Dubey v. Canada (Minister of Citizenship and Immigration), 2002 FCT 582

Date: 20020517

Ottawa, Ontario, May 17, 2002

Before: NADON J.

Docket: T-2206-99

BETWEEN:

SANDRA MARY DUBEY

Plaintiff

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendant

Docket: T-2207-99

BETWEEN:

BARBARA ALBERTA DUBEY

Plaintiff

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendant

ORDER

The plaintiffs' application for judicial review is dismissed.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

Date: 20020517

Neutral citation: 2002 FCT 582

Docket: T-2206-99

BETWEEN:

SANDRA MARY DUBEY

Plaintiff

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendant

Docket: T-2207-99

BETWEEN:

BARBARA ALBERTA DUBEY

Plaintiff

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendant

REASONS FOR ORDER

NADON J.

[1]        On November 18, 1999 Sue Campbell of Citizenship and Immigration Canada decided that the plaintiffs were not entitled to a certificate of Canadian citizenship.

[2]        The proceeding before the Court is an application for judicial review of Ms. Campbell's decision. Additionally, by notice of constitutional question the plaintiffs are challenging the validity, applicability or constitutional effect of ss. 4(b) and 9(1)(i) and (ii) of the Citizenship Act, S.C. 1946, c. 15; R.S.C. 1970, c. C-19 ("the 1947 Act"); and ss. 3(1)(d), 5(2)(b) and 11(a) and (b) of the Citizenship Act, R.S.C. 1985, c. C-29 ("the 1977 Act").

[3]        The relevant facts are quite straightforward and may be summarized as follows. The plaintiffs Barbara Alberta Dubey and Sandra Mary Dubey were born in the U.S. on September 28, 1943 and December 24, 1945 respectively. The plaintiffs' parents are Marie Adélia St-Jean, born in Canada on May 12, 1915, the child of Adélard St-Jean and Maria Dumont, and Albert Dubey, born in the U.S. on December 27, 1915, the child of Thomas Dubey and Henedire Dumont.

[4]        The plaintiffs' parents were married in the U.S. on July 9, 1935. Since that date Marie Adélia St-Jean, the plaintiffs' mother, has lived in the United States and became a naturalized American on March 27, 1944.

[5]        Under s. 4(1)(a) of the 1947 Act, Marie Adélia St-Jean has been a Canadian citizen since 1947 and still is one. That is why she was issued a certificate of citizenship in March 1998.

[6]        It should be noted that when the plaintiffs were born their father Albert Dubey did not have the status of a British subject, and so the plaintiffs did not acquire that status.^[1] Further, when the 1947 Act was adopted the plaintiffs did not become Canadian citizens as their father was not a British subject at the time of their birth.^[2]

[7]        On April 28, 1998 the plaintiffs, who have always lived in the U.S., filed applications for citizenship certificates pursuant to s. 12(1) of the 1977 Act.^[3] On November 18, 1999 Ms. Campbell wrote the plaintiffs to tell them that their applications for certificates had been denied.

[8]        In McLean v. M.C.I., [2001] F.C.A. 10, a judgment of June 8, 2001, the Federal Court of Appeal had to rule on questions similar to those raised in the case at bar. The plaintiff Lloyd Lewis McLean, like the plaintiffs at bar, was born outside of Canada of a mother born in Canada (in 1922) and a father born in the U.S. (in 1921). His parents were married in 1942 and settled in the state of Iowa, where the plaintiff was born on November 4, 1943.

[9]        In November 1997 Mr. McLean applied for a certificate of his Canadian citizenship on the ground that he was born in the U.S. in 1943 of a Canadian mother. On July 27, 1998 his application was denied. Mr. McLean then filed an application for judicial review to quash the decision denying the certificate. Further, as in the case at bar, Mr. McLean filed a notice of a constitutional question, alleging that the refusal to issue the certificate infringed his rights, which were protected by s. 15 of the Canadian Charter of Rights and Freedoms ("the Charter"). Richard A.C.J. (as he then was), concluding that the application for judicial review should be dismissed, considered that the Charter could not apply inter alia because Mr. McLean wanted it to apply retroactively.

[10]      Mr. McLean appealed the decision of Richard A.C.J. and on February 8, 2001 the Federal Court of Appeal dismissed his appeal. After a summary of the relevant facts, including the fact that Mr. McLean had been the subject of inquiries held under s. 11(1) of the Immigration Act, R.S.C. 1985, c. I-2, Noël J.A. noted that during those inquiries Mr. McLean had mentioned his citizenship status as an objection to the deportation orders made against him. In each of those inquiries the adjudicator had concluded that Mr. McLean was not a Canadian citizen and so was not entitled to a certificate of citizenship. To place the matter in its context, Noël J.A. reproduced with some comments, at paras. 5 to 8 of his reasons, the applicable legislation in the 1947 Act and in the 1977 Act. Noël J.A. said the following:

[5]           In order to situate the issue raised by the appeal, it is useful to recall that the concept of Canadian citizenship was introduced on January 1, 1947, with the enactment of the Canadian Citizenship Act (the 1947 Act). Sections 4 and 5 of the 1947 Act provided:

4. A person, born before the commencement of this Act, is a natural-born Canadian citizen [not underlined in original] . . .

(b) if he was born outside of Canada . . . and his father, or in the case of a person born out of wedlock, his mother

(i) was born in Canada . . . and had not become an alien at the time of that person's birth.

. . . . .

If, at the commencement of this Act, that person has not become an alien, and has either been lawfully admitted to Canada for permanent residence or is a minor.

5. (1) A person, born after the commencement of this Act, is a natural-born Canadian citizen: [not underlined in original]

. . . . .

(b) if he is born outside of Canada . . . 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 by reason of having been born in Canada . . . or having been granted a certificate of citizenship or having been a Canadian citizen at the commencement of this Act.

[6]           A child born outside of Canada in wedlock was therefore granted citizenship if the father was born in Canada; section 4 so provided with respect to children born prior to 1947 and section 5 with respect to those born after 1947. However, no such right was granted to a child born in wedlock to a Canadian born mother (unless of course the father was also Canadian born).

[7]           This differential treatment was partially removed in 1977 when the 1947 Act was repealed and replaced by the current Act. Paragraph 5(2)(b) now provides:

5. (2) The Minister shall grant citizenship to any person who

. . . . .

(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, 1977, 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. [Not underlined in original]

[8]           As can be seen, this provision extends the right of citizenship only with respect to those who qualify under subparagraph 5(1)(b)(i) of the 1947 Act (i.e. those born after 1947). Children born before 1947, in the same circumstances, are granted no rights to citizenship.

[11]      In the case at bar the plaintiffs, born before January 1, 1947 ("born before 1947"), are not entitled to Canadian citizenship. As Noël J.A. noted in McLean, supra, s. 4 of the 1947 Act conferred Canadian citizenship only on children born outside Canada before 1947 of a father born in Canada. Consequently, a child born outside Canada before 1947 of a mother born in Canada in wedlock, was not awarded Canadian citizenship.

[12]      The 1977 Act partially remedied this problem by allowing persons born outside Canada after 1947 of a Canadian mother to obtain Canadian citizenship. At the same time, this remedy was not available to persons born in wedlock of a Canadian mother outside Canada before 1947.

[13]      As Mr. McLean did, the plaintiffs cited in support of their arguments the Supreme Court of Canada's judgment in Benner v. Secretary of State of Canada, [1997] 1 S.C.R. 358. Mr. Benner, who was born in wedlock of a Canadian mother outside Canada after 1947 (1962), could rely on s. 5(2)(b) of the 1977 Act. However, the procedure enabling a person born outside Canada after 1947 to obtain Canadian citizenship differed depending on whether the person was the child of a Canadian father or of a Canadian mother. Briefly, a person born of a Canadian father outside Canada before February 14, 1977 could claim citizenship once his or her birth had been registered. A person born of a Canadian mother outside Canada before February 15, 1977, but after 1947, had to file an application for citizenship, and this procedure involved inter alia a duty to swear an oath of allegiance and to submit to a check of criminal records and a security investigation.

[14]      The Supreme Court of Canada concluded that these requirements, which no longer exist in the present law, infringed s. 15(1) of the Charter because they imposed on persons born of a Canadian mother outside Canada more stringent conditions than those imposed on persons born of a Canadian father outside Canada.

[15]      In the plaintiffs' submission, the Supreme Court of Canada's judgment in Benner, supra, is that it is discriminatory to give different treatment to children born outside Canada, depending on whether their application for a certificate of citizenship is through their Canadian father or their Canadian mother. In the plaintiffs' submission Ms. Campbell's refusal to issue the certificates which they were claiming only confirmed that they were right in relying on s. 15 of the Charter.

[16]      In McLean, supra, the Federal Court of Appeal disposed of the appeal on the basis that the Supreme Court's reasoning in Benner, supra, was applicable to persons born outside of Canada before January 1, 1947 within wedlock and whose mother was born in Canada. In other words, the Federal Court of Appeal disposed of the case on the assumption that there was discrimination within the meaning of s. 15 of the Charter. Nonetheless, the Court of Appeal dismissed Mr. McLean's application for judicial review because he was trying to have the Charter applied retroactively.

[17]      According to the Federal Court of Appeal, the fact that Mr. McLean had relied on his status as a Canadian citizen several times in objecting to deportation orders made against him before s. 15 of the Charter came into effect could only lead to the conclusion that Mr. McLean was trying to have the Charter applied retroactively. At paras. 22, 23 and 24 Noël J.A. said the following:

[22]         This distinction is in my view immaterial. One's citizenship (or lack thereof) has implications not only under the Citizenship Act but also under a variety of other statutes which incorporate this notion. Hence, the defining moment based on the test adopted by the Supreme Court in Benner, was not the date on which Mr. Benner made an application under the Citizenship Act, but the date on which he was first ". . . confronted by a law which took his lack of Canadian citizenship into account". [Emphasis added.]

[23]         In Benner, that moment happened to be when Mr. Benner applied for citizenship and was refused. In Andrews v. Law Society of B.C., [1989] 1 S.C.R. 143, it was when Mr. Andrews sought admission to the British Columbia bar and was refused. In this instance, it was when the appellant resisted being deported on the ground that he was a Canadian citizen and it was held that he was not. The moment in question in each case is when the status of those concerned was held against them so as to disentitle them to a benefit.

[24]         Applying the test framed by the Supreme Court in Benner to the facts in issue leads to the clear conclusion that the appellant was confronted by and engaged the provisions of the Act well before the Charter came into force. In my view, the motions Judge committed no error when he held that the appellant was seeking to apply the Charter retroactively.

[18]      The defendant's position was that the 1977 Act was not contrary to s. 15 of the Charter, since it did not give different treatment to persons born outside Canada before 1947 of a father having the status of a British subject and those whose mother had the status of a British subject. In the defendant's submission, in view of s. 3(1)(d) of the 1977 Act,^[4] no person born before 1947 could claim to be a Canadian citizen, except for persons who were citizens on February 14, 1977. Further, the defendant submitted that the plaintiffs could not rely on s. 15 of the Charter as a basis for claiming discrimination under the 1947 Act, as this would be to ask that the Act be applied retroactively.

[19]      In my opinion, the defendant is right in saying that in the case bar s. 15 of the Charter would have to be applied retroactively. I will explain.

[20]      As I have just indicated, the 1977 Act did not remedy the fact that persons born outside Canada of a Canadian mother before 1947 could not obtain Canadian citizenship. The effect of s. 3(1)(d) of the 1977 Act, the validity, applicability or constitutional effect of which the plaintiffs are challenging, is to "entrench" the legal situation which existed at February 14, 1977. Since on that date the plaintiffs did not have the status of citizens and could not obtain it under the provisions of the 1977 Act, Ms. Campbell refused to issue them the certificates of citizenship they were seeking.

[21]      In view of s. 3(1)(d) of the 1977 Act, the plaintiffs challenged the constitutionality of ss. 4(b) and 9(1)(c)(i) and (ii) of the 1947 Act, which read as follows:

[22]      In my opinion, the Supreme Court of Canada's judgment in Benner, supra, does not assist the plaintiffs with regard to the retroactive application of s. 15 of the Charter in the case at bar. There can be no doubt that the Supreme Court's conclusion in Benner, supra, namely that s. 15 of the Charter could not be retroactively applied, cannot be applied here.

[23]      In my opinion, the Supreme Court's conclusion in Benner, supra, results from the fact that the disputed provisions which were found discriminatory were those of the 1977 Act giving Mr. Benner a right to citizenship, but accompanied by different treatment from persons born outside Canada of a Canadian father.

[24]      In my view, the following passage from Iacobucci J.'s judgment in Benner, supra, indicates that but for the remedy introduced by the 1977 Act for persons born outside Canada before February 15, 1977 but after January 1, 1947, it is very likely that the Supreme Court would not have concluded that application of the Charter did not give rise to retroactivity. At 388 and 389 Iacobucci J. said the following:

In applying s. 15 to questions of status, or what Driedger, supra, calls being something", the important point is not the moment at which the individual acquires the status in question, it is the moment at which that status is held against him or disentitles him to a benefit. Here, that moment was when the respondent Registrar considered and rejected the appellant's application. Since this occurred well after s. 15 came into effect, subjecting the appellant's treatment by the respondent to Charter scrutiny involves neither retroactive nor retrospective application of the Charter. [Emphasis added.]

Létourneau J.A. stated, at p. 291, that "[i]t is not enough for one to say that one still suffers from a discriminatory event or legislation which took place or existed prior to the Charter. Otherwise, just about every instance of past discrimination since the turn of the century could be reviewed under section 15, provided the victims still suffer from that past discrimination." This is certainly true, but I do not believe, with respect, that it accurately describes the appellant's situation. Had he applied for citizenship before s. 15 came into effect and been refused, he could not now come before the court and ask that s. 15 be applied to that refusal. But this is not what happened. Until his application in 1988, the appellant had not engaged the legislation governing his entitlement to citizenship at all. The law set out only what his rights to citizenship would be if and when he applied, not what they were.

I note that in fact these rights changed between the time the appellant was born and the time when he applied for citizenship. Under the old 1947 Act, individuals in the appellant's position had no special claim to citizenship whatsoever - no provision was made for them in the 1947 legislation. The 1977 Act changed this and created a qualified right to citizenship for people like the appellant. When he finally applied for citizenship in 1989, these were the rights which applied to his situation, not the rights prescribed by the earlier Act in effect at his birth.

Simply put, I believe the discrimination, if it was discrimination, did not take place until the state actually denied the appellant's application for citizenship on the basis of criteria which he alleges violate s. 15 of the Charter. Until he tried to obtain citizenship and was refused, the appellant could not really claim to have been discriminated against. He had no cause of action upon which to base a claim: Reference re Workers' Compensation Act, 1983 (Nfld.), supra. The denial of his application took place on October 17, 1989, long after s. 15 came into effect. This denial is therefore open to Charter scrutiny.

[25]      It is clear from the observations of Iacobucci J. that the latter regarded the fact that the 1977 Act created a right to citizenship for persons such as Mr. Benner as a relevant factor, and consequently one with significant legal consequences. Iacobucci J. pointed out that Mr. Benner's rights had to be considered under the 1977 Act, not the 1947 Act.

[26]      That is why, in my opinion, Iacobucci J. at 396 and 397 took the trouble to point out that it was not the 1947 Act that was at issue in the Court, but the 1977 Act. Iacobucci J. said the following:

Nor is it enough simply to say that the true source of the differential treatment for children born abroad of Canadian mothers is the 1947 Act, not the current Act. The 1947 Act does not exist anymore. More importantly, it was not challenged by the appellant and is not the subject of debate here. The appellant's quarrel is purely with the operation of the current Act and the treatment it accords to him because only his mother was Canadian. To the extent that the current Act carries on the discrimination of its predecessor legislation, it may itself be reviewed under s. 15, which is all the appellant has asked us to do.

[27]      In the case at bar the plaintiffs are asking the Court to declare s. 3(1)(d) of the 1977 Act, inter alia, invalid. In my opinion, such a ruling does not suffice to support a judgment in the plaintiffs' favour. For such a judgment the plaintiffs must necessarily challenge, as they did, the 1947 Act, and in particular s. 4(b) of that Act, which conferred citizenship only on persons born abroad before 1947 of a Canadian father. The consequence of this provision is that the plaintiffs were never able to acquire Canadian citizenship. As I have already indicated, the 1977 Act does not allow persons born abroad of a Canadian mother before 1947 to acquire citizenship.

[28]      In my view, but for the remedy introduced by the 1977 Act for persons such as Mr. Benner, the latter could not have challenged the 1977 Act successfully. In this connection, the observations of Létourneau J.A. in Benner v. Canada, [1994] 1 F.C. 250, are entirely relevant. At 288 to 290 (paragraphs 52 to 55) Létourneau J.A. said the following:

Counsel for the appellant submitted that paragraph 5(2)(b) of the 1977 Act is retrospective in its application as it determines for the future the legal effect of a prior event, i.e., the birth of the appellant, which occurred in 1962 and thus some 15 years before the statute was enacted. To use his words, paragraph 5(2)(b) is both prospective and retrospective in that it has a prospective application based on a prior event. I do not quarrel with that assertion which is the first step in his reasoning and attempt to show that the application of section 15 of the Charter to the present case carries with it no retrospectivity. From there he goes on to add that section 15 of the Charter is not concerned with the prior event, that is to say the birth of the appellant, but rather is concerned with the result of the 1977 Act, that is to say its prospective application to those born prior to February 15, 1977 outside of Canada to a married mother. Therefore, section 15 of the Charter, he concludes, is not applied retrospectively if it is applied to the facts of this case. This argument, as appealing as it may appear at first blush, does not hold.

What the appellant really complains of is the fact that he was denied Canadian citizenship because he was born in 1962 outside of Canada to a married Canadian mother rather than to a Canadian father. The cause of this alleged discrimination is, without doubt, subparagraph 5(1)(b)(i) of the 1947 Citizenship Act. It is not the 1977 Act which, on the contrary, attempted to correct the effects of the old law. Had Parliament in 1977 corrected the alleged injustice only for those born after February 15 and ignored the plight of the appellant and others in a like situation and had Parliament adopted no remedial measures to correct the wrongs of the past, the appellant would have now to attack the 1947 Act which denied him the right to citizenship. As in the case of R. v. Stevens where it was alleged that subsection 146(1) of the Criminal Code [R.S.C. 1970, c. C-34], enacted prior to the Charter, violated section 7 of the Charter, the appellant would allege that subparagraph 5(1)(b)(i) of the 1947 Citizenship Act violates section 15 of the Charter. As for the case of Stevens, there would be no doubt that this challenge would involve a retrospective application of the Charter to a prior legislation on account of a prior event (his birth in 1962). [Emphasis added.]

The situation is not different with the 1977 Act. Firstly, it is not the 1977 Act which causes the alleged discrimination and which treated the appellant as an alien: it is subparagraph 5(1)(b)(i) of the old 1947 Act. The new legislation merely attempts to remedy that. It acknowledges the foreign nationality of the appellant and simply takes over where the 1947 Act left him: an alien or foreign national who, from that moment, is given the right and possibility of acquiring Canadian citizenship on a basis he did not have before. Secondly, the 1977 Act is also legislation enacted prior to the Charter and which relates to an event which took place prior to the Charter. In addition, if the 1977 Citizenship Act were silent as to the claimant and contained no remedial measures for past discrimination, the claimant, if he could launch a constitutional attack on that Act, would have to argue that the Act is discriminatory because it did not apply retroactively or retrospectively to his case. In other words, he would have to say that the 1977 Act is discriminatory because it does not eliminate the discrimination which occurred in 1962 because of the 1947 Citizenship Act. Whichever way I look at the 1977 Act, I fail to see how a Charter challenge to that Act would not be retrospective or would be less retrospective than a Charter challenge to the 1947 Act in relation to the same 1962 event.

If there had been no remedial measures adopted in the 1977 Act to redress the wrongs caused in the past by the repealed 1947 Act, it is my view that the appellant would have had no foundation for a complaint under the Charter as the Charter would not apply to suppress the legal consequences attached by the 1947 Act to his birth in 1962. It would be ironic if, because of the remedial procedures found in the 1977 Act, foreign nationals like the appellant could now be said to have a foundation for a complaint under the Charter while they would have had none if they had been totally ignored in the 1977 Act! [Emphasis added.]

[29]      Even though the Supreme Court quashed the Court of Appeal judgment, in my opinion the comments by Létourneau J.A. are still valid. Since the 1977 Act did not correct the "injustice" resulting from the 1947 Act, it is in my view the latter Act which prevents the plaintiffs from obtaining Canadian citizenship. In the passage from p. 388 of the Supreme Court's judgment in Benner, supra, Iacobucci J. stated that "the important point is not the moment at which the individual acquires the status in question, it is the moment at which that status is held against him or disentitles him to a benefit. Here, that moment was when the respondent Registrar considered and rejected the appellant's application".

[30]      In the case at bar, I feel that the "moment" referred to by Iacobucci J. in Benner is February 14, 1977, the date chosen by Parliament through s. 3(1)(d) of the 1977 Act for "crystallizing" the right to citizenship of persons born before February 15, 1977. As I have already mentioned, the only exception to this rule is that concerning persons like Mr. Benner born before February 15, 1977, but after January 1, 1947. Since the date chosen by Parliament precedes the coming into effect of s. 15 of the Charter, in my view that section would be retroactively applied in the case at bar.

[31]      In conclusion, there can be no doubt that what the plaintiffs are complaining of is that the 1947 Act did not allow them to acquire Canadian citizenship by a simple formality before the 1977 Act came into effect, unlike persons born abroad before 1947 whose father had the status of a British subject. In my opinion, that inequality occurred before s. 15 of the Charter came into effect.

[32]      Accordingly, in my view the plaintiffs' approach is not based on contemporaneous application of legislation adopted before the Charter came into effect.^[5] What the plaintiffs are actually asking the Court is to go back into the past and correct an event they regard as "unjust". As I have already noted, this "unjust" event results solely from the 1947 Act, which did not allow them to become Canadian citizens by a simple declaration of intent before February 15, 1977.

[33]      Since I consider that in the case at bar s. 15 of the Charter would be applied retroactively, the plaintiffs' application for judicial review will be dismissed.

O T T A W A, Ontario

May 17, 2002

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                       FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                                NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT No.:                                                                     T-2206-99 and T-2207-99

STYLE OF CAUSE:                                                         SANDRA MARY DUBEY v. MCI

BARBARA ALBERTA DUBEY

PLACE OF HEARING:                                                   MONTRÉAL, QUEBEC

DATE OF HEARING:                                                     APRIL 9, 2001

REASONS FOR ORDER BY:                                       NADON J.

DATED:                                                                             MAY 17, 2002

APPEARANCES:

HUGUES LANGLAIS                                                    FOR THE PLAINTIFF

SÉBASTIEN DASYLVA                                                FOR THE DEFENDANT

SOLICITORS OF RECORD:

JOLI-COEUR, LACASSE, GEOFFRION                    FOR THE PLAINTIFF

JETTÉ, ST-PIERRE

MONTRÉAL, QUEBEC

DEPARTMENT OF JUSTICE                                       FOR THE DEFENDANT

MONTRÉAL, QUEBEC