[1]
The applicants seek to set aside the decision of
His Excellency The Right Honourable David Johnston Governor General of Canada
on June 19, 2014 to grant royal assent to Bill C-24, the Strengthening
Canadian Citizenship Act, SC 2014, c 22 (Strengthening Citizenship Act).
[2]
Section 8 of the Strengthening Citizenship
Act amends the Citizenship Act, RSC 1985, c C-29 (Citizenship Act).
The amendments allow the Minister of Citizenship and Immigration to revoke the
citizenship of natural-born and naturalized Canadian citizens where a citizen
has a conviction relating to national security or terrorism. These convictions
include treason under section 47 of the Criminal Code, RSC 1985, c C-46
(subsection 10(2)(a) of the Citizenship Act); a terrorism offence as
defined in section 2 of the Criminal Code (subsection 10(2)(b) of the Citizenship
Act) and certain offences under the National Defence Act, RSC 1985,
c N-5 and the Security of Information Act, RSC 1985, c O-5. Where the
citizen holds, or could have a right to dual nationality, the Strengthening
Citizenship Act provides for the revocation of citizenship and designation
of that individual as a foreign national, which may lead to deportation from
Canada.
[3]
In broad terms, the applicants contend that
section 8 of the Strengthening Citizenship Act is beyond the legislative
competence of Parliament under the Constitution Act, 1867. They assert
that as a matter of constitutional principle, citizenship is an immutable and
inalienable right which cannot be revoked by legislation. This principle,
derived from the law of the United Kingdom, was, through the requirement in the
preamble of the Constitution Act, 1867 that Canada have a constitution “similar in Principle to that of the United Kingdom”, embedded
in the Constitution. It is not, in the absence of a constitutional amendment,
subject to the ordinary laws of Parliament. In the result, the applicants
contend that the Governor General exceeded the scope of his discretion under
the crown prerogative, as well as his authority under the Royal Assent Act,
SC 2002, c 15 (Royal Assent Act), in granting royal assent to the Strengthening
Citizenship Act.
[4]
The availability of judicial review and its
associated remedies is subject to analytical pre-conditions. It is not every
act of a public officer that is reviewable; there are jurisprudential and
statutory criteria that must be met before the Federal Court will engage in
judicial review and, if granted, discretionary considerations in respect of
remedies.
[5]
The threshold statutory question is
whether the Governor General, in granting royal assent, was a “federal board, commission or other tribunal” within
the meaning of subsection 2(1) of the Federal Courts Act, RSC 1985, c
F-7 (Federal Courts Act). Put otherwise, was the Governor General, in
assenting to Bill C-24, exercising a power or jurisdiction conferred under “an Act of Parliament or by or under an order made pursuant
to a prerogative of the Crown” as required by subsection 2(1). The
answer to that question depends on the power exercised and, importantly, the
source of that power: Anisman v Canada (Border Services Agency), 2010
FCA 52 at paras 29-31.
[6]
There is an ancillary question as to
whether the remaining respondents, the Honourable Chris Alexander, Minister of
Citizenship and Immigration, and the Minister of Justice and Attorney General
of Canada fall, in the context of this application, within the scope of subsection
2(1). The applicants seek to set aside the decisions of the two ministers, who
in their capacity as Members of Parliament and “aware
of the constitutional impediment” voted in favour of the Strengthening
Citizenship Act, or more accurately, in support of the passage of Bill
C-24.
[7]
The threshold jurisprudential
consideration is whether the matter in question is subject to judicial review. Justiciability and the statutory pre-conditions serve different
purposes. Justiciability is rooted in the court’s understanding of the proper scope
or subject matter of judicial review, or, as the Federal Court of Appeal said “the appropriateness and ability of a court to deal with an
issue before it”: Hupacasath First Nation v The Minister of Foreign
Affairs Canada and The Attorney General of Canada, 2015 FCA 4 at para 62,
per Stratas JA. Justiciability is focused on the nature or substance of the
question under review; the source of the power exercised, whether statutory or
prerogative, is not determinative. In contrast, subsection 2(1) is directed
to necessary jurisdictional requirements, and whether it is engaged is very
much a question of the source of the power.
[8]
In this case, consideration of each leads,
independently, to the conclusion that the Governor General’s grant of royal
assent is not justiciable, and that none of the respondents are federal boards
within the scope of subsection 2(1) of the Federal Courts Act (RSC, 1985,
c F-7).
[9]
The application, in any event, fails in respect
of its underlying merits. Section 8 of the Strengthening Citizenship Act
is within the legislative competence of Parliament, subject only to the
constraint of the Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada Act 1982
(UK), 1982, c 11 (the Charter). The application
for judicial review is therefore dismissed.
II.
Background
[10]
Rocco Galati, Manuel Azevedo, and the
Constitutional Rights Centre Inc. (the Centre) are the applicants. Mr. Galati
is a lawyer and member of the Ontario bar who from 1990 to present has worked
in private practice. His practice is restricted to proceedings against the
Crown and many of the cases which he has undertaken involve constitutional
issues or the defence of individuals charged with offences which may trigger
revocation of citizenship under the new legislation. He believes that matters
of the Constitution are “every citizen’s business”.
Mr. Azevedo is also a lawyer. He has represented those accused of terrorism
and related offences under the Criminal Code, the Extradition Act,
SC 1999, c 18, and the Immigration and Refugee Protection Act, SC 2001,
c 27. Mr. Galati and Mr. Azevedo are naturalized Canadian citizens.
[11]
The Centre is a non-profit Ontario corporation
incorporated on November 29, 2004. The object of the Centre is to advance constitutional
rights of Canadians through education and litigation. The Centre has three
corporate directors, including Mr. Galati and Mr. Azevedo, and four operational
directors, including Mr. Galati, Mr. Azevedo and Mr. Paul Slansky, also a
member of the Ontario bar.
[12]
Since 2004 the Centre’s main activity has been
to procure pro bono counsel for clients in constitutional or public law
cases. The material filed in this Court included a number of cases, at both
trial and appeal, and in diverse courts, where counsel who form part of the
executive of the Centre had been involved. The recent intervention by the
Centre in the Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21
was the first time either Mr. Galati or the Centre intervened in their own
name.
[13]
On June 9, 2014, the Constitutional Rights
Centre, under Mr. Galati’s signature, wrote to the Governor General. Exercising
the petition of right, the applicants requested that His Excellency refuse to
grant royal assent to the Strengthening Citizenship Act, asserting that
Parliament had no legislative competence to remove or revoke the citizenship of
citizens born in Canada or naturalized Canadian citizens, and that its
competence was confined to aliens and naturalization under section 91(25) of
the Constitution Act, 1867.
[14]
The Office of the Governor General responded that
the Governor General had taken note of the petition’s contents; however, on
June 19, 2014, the Governor General assented to the Strengthening
Citizenship Act, effectively denying the applicants’ petition. It is in respect of that decision that judicial review
is, primarily, sought.
III.
Preliminary issues
[15]
Two preliminary issues have been raised by the
Attorney General; whether the applicants have standing and the admissibility of
certain evidence.
[16]
The respondents argue that this application
should be dismissed because the applicants have neither private nor public interest
standing. They assert that the applicants have no real or genuine stake in the
matter. That is, although the applicants may have a political or intellectual
interest in the outcome, they have neither been convicted, nor charged, of any
offence that could lead to revocation of their citizenship.
A.
No private interest standing
[17]
Both Mr. Galati and Mr. Azevedo are naturalized
Canadians, and are theoretically at risk of revocation and removal under the
legislation to Italy and Portugal, respectively. In their capacity as counsel,
the applicants also represent Canadians accused of national security or
terrorism offences contemplated by the Strengthening Citizenship Act. Mr.
Galati emphasizes comments made by the Minister of Citizenship and Immigration suggesting,
at least from Mr. Galati’s perspective, that Mr. Galati shared the beliefs of his
clients, with the result that he is at particular risk under the new
legislation so as to give rise to private interest standing.
[18]
The applicants do not have private interest
standing. The fact that the applicants have access to dual citizenship is, in
and of itself, insufficient to establish private interest standing. They stand
undifferentiated from the millions of Canadians who hold or may have access to,
dual citizenship. The applicants have neither been charged nor convicted of an
offence which triggers the Strengthening Citizenship Act. Further, the
provisions of the Strengthening Citizenship Act are triggered upon an
accused’s conviction of a listed offence. They do not target defence counsel
who represent them. Moreover, the Minister’s comments, objectively viewed, do
not support the inferences drawn by Mr. Galati nor the animus or intent alleged. In any event, it is not the Minister of
Citizenship who prosecutes the listed offences. The decision to prosecute
rests either with the Director of Public Prosecutions or with the provincial
Attorney General.
[19]
The claim for private interest standing is
dismissed. The applicants’ personal interests are speculative, remote and do
not have an objective evidentiary foundation.
B.
The applicants have public interest standing
[20]
In so far as public interest standing is
concerned, the applicants submit that the constitutionality of the Strengthening
Citizenship Act is serious and justiciable. They further argue they have a
genuine interest in the issue raised and are not merely bringing forward a case
in which they have no interest and serves no purpose, rather, they point to the
jurisprudence of the Supreme Court of Canada recognizing that the Constitution
belongs to the country and its citizens: Nova Scotia (Attorney General) v
Canada (Attorney General), [1951] S.C.R. 31, at 3; Reference Re Amendments
to the Residential Tenancies Act (NS), [1996] 1 S.C.R. 186, at 209-210. Finally,
they submit that the proposed suit is a reasonable and effective means to bring
an important question before the courts. No other party is currently
challenging the Strengthening Citizenship Act and no further additional
facts, adjudicative or legislative, are required to determine the issue.
[21]
The principles governing the exercise of
judicial discretion to grant standing are to be interpreted in a liberal and
generous manner: Canadian Council of Churches v Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 236. At the root of the law of
standing is the need to achieve a balance “between
ensuring access to the courts and preserving judicial resources”: Canadian
Council of Churches at 252 and Canada (Attorney General) v Downtown
Eastside Sex Workers United Against Violence Society, 2012 SCC 45.
[22]
In Downtown Eastside, the Supreme Court
of Canada refined the approach to determining public interest standing. The
court must consider three factors: whether there is a serious justiciable
issue; whether the plaintiff has a real stake or a genuine interest in the
issue; and whether, in all the circumstances, the proposed suit is a reasonable
and effective way to bring the issue before the courts: Downtown Eastside
at para 37. The Court instructed that these factors should not be perceived as
“items on a checklist or technical requirements”;
instead, are to be weighed cumulatively and in light of their purposes: Downtown
Eastside at para 36.
[23]
I am persuaded that the three interrelated
factors, applied purposively and flexibly, favour granting public interest
standing to the applicants.
[24]
First, the question as to the constitutional
validity of the Strengthening Citizenship Act is a “substantial
constitutional issue” and therefore a “serious” issue. In Downtown Eastside
at para 42 the Supreme Court of Canada expanded on the substance of this
criteria:
To constitute a “serious issue”, the
question raised must be a “substantial constitutional issue” (McNeil, at
p. 268) or an “important one” (Borowski, at p. 589). The claim must be
“far from frivolous” (Finlay, at p. 633), although courts should not
examine the merits of the case in other than a preliminary manner. For example,
in Hy and Zel’s, Major J. applied the standard of whether the claim was
so unlikely to succeed that its result would be seen as a “foregone conclusion”
(p. 690). He reached this position in spite of the fact that the Court had
seven years earlier decided that the same Act was constitutional: R. v.
Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713.
Major J. held that he was “prepared to assume that the numerous amendments have
sufficiently altered the Act in the seven years since Edwards Books so
that the Act’s validity is no longer a foregone conclusion” (Hy and Zel’s,
at p. 690). In Canadian Council of Churches, the Court had many
reservations about the nature of the proposed action, but in the end accepted
that “some aspects of the statement of claim could be said to raise a serious
issue as to the validity of the legislation” (p. 254). Once it becomes clear
that the statement of claim reveals at least one serious issue, it will usually
not be necessary to minutely examine every pleaded claim for the purpose of the
standing question.
[25]
Thus, on a preliminary examination of the merits
of the case, the claim must be so unlikely to succeed that its outcome is a “foregone
conclusion”. Reservations as to the merits, or the existence of countervailing
authority, is not determinative. Applying the criteria of Downtown Eastside,
I am satisfied that a substantial constitutional issue is raised. The
constitutionality of section 8 of the Strengthening Citizenship Act is
of public importance. The memoranda filed with the Court reveal a genuine,
serious and substantial argument, albeit novel and ultimately unsuccessful. Success
on the merits is not the barometer of standing.
[26]
Second, I am satisfied that the applicants have
a genuine interest in the proceeding. This factor is concerned with whether
the applicants are engaged with the issues they raise: Downtown Eastside
at para 43. It is clear from the affidavits filed by Mr. Galati and the Centre
that the applicants have been and are currently engaged with a variety of
constitutional challenges consistent with the Centre’s mandate to challenge
state action or laws which may, in their opinion, be unconstitutional. They
point to their petition to the Governor General that he refrain from granting
assent as evidence of their genuine interest and their pursuit of recourse
other than litigation.
[27]
Finally, this proceeding is a reasonable and
effective means of bringing to court the question of the legislative competence
of Parliament in respect of citizenship. Although future challenges to the Strengthening
Citizenship Act may arise, there is no parallel litigation to consider that
may constitute a more effective vehicle for determining the narrow question
raised in this application. Secondly, it is not contended that the Strengthening
Citizenship Act trenches on provincial legislative jurisdiction. No
question of the correct demarcation between abutting or potentially overlapping
legislative schemes, each with their own objectives, policy frameworks and
operational contexts is engaged, as is characteristic of division of powers
analysis; rather the argument here is that Parliament’s competence is
constrained by constitutional limits derived from British common law and woven
into the Constitution Act, 1867.
[28]
Further, and importantly, this proceeding does
not engage any issues pursuant to the Charter. There is no Charter
challenge, no question of section 1 evidence. All counsel stress that the
issue before this Court is both narrow and discrete. In addition, the
well-understood caution against the adjudication of constitutional issues in a
vacuum is not triggered (MacKay v The Queen, [1980] 2 S.C.R. 370). The
Court has all the necessary legislative facts before it. There is no missing
factual matrix.
[29]
In sum, all three factors, viewed cumulatively,
favour the exercise of discretion to grant public interest standing to the
applicants to bring their application. Having regard
to the completeness of the record, the narrow nature of the question, the fact
that a serious constitutional question is framed, and the consideration of the
most efficient use of scarce judicial resources, I am satisfied that a grant of
public interest standing is warranted. The determination of the issues raised
in this application is consistent with the efficient administration of justice.
Deferring resolution of the question raised to another day benefits neither
the applicants, the respondents, nor the Court.
C.
The admissibility of Mr. Galati’s affidavit
[30]
The second procedural objection concerns the
admissibility of Mr. Galati’s affidavit. The respondents state that this affidavit
should be struck because Mr. Galati, as counsel, filed the affidavit without
leave contrary to Rule 82 of the Federal Courts Rules, SOR/98-106. Rule
82 precludes a solicitor from appearing as counsel in a proceeding in which he
or she has sworn an affidavit. The Notice of Application and the affidavit
both indicate that Mr. Galati was not acting as counsel, but “on his own behalf”. Arguments regarding
admissibility of Mr. Galati’s affidavit were not advanced at the hearing, nor
did Mr. Galati appear in Court as counsel, and, as such, the prohibition of
counsel appearing on his own affidavit was not engaged.
[31]
The affidavit is, however, in large measure,
irrelevant to the issues as framed by the parties. It also contains hearsay,
speculation, opinion evidence, purported expert evidence and legal argument,
and is inadmissible. Paragraphs 12, 13, 15, 16 and 20-30 of the affidavit of
August 10, 2014 are struck.
IV.
The availability of judicial review
A.
The Governor General’s grant of royal assent is
not justiciable
[32]
I turn to the threshold question in this
application: whether the Governor General’s grant of royal assent is
justiciable. This can be answered by reference to settled constitutional
principles with respect to the role of the Governor General in the legislative
process. For the reasons that follow, I conclude that the Governor General’s
grant of royal assent was a legislative act and, in consequence, the issue of
whether the Governor General exceeded his constitutional authority in granting royal
assent to the Strengthening Citizenship Act is not justiciable.
(1)
Principles which underlie the doctrine of justiciability
[33]
Each of the branches of Canada’s government – the legislature; the executive and the judiciary – play a discreet role. All
three branches of government must be “sensitive to the
separation of function within Canada’s constitutional matrix so as not to
inappropriately intrude into the spheres reserved to the other branches”:
Friends of the Earth v Canada (Governor in Council), 2008 FC 1183 at
para 25; also see Doucet-Boudreau v Nova Scotia (Minister of Education),
[2003] 3 S.C.R. 3 at paras 33-36. No branch should overstep its bounds and each
must show “proper deference for the legitimate sphere
of activity of the other”: New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 at 389. This
relationship between the branches of government, arising as it does from the
evolution of the Westminster model, is fundamental to parliamentary democracy
and the rule of law. Justiciability is one of the legal devices or doctrines
by which the courts give effect to this principle.
[34]
The courts cannot intervene in the legislative
process. The Supreme Court of Canada explained in Re: Resolution to Amend
the Constitution, [1981] 1 S.C.R. 753 at 785, that courts “come into the picture when legislation is enacted and not
before (unless references are made to them for their opinion on a bill or a
proposed enactment)”. Courts respect the right of Parliament to
exercise unfettered freedom in the formulation, tabling, amendment, and passage
of legislation.
[35]
The courts exercise a supervisory jurisdiction
once a law has been enacted. Until that time, a court cannot review, enjoin or
otherwise engage in the legislative process unless asked by way of a reference
framed under the relevant legislation. To conclude otherwise would blur the
boundaries that necessarily separate the functions and roles of the legislature
and the courts. To review the Governor General’s act of granting royal assent,
as the applicants request, would conflate the constitutionally discreet roles
of the judiciary and the legislature, affecting a radical amendment of the Constitution
Act, 1867 and the conventions which underlie our system of government, notably
the right of Parliament to consider and pass legislation.
[36]
The applicants’ arguments turn this principle on
its head. On the theory advanced, the judiciary would adjudicate on the
constitutionality of proposed legislation before it became law. That line,
once crossed, would have no limit. If the decision to grant royal assent was
justiciable so too would the decision to introduce legislation, to introduce a
bill in the Senate as opposed to the House, or to invoke closure. No principled
line would limit the reach of judicial scrutiny into the legislative process.
A similar caution was expressed in Reference Re Canada Assistance Plan (BC),
[1991] 2 S.C.R. 525 at 559-560 where Justice Sopinka writing for the Court
concluded that:
Parliamentary
government would be paralyzed if the doctrine of legitimate expectations could
be applied to prevent the government from introducing legislation in
Parliament. […]
A restraint
on the Executive in the introduction of legislation is a fetter on the
sovereignty of Parliament itself. […]
[37]
For reasons that I will describe, a constraint
on the grant of assent to legislation is equally a fetter on the sovereignty of
Parliament.
[38]
These examples demonstrate the centrality of
justiciability as a doctrine to demarcate the respective roles of the judiciary
and Parliament and its importance in maintaining constitutionalism. The point
was best expressed by Chief Justice Dickson in Canada (Auditor
General) v Canada (Minister of Energy, Mines and Resources), [1989] 2 SCR
49, at 90-91:
[…] As I noted in Operation Dismantle
Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at p. 459,
justiciability is a “doctrine . . . founded upon a concern with the appropriate
role of the courts as the forum for the resolution of different types of
disputes”, endorsing for the majority the discussion of Wilson J. beginning at
p. 460. Wilson J. took the view that an issue is non-justiciable if it
involves “moral and political considerations which it is not within the
province of the courts to assess” (p. 465). An inquiry into justiciability is,
first and foremost, a normative inquiry into the appropriateness as a matter of
constitutional judicial policy of the courts deciding a given issue or,
instead, deferring to other decision-making institutions of the polity.
[39]
No legal doctrine or precedent was identified in
argument which would justify the insertion of the courts into an assessment of
the lawfulness of legislation as it progresses through Parliament. Indeed, the
argument rails against both precedent and convention. Responsible government,
at its core, requires that the democratically elected representatives of
Canadians determine what laws are enacted by Parliament.
[40]
To conclude, the judiciary will not, to borrow
from Justice Sopinka in Re Canada Assistance Plan at 559, meddle in the
legislative process. The courts respect the process and procedures of
Parliament from introduction of a bill to its enactment, and do not, absent a
reference, comment on the legality of bills before either of the two Houses of
Parliament. Questions that come before the courts which engage these issues
are not justiciable. The inquiry, in this case, thus turns to the nature and
character of the act of assent and where it is situated in the legislative
process and constitutional framework. I turn to that issue.
(2)
The grant of assent is a legislative act
[41]
Canada is a
constitutional monarchy and a parliamentary democracy. Section 9 of the Constitution
Act, 1867 provides for the unity of all executive authority in the Queen.
Within this framework, there is a formal head of a state and a political
head of state. The Governor General exercises the powers of the Crown on
behalf of the sovereign: Letters Patent Constituting the Office of Governor
General and Commander-in-Chief of Canada (1947), in Canada Gazette,
Part I, vol 81, p 3014 (reproduced in RSC 1985, App II, No 31)). As such, the
Governor General serves as Canada’s formal head of state and the representative
of the Queen in Canada, while the political head of state in Canada is the
Prime Minister.
[42]
The Governor General retains many duties which
are integral to the conventions which, collectively, create the Westminster system of government. These include the swearing-in of the Prime Minister, the
summoning, prorogation and dissolution of Parliament, the reading of the Speech
to the Throne, the swearing-in and oath of office of justices of the Supreme
Court and Chief Justices.
[43]
Under the Constitution, the Queen, and her
representative in Canada, is expressly included in the legislative process.
Section 17 of the Constitution Act, 1867 establishes the Parliament of
Canada and section 55 of Part IV – Legislative Power provides for and
defines the nature of the legislative power exercised by the Governor General
when he or she grants royal assent:
|
17. There shall be One Parliament for Canada, consisting of the
Queen, an Upper House styled the Senate, and the House of Commons.
|
17. Il y aura, pour le Canada, un parlement qui sera composé de la
Reine, d’une chambre haute appelée le Sénat, et de la Chambre des Communes.
|
|
55. Where a Bill passed by the Houses of Parliament is presented
to the Governor General for the Queen’s Assent, he shall declare, according
to his discretion, but subject to the Provisions of this Act and Her
Majesty’s Instructions, either that he assents thereto in the Queen’s Name,
or that he withholds the Queen’s Assent, or that he reserves the Bill for the
Signification of the Queen’s Pleasure.
|
55. Lorsqu’un bill voté par les chambres du parlement sera
présenté au gouverneur-général pour la sanction de la Reine, le
gouverneur-général devra déclarer à sa discrétion, mais sujet aux
dispositions de la présente loi et aux instructions de Sa Majesté, ou qu’il
le sanctionne au nom de la Reine, ou qu’il refuse cette sanction, ou qu’il
réserve le bill pour la signification du bon plaisir de la Reine.
|
[44]
Royal assent is the final stage in the
legislative process. It transforms a bill into law. It is only once royal
assent is given that a bill becomes part of the law of Canada (Jessica
Richardson, “Modernisation of Royal Assent in Canada”
(2004) 27 Canadian Parliamentary Review 32). The approval of the Sovereign,
represented by the Governor General and indicated by assent, is required before
a bill is passed by the House of Commons and the Senate and becomes law.
Section 55 makes the grant of assent a constitutional imperative.
[45]
The Governor General’s grant of royal assent is
important, both symbolically, but also doctrinally. Doctrinally, the fusion of
legislative and executive functions at various stages of the Parliamentary
process is central to the conceptual underpinning of the Westminster system of
government. Symbolically, the grant of assent is the moment when the three
constituent elements of Parliament – the House of Commons, the Senate, and the
Crown – come together to create law; hence, it is the moment when the Queen is
in Parliament (Richardson at 32).
[46]
While section 55 confers discretion on the
Governor General whether to assent, that discretion is wholly constrained by the
constitutional convention of responsible government. In granting assent, the
Governor General does not exercise an independent discretion. He acts on the advice
of the Prime Minister. Assent must be given to a bill that has passed both
Houses of Parliament; to withhold assent would be inconsistent with the
principles of responsible government. As Professor Peter Hogg has explained,
constitutional conventions prevent the Governor General from withholding royal
assent:
The definition of those occasions when the Governor
General may exercise an independent discretion has caused much constitutional
and political debate. But it is submitted that the basic premise of responsible
government supplies the answer: so long as the cabinet enjoys the confidence of
a majority in the House of Commons, the Governor General is always obliged to
follow lawful and constitutional advice which is tendered by the cabinet.
(Peter Hogg, Constitutional Law of Canada, 5th ed (Toronto: Carswell) vol 1 at 9-24)
[47]
Section 55 is included in Part IV of the Constitution
Act, 1867 – Legislative Power, confirming the conclusion that the
act of assent is legislative in nature. While section 55 reflects the
construct of a constitutional monarchy, the fact that the power to grant or
withhold assent was, in its inception, a prerogative power of the sovereign,
does not alter its fundamental character as the final act in the legislative
process. As the Federal Court of Appeal observed in Hupacasath First Nation
at para 63, the question whether a matter is justiciable bears no relation
to the source of the power, and there is “no principled
distinction between legislative sources of power and prerogative sources of
power…” The act of assent, although originally a prerogative power and
now wholly constrained by constitutional convention, remains a legislative act
and therefore not justiciable.
[48]
To conclude, it is the act of the Sovereign,
represented in Canada by the Governor General, which moves a bill from the
political, legislative process into the realm of normative law. More
prosaically, assent breathes life into the law: Hogan v Newfoundland
(Attorney General), [1998] NJ No 7 (Nfld SCTD). The Governor General may
signify royal assent in writing, and in my view, everything up to the ink used
to signify assent being dry is a legislative act and not justiciable. The
application fails on this basis alone.
B.
The Governor General as respondent
[49]
I turn now to the threshold statutory objection
to this application: whether the respective respondents are federal boards,
commissions or other tribunals within the ambit of subsection 2(1) of the Federal
Courts Act. In addition to the Governor General, the applicants have
joined the Minister of Citizenship and Immigration and the Attorney General of
Canada both as Ministers and in their capacity as Members of Parliament. The alleged
gravamen of their conduct
as Members of Parliament was to vote in favour of Bill C-24 when they were
aware of its patent unconstitutionality.
[50]
Again, as noted earlier, the justiciability and
jurisdictional inquiries are discrete; justiciability focuses on the nature and
character of the act or question before the court, and appropriateness and
ability of the court to deal with the matter. Whether the respondents are
federal boards turns on the source of the power in question. Thus, whether the
Governor General, in granting royal assent is a federal board is determined by
the source or origin of the power exercised: Anisman v Canada (Border
Services Agency), 2010 FCA 52 at paras 29-30.
[51]
Relying on Anisman, the applicants
contend that the Governor General’s decision to grant or withhold assent is
subject to the judicial review because its origins lie in the crown
prerogative. That is, the crown prerogative is the source of the
Governor General’s power to grant royal assent. They say as a matter of
constitutional principle, the sovereign has always had the power to grant or
withhold royal assent. As Parliament has not restricted the power to grant royal
assent as of the date of patriation of the Constitution in 1982, the crown
prerogative remains the source of the power. As the exercise of crown
prerogative is reviewable by the courts for compliance with the Constitution,
so to, it follows, is the decision of the Governor General: Hupacasath First
Nation; Operation Dismantle v The Queen [1985] 1 S.C.R. 441; Canada (Prime Minister) v Khadr, 2010 SCC 3.
[52]
The Attorney General contends that section 55 of
the Constitution Act, 1867 is the source of the power to grant or
withhold assent. In response, the applicants say that section 55 merely assigns
the power of assent to the Governor General, as opposed to other executive
actors such as the Queen directly, or a Lieutenant Governor. Thus, in
granting, or withholding assent, the Governor General is exercising a pure
prerogative power.
[53]
As previously noted, section 17 of the Constitution
Act, 1867 establishes “One Parliament for Canada,
consisting of the Queen, an Upper House styled the Senate, and the House of
Commons”. The Governor General, in granting royal assent, is part of
Parliament, and as such, is excluded from judicial review jurisdiction.
[54]
Speaking in the context of a judicial review of
a decision of a Senate committee, the Court of Appeal affirmed the view of Strayer
J that the source of the Senate’s power was not the Parliament of Canada Act,
but rather was the Constitution Act, 1867:
However, in my view, the words “conferred by
or under an Act of Parliament” of Canada in section 2 mean that the Act of
Parliament has to be the source of the jurisdiction or powers which are being
conferred. The privileges, immunities and powers of the Senate are conferred by
the Constitution, not by a statute, although the latter defines or elaborates
upon the privileges, immunities and powers. Such a statute then is the
manifestation of Senate privileges but it is not its source; the source is
section 18 of the Constitution Act, 1867: Southam Inc. v Canada (Attorney General) [1990] 3 FC 465 at para 28 (CA).
[55]
The decision of the Court of Appeal in Southam
is clear guidance that the power of assent is derived from the Constitution
Act, 1867.
[56]
The provenance of the power to grant or withhold
assent lies in the royal prerogative, but that power is now embedded in section
55 of the Constitution Act, 1867, and how that prerogative is exercised is
constrained by constitutional convention. As Professor Hogg observes, in
granting assent, the Governor General “plays no
discretionary role whatever”; rather, the Governor General is bound by
the conventions of responsible government and “...must
always give the royal assent to a bill which has passed both Houses of
Parliament” (Hogg at 9-22). There is “no
circumstance” which would justify refusal of assent, as the obligation
is that of a constitutional convention (Hogg at 9-22).
[57]
The applicants also point to the Royal Assent
Act, SC 2002, c 15 as the act of Parliament which assigns procedural
functions of the Governor General regarding the power to grant or withhold
assent. Therefore, the applicants argue that as certain facets of royal assent
are exercised pursuant to statute, the Governor General, in this respect, is
thus brought within the ambit of subsection 2(1) of the Federal Courts Act.
[58]
The Royal Assent Act prescribes the form
and manner by which assent is communicated. The Governor General may grant royal
assent through either a written procedure detailed in the Royal Assent Act,
or by way of the traditional ceremony where bills are presented to the Governor
General and he or she signifies assent by a nod of the head. Section 2 of the Royal
Assent Act provides:
|
2. Royal assent to a bill passed by the Houses of Parliament may
be signified, during the session in which both Houses pass the bill,
|
2. L’octroi de la sanction royale aux projets de loi adoptés par
les chambres du Parlement s’effectue, au cours de la session de l’adoption :
|
|
(a) in Parliament assembled; or
|
a) soit devant les trois composantes du Parlement;
|
|
(b) by written declaration.
|
b) soit par déclaration écrite.
|
[59]
The Royal Assent Act also prescribes that
assent must be given “in Parliament assembled” at least twice a year, and on
the first vote on appropriation, whether main or supplementary estimates, in
each session. I note that while the applicants rely on the Royal Assent Act
to establish that the Governor General is acting pursuant to a statutory power,
the preamble provides: “Whereas royal assent is the
constitutional culmination of the legislative process”. While it is
perhaps too obvious a point to be made, the prerogative to assent predates the Royal
Assent Act, which was enacted in 2002. The Royal Assent Act cannot
be the source of the Governor General’s power to grant royal assent, and it is
of no support to the applicants.
[60]
In sum, in granting assent, the Governor General
is not acting under the Royal Assent Act, but is exercising a constitutional
responsibility vested in him under section 55 of the Constitution Act. The
application against His Excellency, The Right Honourable Governor General David
Johnston is therefore dismissed.
C.
The ministers as respondents
[61]
Subsection 2(1) of the Federal Courts Act
defines a “federal board, commission or other tribunal”:
|
Interpretation
|
Définitions
|
|
2. (1) Definitions – In this Act,
“federal board, commission or other tribunal” means any body,
person or persons having, exercising or purporting to exercise jurisdiction
or powers conferred by or under an Act
|
2. (1) Définitions – Les définitions qui
suivent s’appliquent à la présente loi.
« office fédéral » Conseil, bureau,
commission ou autre organisme, ou personne ou groupe de personnes, ayant,
exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi
fédérale ou
|
|
of Parliament or by or under an order made pursuant to a
prerogative of the Crown, other than the Tax Court of Canada or any of its
judges, any such body constituted or established by or under a law of a
province or any such person or persons appointed under or in accordance with
a law of a province or under section 96 of the Constitution Act, 1867.
|
par une ordonnance prise en vertu d’une prérogative royale, à
l’exclusion de la Cour canadienne de l’impôt et ses juges, d’un organisme
constitué sous le régime d’une loi provinciale ou d’une personne ou d’un
groupe de personnes nommées aux termes d’une loi provinciale ou de l’article
96 de la Loi constitutionnelle de 1867.
|
[62]
If there were any doubt whether members of the
House of Commons were a federal board because of the Parliament of Canada
Act, RSC 1985, c P-1 it is put to rest by subsection 2(2):
|
(2) For greater certainty, the expression “federal board,
commission or other tribunal”, as defined in subsection (1), does not include
the Senate, the House of Commons, any committee or member of either House,
the Senate Ethics Officer or the Conflict of Interest and Ethics Commissioner
with respect to the exercise of the jurisdiction or powers referred to in
sections 41.1 to 41.5 and 86 of the Parliament of Canada Act.
|
(2) Il est entendu que sont également exclus de la définition de «
office fédéral » le Sénat, la Chambre des communes, tout comité ou membre de
l’une ou l’autre chambre, le conseiller sénatorial en éthique et le
commissaire aux conflits d’intérêts et à l’éthique à l’égard de l’exercice de
sa compétence et de ses attributions visées aux articles 41.1 à 41.5 et 86 de
la Loi sur le Parlement du Canada.
|
[63]
Subsection 2(2) makes clear that members of the
House of Commons are exempt from the definition of “federal
board, commission or other tribunal”. As members of the House of
Commons, neither Minister can be joined as a respondent: Mennes v Canada, [1997] FCJ No 1161 (FCA). The application is therefore dismissed against the
Ministers in their capacity as Members of Parliament.
[64]
The result is no different simply because a Member
of Parliament also holds a Cabinet portfolio. While Members of Parliament, in
their capacity as cabinet ministers, may introduce legislation, and speak in
its support in the House and at Committee, they vote with their peers as
Members of Parliament. In the act of voting, cabinet ministers stand
undifferentiated from other Members of Parliament. Hence the saying, “the executive proposes, the House disposes”. The
clear language and intent of subsection 2(1) is neither truncated nor altered by
the fact that a member of the House of Commons also is a cabinet minister.
[65]
Further, no decision, order or act is alleged to
have been made or taken by either the Minister of Citizenship and Immigration
or the Attorney General exercising a jurisdiction or power under an act of
Parliament which would trigger jurisdiction of this Court. The application
against the ministers is also dismissed.
V.
Whether section 8 of the Strengthening
Citizenship Act is beyond the legislative capacity of Parliament under the Constitution
Act, 1867
[66]
I have disposed of this application on the dual
basis that the decision of the Governor General to royal assent is not
justiciable and that the respondents are not federal boards within the meaning
of subsection 2(1) of the Federal Courts Act. However, the underlying
substantive question in respect of which declaratory relief is sought, namely
whether section 8 of the Strengthening Citizenship Act is beyond the
legislative capacity of Parliament under the Constitution Act, 1867,
remains. With respect to this issue I find that section 8 of the Strengthening
Citizenship Act is within the legislative competence of Parliament under
the Constitution Act, 1867, and has a constitutional foundation in both
the general power of section 91 as well as section 91(25) of the Constitution
Act, 1867.
[67]
The applicants first argue that citizenship is
an inalienable right. At the heart of this argument is the principle of jus soli – that citizenship or nationality
follows place of birth. Calvin v Smith, 77 Eng Rep 377 (KB 1608)
(Calvin’s Case) established jus soli as a common law principle, often expressed as one of perpetual
allegiance to the sovereign. Once a subject of the Queen, always a subject of
the Queen. Jus soli was
thus embedded in Canadian law through the “similar in
Principle to that of the United Kingdom” preamble clause of the Constitution
Act, 1867 and has the same force and effect as any of the provisions of the
Constitution Act, 1867. The Constitution Act, 1867 is silent in
regards to “subjects” and “citizens” because it was implicitly understood by
the drafters of the Constitution that Parliament had no competence to revoke
the rights of natural-born citizens.
[68]
The applicants point to the evolution of jus
soli in the United States from a common law doctrine to a constitutional
right of citizenship to argue that this evolution has also occurred in Canada.
In my view, no analogy can be made to the consideration of citizenship in American
jurisprudence. Since the 14th Amendment in 1868, citizenship on the basis of jus
soli has been woven into the constitutional jurisprudence of the Supreme
Court of the United States such that it is of historical interest alone to this
Court.
[69]
It therefore follows, according to the
applicants, that Parliament cannot legislate with respect to revocation of citizenship
of Canadians, whether natural born or naturalized. The legal construct of
citizenship is as it stood in 1982. Citizenship is now “frozen and
constitutionalized” because of the patriation of the Constitution in 1982.
That is, Parliament has no ability to revoke citizenship in the case of
natural-born or naturalized citizens because the patriation of the Constitution
did not alter key language in the preamble and section 91(25). The applicants
place considerable emphasis, by way of analogy, on the decision of the Supreme
Court of Canada in Reference re Supreme Court Act.
[70]
The applicants’ reliance on the Reference re
Supreme Court Act is of no assistance. The question before the Supreme Court
concerned the specific issue of the appointment of judges to the Supreme Court
in respect of the province of Québec, and the amending formulas in section 41
of the Constitution Act, 1982. The decision does not stand for the
proposition that common law principles transform into constitutional principles
through the similar in principle clause of the Constitution Act, 1867,
or that the interpretation of the Constitution is frozen as of the date of
patriation.
[71]
The applicants’ second argument is that, even if
the first fails, which it does, Parliament does not have the legislative
competence to revoke citizenship. The absence of citizenship as a head of
legislative power in the Constitution Act, 1867, was a deliberate
omission consistent with the inalienability of citizenship as it was known at
the time. Parliament’s legislative competence was carefully limited at
Confederation to simply “naturalization and aliens”.
A.
Citizenship is not an inalienable constitutional
right
[72]
The applicants’ first argument is that
citizenship is an inalienable and immutable right, and that this common law
principle was essentially cemented in the Canadian constitutional framework in 1867
through the preamble of the Constitution. The genesis of this argument lies in
the Magna Carta (1215) and Calvin’s Case, to which I now
turn.
[73]
It is hard to see how, even on a textual basis,
the Magna Carta assists the applicants. Section 39 of the Magna
Carta contemplates that no man will be “outlawed,
or exiled” or “deprived of his standing”
except by “the lawful judgment of his equals or by the
law of the land”. Section 42 grants subjects of the sovereign the right
to leave England and to return unharmed and without fear “preserving his allegiance to us”. Thus, citizenship
was not lost by time spent abroad, subject to the qualification that subjects
may be “outlawed in accordance with the law”. Exile,
and the right to remain in England was subject to “the law of the land”. Therefore
these provisions of the Magna Carta point in the opposite direction to
that urged by the applicants.
[74]
Secondly, the Magna Carta is not a
constitutional instrument. While its seminal place in the development of our
constitutional and legal principles is well known, its terms may be, and have
been displaced by the legislation of Westminster and Parliament. As Professor
Hogg writes, the Magna Carta is simply a statute “amenable to ordinary legislative change” (Hogg at
34-2). It “has no independent legal significance or
legislative weight in the scheme of current Canadian legislation”: Harper
v Atchison, 2011 SKQB 38 at para 9. I now turn to the second foundation of
the applicants’ argument, Calvin’s Case.
[75]
The applicants are correct when they assert that
Calvin’s Case established a common law entitlement to citizenship based
on birthplace (jus soli). However, Calvin’s Case was over-taken
by both the common law and statute law.
[76]
The American Colonies Peace Act (1782),
Geo. III, c 46 and the ensuing Definitive Treaty of Paris, United States
and Great Britain, 3 September 1783, 8 US Stat 80, UKTS 104, Article 1 (the Treaty)
, recognized the 13 colonies to be a free, independent and sovereign state. The
question whether the colonists in the new republic remained British subjects,
according to Calvin’s Case, or whether, by virtue of the Treaty,
became citizens of the United States of America, was squarely addressed in Doe
on the Demise of Thomas v Acklam (1824), 2 St Tr (NS), 105 (KB). The
Court found that those born in the United States during the time of British
colonies were “undoubtedly” British subjects, but that the inhabitants
generally became United States citizens and aliens to Britain. The Court held
that the plaintiff’s father, through his continued residence in the United
States, “manifestly became a citizen of them”. Further,
the Court held that subsequent acts of Parliament gave validity to the Treaty,
thus ending the debate, and reversing the principle expressed in Calvin’s
Case. As the principle of perpetual allegiance and jus soli was
rejected in Doe on the Demise of Thomas v Acklam prior to
Confederation, it could not have been incorporated into the preamble of the Constitution
Act, 1867, and frozen by the Constitution Act, 1982.
[77]
There was, therefore, no common law doctrine
extant at Confederation which, through the preamble to the Constitution Act,
1867, could become an unwritten constitutional principle of an inalienable
right to citizenship. Since no such right existed it therefore could not then
have been “frozen and constitutionalized” upon the patriation of the Constitution
Act, 1867. I leave aside the question as to how a common law principle,
even if it was unequivocally established, metamorphasized into a constitutional
requirement. Charter considerations aside, the jurisprudence and
legislative history teach that citizenship does not have the same dimension.
[78]
I note as well that this case stands far removed
from those where an unwritten principle was found to have a constitutional
dimension through the similar in principle clause. For example, the
independence of the judiciary in Canada is partly secured by written
constitutional provisions, partly by “unwritten constitutional principles”, but
is “most effectively secured” by a long political tradition going back to the
beginning of the eighteenth century in Britain (Hogg at 34-3). Other such
examples include the independence of the legal profession; the rule of the law
and the separation of powers (Hogg at 34-3; Babcock v Canada (Attorney
General), 2002 SCC 57 at paras 54-55).
[79]
The proposition that citizenship is an
inalienable right that cannot be defined, circumscribed or revoked by
Parliament has no support. Certainly, by 1824, the year in which Doe on the
Demise of Thomas v Acklam was decided, the concept that citizenship was
inalienable had been rejected. Legislative and judicial responses to events in
pre- and post-Confederation Canada and in the United Kingdom also cast
considerable doubt on the concept of a perpetual bond between the subject and
sovereign as a common law principle, let alone one with a constitutional
dimension.
[80]
Finally, legislation can always, save the
constraint of the division of powers and the Charter, trump common law
principles. As Professor Hogg notes, Parliament received powers as ‘plenary
and ample’ as those of the United Kingdom Parliament (Hogg at 34-3). Thus,
Parliament can, through legislation, reverse or override any common law
principle. A historical review of such legislative and judicial responses
illustrates that neither Westminster, nor Parliament, felt that citizenship was
inalienable.
(1)
Pre-1931 historical review of legislation providing
loss of citizenship
[81]
In 1814, the legislature of Upper Canada enacted
An Act to declare certain persons, therein described, Aliens, and to vest
their estates in His Majesty; Statutes of Upper Canada, 54 George III,
c 9, 1814 (the Aliens Act). The Aliens Act deemed those British
colonists who left Upper Canada to fight for the Americans in the War of 1812
to be aliens, and forfeited their lands to the Crown.
[82]
In 1869, the Lord Chief Justice noted on the
need to reform the “inflexible
rule, that no British subject can put off his country or the natural allegiance
which he owes to the Sovereign…” (Sir Alex Cockburn, Nationality: The
Law Relating to Subjects and Aliens (London: William Ridgway, 1869) at
198-203).
[83]
Reform arrived through the Imperial
Naturalization Acts, 1870 and 1872 (UK), 35 & 36 Vict, c 39 and The Naturalization
Act, 1881, SC 1881, c 13 (The Naturalization Act, 1881), which allowed
citizens to expatriate themselves, an option inconsistent with the premise
which underlies the applicants’ argument.
[84]
These statutes removed any uncertainty which may
have lingered after Doe on the Demise of Thomas v Acklam.
Indeed, in 1883, Alfred Howell observed that the Canadian and Imperial
legislation “… abrogates the old rule of law, nemo potest exure patriam [no one can get rid of his country], and
concedes the right of expatriation, thus sweeping away the formerly well known
theory, - ‘once a British subject always a British subject’” (Alfred Howell, “Expatriation”
(1883) Vol III:12 The Canadian Law Times 463). The Naturalization Act, 1881
also provided that women who married aliens adopted the nationality of their
spouses and were no longer British subjects. Further, the acts had retroactive
effect; women who had married aliens before the acts became law were
automatically, by operation of the statute, deemed to be aliens.
[85]
World War I also triggered legislative responses
in respect of citizenship, again inconsistent with the applicants’ position. An
Act respecting British Nationality, Naturalization and Aliens, SC 1914, c
44, s 7(2), and its Imperial equivalent, provide for the revocation of
citizenship where the person “... has shown himself by
act or speech to be disaffected or disloyal to His Majesty”. Disloyalty
included trading and communicating with the enemy where continuance of the
certificate was “not conducive to the public good”.
Revocation of status as a British subject on these grounds remained part of
Canadian law until 1958: An Act to amend the Canadian Citizenship Act,
SC 1958, c 24, s 2.
(2)
Post-1931 historical review of legislation providing
loss of citizenship
[86]
Canada only obtained the exclusive jurisdiction
over citizenship in 1931 with the passage of the Statute of Westminster,
1931, 1931 (UK) c 4, and it was not until 1947 when the first Canadian
Citizenship Act, SC 1946, c 15 (Canadian Citizenship Act) was
enacted, and the concept of Canadian citizenship was created: Benner v
Canada, [1997] 1 S.C.R. 358 at para 30. The Canadian Citizenship Act
provided for loss of citizenship when a Canadian with dual nationality served
in the armed forces of a country that was at war with Canada. This
disentitlement provision remained in force until 1977 with the passage of the Citizenship
Act, SC 1974-75-76, c 108.
[87]
The Canadian Citizenship Act was amended
in 1953. Persons born outside of Canada but deemed by operation of the statute
to be citizens by parentage, lost their citizenship if they failed to establish
a domicile in Canada or file a declaration of citizenship by a certain age:
see Taylor v Canada (Minister of Citizenship and Immigration), 2007 FCA
349 at paras 77-81.
[88]
More recently, the British Nationality Act,
1981 (UK), 1981, c 61, legislated that all children born in the UK were not
necessarily British subjects, and, in 2002, the act was amended to allow for
revocation where the Secretary of State is “satisfied
that the deprivation is conducive to the public good”.
[89]
This brief historical survey of the legislative
treatment of nationality and citizenship demonstrates that neither Westminster, nor Parliament, felt constrained by the jus soli principle. Nationality or citizenship could be lost, in some
cases, retroactively, by conduct, absence from the country, and marriage. As
early as 1871 in the United Kingdom and 1881 in Canada, citizens could, of
their own volition, revoke their citizenship.
[90]
It is trite to note that the fact Parliament and
Westminster enacted legislation does not make it constitutional. That is not
the object of this review, rather it demonstrates that even if jus soli was a common law principle, it had
long been displaced by legislation, and that in the 190 years since Doe on
the Demise of Thomas v Acklam, no Canadian or UK court cast doubt on the ability of Parliament or Westminster to do so. Indeed, the legislative
history and jurisprudence establishes the opposite. Nationality and
citizenship are entirely statutory constructs.
B.
The absence of citizenship as an enumerated head
of legislative competence and Parliament’s exclusive jurisdiction over citizenship
[91]
The applicants next point to the absence of
citizenship as a head of legislative power in the Constitution Act, 1867.
They say that the omission was deliberate, consistent with the inalienability
of citizenship as it was known at the time. The framers of the British
North American Act, 1867, did not address citizenship as a head of power,
as citizenship, as it was understood as matter of law, was inalienable. There
is, therefore, no constitutional authority, and no legislative competence, for
any government to revoke citizenship of a natural born or naturalized Canadian
citizen. However, the applicants’ position is inconsistent with settled
principles of constitutional interpretation and law.
[92]
Citizenship is a creature of statute. The Court
of Appeal and the Supreme Court of Canada have made clear that there is no
independent or free-standing right to citizenship except as accorded by the
provisions in Part I – The Right to Citizenship of the Citizenship
Act. Citizenship may be acquired through birth (subsection 3(1)(a) and
(b)), or naturalization (subsection 3(1)(c)). Since the passage of the Citizenship
Act, SC 1974-75-76, c 108, Part II of the Citizenship Act – Loss
of Citizenship – has authorized the loss of citizenship pursuant to
subsection 10(1), where the Governor-in-Council is satisfied, on the basis of a
report from the Minister, that the person has obtained citizenship by fraud or
misrepresentation. As the Court of Appeal said in Taylor at para
50:
Our Court, in Solis v. Canada (Minister
of Citizenship and Immigration) (2000), 2000 CanLII 15121 (FCA), 186 D.L.R.
(4th) 512 (F.C.A.), leave to appeal to Supreme Court of Canada denied [2000] 2
S.C.R. xix, has held that Canadian citizenship is a creature of federal statute
and has no meaning apart from statute and that in order to be a Canadian
citizen, a person must satisfy the applicable statutory requirements (see,
also, McLean v. Canada (Minister of Citizenship and Immigration), 2001
FCA 10 (CanLII), [2001] 3 F.C. 127 (C.A.), affg (1999), 1999 CanLII 9040 (FC),
177 F.T.R. 219 (F.C.T.D.), and Veleta v. Canada (Minister of Citizenship and
Immigration) (2006), 2006 FCA 138 (CanLII), 268 D.L.R. (4th) 513 (F.C.A.).
[93]
Citizenship did not exist as a concept at the
time of Confederation, as persons born in, or naturalized in, the British Empire were considered British subjects. In the original understanding of the
words “naturalization and aliens” in section 91(25) of the Constitution Act,
1867, an “alien” was a person who was not a British subject, and
“naturalization” was the granting of British-subject status to a person born
outside the British Empire (Hogg at 26-5).
[94]
Citizenship need not be explicitly listed as a
head of power for it to fall within the exclusive jurisdiction of Parliament. Professor
Hogg has explained that it is not clear whether the power of Parliament to pass
citizenship legislation “comes from s. 91(25) or from
the peace, order, and good government power in the opening words of s. 91”
(Hogg at 26-5). In my view, it is not necessarily that it be a choice of one
or the other. Citizenship clearly falls within Parliament’s residual powers
under the opening words of section 91 (peace, order, and good government), as
well as section 91(25). Although written some 65 years ago, Justice Rand’s
analysis of the power in Winner v S.M.T. (Eastern) Ltd., [1951] S.C.R. 887
at 918-919, remains compelling in its logic and elegance:
The first and fundamental accomplishment of
the constitutional Act was the creation of a single political organization of
subjects of His Majesty within the geographical area of the Dominion, the basic
postulate of which was the institution of a Canadian citizenship. Citizenship
is membership in a state; and in the citizen inhere those rights and duties,
the correlatives of allegiance and protection, which are basic to that status.
The Act makes no express allocation of
citizenship as the subject-matter of legislation to either the Dominion or the
provinces; but as it lies at the foundation of the political organization, as
its character is national, and by the implication of head 25, section 91,
“Naturalization and Aliens”, it is to be found within the residual powers of
the Dominion: Canada Temperance case, at p 205. Whatever else might
have been said prior to 1931, the Statute of Westminster, coupled with the
declaration of constitutional relations of 1926 out of which it issued,
creating, in substance, a sovereignty, concludes the question. (Emphasis added)
[95]
Section 91(25) complements the general power,
and reinforces the conclusion that all aspects of citizenship are within the
exclusive and plenary authority of Parliament. It is implicit, indeed
logically imperative, that legislative competence over naturalization includes
competence over citizenship. If it did not, it would leave unanswered the
question as to the end result of the naturalization process – naturalized to
what? Similarly implicit in the concept of “alien” is a legal state or status
from which one is alienated. “Naturalization” and “alien” both require, for
their understanding and meaning, juxtaposition or distinction with citizenship
or nationality.
[96]
The applicants’ argument that the power to
legislate with respect to the revocation of citizenship is outside the
legislative competence of both Parliament and the provincial
legislatures because the language of “citizen” or “citizenship” is not
specifically mentioned in the Constitution Act, 1867 ignores Justice
Rand’s comments in Winner, the broad residual powers left to Parliament
in section 91 of the Constitution Act, 1867, and the specific allocation
of a key aspect of citizenship to Parliament in section 91(25). It also is
inconsistent with governing principles of interpretation as well as the
principle of exhaustiveness in the division of powers.
[97]
As a matter of long-standing doctrine, the Constitution
is to be interpreted in a liberal manner that ensures its vitality and
relevance to a large, complex and evolving nation. In Edwards v AG (Canada),
[1930] AC 124 (PC) at 136 Lord Sankey referred to the British North America
Act as “a living tree capable of growth and
expansion within its natural limits.” Aeronautics, regulation of radio
frequencies, the creation and development of a national capital region are all
examples of the evolution of the Constitution to respond to change: Reference
re: Regulations & Control of Aeronautics, [1930] S.C.R. 663; Reference
re: Regulation and Control of Radio Communication, [1931] S.C.R. 541; Munro
v Canada (National Capital Commission), [1966] S.C.R. 663. The concept of citizenship
and the subsequent rights that flow from the concept have also changed over
time. The argument that revocation of citizenship is untouchable because the
language of ‘citizen’ or ‘citizenship’ is not explicitly included in the
Constitution is incompatible with the living tree doctrine. Indeed, this
argument ignores the capabilities of the Constitution and instead fells the
tree.
[98]
The principle of exhaustiveness recognizes that
there is no legislative power that is not held by either Parliament or the
Legislatures. It ensures that there is no vacuum in the legislative capacity
of government. As the Supreme Court of Canada explained in Reference re
Same-Sex Marriage, 2004 SCC 79 at para 34:
The principle of exhaustiveness, an
essential characteristic of the federal distribution of powers, ensures that
the whole of legislative power, whether exercised or merely potential, is
distributed as between Parliament and the legislatures: Attorney-General for
Ontario v Attorney-General for Canada, [1912] AC 571 (PC) at p 581; and Attorney-General
for Canada v Attorney-General for Ontario, [1937] AC 326 (PC). In essence,
there is no topic that cannot be legislated upon, though the particulars of
such legislation may be limited by, for instance, the Charter.
[99]
Given these principles, it is clear that
Parliament must enjoy exclusive and unqualified legislative competence over
citizenship, subject only to constraints of the Charter of Rights and
Freedoms.
VI.
Conclusion
[100] The application for judicial review is dismissed. The matter in
respect of which judicial review is sought, the decision to grant royal assent,
is a legislative act and not justiciable. The respondents are not federal
boards exercising a power or jurisdiction conferred under an act of
Parliament. In any event, the substantive argument with respect to
constitutionality of the Strengthening Citizenship Act fails. Section 8
of the Strengthening Citizenship Act is within the legislative
competence of Parliament.
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