Date: 20080521
Docket: T-2295-05
Citation: 2008 FC 626
Ottawa, Ontario, May 21,
2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
DUANE EDWARD WORTHINGTON and
HELEN CHARLOTTE WORTHINGTON
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to section 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7, for judicial review of a decision dated November 25, 2005
by the former Minister of Citizenship and Immigration (the Honourable Joe
Volpe) (the Minister) refusing Duane Edward Worthington’s application for
Canadian citizenship under subsection 5(4) of the Citizenship Act,
R.S.C. 1985, c. C-29, (the Act). While both Duane Edward Worthington and
his adoptive mother, Helen Charlotte Worthington are listed as applicants on
the record, for reasons of simplicity I will refer only to Duane Edward
Worthington as “the applicant”.
[2]
The
applicant requests:
1. The
decision of the Minister dated November 25, 2005 be quashed and set aside;
2. An
order in the nature of mandamus requiring the Minister of Citizenship
and Immigration to recognize and grant Canadian citizenship to the applicant;
3. A
declaration that the Interim Measure is unconstitutional by reason of
its inconsistency with section 15 of the 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); and
4. Costs
on a solicitor-client basis.
Background
[3]
The
applicant, Duane Edward Worthington, is an American citizen, born in the U.S.A. on March 9,
1961. The applicant was adopted by Frank Edward Worthington and Helen Charlotte
Worthington on March 20, 1962. The applicant’s adoptive parents are residents
of the U.S.A., but were
both born in British
Columbia.
The applicant is currently serving a 425 month sentence in a medium security
federal penitentiary in the U.S.A. for drug and weapons related offences
committed in the U.S.A.
[4]
In
2002, the applicant inquired as to the possibility of getting Canadian
citizenship on the basis of his adoption by alleged Canadian parents. In
response to his inquiry, the applicant was given an application form for a certificate
of citizenship from outside of Canada under section 3 of the Act and an
application form for a grant of citizenship under section 5 of the Act.
[5]
On
July 4, 2002, the applicant submitted an application under section 3 of the
Act. On August 30, 2002, the applicant received a letter from the senior consular
program officer (the program officer) informing him that his application under
section 3 of the Act was not valid as he was the adoptive child of Canadian
parents (section 3 is limited to naturally born children). The applicant was
informed that the appropriate application was under subsection 5(1) of the Act.
[6]
On
September 11, 2002, the applicant submitted an application under subsection
5(1) of the Act. In a letter dated December 30, 2002 from Citizenship and
Immigration Canada (CIC or the Department), the applicant was
informed that the Department was unable to proceed with his application on the
basis that this section was limited to permanent residents of Canada.
Furthermore, the letter also contained a request that the applicant sign and
date the enclosed request for withdrawal form in relation to his subsection
5(1) application. The applicant refused to withdraw his application and it was
converted into a subsection 5(4) application. Subsection 5(4) applications are
special grants of citizenship under the discretionary power of the Minister.
[7]
On
July 3, 2003, the then Minister of Citizenship and Immigration, the Honourable Denis
Coderre, informed the applicant that his application under subsection 5(4) had
been refused. This decision was judicially reviewed by Madam Justice
Layden-Stevenson of this Court in November 2004, and the matter was referred
back for re-determination, with terms (Worthington v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1546).
[8]
The
matter was reconsidered and in a letter dated November 25, 2005, the applicant
was informed by the then Minister of Citizenship and Immigration, the
Honourable Joe Volpe, that his application had been refused. This is the
judicial review of that decision.
Minister’s Reasons for
Decision
[9]
In
a letter dated November 25, 2005, the Minister denied the applicant’s
application for citizenship under subsection 5(4) of the Act. As the decision
and reasons were very brief, I have reproduced them below:
This refers to your “Application for
Canadian Citizenship Under Subsection 5(1)” of the Citizenship Act.
After careful review, I have considered
the criteria of the Interim Measure. However, I am not satisfied that the
totality of the circumstances of the case warrant the exercise of my
extraordinary discretion to refer your application to the Governor in Council
for consideration pursuant to subsection 5(4) of the Citizenship Act.
Issues
[10]
The
applicant submitted the following issues for consideration:
1. What is the
applicable standard of review?
2. Is the Minister’s
decision based on a discriminatory treatment of adopted children under the
current citizenship law and policy applicable to adopted children?
3. Did the Minister
violate principles of natural justice and fairness by using extrinsic evidence without
giving the applicant an opportunity to address the evidence so obtained?
4. Did the Minister
violate the applicant’s legitimate expectation, principles of natural justice
and his right to participate in the decision-making process by not informing
the applicant of the discretionary nature of the power and unilaterally converting
the application from a subsection 5(1) application into a subsection 5(4) discretionary
application and by then relying on his discretion, which only came about as a
result of his own unilateral action, in refusing the application? Did the
Minister provide adequate reasons for refusal?
5. Should the Court set
the Minister’s decision aside, given the fact that it was arrived at by
violating principles of natural justice and by reliance on irrelevant
considerations?
6. Is the evidence
attached to the supplementary affidavit of Rosemarie Redden (relied on by the
respondent) inadmissible?
[11]
The
respondent submitted the following issue for consideration:
1. Is the applicant’s
affidavit of Sonia Kociper in violation of Rule 81 of the Federal Courts
Rules, S.O.R. 98-106, section 1 and therefore should be assessed with
caution and accorded minimal weight?
[12]
I
would rephrase the issues as follows:
Preliminary Issues
1. Is the evidence
attached to the supplementary affidavit of Rosemarie Redden inadmissible?
2. Does the applicant’s
affidavit of Sonia Kociper violate Rule 81 of the Federal Courts Rules,
above?
Judicial Review Issues
3. What is the
appropriate standard of review?
4. Did the Minister
breach procedural fairness by considering extrinsic evidence without giving
notice to the applicant?
5. Did the applicant
have a legitimate expectation that the Minister would notify him of the
discretionary nature of a decision under subsection 5(4) of the Act? Was this
legitimate expectation violated?
6. Did the Minister
breach procedural fairness by failing to provide adequate reasons for his
decision?
7. Did the Minister
breach the requirements of procedural fairness in failing to inform the
applicant of the case to be met?
8. Did the Minister err
in exercising his discretion to deny the applicant’s application for
citizenship under subsection 5(4) of the Act?
Constitutional Issues
9. Does the
Department’s Interim Measure violate section 15 of the Charter?
10. Can it be saved under
section 1 of the Charter?
11. What is the
appropriate remedy?
Costs
12. Should the applicant
be awarded costs on a solicitor-client basis?
[13]
I
will be summarizing the parties’ submissions under the following headings:
Preliminary Issues
Judicial
Review Issues
Constitutional
Issues
Costs
Applicant’s Submissions
Preliminary Issues
[14]
The
applicant submitted that the evidence attached to the supplementary affidavit
of Rosemarie Redden is not admissible if the respondent intends to rely on it
for the purpose of arguing that the applicant failed to fulfill the criteria
stated therein. This evidence was not before the Minister when he made his
decision as it is not in the certified tribunal record.
[15]
The
applicant submitted that the respondent takes issue with the applicant’s
underlying affidavit of Sonia Kociper as being hearsay. The applicant submitted
that all statements contained in the affidavit are based on personal knowledge
arrived at by reviewing documentary exhibits and are backed by supporting
documentation attached to the affidavit as exhibits. The applicant submitted
that there is no violation of Rule 81 of the Federal Courts Rules, above.
Judicial Review Issues
[16]
With
regards to the appropriate standard of review, the applicant submitted that
questions of mixed law and fact are reviewable on a standard of reasonableness simpliciter.
The applicant submitted that the standard of review for the application of Charter
principles and issues involving procedural fairness is correctness.
[17]
The
applicant alleged that the respondent relied on extrinsic evidence. The
applicant submitted that in obtaining a copy of the applicant’s U.S. District
Court file (from U.S. authorities) and in doing so at the last minute, the
Department breached the requirements of procedural fairness as the applicant
did not have a chance to respond to the evidence.
[18]
As
to the argument of legitimate expectation, the applicant submitted that
provisions in the Interim Measure provided the applicant with a
legitimate expectation that he would be informed that the power to grant
citizenship under subsection 5(4) was discretionary in nature and that he was
required to provide all the evidence required to meet the basic requirements
concerning adoption. The applicant submitted that when a public authority has
promised to follow a certain procedure, they should act fairly and implement
its promise (Bendahmane v. Canada (Minister of Citizenship and Immigration),
[1989] 3 F.C. 16 (F.C.A.)). The applicant submitted that failure to respect
this requirement is detrimental to the applicant as he did not have the
opportunity to present the required evidence. The applicant also submitted that
even if this Court believes that the applicant must have known of the
discretionary nature of the power, the Minister still had a duty to inform.
[19]
The
applicant submitted that the Minister’s decision breaches procedural fairness
as it provides inadequate reasons for the decision. The applicant noted in the
case of Abu v. Canada (Minister of Citizenship and Immigration) 2005
FC 565, which held that reasons are not really reasons at all if they
essentially consist of a mere statement of conclusion without any analysis to
back it up. The applicant submitted that the Minister’s statement as to “the
totality of the circumstances” leaves the applicant in the unenviable position
of not knowing why the application was rejected.
[20]
The
applicant also submitted that the Minister failed to inform him of the “case to
be met” in order to satisfy the Minister that there were sufficient grounds to
warrant granting citizenship under subsection 5(4). The applicant submitted
that this is a breach of procedural fairness (Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3). The applicant
alleged that it would be wrong for the respondent to argue that the “case to be
met” was to satisfy the Minister of either “special unusual hardship” or
“services of an exception value” as those criteria are to be considered by the
GIC, not the Minister. Furthermore, the applicant submitted that the Minister
cannot arbitrarily deny citizenship once the requirements are met.
[21]
And
finally, the applicant submitted that the provisions of the Act confer a duty
on the Minister and as such, his decision cannot be exercised in an entirely
discretionary manner without regard to the criteria in the Interim Measure.
The applicant noted that if the legitimacy of the adoption has been met, then
the Minister must, in accordance with the Interim Measure, grant
citizenship under subsection 5(4) of the Act. The applicant submitted that this
argument is consistent with the text of Bill C-14.
Constitutional Issues
[22]
The
applicant submitted that the Interim Measure is discriminatory because
it puts adoptive children of Canadian parents at the mercy of the Minister’s
discretion. In routing citizenship applications from adoptive children through
subsection 5(4) of the Act, these children are subject to an oath requirement
and discretionary process. The applicant submitted that the interest affected
by the impugned legislation is the ability of children genuinely adopted abroad
to become full members of Canadian society. The applicant noted the already
disadvantaged societal position of adoptive children, stating that they are
seen as “second best”. The applicant further submitted that adoption has
already been established as an analogous ground. Moreover, the differential
treatment at issue is without question discriminatory. With regards to the
justification of this discrimination, the applicant submitted that there is no
rational connection in requiring only adoptive children of Canadian parents to
swear an oath and rely on the Minister’s discretion in order to acquire
Canadian citizenship.
Costs
[23]
The
applicant requested that costs be award on a solicitor client basis due the
respondent’s wasteful motions and delay tactics and also because the Department
was already instructed, in McKenna v. Canada, [1999] 1
F.C. 401 that the policy was discriminatory. The applicant submitted that this
Court should adopt the same reasoning as in Koehler v. Warkworth
Institution (1991), 45 F.T.R. 87 (T.D.), whereby the Federal Court made an
award of costs on a solicitor-client basis, payable forthwith, as the tribunal
had denied the applicant natural justice despite having been instructed on the
law in that area by the Court three months earlier.
Respondent’s Submissions
Preliminary Issues
[24]
The
respondent provided no written arguments on the admissibility of Rosemarie
Redden’s evidence.
[25]
The
respondent submitted that it is plain and obvious that the affidavit of Sonia
Kociper, an associate lawyer at the firm retained by the applicant, is not
confined to the associate’s personal knowledge as required by Rule 81 of the Federal
Courts Rules, above. The information in the affidavit is
fundamentally hearsay in nature, and as such should be assessed with caution
and accorded minimal weight.
Judicial Review Issues
[26]
With
regards to the appropriate standard of review, the respondent submitted that
the question of whether the Minister acted within his discretionary power is
reviewable on a standard of patent unreasonableness. The respondent submitted
that a ministerial recommendation under subsection 5(4) is a quintessential
exercise of executive prerogative in which the executive is possessed of unique
expertise.
[27]
The
respondent went on to address the requirements of procedural fairness in
general terms. The respondent submitted that the requirements of procedural fairness
are heavily dependent on the context, including the characteristics of the
decision maker, the subject matter a tribunal considers, the function being
performed, the statute in question, the particular facts of the case being
decided, the expectations of the person challenging the decision, and the
effect of the decision on an individual concerned (Knight v. Indian
Head School Division No. 19, [1990] 1 S.C.R. 653). The respondent submitted
that the decision at hand involves complete ministerial discretion; the
Minister is not adjudicating. The respondent further submitted that the
context, facts and circumstances of this case warrant a very low, minimal or
marginal level of procedural fairness.
[28]
The
respondent also submitted that the applicant’s criminal record does not
constitute extrinsic third party information of which the applicant had no
knowledge. The respondent noted that it was the applicant that voluntarily
shared the existence of a criminal record and incarceration with the respondent
in his application. The criminal record was from a public source, was on the
record at the time the subsection 5(4) application was presented to the
Minister and was fully within the knowledge and possession of the applicant.
The respondent submitted that the applicant was not denied the opportunity to
make submissions as to the criminal record; in fact, it was the applicant that raised
the issue in his correspondence with the Department during the application
process..
[29]
As
to the applicant’s argument that a legitimate expectation arose, the respondent
submitted that this is not so. The respondent noted that the doctrine of
legitimate expectation is a purely procedural doctrine, whereas the expectation
alleged is substantive. Moreover, administrative departmental policy
guidelines, such as the Interim Measure, do not afford an applicant the
right to a particular outcome (Reference Re Canada Assistant Plan,
[1991] 2 S.C.R. 525; Legault v. Canada (Minister of Citizenship and Immigration),
[2002] 4 F.C. 358; Guay v. Lafleur, [1965] S.C.R. 12).
[30]
With
regards to the adequacy of reasons, the respondent submitted that there is no
obligation on the Minister to provide reasons for the exercise of discretion
under subsection 5(4) of the Act. The respondent submitted that the case at
hand does not constitute an exception to the general rule that the duty of
fairness does not require reasons for administrative decisions. The decision of
the Minister is subject to limited review by this Court (Baker, [1999] 2
S.C.R. 817). The respondent further submitted that even if the Court finds
there was a duty to give reasons, the obligation was to merely show ‘some
degree of reasoning or analysis’ or the ‘general substance’ of his reasons (Knight,
above). The respondent submitted that this was satisfied by the November 25,
2005 letter as it explained that the decision was made with regard to the
‘totality of the circumstances’. Furthermore, the memorandum to the Minister
can be understood to provide further reasons for the Minister’s decision.
[31]
The
respondent further submitted that the applicant was not denied a meaningful
opportunity to address the criteria set out by the Department under the Interim
Measure. The respondent submitted that there was a need for the applicant
to submit documentation as to the bona fide of his adoption and the
applicant did so. The Minister’s discretionary power under subsection 5(4) is
personal and of a very special nature.
[32]
The
respondent submitted that the Minister properly exercised his discretion in making
his decision. The respondent noted that Parliament did not burden the executive
with any legislative standards on how the GIC should exercise its discretion
under subsection 5(4) of the Act. The respondent alleged that the applicant’s
interpretation of the Interim Measure is false. There is no guarantee to
citizenship under this provision, but yet an opportunity for a discretionary
grant (Guay, above). The Interim Measure could not bind the
Minister in the exercise of his discretion, nor could it create substantive
rights to citizenship. Subsection 5(4) of the Act is a residual power given to
the Minister to “alleviate” cases of special and unusual hardship on broad
grounds including political expediency to persons who do not have either a
right or a qualified right to obtain citizenship under the Act.
[33]
The
respondent submitted that it was clearly open to the former Minister to
consider the applicant’s unique and specific circumstances. It was not patently
unreasonable for the former Minister to determine that the desire of a person
currently serving a lengthy term of imprisonment to apply for citizenship in
order to possibly do his time in Canada, with whatever benefit that might
include, is not “special and unusual hardship” that warranted the exercise of
his extraordinary discretion.
Constitutional Issues
[34]
The
respondent provided a number of reasons as to why the Charter challenge
should be dismissed. Firstly, the respondent submitted that the applicant
relies on events that took place in 2004 and repeats arguments raised and dealt
with in the first application for judicial review heard by Madam Justice
Layden-Stevenson. Secondly, in making the section 15 argument, the applicant
wrongly relies on McKenna, above. The respondent submitted that McKenna,
above dealt with discrimination under the Canadian Human Rights Act
and not a constitutional challenge to the Citizenship Act. Moreover, it
did not deal with the provision for discretionary grants of citizenship under
section 5(4) of the Act. The respondent submitted that the Interim Measure
is a department policy that does not bind the Minister’s exercise of discretion
under section 5(4) of the Act. And finally, the respondent argued that Charter
arguments cannot be made in a factual or legal vacuum or without proper
notice of a constitutional question. The respondent submitted that the
applicant is essentially attempting to reargue his challenge to paragraph
3(1)(e) of the Act which was already raised in the companion judicial review
application. The respondent noted that the constitutional challenge was not
identified in the applicant’s notice of application in the present case, nor
was there an issuance of a notice of constitutional question in this file. As
such, the applicant is not entitled to now raise it. The Court should refrain
from dealing with Charter issues raised in an application for judicial
review where it is unnecessary to do so (Baker, above).
Costs
[35]
The
respondent submitted that the applicant has not determined that they are entitled
to costs on a solicitor-client basis. The respondent submitted that they have
been responding to the underlying judicial review application in a diligent
manner. The respondent submitted that the applicant’s submissions contain
several erroneous and inaccurate assertions against the respondent.
Analysis and Decision
Preliminary
Issues
1. Is the evidence
attached to the supplementary affidavit of Rosemarie Redden inadmissible?
[36]
With
regards to the applicant’s submissions concerning the evidence attached to the supplementary
affidavit of Rosemarie Redden, I am of the opinion that the applicant is not
taking issue with the admissibility of the evidence, but yet the uses to which
it can be put. I assure the applicant that this Court in judicially reviewing
the decision of the Minister fully understands that only those documents
contained in the certified tribunal record are to be considered as the
information before the decision maker at the time the decision was made.
2. Does
the applicant’s affidavit of Sonia Kociper violate Rule 81 of the Federal
Courts Rules, above?
[37]
The
respondent submitted that the applicant’s supporting affidavit of Sonia
Kociper, an associate at the law firm representing the applicant, violates Rule
81 of the Federal Courts Rules, above. I should mention that the
determination of this issue is not detrimental to this application for judicial
review as the majority of the information provided in Sonia Kociper’s affidavit
is also found in the affidavit of Duane Edward Worthington and the certified
tribunal record. Nonetheless, I feel the need to address the argument raised by
the respondent.
[38]
The
general requirement of Rule 81 is that affidavits be confined to the personal
knowledge of the deponent. In Moldeveanu v. Canada (Minister of
Citizenship and Immigration) (1999), 1 Imm. L.R. (3d) 105, the Federal
Court of Appeal held that facts which do not appear on the record and which are
within the knowledge of the applicant cannot be put in evidence by the
affidavit of a third person who has no personal knowledge of those facts. This
would simply violate the requirement of personal knowledge.
[39]
The
applicant is aware of this requirement. In fact, in Worthington, above,
Madam Justice Layden-Stevenson of this Court held at paragraph 26:
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 [sic] 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.
[40]
Having
reviewed the affidavit of Sonia Kociper, I am of the opinion that the situation
before this Court is the same as above.
[41]
Consequently,
I agree with the respondent that the affidavit shall be assessed with caution
and overall accorded minimal weight.
Judicial
Review Issues
3. What
is the appropriate standard of review?
[42]
Questions
of procedural fairness are reviewable on a standard of correctness. With
regards to the “reasonability” of the overall decision of the Minister, we must
apply the standard of review analysis to determine the appropriate standard of
review. In my opinion, the most convincing factors in the present case are the
expertise of the decision maker, the purpose of the provision and the nature of
the problem. The Minister of Citizenship and Immigration is responsible for
issues of citizenship in Canada, including the granting of citizenship
under discretionary powers. This consideration warrants a high degree of
deference. The purpose of subsection 5(4) is to give the Minister a residual,
highly discretionary power to grant citizenship in situations where the person
would otherwise not qualify for citizenship under the Act. This also warrants a
high degree of deference. And finally, the nature of the question at issue is
one of pure fact. Whether or not to grant citizenship under subsection 5(4) is
a highly discretionary decision entrusted to the Minister of Citizenship and
Immigration. In light of these considerations, I am of the opinion that the
appropriate standard of review is the most deferential standard of
reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9).
4. Did
the Minister breach procedural fairness by considering extrinsic evidence
without giving notice to the applicant?
[43]
The
applicant submitted that by obtaining a copy of the applicant’s criminal record
from U.S. authorities,
the Department breached the duty of procedural fairness owed in that the
applicant could not respond to the evidence. The respondent submitted that the
applicant was aware the evidence existed and even notified the Department of
its existence, and as such, the document in question does not constitute
extrinsic third party information of which the applicant had no knowledge.
[44]
In
Kaur v. Canada (Minister of Citizenship and Immigration)
2005 FC 1192, this Court held at paragraph 20:
The term “extrinsic evidence” is usually
used in respect of specific evidence of which the applicant was not aware that
is used to rebut evidence already before the tribunal.
[45]
In
Mancia v. Canada (Minister of Citizenship and Immigration), (1997)
125 F.T.R. 297, it was held that there is no obligation on the part of an officer
to disclose information that is available from a public source prior to the
date of any submission by the applicant. In the case at hand, the applicant was
aware of his criminal record and the fact that it was public information as of
the date of his application. In fact, his application form dated September 11,
2002, the applicant stated:
[…] I am currently serving a 425 month
sentence in a medium security federal facility, for criminal No. 96-124 from
the U.S.D.C. of the southern District of Iowa. (This information is available
to the public, and is filed in Des
Moines, Iowa
clerk of the court.)
In light of this, I am
of the view that there was no breach of procedural fairness.
5. Did
the applicant have a legitimate expectation that the Minister would notify him
of the discretionary nature of a decision under subsection 5(4) of the Act? Was
this legitimate expectation violated?
[46]
The
applicant submitted that he had a legitimate expectation that he would be
informed that decisions under subsection 5(4) are discretionary and that he
needed to provide the necessary documentation to prove that his adoption was
bona fide. The applicant relied on an excerpt of the Interim Measure
which provides:
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.
[Emphasis added]
[47]
The
Supreme Court of Canada in Canadian Union of Public Employees, [2003]
S.C.J. No. 28 at paragraph 131, provided the following articulation of the
doctrine of legitimate expectation:
The doctrine of legitimate expectation is
"an extension of the rules of natural justice and procedural
fairness": Reference re Canada Assistance Plan (B.C.), [1991] 2
S.C.R. 525, at p. 557. It looks to the conduct of a Minister or other public
authority in the exercise of a discretionary power including established
practices, conduct or representations that can be characterized as clear,
unambiguous and unqualified, that has induced in the complainants (here the
unions) a reasonable expectation that they will retain a benefit or be
consulted before a contrary decision is taken. To be "legitimate",
such expectations must not conflict with a statutory duty. See: Old St.
Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; Baker, supra;
Mount Sinai, supra, at para. 29; Brown and Evans, supra, at para.
7:2431. Where the conditions for its application are satisfied, the Court may
grant appropriate procedural remedies to respond to the "legitimate"
expectation.
[48]
Based
on the above articulation, I believe the following requirements must be met to
prove that the applicant had a legitimate expectation:
1. A promise was
made by a Minister or other public authority in the exercise of a discretionary
promise;
2. The promise
was procedural in nature and not substantive;
3. The promise
was to be clear, unambiguous and unqualified;
4. There was
reliance on the promise;
5. The reliance
on the promise was to the detriment of the person asserting a legitimate
expectation; and
6. The promise
was not in conflict with a statutory duty.
[49]
In
my opinion, all of these requirements have not been met. In particular, I am
not convinced that on the facts of this case that the applicant relied on this
promise to his detriment. The applicant’s reliance on the promise that he would
be notified did not produce any detrimental effect. With regards to the
notification that the decision under subsection 5(4) was discretionary, I fail
to understand how being notified that a decision is discretionary creates
reliance to the detriment of the applicant. Whether informed or not, there was
nothing that the applicant could have done to change the type of decision and
therefore there was no reliance to his detriment. As to the notification that
the applicant would have to produce documentation to meet the basic
requirements concerning adoption, once again I am not convinced that reliance
on the notification caused a detrimental effect. In fact, it appears that by
the time the application for citizenship was converted into a subsection 5(4)
application, the respondent was already satisfied that the applicant had
provided sufficient documentation in relation to the validity of his adoption.
As such, I find that no legitimate expectation existed. I would not grant the
judicial review on this ground.
6. Did
the Minister breach procedural fairness by failing to provide adequate reasons
for his decision?
[50]
The
applicant submitted that in rendering his decision, the Minister failed to
provide the applicant with adequate reasons. The respondent submitted that the
contents of procedural fairness depend on a number of factors and that in the
case at hand, there was no requirement for the Minister to provide reasons. In
the alternative, the respondent submitted that if there was a duty to provide
reasons, the Minister’s letter and the memorandums to the Minister satisfied
this duty (Baker, above).
[51]
It
is well accepted that the contents of procedural fairness are variable and must
be determined in the specific context of each individual case (Knight,
above). The Supreme Court of Canada in Baker, above at paragraph
23, discussed the factors that should be considered in assessing the contents
of procedural fairness. These include the nature of the decision being made,
the nature of the statutory scheme, the importance of the decision to the
individual affected, the legitimate expectations of the person challenging the
decision, and the choices of procedure made by the agency.
[52]
In
the case before the Court, the important significance of the issue to the
applicant favours the requirement of written reasons. However, the scheme for
citizenship applications under subsection 5(4) is far from an adjudicative
process. Nonetheless, I am of the opinion that written reasons were required by
the Minister, but the comprehensiveness of those reasons was very minimal. In Ozdemir
v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R.
394 (F.C.A), the Federal Court of Appeal held that it is inappropriate to
require administrative officers to give as detailed reasons for their decision
as may be expected of an administrative tribunal that renders its decision
after an adjudicative hearing. In the case at hand, I find that the reasons
provided by the Minister were adequate. The Minister stated that in light of
the criteria in the Interim Measure, the totality of the circumstances
did not warrant a grant of citizenship under subsection 5(4). Albeit very
minimal, the adequacy of the reasons was met. I would not allow the judicial
review on this ground.
7. Did
the Minister breach the requirements of procedural fairness in failing to
inform the applicant of the case to be met?
[53]
The
applicant submitted that the Department’s unilateral decision to convert his
subsection 5(1) application into a subsection 5(4) application violated the
requirements of procedural fairness as the applicant was not informed of the
case to be met for a grant of citizenship under subsection 5(4). The respondent
submitted that the applicant had already met the requirement of providing
documentation as to the validity of his adoption and as such, was aware of the
case to be met.
[54]
In
considering whether or not the applicant was informed of the case to be met, I
find it important that we first consider the section in question. Subsection
5(4) of the Citizenship Act reads:
5.(4) In order to alleviate cases of
special and unusual hardship or to reward services of an exceptional value to
Canada, and notwithstanding any other provision of this Act, the Governor in
Council may, in his discretion, direct the Minister to grant citizenship to any
person and, where such a direction is made, the Minister shall forthwith grant
citizenship to the person named in the direction.
[55]
The
purpose of the statement appears to be to allow the Minister, in cases of
special and unusual hardship or in cases where there is a need to reward
services of an exceptional value to Canada, to grant citizenship
notwithstanding any other provisions of the Act. My understanding of the
section is that usually an applicant must show that one of the above
circumstances is present; however, in the case of persons adopted outside of
Canada by Canadians residing abroad, this is not the case as the Interim
Measure provides other requirements. While I agree with the respondent that
the Interim Measure is a departmental policy and not a formal law, it
nonetheless is accessible to the public and the Supreme Court has held such
document to be of great assistance to the Court (Legault v. Canada
(Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.)). The
guideline criteria for applications under subsection 5(4) in the Interim
Measure includes that the applicant must establish that a legal and full
adoption took place after December 31, 1946, that an adoptive parent was a
Canadian citizen at the time of the adoption, and that the applicant was less
than 18 years of age at the time of the adoption.
[56]
In
my opinion, it appears that in the case of persons adopted outside of Canada by Canadians
residing abroad, there is no need to present evidence of special and unusual
hardship or services of an exceptional value to Canada. This
interpretation is supported by the decision in Frankowski v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1253, wherein the Court
at paragraph 11 held:
Having regard to the more general
subsection 5(4), it is true that it applies to alleviate cases of special and
unusual hardship or to reward service of an exceptional nature to Canada. However, subsection 5(4) may
apply whenever, for any reason provided in the Act, a grant of citizenship has
been refused. In other words, it may apply to anyone subject to a negative determination
under the Act.
[57]
Furthermore,
it would be contrary to the Interim Measure’s purpose of facilitating
grants of citizenship to persons adopted by Canadians abroad, if in addition to
proving the validity of the adoption, they also had to show special and unusual
hardship or services of an exception value to Canada.
[58]
As
such, I believe that the only case to be met was the requirement outlined in
the Interim Measure and the applicant was already aware of these
requirements from his previous applications. As such, I believe that procedural
fairness was not breached on this ground.
8. Did
the Minister err in exercising his discretion to deny the applicant’s
application for citizenship under subsection 5(4) of the Act?
[59]
The
applicant submitted that the Minister erred in deciding to deny the applicant’s
application under subsection 5(4) of the Act. The respondent submitted that the
Minister’s power under subsection 5(4) is purely discretionary and is subject
to very limited review by this Court. The appropriate standard of review for this
issue is reasonableness.
[60]
In
my view, the Minister’s decision was reasonable. The applicant noted that the
departmental recommendation to the Minister recommended that citizenship be
granted. I agree. However, the memorandum to the Minister outlined both reasons
for and against granting citizenship. The Minister is not bound by the
recommendation. While recommendations must be considered by the Minister, the
ultimate decision lies with the Minister. The Minister’s discretion under
subsection 5(4) is personal in nature, and is qualified in that it cannot be
exercised in an unreasonable manner. I am of the view that the decision was
reasonable and as such, I would not allow the judicial review on this ground.
Constitutional
Issues
9. Does
the Department’s Interim Measure violate section 15 of the Charter?
[61]
It
appears that the applicant is challenging the Department’s Interim Measure
on the basis that it violates section 15 of the Charter. In Timberwest
Forest Corp. v. Her Majesty the Queen in Right of Canada, 2007 FCA
389, the Federal Court of Appeal held at paragraph 3 of its decision:
With respect to the constitutionality of
Notice 102, I also agree with O’Keefe J. that it is not the role of the courts
to determine the constitutionality of policies. Furthermore, the appellant did
not challenge the validity of any provision of the Act nor of the list of goods
established pursuant to that Act.
[62]
In
my opinion, the same principle applies to the present case. The Department’s Interim
Measure is a departmental policy and it is not the role of the courts to
determine the constitutionality of policies. Moreover, if the applicant sought
to challenge the constitutional validity of subsection 5(4) of the Act, notice
should have been given under section 57 of the Federal Courts Act, above.
As submitted by the respondent, this was not done in the present case and as
such, I will not address the constitutional issues raised. In light of my
finding above, there is no reason to address issues 10 and 11.
Costs
12. Should
the applicant be awarded costs on a solicitor-client basis?
[63]
Since
the applicant was not successful in his application for judicial review, I will
not address his request for costs on a solicitor-client basis.
[64]
The
application for judicial review is therefore dismissed with costs to the
respondent.
JUDGMENT
[65]
IT
IS ORDERED that the judicial review is dismissed with costs to the
respondent.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Citizenship Act, R.S.C. 1985,
c. C-29:
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5.(1)
The Minister shall grant citizenship to any person who
(a) makes
application for citizenship;
(b) is
eighteen years of age or over;
(c) is a permanent
resident within the meaning of subsection 2(1) of the Immigration and Refugee
Protection Act, and has, within the four years immediately preceding the date
of his or her application, accumulated at least three years of residence in
Canada calculated in the following manner:
(i) for every
day during which the person was resident in Canada before his lawful
admission to Canada for permanent residence the person shall be deemed to
have accumulated one-half of a day of residence, and
(ii) for every
day during which the person was resident in Canada after his lawful admission
to Canada for permanent residence the person shall be deemed to have
accumulated one day of residence;
(d) has an
adequate knowledge of one of the official languages of Canada;
(e) has an
adequate knowledge of Canada and of the responsibilities and
privileges of citizenship; and
(f) is not
under a removal order and is not the subject of a declaration by the Governor
in Council made pursuant to section 20.
(1.1) Any day
during which an applicant for citizenship resided with the applicant’s spouse
who at the time was a Canadian citizen and was employed outside of Canada in
or with the Canadian armed forces or the federal public administration or the
public service of a province, otherwise than as a locally engaged person,
shall be treated as equivalent to one day of residence in Canada for the
purposes of paragraph (1)(c) and subsection 11(1).
(2) The
Minister shall grant citizenship to any person who
(a) is a
permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act, and is the minor child of a citizen if an
application for citizenship is made to the Minister by a person authorized by
regulation to make the application on behalf of the minor child; or
(b) was born
outside Canada, before February 15, 1977, of a mother who was a citizen at
the time of his birth, and was not entitled, immediately before February 15,
1977, to become a citizen under subparagraph 5(1)(b)(i) of the former Act,
if, 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) The
Minister may, in his discretion, waive on compassionate grounds,
(a) in the
case of any person, the requirements of paragraph (1)(d) or (e);
(b) in the
case of a minor, the requirement respecting age set out in paragraph (1)(b),
the requirement respecting length of residence in Canada set out in paragraph
(1)(c) or the requirement to take the oath of citizenship; and
(c) in the
case of any person who is prevented from understanding the significance of
taking the oath of citizenship by reason of a mental disability, the
requirement to take the oath.
(4) In order
to alleviate cases of special and unusual hardship or to reward services of
an exceptional value to Canada, and notwithstanding any other provision of
this Act, the Governor in Council may, in his discretion, direct the Minister
to grant citizenship to any person and, where such a direction is made, the
Minister shall forthwith grant citizenship to the person named in the
direction.
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5.(1)
Le ministre attribue la citoyenneté à toute personne qui, à la fois :
a)
en fait la demande;
b)
est âgée d’au moins dix-huit ans;
c)
est un résident permanent au sens du paragraphe 2(1) de la Loi sur
l’immigration et la protection des réfugiés et a, dans les quatre ans qui ont
précédé la date de sa demande, résidé au Canada pendant au moins trois ans en
tout, la durée de sa résidence étant calculée de la manière suivante :
(i)
un demi-jour pour chaque jour de résidence au Canada avant son admission à
titre de résident permanent,
(ii)
un jour pour chaque jour de résidence au Canada après son admission à titre
de résident permanent;
d)
a une connaissance suffisante de l’une des langues officielles du Canada;
e)
a une connaissance suffisante du Canada et des responsabilités et avantages
conférés par la citoyenneté;
f)
n’est pas sous le coup d’une mesure de renvoi et n’est pas visée par une
déclaration du gouverneur en conseil faite en application de l’article 20.
(1.1)
Est assimilé à un jour de résidence au Canada pour l’application de l’alinéa
(1) c) et du paragraphe 11(1) tout jour pendant lequel l’auteur d’une demande
de citoyenneté a résidé avec son époux ou conjoint de fait alors que
celui-ci était citoyen et était, sans avoir été engagé sur place, au service,
à l’étranger, des forces armées canadiennes ou de l’administration publique
fédérale ou de celle d’une province.
(2)
Le ministre attribue en outre la citoyenneté :
a)
sur demande qui lui est présentée par la personne autorisée par règlement à
représenter celui-ci, à l’enfant mineur d’un citoyen qui est résident
permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la
protection des réfugiés;
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.
(3)
Pour des raisons d’ordre humanitaire, le ministre a le pouvoir
discrétionnaire d’exempter :
a)
dans tous les cas, des conditions prévues aux alinéas (1)d) ou e);
b)
dans le cas d’un mineur, des conditions relatives soit à l’âge ou à la durée
de résidence au Canada respectivement énoncées aux alinéas (1)b) et c), soit
à la prestation du serment de citoyenneté;
c)
dans le cas d’une personne incapable de saisir la portée du serment de
citoyenneté en raison d’une déficience mentale, de l’exigence de prêter ce
serment.
(4)
Afin de remédier à une situation particulière et inhabituelle de détresse ou
de récompenser des services exceptionnels rendus au Canada, le gouverneur en
conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la
présente loi, d’ordonner au ministre d’attribuer la citoyenneté à toute
personne qu’il désigne; le ministre procède alors sans délai à l’attribution.
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