Mclean v. Canada (Minister of Citizenship and Immigration), 2001 FCA 10

Date: 20010208

Docket: A-794-99

                                                                                                                                Citation: 2001 FCA 10

CORAM:        NOËL J.A.

EVANS J.A.

SHARLOW J.A.

BETWEEN:

LLOYD LEWIS McCLEAN

Appellant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT

NOËL J.A.

[1]                 This is an appeal from the decision of Associate Chief Justice Richard (as he then was) rendered November 4, 1999 ([1999] 177 F.T.R. 219), dismissing the appellant's application for judicial review of the decision of George Hill, in his capacity of Citizenship Officer, rejecting the appellant's application for Canadian citizenship.

[2]                 The relevant facts are succinctly set out in the decision under appeal:

The applicant, Lloyd Lewis McLean, is an American citizen. The applicant's mother was born in the Province of Saskatchewan on December 21, 1922. The applicant's father was born in the United States in 1921. The applicant's parents were married in 1942 and subsequently moved to Clinton Iowa, where the applicant was born on November 4, 1943.

The applicant's parents divorced and the applicant came to Canada with his mother and sister sometime between 1947 and 1949.

On December 13, 1951, the applicant was granted landing as a permanent resident. He lost his status as a permanent resident when he was first ordered deported on March 7, 1972.

The applicant was the subject of a number of inquiries held pursuant to subsection 11(1) of the Immigration Act, 1970. During these inquiries, the applicant argued that he ought not to be deported from Canada on the basis that he was a Canadian citizen. In each of these inquiries, the Adjudicator determined that the applicant was not a Canadian citizen.

By way of letter dated November 3, 1997, the applicant requested that he be issued a certificate of proof of Canadian citizenship on the basis that he was born in the United States in 1943 to a Canadian born mother. This application was made in the belief that he was entitled to Canadian citizenship pursuant to the Supreme Court decision in Benner v. Secretary of State of Canada [1997] 1 S.C.R. 358.

The respondent treated the application as an application for Canadian citizenship and, by way of a letter dated July 27, 1998, denied the applicant's application.

[3]                 The Citizenship Officer concluded that the appellant did not meet the requirements of paragraph 5(2)(b) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act) and that the Benner decision was of no assistance to him.

[4]                 The appellant's judicial review application against the aforesaid decision of the Citizenship Officer was denied by the Associate Chief Justice and the present appeal ensued.

[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:

[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:

(My emphasis)

[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.

[9]                 The Benner decision which was referred to in the ruling made by the Citizenship Officer dealt with an individual who was born after 1947 and therefore who qualified under paragraph 5(2)(b). However, at the relevant time, children born of a Canadian mother (in contrast with children born of a Canadian father) were subjected to the further requirement that they complete security checks and take an oath of allegiance. The Supreme Court of Canada held that these requirements (which have since been removed) violate subsection 15(1) of the Charter insofar 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.

[10]            I now turn to the decision is issue. The judicial review application was dismissed on four grounds:

        1)     The application was properly processed as a request pursuant to paragraph 5(2)(b);

        2)     The Benner decision does not support the appellant's assertion that he is entitled to Canadian Citizenship;

        3)     Section 15 of the Canadian Charter of Rights and Freedoms does not apply in the applicant's circumstances;

        4)     In any event, granting the appellant Canadian citizenship on the ground that the differential distinctions preventing such a grant is contrary to section 15 of the Charter would involve a retroactive and retrospective application of the Charter.

[11]            Counsel for the appellant argued before us that the motions Judge erred when he held that his application was properly processed pursuant to paragraph 5(2)(b). She asserted that at the relevant time, the appellant was a Canadian citizen pursuant to paragraph 3(1)(d) of the Act and that his application ought to have been treated accordingly:

Relying on the Benner decision, counsel submits that the appellant was and continues to be a Canadian citizen pursuant to paragraph 3(1)(d) because, but for the discrimination based on his maternal lineage, he would have been a citizen prior to 1977 as this provision contemplates, by virtue of section 4 of the 1947 Act.

[12]            Counsel adds that the motions Judge committed a related error when he held that the Benner decision is limited to the constitutionality of paragraph 5(2)(b). According to the appellant, the Benner decision stands for the broader proposition that it is discriminatory to treat children born abroad as having different rights based on the gender of the parent on whom they base their claim to citizenship; the differential distinction which is relied upon to deny citizenship in this instance can no more withstand Charter scrutiny than paragraph 5(2)(b) as it read prior to the Benner decision.

[13]            Finally, the appellant submits that the motions Judge erred when he held that applying subsection 15(1) of the Charter in this instance would result in a retroactive or retrospective application of the Charter. Specifically, counsel argued that it was not open to the motions Judge to find on the evidence before him that the applicant was "confronted" by his citizenship status and "engaged" the provisions of the Citizenship Act before section 15 of the Charter came into force.

Decision

[14]            I am prepared to decide this appeal on the basis that the reasoning in Benner applies to person born in wedlock outside Canada to Canadian born mothers prior to January 1, 1947. However, in order to succeed, it was incumbent upon the appellant to convince the Court that his invocation of the Charter, if otherwise justified, would not give rise to its retroactive or retrospective application. That, he has failed to do.

[15]            The circumstances which give rise to a retroactive or retrospective application of the Charter were canvassed at length in Benner. The question was said to be [para. 45]:

... 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?

[16]            In Benner, it was argued that the key point in the chronology of events which led to the Charter claim was the appellant's birth in 1962. That is when the rights granted under the Citizenship Act would have "crystallized". The argument was quickly rejected [para. 51]:

I am uncomfortable with the idea of rights or entitlements crystallizing at birth, particularly in the context of s. 15. This suggests that whenever a person born before April 17, 1985, suffers the discriminatory effects of a piece of legislation, these effects may be immunized from Charter review. Our skin colour is determined at birth -- rights or entitlements assigned on the basis of skin colour by a particular law would, by this logic, "crystallize" then. Under the approach proposed by the respondent, individuals born before s. 15 came into effect would therefore be unable to invoke the Charter to challenge even a recent application of such a law. In fact, Parliament or a legislature could insulate discriminatory laws from review by providing that they applied only to persons born before 1985.

[17]            Iacobucci J., speaking for a unanimous Court, went on to devise the proper approach [para. 55]:

In my opinion, the appellant's situation is more analogous to that of the plaintiff in Andrews, supra. Mr. Andrews applied to practise law in British Columbia. Section 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, required him to be a Canadian citizen, which he had never been. In holding that this provision violated s. 15(1) of the Charter, this Court did not focus on the date on which Mr. Andrews became an alien (the date of his birth), but rather on the date on which he was confronted by a law which took his lack of Canadian citizenship into account. I believe the same approach is appropriate here, ... (My emphasis).

[18]            He added at paragraph [56]:

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. (My emphasis).

[19]            In the present case, the motions Judge found as a fact that the appellant was confronted by and had engaged the provisions of the Act on numerous occasions long before the Charter came into force. The record before him established that the appellant was first deported for narcotics convictions on March 7, 1972. He was subsequently deported 12 times for narcotics convictions and Immigration Act matters. Each time the appellant was to be deported he was brought for inquiry under the Immigration Act. At each of these inquiries the appellant asserted that he was a Canadian citizen and had acquired Canadian citizenship from his mother who was Canadian at the time of his birth. Each time the appellant made these assertions he was advised that he was not a citizen and that he could not have acquired that citizenship from his mother. (Appeal Book, tab 6, pp. 73, 82, 85, 103, 110, 119, 140, 145, 149, 154 and 162).

[20]            The motions Judge noted in his reasons that at these inquiries, where a person claims to be a Canadian citizen, the inquiry must be adjourned if it is determined that, but for the person's claim of citizenship, a removal order would be made. The adjournment is for the purpose of allowing the person to apply for the issuance of a certificate of citizenship pursuant to subsection 12(1) of the Act. In this case, no such application was made during the adjournments, and the adjudicator at each stage upon reviewing the evidence relevant to the appellant's claim of citizenship concluded that it had not been made out.

[21]            Counsel nevertheless argued that there was no evidence that the appellant engaged the provisions of the Citizenship Act per se because he had never formally applied to be granted Canadian citizenship or to be recognized as a Canadian citizen.

[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."

[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.

[25]            For these reasons, I would dismiss the appeal. As no costs were sought, none are awarded.

(Sgd.) "Marc Noël"

J.A.

I agree

"John Evans, J.A."

I agree

"K. Sharlow, J.A."

February 8, 2001

Vancouver, British Columbia

Date: 20010208

Docket: A-794-99

CORAM:     NOËL, J.A.

EVANS, J.A.

SHARLOW, J.A.

BETWEEN:

                                 LLOYD LEWIS MCLEAN

                                                                                                   Appellant

                                                    - and -

           THE MINISTER OF CITIZENSHIP

                                    AND IMMIGRATION

                                                                                               Respondent

Heard at Vancouver, British Columbia on February 7, 2001.

JUDGMENT delivered at Vancouver, British Columbia on February 8, 2001

REASONS FOR JUDGMENT BY:                                NOËL, J.A.

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                        A-794-99

STYLE OF CAUSE:                                        Lloyd Lewis McClean

v.

MCI

PLACE OF HEARING:                                                Vancouver, British Columbia

DATE OF HEARING:                                                  February 7, 2001

REASONS FOR JUDGMENT BY              NOËL, J.A.

CONCURRED IN BY:                                                 Evans, J.A. and Sharlow, J.A.

DATED:                                                                           February 8, 2001

APPEARANCES:

Ms. Catherine Sullivan                                        For the Appellant

Ms. Brenda Carbonell                                        For the Respondent

SOLICITORS OF RECORD:

Catherine Sullivan

Barrister & Solicitor

Vancouver, BC                                                                 For the Appellant

Morris Rosenberg

Deputy Attorney

General of Canada                                                             For the Respondent