Kelly v. Canada (Minister of Citizenship and Immigration), docket IMM-1858-97

Date: 19981218

Docket: IMM-1858-97

BETWEEN:

     STEPHEN BRIAN FREDERICK KELLY

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

DUBÉ J:

[1]      This application is for the judicial review of a decision of the adjudicator David M. Burns dated June 1, 1988, wherein he issued a deportation order to the applicant as being a person described in subparagraph 27(1)(d)(i) of the Immigration Act¹.

[2]      On June 24, 1986, immigration officer Donna M. Gauthier issued a written report under section 27 of the Immigration Act to the effect that the applicant was a permanent resident of Canada who was granted landing on December 10, 1943, at Halifax, Nova Scotia; is not a Canadian citizen; was convicted on January 7, 1985, in Sudbury, Ontario, of two offences of aggravated sexual assault and two offences of forcible confinement and sentenced to twelve years of imprisonment on each offence to be served concurrently.

[3]      The applicant was directed to an immigration inquiry pursuant to subsection 27(4) of the Immigration Act by notice dated April 29, 1987. Entered into evidence at the inquiry were a warrant of committal for the conviction of the above offences and a letter dated July 4, 1986, from the Citizenship Registration Branch of the Secretary of State for Canada to the effect that the applicant had no claim to Canadian citizenship. Nevertheless, the applicant insisted that he was a Canadian citizen. Thus, the inquiry had to be adjourned and was in fact adjourned by the adjudicator pursuant to subsection 43(1) of the former Immigration Act of 1976² which reads as follows:

43.(1) Where, at any time during an inquiry, the person who is the subject of the inquiry claims that he is a Canadian citizen and the adjudicator presiding at the inquiry is not satisfied that the person is a Canadian citizen, the inquiry shall be continued and, if it is determined that, but for the person"s claim that he is a Canadian citizen, a removal order or a departure notice would be made or issued with respect to that person, the inquiry shall be adjourned.

[4]      After adjourning the inquiry, the adjudicator advised the applicant to make an application for a certificate of citizenship which he did on March 13, 1986. On July 4, 1986, the Citizenship Registration Branch answered that he had no claim to Canadian citizenship on the following grounds:

The documentation provided shows that you were born before the marriage of your parents. In order to have a claim to citizenship through your father, you would have had to be born in wedlock. You cannot claim Canadian citizenship through your mother as she was not a Canadian at the time of your birth.

[5]          At the resumption of the applicant's inquiry on June 1, 1988, since the applicant had not established that he was a Canadian citizen and in view of the aforementioned convictions, the adjudicator issued a deportation order as required under subsection 32(2) of the former Immigration Act of 1976. He further informed the applicant of his rights to appeal the deportation order to the Immigration Appeal Board and provided him with an appeal notice for him to sign so as to commence the appeal procedures. The applicant declined to do so.

[6]      The applicant completed his penitentiary sentence in December 1996 and was detained pending his deportation which was scheduled for January 22, 1997. He filed an application for a stay of deportation and commenced an application for leave claiming that he was a Canadian citizen. The stay application was dismissed by my colleague Cullen J. on January 20, 1997. The applicant then brought an habeas corpus application to the Ontario Court, General Division, on January 22, 1997, claiming Canadian citizenship which application was also dismissed.

[7]      Consequently, the applicant was deported from Canada on January 22, 1997. My colleague madame Justice McGillis denied his further application for leave in IMM-4828-96, by order dated March 21, 1997.

[8]      The applicant was born in England out of wedlock on July 17, 1941. His father was born in Canada and serving in the Canadian army in 1940 and 1941. His mother was born in England in 1921. His parents were married in England about a month after the applicant's birth, on August 12, 1941. His counsel submits that he became entitled to Canadian citizenship on December 10, 1943, when he and his mother were landed in Canada at Halifax, Nova Scotia. His young sister Margaret Beryl Kelly (born after their parents were married and a Canadian citizen) accompanied them.

[9]      The factual situation in this case is very similar to that in Bell v. Canada (M.E.I.)³, wherein the Federal Court of Appeal held that Bell was not a Canadian citizen. Bell was born in 1960 in Australia out of wedlock. At the time his mother was an Australian citizen and his father was a Canadian. He and his mother subsequently moved to Canada, his father married his mother and adopted Bell. He was never registered as a Canadian citizen. A removal order was issued against him by the Immigration and Refugee Board following criminal convictions. The trial judge concluded that he was a citizen and not subject to removal from Canada. The appeal was allowed on the ground that subparagraph 5(1)(b)(i) of the Canadian Citizenship Act⁴ provides that for one born outside Canada out of wedlock, Canadian citizenship was to pass only through the mother. The subparagraph reads as follows:

5(1) A person born after the 31st day of December 1946 is a natural-born Canadian citizen,

...

(b)      if he is born outside of Canada elsewhere than on a Canadian ship, and

(i)      his father, or in the case of a child born out of wedlock, his mother, at the time of that person's birth, is a Canadian citizen, and

(ii)      the fact of his birth is registered, in accordance with the regulations, within two years after its occurrence or within such extended period as the Minister may authorize in special cases.

(my emphasis)

[10]      Strayer, J.A., speaking for the Federal Court of Appeal said as follows:

We are all of the view that the respondent is not a citizen. He does not fall within the plain language of s. 5(1)(b)(i) because though born outside of Canada and out of wedlock, his mother was not a Canadian citizen at that time. We understand the section to provide that for one born outside Canada out of wedlock, Canadian citizenship was to pass only through the mother.

This is not a result which can be altered by the facts that Bell was subsequently adopted by his alleged natural father, a Canadian citizen, and that his alleged natural father later married his mother which by the laws of Alberta legitimized him. The requirements of the Citizenship Act, as to place of birth and status of the parents at the time of birth are very specific, and cannot be read to incorporate subsequent changes of status prescribed by provincial laws for provincial purposes.

[11]      Since the applicant in the instant case was born on July 17, 1941, paragraph 4(b)(ii) of the 1947 Canadian Citizenship Act⁵ applies and it reads as follows:

4. A person, born before the commencement of this Act, [before the 1st day of January, 1947], is a natural-born Canadian citizen:

...

(b)      if he was born outside of Canada elsewhere than on a Canadian ship and his father, or in the case of person born out of wedlock, his mother

(i)      was born in Canada or on a Canadian ship and had not become an alien at the time of that person's birth, or

(ii)      was, at the time of that person's birth, a British subject who had Canadian domicile,

if, at the commencement of this Act [before the 1st day of January, 1947], that person has not become an alien, and has either been lawfully admitted to Canada for permanent residence or is a minor.

(my emphasis)

[12]      It follows, pursuant to the ratio decidendi of the Court of Appeal's decision in Bell, (based on subparagraph 5(1)(b)(ii) of the Canadian Citizenship Act of 1970) that the applicant in this case is not a natural-born Canadian citizen under the aforementioned paragraph 4(b)(ii) of the Canadian Citizenship Act of 1947. That decision binds me and is, in any event, the only possible logical application of the law.

[13]      The recent Supreme Court of Canada's decision in Benner⁶ does not affect the applicant's situation. It does not stand for the proposition that a person born abroad in 1941 out of wedlock to a non-Canadian mother is entitled to Canadian citizenship. The Supreme Court held that a provision of the Citizenship Act⁷ requiring children born abroad of a Canadian mother prior to February 15, 1977, to undergo a security check and to swear an oath before being granted citizenship (while those born abroad of a Canadian father were not required to do so) violated section 15 of the Canadian Charter of Rights and Freedoms (discrimination based on sex).

[14]      In my view, the definition of "child" under subsection 2(1) of the Citizenship Act⁸ does not have any bearing on this matter.

[15]      Thus, the applicant cannot find sustenance for his application for judicial review of the adjudicator's decision on the ground that he was a Canadian citizen.

[16]      Consequently, the application is denied.

[17]      By letter dated December 4, 1998, subsequent to the hearing, the applicant submitted the following question as a question to be certified pursuant to subsection 83(1) of the Immigration Act:

Does s. 4(b)(i) and (ii) of The Canadian Citizenship Act c. 15 S.C. 10 George VI when read with the definition of "child" in s. 2(1) of the Citizenship Act R.S.C. 1985, c. C-29 violate in whole or in part, s. 15(1) of the Canadian Charter of Rights and Freedoms in so far as they impose more onerous requirements on those claiming Canadian citizenship based on maternal lineage than on those claiming Canadian citizenship based on paternal lineage as that part of the question was answered by the Supreme Court of Canada in Benner v. Canada (S.S.C.) [1997] 1 S.C.R. 358 and if so do they prescribe a reasonable limit prescribed by law pursuant to s. 1 of the Charter?

[18]      By letter dated December 7, 1998, the respondent answered as follows:

The Respondent respectfully repeats its submission made at the hearing on December 3, 1998, that there is no serious question of general importance to be certified on the facts of this case. The Respondent re-iterates that the Citizenship Act is not engaged on this application for judicial review. Rather, it is the decision of an adjudicator made pursuant to the Immigration Act that is under challenge. The Applicant, however, is now attempting by his proposed question to collaterally attack section(s) of the Citizenship Act.

The Respondent notes that the Applicant did not seek, either in his prayer for relief in the Application for Leave or in his Memorandum of Argument, a declaration that certain section(s) of the Citizenship Act violate section 15 of the Canadian Charter of Rights and Freedoms. However, he now proposes for certification a question that appears to contemplate such a declaration of unconstitutionality. No notice of constitutional question was served on the Attorney General of Canada and the Attorney General of each Province in accordance with section 57 of the Federal Court Act. It is well-established that the Court is without jurisdiction to decide a constitutional issue where no section 57 notice has been given.

[19]      I agree with the respondent that there is no serious question of general importance in this case and that this Court may not decide a constitutional issue unless proper notices have been served under section 57 of the Federal Court Act.

OTTAWA, Ontario

December 18, 1998

    

     Judge

__________________

     ¹      R.S.C. 1985, c. I-2.

     ²      R.S.C. 1976-77, c. 52.

     ³      136 D.L.R. (4th) 286.

     ⁴      R.S.C. 1970, c. C-19.

     ⁵      C. 15 S.C. 10 George VI.

     ⁶      Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358.

     ⁷      S.C. 1974-75-76, c. 108.

     ⁸      R.S.C. 1985, c. C-29.