Date: 20030225
Docket: T-1460-01
Neutral citation: 2003 FCT225
Between:
HENRY SIERADZKI
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
KELEN J.:
[1] This is an application for judicial review of the decision of Citizenship Officer Rose Courage dated June 21, 2001, denying the applicant's request for a certificate of Canadian citizenship because he lost his status as a Canadian citizen in 1969.
FACTS
-
- The applicant was born on April 15, 1956 in Thunder Bay, Ontario to parents who were Canadian citizens. In 1962, the applicant moved with his parents to the United States. On January 14, 1969, the applicant's parents became citizens of the United States. Under subsection 15(1) of the former Canadian Citizenship Act, R.S.C. 1952, c. 33 (the "former Act"), the applicant's parents ceased to be Canadian citizens as a result of this action. The applicant obtained American citizenship on the same day as his parents, and by operation of subsection 20(1) of the former Act, also ceased to be a Canadian citizen.
[3] In September of 2000 the applicant submitted an application for a certificate of Canadian citizenship and was issued a passport for one year. In a letter dated June 21, 2001 he was informed that he was not a Canadian citizen by operation of subsections 15(1) and 20(1) of the former Act and would not receive a certificate of Canadian citizenship. He was later required to return his Canadian passport. The applicant is professional golfer on the Malaysian PGA Tour and claims that without the ability to travel he will lose his position on the tour and his sole source of income.
RELEVANT LEGISLATION
-
- Subsections 15(1) and 20(1) of the former Act state:
15.(1) A Canadian citizen, who, when outside of Canada and not under a disability, by any voluntary and formal act other than marriage, acquires the nationality or citizenship of a country other than Canada, thereupon ceases to be a Canadian citizen.
[...]
20.(1) Where the responsible parent of a minor child ceases to be a Canadian citizen under Section 15, 16 or 17, the child thereupon ceases to be a Canadian citizen if he is or thereupon becomes under the law of any country other than Canada, a national or citizen of that country.
15. (1) Un citoyen canadien qui, se trouvant hors du Canada et n'étant pas frappé d'incapacité, acquiert, par un acte volontaire et formel autre que le mariage, la nationalité ou la citoyenneté d'un pays autre que le Canada, cesse immédiatement d'être citoyen canadien.
[...]
20.(1) Lorsque le parent responsable d'un enfant mineur cesse d'être un citoyen canadien aux termes de l'article 15, 16, ou 17, l'enfant cesse dès lors d'être un citoyen canadien, si d'après les lois d'un autre pays que le Canada, il est ou devient alors un ressortissant ou citoyen de cet autre pays.
ANALYSIS
-
- Both parties agree that the Canadian citizenship officials have correctly applied subsections 15(1) and 20(1) of the former Act to the facts of this case. The sole issue in this application is whether the applicant has suffered discrimination based on age, contrary to section 15 of the Canadian Charter of Rights and Freedoms.
[6] The applicant argues that these provisions discriminate on the basis of age because they deprived minors of their Canadian citizenship without their consent. The applicant argues that this case does not require a retroactive or retrospective application of the Charter as it involves a determination of the applicant's present status.
[7] The respondent submits that the applicant is not entitled to invoke section 15 as it would require retroactive application of the Charter. The respondent contends that the relevant time the Court should use to judge applicability of the Charter is 1969, when the applicant lost his citizenship.
[8] The issue of retroactive/retrospective application of the Charter was addressed extensively by Mr. Justice Iacobucci in Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358. The applicant in Benner was born in the United States to a Canadian mother and an American father. He applied for citizenship in 1988. Under the former Act, individuals born abroad to Canadian fathers were entitled to Canadian citizenship, but those born abroad to Canadian mothers were not entitled to Canadian citizenship unless the child was illegitimate. The Citizenship Act, S.C. 1974-75-76, c. 108, attempted to remedy this problem by allowing individuals born abroad before 1977 to Canadian mothers to obtain citizenship after undergoing a security check and swearing an oath. Benner failed the security check and was denied Canadian citizenship. The Supreme Court of Canada held that these provisions were subject to Charter review and that they violated section 15 by discriminating on the basis of sex.
[9] At paragraphs 45-46, Mr. Justice Iacobucci discussed what methods a court could use to determine the applicability of the Charter:
The question, then, is one of characterization: is the situation really one of going back to redress an old event which took place before the Charter created the right sought to be vindicated, or is it simply one of assessing the contemporary application of a law which happened to be passed before the Charter came into effect?
I realize that this distinction will not always be as clear as one might like, since many situations may be reasonably seen to involve both past discrete events and on-going conditions. A status or on-going condition will often, for example, stem from some past discrete event. A criminal conviction is a single discrete event, but it gives rise to the on-going condition of being detained, the status of "detainee". Similar observations could be made about a marriage or divorce. Successfully determining whether a particular case involves applying the Charter to a past event or simply to a current condition or status will involve determining whether, in all the circumstances, the most significant or relevant feature of the case is the past event or the current condition resulting from it. This is, as I already stated, a question of characterization, and will vary with the circumstances. Making this determination will depend on the facts of the case, on the law in question, and on the Charter right which the applicant seeks to apply. [emphasis added]
[10] This case involves both a past discrete event and an on-going condition. The past discrete event is the applicant's loss of citizenship in 1969. His current status as a non-citizen stems from that event. Nonetheless, this case is properly characterized as one that is essentially "event-driven" because its most significant or relevant feature is the past event, not the on-going condition. Mr. Justice Iacobucci provided guidance on how to treat past events at para. 54 in Benner:
[...] As I have stated above, there is a difference between characteristics ascribed at birth (e.g., race), and those which arise based on some action taken later in life (e.g., being a divorced person). Immutable characteristics arising at birth are, in my opinion, generally more likely to be correctedly classified as a "status" than are characteristics resulting from a choice to taken some action, e.g. the choice to get married or divorced. [...]
[11] In Brenner the only relevant pre-Charter event was the applicant's birth; therefore, the situation was analogous to cases involving characteristics ascribed at birth. In contrast, the case at bar involves a characteristic of the applicant (his status as a non-citizen) that arose not due to his birth, but as a result of his parents' choice to take some action (obtain American citizenship in 1969). In this respect, this case is analogous to situations of divorce or marriage, not those involving characteristics ascribed at birth. If the Charter applied in these circumstances, the Court would be required to go back and re-assess the legal effect of pre-Charter choices. This would constitute retroactive application of the Charter, which has been ruled out by the Supreme Court on numerous occasions, see for example R. v. Stevens, [1988] 1 S.C.R. 1153 at p. 1157, R. v. Stewart, [1991] 3 S.C.R. 324 at p. 325, and Dubois v. The Queen, [1985] 2 S.C.R. 350. Consequently, the Charter does not apply in this case.
[12] For these reasons, this application for judicial review is dismissed.
[13] However, the applicant can apply for the resumption of his Canadian citizenship under subsection 5(4) and 11(1) of the current Citizenship Act. The Minister has discretionary powers to grant citizenship in cases of "special and unusual hardship". This is a matter for the Minister, not the Court.
"Michael A. Kelen" ______________________________
J.F.C.C.
Ottawa, Ontario
February 25, 2003
FEDERAL COURT OF CANADA
Date: 20030225
Docket: T-1460-01
BETWEEN:
HENRY SIERADZKI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1460-01
STYLE OF CAUSE: HENRY SIERADZKI v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: FEBRUARY 10, 2003
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE KELEN
DATED: FEBRUARY 25, 2003
APPEARANCES:
HENRY SIERADZKI FOR THE APPLICANT
ON HIS OWN BEHALF
IRVIN SHERMAN FOR THE APPLICANT
A. LEENA JAAKKIMAINEN FOR THE RESPONDENT
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA
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