted citizenship or administered the oath of citizenship while an inmate in any penitentiary. This, say the applicants, is a misstatement of the law and the application for citizenship was therefore rejected erroneously.

[18]            The respondent contends that the applicants, in their application for judicial review, seek to challenge two separate decisions - the decision to deny the section 3 application and the decision of the former Minister not to recommend use of the discretionary power by the Governor in Council to grant citizenship under subsection 5(4) of the Act. A decision under section 3 bears no relationship to the former Minister's decision of July 3, 2003. In addition to the fact that an application for judicial review must be limited to a single order (Rule 302), the respondent says that no issue was taken regarding the section 3 decision at the time it was made (August 30, 2002); judicial review was not sought; the time to seek judicial review of the section 3 decision expired long ago and the court therefore lacks jurisdiction to entertain it. Thus, says the respondent Minister, to the extent that the applicants seek judicial review of a decision with respect to section 3 of the Act, the request should be summarily dismissed.

[19]            The respondent concedes that the former Minister relied on erroneous information in deciding Mr. Worthington's subsection 5(4) application. Because he is serving a sentence in a United States facility, his circumstances are clearly outside the prohibitions set out in section 22 of the Act. As a result, the respondent agrees that the former Minister's decision ought to be quashed and that the matter should be sent back for redetermination based on correct information. Regarding mandamus, the respondent refers to subsection 5(4) of the Act and notes that the authority pursuant thereto rests with the Governor in Council. The court lacks authority to recommend executive action.

[20]            Last, the respondent Minister submits that the notice of application is moot. This submission is premised on the basis that the parties agree that the former Minister's decision ought to be quashed. Since the applicants have failed to provide any argument with respect to the mandatory provisions of section 5 of the Act, the tangible and concrete dispute has disappeared between the parties and the issues identified by the applicants have become academic. Any decision requiring the Minister to make a grant of citizenship would amount to an intrusion into the function of the legislative branch. This issue is further compounded, in the present circumstances, because the Governor in Council has never been provided an opportunity to make a decision in respect of Mr. Worthington's request for citizenship. The respondent asserts that the applicants will receive the relief sought in the notice of application to the extent that the law permits. The true issues can be resolved by quashing the decision under review and remitting it to the Minister for redetermination with directions as the court sees fit.

ANALYSIS

[21]            I begin with the request for an order in the nature of mandamus. The Federal Court of Appeal's decision in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A) remains the cornerstone authority regarding an order of mandamus. As I indicated at the hearing of the application, no argument has been advanced in relation to the applicants' request in this regard. The prerequisite conditions articulated in Apotex, supra, must be met in order for the relief to be granted. In the absence of any submissions or argument addressing those conditions, I am not prepared to grant such an order.

[22]            As to the request to quash the "decision of the Honourable Denis Coderre dated July 3, 2003 rejecting the Applicant's application", I will grant that relief. It is relief that is sought by the applicants and it is relief that the respondent Minister agrees should be ordered.

[23]            With respect to the applicants' position - as opposed to their request for relief - that I seize the opportunity to declare, by virtue of section 15 of the Charter, that both section 3 of the Act and the interim measure are unconstitutional on the basis that they are discriminatory, I respectfully decline the applicants' invitation.

[24]            The mere existence of a constitutional question does not mean that the court is obliged to determine it. It is an established practice in Canadian law that, if a judge can decide a case without dealing with a constitutional issue, he or she should do so: R.J. Sharpe, K.E. Swinton and K. Roach, The Charter of Rights and Freedoms, 2^nd ed. (Toronto: Irwin Law, 2002) at p. 97. It is incumbent on the court to ensure that a proper factual foundation exists before measuring legislation against the provisions of the Charter, particularly where the effects of impugned legislation are the subject of the attack: Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 at 1099. Adjudicative facts are those that concern the immediate parties. They are specific and must be proved by admissible evidence: ibid. Charter decisions should not and must not be made in a factual vacuum. To do so would trivialize the Charter and inevitably result in ill-considered opinions. The absence of a factual base is not just a technicality that can be overlooked, it is a flaw that is fatal: MacKay v. Manitoba, [1989] 2 S.C.R. 357 at 361.

[25]            This application is fraught with difficulties, the nature of judicial review being one of them. Judicial review proceedings are narrow in scope. Their essential purpose is the review of decisions for the purpose of assessing their legality. The reviewing court [absent exceptional circumstances not applicable here] is bound by the record that was before the judge or the board. Fairness to the parties and the court or tribunal under review dictates such a limitation: Bekker v. Canada (2004), 323 N.R. 195 (F.C.A.) (Bekker). The reviewing court must proceed on the record as it exists, confining itself to the criteria for judicial review: McKenna, supra, at paragraph 6.

[26]            I do not intend to itemize all of the difficulties that arise in relation to this application. I will deal, briefly, with some of them. There is no affidavit from either of the applicants. The supporting affidavit is that of a solicitor from the law firm representing the applicants. While that is not necessarily fatal to an application for judicial review, in this instance it results in a clear violation of Rule 8 of the Federal Court Rules, 1998, SOR/98-106, as am.(the Rules). The deponent does not have personal knowledge of much of the information that he has sworn to in the affidavit.

[27]            There is no certified tribunal record. No request in this respect was made pursuant to Rule 317. Rather, the documents in the applicants' record, exhibited to the solicitor's affidavit, are those received from the A/Director of Public Rights Administration in response to the solicitor's request for a copy of Mr. Worthington's file. Some information was withheld on the basis that it qualified for exemption pursuant to specific sections of the Access to Information Act, R.S.C. 1985, c. A-1. No issue was taken regarding the withholding of information since it does not appear that any complaint was filed with the Information Commissioner. In the result, I am dealing with documents that were produced to the applicants' solicitor rather than a certified tribunal record.

[28]            There is no Notice of Constitutional Question in the applicant's record nor can I locate one in the court file. It is evident that the notice of application is directed not only to the respondent, but also to each of the provinces and to Nunavut and that it was served on the various Attorneys General. Section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7, as am. mandates, in the absence of an order stating otherwise, that a Notice of Constitutional Question be served on the Attorney General of Canada and the Attorney General of each province at least 10 days before the constitutional question is to be argued. Rule 69 requires that the notice shall be in Form 69. Although the respondent did not take issue with the manner in which the applicants approached the notice, in my view, the jurisprudence reveals that compliance with the Federal Courts Act and the Rules in this respect is not to be taken for granted. The comments of Mr. Justice Létourneau in Bekker, supra, at paragraphs 8 and 9 are apposite:

This Court will not entertain a constitutional challenge in the absence of a Notice being served on the Attorney General of Canada and on each Attorney General of the Provinces: see Gitxsan Treaty Society v. Hospital Employees Union et al. (1999), 238 N.R. 73 (F.C.A.); Giagnocavo v. M.N.R. (1995), 95 D.T.C. 5618, where this Court said that it was without jurisdiction to hear the issue. Such Notice is not a mere formality or technicality that can be ignored or that the Court can relieve a party of the obligation to comply with: see The Queen v. Fisher (1996), 96 D.T.C. 6291, where this Court ruled that the Notice must be given in every case in which the constitutional validity or applicability of a law is brought in question in the manner described in section 57, including proceedings before the Tax Court governed by the Informal Procedure. Indeed, a judge cannot, proprio motu, raise a constitutional issue without giving a notice to the Attorney General: see Reference re Remuneration of Judges of Provincial Courts, [1997] 3 S.C.R. 3.

The Notice serves a useful and essential purpose. The Attorney General, whether for Canada or for a province, bears the responsibility of enforcing legislation and defending the constitutionality of the laws enacted by Parliament or provincial Legislatures, as the case may be. The Notice enables them to discharge that duty: on the duty, see [1975] 1 S.C.R. 138">Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138, at page 146; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, at paragraph 28; Miron v. Trudel, [1995] 2 S.C.R. 418. It also alerts the provincial Attorneys General to challenges made to federal laws that may have an impact on their provinces although the duty to sustain the constitutionality of these laws is not theirs. This is why the Notice has to provide its recipients with adequate and sufficient information in terms of the material facts giving rise to the constitutional question and the legal basis for that question, otherwise it will be found insufficient and the Court will assume that there is no serious question to be addressed: see Gitxsan Treaty Society v. Hospital Employees Union et al., previously cited. Finally, it ensures that no injustice is created to the elected representatives who enacted the law and to the people that they represent: see Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, at pages 264-65 per Sopinka J.

[29]            With respect to the arguments advanced, the submission that the interim measure is unconstitutional because section 22 of the Act discriminates on the basis of age is countered by the applicants' alternative argument (with which the respondent agrees). Section 22 does not apply to Mr. Worthington. The right allegedly infringed must be that of the person who makes the challenge. Thus, any argument in relation to section 22 constitutes an attempt to assert the rights of a third party. A party cannot generally rely upon the violation of a third party's Charter rights: R. v. Edwards, [1996] 1 S.C.R. 128; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. The limited exception expressed in [1981] 2 S.C.R. 575">Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575 - a genuine interest as a citizen in the validity of the legislation and no other reasonable and effective manner in which the issue may be brought before the court - cannot be sustained in a vacuity. There is no evidence or argument, here, with respect to the prerequisites applicable to the exception.

[30]            There is merit to the respondent's position that the applicants failed to seek judicial review of the refusal with respect to the section 3 application. The affidavit of the applicants' solicitor, at paragraph 6, states that the "application under section 3 was refused due to the fact that Duane was an adopted child". Counsel for both parties advised that Mr. Worthington has resubmitted an application under section 3 of the Act. It does appear that the time within which to seek judicial review of the section 3 refusal expired long ago. The order extending the time within which to file the application for judicial review is with respect to the Minister's subsection 5(4) refusal.

[31]            On the other hand, the applicants' submission, during the hearing, that the unconstitutionality lies in the process behind the subsection 5(4) decision warrants consideration. The applicants argue that because section 3 applications are diverted to section 5, the section 3 constitutionality is in issue. They want to challenge the section 3 constitutionality on that basis and they take the position that the process was a continuing one.

[32]            There is authority to support the proposition that where there is a fresh exercise of discretion, a fresh decision will result: Independent Contractors and Business Assn. v. Canada (Minister of Labour) (1998) 225 N.R. 19 (F.C.A.). There is also authority that interprets section 18.1 of the Federal Courts Act broadly so as to bring an ongoing or fluid decision over time within its meaning: Puccini v. Canada (Director General, Corporate Administrative Services, Agriculture Canada), [1993] 3 F.C. 557 (T.D.); Hunter v. Canada (Commissioner of Corrections), [1997] 3 F.C. 936 (T.D.); Mennes v. Canada (Attorney General) (1998), 158 F.T.R. 215 (Proth.); Schwarz Hospitality Group Ltd. v. Canada (Minister of Canadian Heritage) (1999), 167 F.T.R. 288 (Proth.).

[33]            The question is whether the applicants adequately delineated that position. Upon a review of the applicants' written arguments, it cannot be said that the respondent did not have notice that the applicants considered the constitutionality of section 3 to be in issue. The difficulty is that it is not clear, in the written submission, how or why that was so. The respondent viewed the submission as constituting an attack on two separate decisions. The applicants' oral argument refined and clarified that contained in the written submission. The concept of the process being a continuing one makes sense but, in my view, without having had the benefit of the oral argument, it was not discernible from the written argument. Thus, the respondent was not in a position to address it, and should not be expected to, without notice. The consequences are significant. The Federal Court of Appeal in McKenna, supra, unanimously found subsection 3(1) of the Act to be prima facie discriminatory. With proper notice, the respondent presumably would want to address, through evidence and argument, section 1 of the Charter.

[34]            Additionally - and this takes me back to the nature of judicial review - there is no indication that there was anything regarding the section 3 application before the Minister when the subsection 5(4) decision was made. As previously noted, the reviewing court is bound by the record that was before the decision maker. From the documentation contained in the applicants' record, it appears that only the memorandum was before the Minister. While the Minister would have known that the matter related to an adopted person, there is no indication that he had, or was cognizant of, any information with respect to Mr. Worthington's file beyond that fact. This was through no fault of the applicants. Mr. Worthington, it appears, did not request consideration under subsection 5(4) nor was he aware that any such consideration was being granted. This, in and of itself, is anomalous given that the interim measure policy specifically states, in relation to subsection 5(4), that "[t]he person shall be informed that this power is discretionary, and shall be required to provide all the evidence required to meet the basic requirements concerning adoption."

[35]            I could continue and recite additional problems, but it would serve no useful purpose to do so. In my view, enough has been said to illustrate that it would be totally inappropriate to accept the applicants' invitation to deal with the constitutionality of section 3 in these circumstances. The factual foundation, on the basis of admissible evidence, is insufficient.

[36]            The application for judicial review will be allowed and the decision of the Minister, dated July 3, 2003, quashed. The matter will be remitted for redetermination. The respondent suggested that the matter could be remitted with such directions as the court sees fit. I will direct that Mr. Worthington's complete file as well as my reasons for order and order be provided to the Minister when Mr. Worthington's application is reconsidered. I have not ignored the applicants' argument that they will be back before the court in any event because Mr. Worthington, even if his application is allowed, will be required to take the oath of citizenship and such a requirement does not apply to natural born children. While that may be so, the applicants', in their argument regarding section 22 of the Act, take exception to the fact that persons falling within the section are not permitted to take the oath. Additionally, the indication arising from Mr. Worthington's correspondence with Canadian officials is that he is anxious to take the oath (applicants' record at page 370). A future application, at this juncture, is speculative.

[37]            The last issue is the matter of costs. The applicants requested, in their application, costs on a solicitor-and-client basis. That position was maintained at the hearing. Costs on a solicitor-and-client basis are the exception and are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties: Apotex Inc. v.Canada (Minister of National Health and Welfare) (2000), 265 N.R. 90 (F.C.A.); Amway Corp. v. Canada, [1986] 2 C.T.C. 339 (F.C.A.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. I am not satisfied that the respondent's conduct is such that an award of costs on a solicitor-and-client basis is justified. Having regard to the factors set out in Rule 400 and specifically the factors in paragraphs (a), (e), (g), (i) and (k) of subsection (3), in the exercise of my discretion, I award costs to the applicants to be paid by the respondent in the all-inclusive amount of $3,500 (including disbursements and GST).

ORDER

THIS COURT ORDERS THAT the application for judicial review is allowed. The decision of the Minister is quashed and the matter is remitted for redetermination. On the redetermination, the complete file of the applicant, Duane Edward Worthington, as well as these reasons for order and order shall be provided to the Minister. The applicants will have costs to be paid by the respondent in the all-inclusive amount of $3,500 (including disbursements and GST).          

                                                                                                   Judge                          

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET:                                                       T-247-04

STYLE OF CAUSE:                                      DUANE EDWARD WORTHINGTON ET AL

v.

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                Toronto, Ontario.

DATE OF HEARING:                                  October 4, 2004

REASONS FOR ORDER

AND ORDER BY:                                         The Honourable Madam Justice Layden-Stevenson

DATED:

APPEARANCES BY:            

Mr. Ali Amini                                                   FOR THE APPLICANT

Ms. Pamela Larmondin                          FOR THE RESPONDENT

Mr. Gordon Lee       

SOLICITORS OF RECORD:        

Amini Carlson LLP                                            FOR THE APPLICANT

Barristers & Solicitors

Toronto, Ont.                                                                                             

Morris Rosenberg                                              FOR THE RESPONDENT

Deputy Attorney General of Canada

Toronto, Ont.

                                        SCHEDULE "A"

                                                 to the

        Reasons for Order and Order dated November xx, 2004

                                                     in

DUANE EDWARD WORTHINGTON and HELEN CHARLOTTE WORTHINGTON

v.

        MINISTER OF CITIZENSHIP AND IMMIGRATION

                                               T-247-04

Operations Memoranda

Citizenship Policy (CP)

Manual: CP

OM number: CP 01-05

Date: July 16, 2001

NHQ policy file no. 3008-1

IMM 0750: 2001-42

Title:

Interim measure concerning persons adopted by a Canadian citizen residing outside of Canada

PURPOSE

The purpose of this memorandum is to announce a change in the treatment of citizenship applications for persons legally adopted by Canadians residing outside Canada.

This measure is necessary to fill the legal vacuum created by the case law on adoption (the McKenna case) and to accommodate individuals who have no other alternative for becoming a Canadian citizen. The decision of the Federal Court of Appeal in McKenna has made it difficult to continue to refuse citizenship to persons adopted by Canadians abroad on the ground that they do not have permanent resident status in Canada. CIC had tabled a bill, C-16, in the last Parliamentary session that contained a provision designed to allow citizenship to be granted to adopted persons without requiring them to meet the criterion of permanent residence. Other criteria were also included to ensure that the adoption is legal, that the interests of the child are protected and that no fraud is being perpetrated to obtain entry to Canada or Canadian citizenship. CIC is still committed to this approach and the Minister intends to table this bill again.

Consequently, this interim measure only concerns applications relating to persons whose permanent residence is outside Canada. Such a person may be a minor or of the age of majority when the application is made, provided that he or she was adopted while under 18 years of age. In the case of a person adopted after that age, namely as an adult, that person will have to obtain permanent residence in Canada and make his or her citizenship application pursuant to subsection 5(1) of the Citizenship Act, like any other new immigrant.

Until the department tables new citizenship legislation, applications concerning minors adopted by Canadian parents residing in Canada will continue to be processed under paragraph 5(2)(a) of the Citizenship Act. These persons will then have to satisfy the permanent residence criterion established by this provision.

BACKGROUND

Under the Citizenship Act, a foreign child who has been adopted by a Canadian parent may only be granted citizenship after obtaining permanent residence.

In 1998, the Federal Court of Appeal determined, in the McKenna case, that the Citizenship Act contained a distinction between natural-born children and adopted children in regard to the obtaining of citizenship. In the first place, this distinction was found to be discriminatory because it requires permanent residence of a child legally adopted by a Canadian citizen, while a child born of a Canadian outside Canada is a citizen from birth. In light of the McKenna decision, it would be difficult to refuse citizenship to a foreign child legally adopted by a Canadian on the ground that the child is not a permanent resident of Canada or does not meet the medical or security requirements contained in the Immigration Act.

In response to this new case law, a provision had been developed in C-16 which allowed citizenship to be granted to adopted children regardless of their place of residence. New criteria for granting citizenship had been selected in order to minimize the discrimination between natural-born children and adopted children, while safeguarding the interests of the child and taking risks of fraud into account.

While awaiting the coming into force of new citizenship legislation, or the amendment of the existing statute, measures must be taken to accommodate Canadians who have adopted children outside Canada who live abroad permanently or who cannot satisfy the criteria of paragraph 5(2)(a) of the Citizenship Act.

Procedure:

Commencing July 16, 2001, all requests for information, certification or granting of citizenship that concern a person born outside Canada who has been adopted by a Canadian citizen and who is unable to obtain permanent resident status because they resided outside of Canada at the time of the adoption and continue to reside outside of Canada shall be forwarded to the Case Management Branch, to the attention of Ms. Linda Hill, Director, Case Review.

Under the Citizenship Act, the alternative offered to persons legally adopted by Canadians residing outside Canada is the discretionary power of the Governor in Council to grant citizenship to persons who do not meet the criteria of the Act (subsection 5(4)). Since the permanent residence criterion is considered discriminatory with respect to the granting of citizenship to children legally adopted by Canadians, it becomes difficult to continue to refuse citizenship for that reason alone. The measure now proposed seeks to offer an alternative to persons who are penalized by the existing law and who have no other alternative for becoming citizens.

As soon as an application is received, a citizenship officer in the Case Management Branch shall be responsible for contacting the person concerned, by mail, to inform the person of the possibility of obtaining citizenship through the discretionary power of the Governor in Council provided for in subsection 5(4). The person shall be informed that this power is discretionary, and shall be required to provide all the evidence required to meet the basic requirements concerning adoption. The criteria involved were essentially those developed in the former citizenship legislation (section 8 of Bill C-16). They aim to ensure protection for the child, for the parents and for overall Canadian policy on citizenship and immigration. These criteria are:

·            The person must have been adopted by a Canadian after December 31st, 1946.

·            The person must have been less than 18 years of age at the time of the adoption.

·            The adoption must have been done in the best interests of the adopted person.

·            The adoption must have created a genuine parent-child relationship between the adopted child and the adopting parent.

·            The adoption must have been done in accordance with the law of the place of adoption and of the place of residence of the adopting parent.

·            The adoption must not have been done solely for the purpose of evading legal obligations relating to immigration or citizenship.

The Case Management Branch shall consider every case on its individual merits, make a report to the Minister, and the Minister shall make a favourable or unfavourable recommendation, as the case may be, to the Governor in Council concerning the granting of citizenship.

All persons 14 years of age or older shall swear the oath of citizenship in order to become Canadians.

Note:

If the adoption took place between December 31st, 1946 and February 15, 1977, the person in question is subject to the prohibitions of the law as set forth in section 22 of the Citizenship Act. If the person was adopted after February 14, 1977, the criminal prohibitions provided for in that section shall not apply and may not prevent the granting of citizenship or the swearing of the oath.

ANNEXE "A"

Notes de service sur les opérations

Politiques de citoyenneté (CP)

Guide : CP

NSO no : CP 01-05

Date : 16 juillet 2001

No de référence de la politique à l'AC : 3008-1

IMM 0750 : 2001-42

Titre :

Mesure intérimaire concernant les personnes adoptées par un citoyen canadien résident à l'étranger

OBJET

Le but de cette note de service est d'annoncer une modification dans le traitement des demandes de citoyenneté visant des personnes légalement adoptées par des Canadiens résidant à l'étranger.

Cette mesure s'avère nécessaire pour combler le vide juridique crée par la jurisprudence en matière d'adoption (Affaire McKenna) et permettre de traiter le cas des personnes qui n'ont pas d'autres alternatives pour devenir citoyen. En effet, à la suite de la décision de la Cour d'appel fédérale dans cette affaire, il serait difficile de continuer de refuser la citoyenneté aux personnes adoptées par des Canadiens à l'étranger sous le motif qu'ils n'ont pas la résidence permanente au pays. CIC a déposé un projet de loi sur la citoyenneté (C-16), au cours de la dernière session parlementaire, qui contient une disposition visant l'attribution de la citoyenneté aux personnes adoptées sans qu'elles ne doivent satisfaire au critère de résidence permanente. D'autres critères ont également été prévus afin de s'assurer que l'adoption est légale, que l'intérêt de l'enfant est protégé et qu'il ne s'agit pas d'une fraude pour obtenir l'entrée au Canada ou la citoyenneté canadienne. CIC demeure favorable à cette approche et la Ministre a l'intention de déposer à nouveau ce projet de loi.

En conséquence, cette mesure intérimaire ne touche que les demandes concernant des personnes dont la résidence permanente est à l'étranger. Il peut s'agir d'une personne majeure ou mineure au moment de la demande, à condition qu'elle ait été adoptée alors qu'elle était âgée de moins de 18 ans. S'il s'agit d'une personne adoptée après cet âge, soit à titre d'adulte, la personne devra obtenir la résidence permanente au Canada et faire sa demande de citoyenneté en vertu du paragraphe 5(1) de la Loi sur la citoyenneté au même titre qu'un nouvel immigrant.

Jusqu'à ce que le Ministère dépose la nouvelle législation sur la citoyenneté, les demandes visant des mineurs adoptés par des parents canadiens résidant au Canada continueront d'être traitées en vertu de l'alinéa 5(2)a) de la Loi sur la citoyenneté. Ces personnes mineures devront donc satisfaire au critère de résidence permanente prévue par cette disposition.

CONTEXTE

En vertu de la Loi sur la citoyenneté, un enfant étranger qui a été adopté par un parent canadien ne peut se voir attribuer la citoyenneté qu'après avoir obtenu la résidence permanente.

En 1998, la Cour fédérale d'appel a conclu, dans l'affaire McKenna, que la Loi sur la citoyenneté comportait une distinction entre les enfants naturels et les enfants adoptés pour l'obtention de la citoyenneté. À prime abord cette distinction a été jugée discriminatoire puisqu'elle consiste à exiger la résidence permanente à un enfant légalement adopté par un citoyen canadien, alors que l'enfant né d'un Canadien à l'étranger est citoyen dès la naissance. Étant donné cette décision, il serait difficile de refuser la citoyenneté à un enfant étranger légalement adopté par un Canadien parce qu'il n'est pas résident permanent du Canada ou qu'il ne répond pas aux exigences médicales ou sécuritaires que prévoit la Loi sur l'immigration.

Compte tenu de cette nouvelle jurisprudence, une disposition avait été prévue dans le projet de loi C-16 permettant l'attribution de la citoyenneté aux enfants adoptés sans égard à leur lieu de résidence. De nouveaux critères d'attribution avaient été choisis de manière à diminuer le plus possible la discrimination entre les enfants naturels et les enfants adoptés tout en sauvegardant les intérêts de l'enfant et en tenant compte des risques de fraude.

En attendant l'entrée en vigueur de cette nouvelle loi, ou la modification de la loi actuelle, des mesures doivent être prises pour accommoder les Canadiens qui ont adopté des enfants à l'étranger et qui y vivent de façon permanente ou qui ne peuvent satisfaire les critères de l'alinéa 5(2)a) de la Loi sur la citoyenneté.

Procédure :

À compter du 16 juillet 2001, toutes les demandes d'information, d'attestation ou d'attribution de la citoyenneté concernant une personne née à l'étranger qui a été adoptée par un citoyen canadien et qui se voit dans l'impossibilité d'obtenir le statut de résident permanent en raison du fait qu'elle residait à l'extérieur du Canada au moment de l'adoption et continue de resider à l'extérieur par la suite, devront être acheminées à la Direction générale du règlement des cas, à l'attention de Madame Linda Hill, Directrice de la révision des cas.

En vertu de la Loi sur la citoyenneté, l'alternative qui s'offre aux personnes légalement adoptées par des Canadiens résidant à l'étranger est le pouvoir discrétionnaire du Gouverneur en conseil d'attribuer la citoyenneté à des personnes qui ne satisfont pas les critères de la loi(paragraphe 5(4)). Étant donné que le critère de résidence permanente est considéré discriminatoire pour l'attribution de la citoyenneté aux enfants légalement adoptés par des Canadiens, il devient difficile de continuer à refuser la citoyenneté pour ce seul motif. La présente mesure vise donc à offrir une solution de rechange aux personnes qui sont pénalisées par la loi actuelle et qui n'ont pas d'autres alternatives pour devenir citoyens.

Dès réception des demandes, un agent de citoyenneté à la division du règlement des cas sera responsable de contacter la personne concernée, par courrier, pour l'informer de la possibilité d'obtenir la citoyenneté en vertu du pouvoir discrétionnaire du gouverneur en conseil que prévoit le paragraphe 5(4). La personne devra être informée qu'il s'agit d'un pouvoir discrétionnaire et devra également fournir toutes les preuves justificatives pour répondre aux exigences de base concernant l'adoption. Les critères sont essentiellement ceux établis dans l'ancien projet de loi sur la citoyenneté (article 8 du Projet de loi C-16). Ils visent à assurer une protection tant pour l'enfant et les parents que pour la politique canadienne générale en matière de citoyenneté et d'immigration. Ces critères sont :

·            La personne doit avoir été adoptée par un Canadien après le 31 décembre 1946;

·            La personne doit être âgée de moins de 18 ans au moment de l'adoption ;

·            L'adoption doit avoir été faite dans l'intérêt supérieur de l'adopté ;

·            L'adoption doit avoir créé un véritable lien de filiation entre l'adopté et le parent adoptant;

·            L'adoption doit avoir été faite conformément au droit du lieu de l'adoption et du lieu de résidence du parent adoptant ;

·            L'adoption ne doit pas avoir été faite uniquement dans le but d'éluder les obligations légales en matière d'immigration ou de citoyenneté.

Tous les cas seront étudiés au mérite par la Direction du règlement des cas, qui fera un rapport à la Ministre, et la Ministre fera ensuite une recommandation favorable ou défavorable, selon le cas, au Gouverneur en conseil concernant l'attribution de la citoyenneté.

Toutes les personnes âgées de 14 ans et plus devront prêter le serment de citoyenneté pour devenir des citoyens canadiens.

Note:

Si l'adoption a eu lieu entre le 1er janvier 1947 et 15 février 1977, la personne est sujette aux interdictions de la loi prévues à l'article 22 de la Loi sur la citoyenneté. Si la personne a été adoptée après le 14 février 1977, les interdictions criminelles prévues à cet article ne s'appliquent pas et ne peuvent empêcher l'attribution de la citoyenneté ou la prestation du serment.