CITIZENSHIP AND IMMIGRATION
Status in Canada
Citizens
Judicial review of Citizenship Officer’s decision rejecting applications for proof of Canadian citizenship—Applications rejected on grounds applicants’ grandfather born in Mexico, out of wedlock, therefore not acquiring Canadian citizenship under former legislation to pass on to descendants— Applicants’ paternal great-grandparents born in Canada but moved to Mexico in early 1920s—Married in religious ceremony in Mexico in 1924 and in civil ceremony in 1937—Son born in 1933—Mexican law only recognizing civil marriages—Applicants’ grandfather, father eventually obtained certificate of Canadian citizenship under legislation in effect then—In considering applications for proof of citizenship at issue, officer concluding applicants’ grandfather not having Canadian citizenship under former legislation because born out of wedlock—Relying on Citizenship Act, s. 3(1)(b) to deny applications because applicants born outside of Canada, neither parent Canadian citizen—Formal validity of marriage governed by law of country where marriage contract entered into—Citizenship officer not erring in finding great-grandparents not legally married in Mexico until 1937— Applicants’ grandfather born when Naturalization Act in force—Act indicating which individuals were British subjects since Canadian citizenship not existing then—Naturalization Act, 1914 not providing for child to acquire status of British subject through mother, regardless of whether child born in, out of wedlock—Under former legislation grandfather could only have acquired status of British subject through father, if born in wedlock—Therefore, grandfather, Mexican citizen at birth, not British subject—Canadian citizenship created by 1947 Citizenship Act—Legislation providing that individuals in grandfather’s circumstances entitled to Canadian citizenship provided had not become alien—Under 1947 Act, not necessary to have been born in Canada to be entitled to Canadian citizenship but essential individual having close connection to country—Requirement individual not have “become an alien” interpreted as meaning “was not an alien”— Grandfather was alien, therefore not entitled to derive Canadian citizenship through Canadian-born mother— Applicants challenging constitutional validity of provisions in current Citizenship Act on grounds continuing discriminatory effects of former citizenship legislation wherein individuals born out of wedlock receiving different treatment—Alleging denied equal benefit of law in violation of Canadian Charter of Rights and Freedoms, s. 15, Bill of Rights—Given Charter coming into effect in 1985, issue involving threshold analysis i.e. whether Charter to be applied retrospectively, retroactively —Applicants trying to rely on infringement of other person’s rights for own benefit—Applicants’ grandfather primary target of discrimination, deemed less worthy of Canadian citizenship because born out of wedlock, not applicants themselves— Applicants must find foundation for claims to citizenship in laws in effect when applications for proof of citizenship rejected (2004)—Citizenship Act, s. 3(1)(b) not drawing any distinction based upon marital status of applicants’ parents—Applicants seeking to give Charter retroactive effect i.e. trying to change historical consequences of repealed legislation so as to confer ex post facto Canadian citizenship on grandfather—Descendants of past victims of discrimination not entitled to relief under Charter, s. 15—Discrimination in issue originating in adverse differential treatment Naturalization Act, 1914 affording to persons born out of wedlock—Naturalization Act, 1914 repealed long before Bill of Rights enacted in 1960—Strong presumption against retroactive operation of legislation—Bill of Rights not rebutting presumption—Moreover, unlike Charter, s. 15, Bill of Rights not guaranteeing individuals equal benefit of law sought by applicants—Merely guaranteeing equality in administration of law—Applicants not entitled to any relief under Charter, Bill of Rights—Application dismissed— Naturalization Act, 1914, R.S.C. 1927, c. 138—Canadian Citizenship Act (The), S.C. 1946, c. 15—Citizenship Act, R.S.C., 1985, c. C-29, s. 3(1)(b)—Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] s. 15—Canadian Bill of Rights, R.S.C., 1985, Appendix III.
Veleta v. Canada (Minister of Citizenship and Immigration) (T-543-04, 2005 FC 572, Mactavish J., order dated 27/4/05, 24 pp.)