[1994] 3 .F.C 480
T-1974-91
Robert Crease (Plaintiff)
v.
Her Majesty the Queen in Right of Canada, the Minister of Multiculturalism and Citizenship and the Registrar of Canadian Citizenship (Defendants)
Indexed as: Crease v. Canada (T.D.)
Trial Division, Wetston J.—Ottawa, November 29, 1993; May 18, 1994.
Citizenship and Immigration — Status in Canada — Citizens — Application to determine preliminary questions of law in action for grant of citizenship under Citizenship Act, s. 5(2)(b) — Plaintiff born in Venezuela in 1943 — Mother British subject, not Canadian at time of birth, as Canadian citizenship non-existent until first Citizenship Act of 1947 — Act, s. 5(2)(b) allowing children born abroad to Canadian citizen mothers between January 1, 1947 and February 15, 1977 to apply for grant of citizenship — Plaintiff unsuccessfully alleging discrimination on basis of age under Charter, s. 15(1).
Constitutional law — Charter of Rights — Equality rights — Plaintiff born before 1947 outside Canada to British subject mother married to foreign national — Unable to apply for citizenship as mother not “citizen” at time of birth as required by Citizenship Act, s. 5(2)(b) — Seeking retrospective application of Charter, s. 15(1) — Distinction in treatment as plaintiff denied equal benefit of applying for citizenship under s. 5(2)(b) — Not every distinction discriminatory — Distinction not based upon enumerated ground of age — Plaintiff’s rights under Charter, s. 15(1) not infringed.
Practice — Parties — Standing — Plaintiff directly affected by denial of application for citizenship under Citizenship Act, s. 5(2)(b) — Whether standing to invoke Charter, s. 15(1) — Public interest standing not applicable as Citizenship Act challenged by private litigant directly affected by law — Citizenship Act domestic law subject to Charter scrutiny — Extraterritorial application of Charter not at issue — Plaintiff having standing to commence action.
This was an application to determine three preliminary questions of law in an action for a declaration of entitlement to a grant of Canadian citizenship under paragraph 5(2)(b) of the Citizenship Act. The plaintiff is a Venezuelan citizen born in 1943 in Venezuela to a woman who, though a Toronto native, was a British subject married to a foreign national. In 1979, he applied for a grant of Canadian citizenship but his application was rejected in that his mother was not a Canadian citizen at the time of his birth. The status of “Canadian citizen” did not exist until January 1, 1947 with the enactment of the first Citizenship Act. This Act was repealed and replaced by the 1977 Act which allowed the children born abroad to Canadian citizen mothers between January 1, 1947 and February 15, 1977 to apply for a grant of citizenship. The plaintiff was still unable to apply for citizenship under that Act since he was born before 1947 and his mother was not a citizen at the time of his birth. He argued that the present Act discriminated against him when he applied for citizenship in 1979 as well as 1989. The three preliminary questions of law to be determined in this application were whether 1) the plaintiff had standing to commence this action; 2) the Charter applied to the facts before the Court; 3) the plaintiff’s rights under subsection 15(1) of the Charter have been infringed or denied.
Held, (1) plaintiff has standing; (2) application of the Charter to the facts herein would be retrospective and that is not permitted; (3) plaintiff’s Charter rights had not been infringed.
1) Standing to commence an action will be established if there is a justiciable issue, namely a legal interest capable of adjudication by the courts, and the party seeking the intervention of the court is directly affected or injured. The plaintiff’s individual rights have been directly affected by the denial of his application for citizenship and there was a sufficient causal link between the requested declaration of unconstitutionality of paragraph 5(2)(b) of the Act and the remedy requested. The defendants’ argument, that the plaintiff has no standing to invoke the protection of the Charter because he is a non-citizen residing outside Canada, raised the question of the extraterritorial application of the Charter. The primary concerns regarding the extraterritorial application of the Charter in extradition cases are not present in the citizenship context and therefore, the line of authority dealing with extradition is not a bar to the application of the Charter herein. The considerations relevant to public interest standing cases are not necessarily applicable since the Citizenship Act was being challenged by a private litigant who was directly and personally affected by the law. The plaintiff was not expressly excluded from either the capacity to bring a Charter action under subsection 24(1) nor was he expressly disentitled from the equality rights conferred by subsection 15(1), as both provisions utilize the phrase “every individual.” While there are international policy implications associated with citizenship, it is domestic law which ultimately determines state citizenship and is subject to Charter scrutiny. Another fact weighing in favour of granting standing to the plaintiff is that he has a direct connection to Canada by birth to a Canadian born mother.
2) Both parties agreed that the Charter cannot be applied retrospectively and that subsection 15(1) cannot be used to remedy discrimination which had its full effect prior to April 17, 1985. When dealing with the retrospective application of the Charter, two types of cases had to be distinguished: the “event-related” case where a discrete event occurred before the Charter came into force, and the “status related” case in which regard is to be had to an ongoing state of affairs. A Charter remedy is unavailable in a pre-Charter event related case. Section 15 of the Charter is broad enough to protect against discrimination involving an ongoing condition or status. When a discrete event does give rise to an ongoing status, it is necessary to examine the provision, in this case paragraph 5(2)(b), to determine whether it is event or status related. Paragraph 5(2)(b) focuses on the date of birth as an important factor in determining a person’s status that gives rise to an entitlement to citizenship. Since citizenship did not exist prior to 1947 in Canada, paragraph 5(2)(b) is event driven and therefore, the application of subsection 15(1) to the facts before the Court would be retrospective.
3) A distinction in treatment has been made with respect to the plaintiff as he was denied the equal benefit of applying for citizenship under paragraph 5(2)(b) of the Act, but not every distinction in the law can be considered discriminatory. The distinction herein is made between two broad groups of people, those born before January 1, 1947, and those born after that date. Neither category is defined by a particular age which is relevant to the differential treatment they have received. The plaintiff was not denied citizenship because he was a particular age in 1947. Being born before a certain date is not the same as a distinction dependent upon being a particular age at a certain date. Therefore, the differential treatment accorded to the plaintiff was not based upon the enumerated ground of age but upon other considerations, particularly the status of his mother when he was born. The plaintiff’s rights under subsection 15(1) of the Charter have not been infringed or denied.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada Pension Plan, R.S.C. 1970, c. C-5, s. 53.2 (as enacted by S.C. 1976-77, c. 36, s. 7).
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], ss. 3, 6, 7, 12, 15(1), 20(1), 23, 24(1), 32(1).
Canadian Citizenship Act (The), S.C. 1946, c. 15 (later Canadian Citizenship Act, R.S.C. 1952, c. 33), ss. 4, 5.
Citizenship Act, S.C. 1974-75-76, c. 108 (now R.S.C., 1985, c. C-29), ss. 3(1), 5(2)(b), 22 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 11).
Extradition Act, R.S.C., 1985, c. E-23, s. 25.
Federal Court Rules, C.R.C., c. 663, R. 474(1).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 19(2)(a)(i).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; R. v. Swain, [1991] 1 S.C.R. 933; (1991), 75 O.R. (2d) 388; 71 D.L.R. (4th) 551; 63 C.C.C. (3d) 481; 5 C.R. (4th) 253; 3 C.R.R. (2d) 1; 125 N.R. 1; 47 O.A.C. 81.
APPLIED:
Murray v. Canada (Minister of Health and Welfare), [1994] 1 F.C. 603; (1993), 69 F.T.R. 297 (T.D.); Benner v. Canada (Secretary of State), [1992] 1 F.C. 771; (1991), 43 F.T.R. 180 (T.D.); affd [1994] 1 F.C. 250; (1993), 155 N.R. 321 (C.A.); leave to appeal to S.C.C. granted 10/3/94, No. 23811; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; (1990), 76 D.L.R. (4th) 545; 91 CLLC 17,004; 2 C.R.R. (2d) 1; 118 N.R. 1; 45 O.A.C. 1.
DISTINGUISHED:
Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1 W.W.R. 97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24 C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; (1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23 Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338; Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; (1991), 84 D.L.R. (4th) 438; 67 C.C.C. (3d) 1; 8 C.R. (4th) 1; 129 N.R. 81; Canadian Council of Churches v. Canada, [1990] 2 F.C. 534; (1990), 68 D.L.R. (4th) 197; 44 Admin. L.R. 56; 46 C.R.R. 290; 36 F.T.R. 80; 10 Imm. L.R. (2d) 81; 106 N.R. 61 (C.A.); affd Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; (1992), 88 D.L.R. (4th) 193; 2 Admin. L.R. (2d) 229; 5 C.P.C. (3d) 20; 8 C.R.R. (2d) 145; 16 Imm. L.R. (2d) 161; 132 N.R. 241; Ruparel v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 615; (1990), 11 Imm. L.R. (2d) 190 (T.D.).
REFERRED TO:
Thorson v. Attorney-General of Canada et al. (No. 2) (1971), 22 D.L.R. (3d) 274 (Ont. H.C.); R. v. A, [1990] 1 S.C.R. 995; (1990), 55 C.C.C. (3d) 562; 77 C.R. (3d) 219; 47 C.R.R. 225; 36 Q.A.C. 144; Winner v. S.M.T., [1951] S.C.R. 887; R. v. Stevens, [1988] 1 S.C.R. 1153; (1988), 41 C.C.C. (3d) 193; 64 C.R. (3d) 297; 86 N.R. 85; 28 O.A.C. 243; R. v. Gamble, [1988] 2 S.C.R. 595; (1988), 31 O.A.C. 81; 45 C.C.C. (3d) 204; 66 C.R. (3d) 193; 89 N.R. 161; R. v. Turpin, [1989] 1 S.C.R. 1296; (1989), 48 C.C.C. (3d) 8; 69 C.R. (3d) 97; 39 C.R.R. 306; 96 N.R. 115; 34 O.A.C. 115; Schachter v. Canada, [1988] 3 F.C. 515; (1988), 52 D.L.R. (4th) 525; 20 C.C.E.L. 301; 9 C.H.R.R. D/5320; 88 CLLC 14,021; 18 F.T.R. 199 (T.D.); affd [1990] 2 F.C. 129; (1990), 66 D.L.R. (4th) 635; 29 C.C.E.L. 113; 90 CLLC 14,005; 34 F.T.R. 80; 108 N.R. 128 (C.A.); Symes v. Canada, [1993] 4 S.C.R. 695; (1993), 110 D.L.R. (4th) 470; 161 N.R. 243.
AUTHORS CITED
Dictionary of Canadian Law. Toronto: Carswell, 1991, “claim”.
Galloway, D. “The Extraterritorial Application of the Charter to Visa Applicants” (1991), 23 Ottawa L. Rev. 335.
Kaplan, W. Belonging: The Meaning and Future of Canadian Citizenship. Montréal: McGill-Queen’s Univ. Press, 1993.
Osborne’s Concise Law Dictionary, 6th ed. London: Sweet & Maxwell, 1976, “claim”.
Roach, Kent. Constitutional Remedies in Canada. Aurora, Ont.: Canada Law Book Inc., 1994.
APPLICATION to determine three preliminary questions of law in an action for a grant of Canadian citizenship under paragraph 5(2)(b) of the Citizenship Act. Plaintiff found to have standing but Charter rights not infringed. Application of Charter would be retrospective.
COUNSEL:
Ian S. Epstein and Rissa H. Revin for plaintiff.
Debra M. McAllister for defendants.
SOLICITORS:
Blaney, McMurtry, Stapells, Toronto, for plaintiff.
Deputy Attorney General of Canada for defendants.
The following are the reasons for order rendered in English by
Wetston J.: This application is brought pursuant to Rule 474(1) of the Federal Court Rules [C.R.C., c. 663] to determine three preliminary questions of law which have come before the Court by order of Giles A.S.P., dated March 19, 1993. The plaintiff, Robert Crease, has brought an action seeking a declaration that he is eligible for a grant of Canadian citizenship pursuant to paragraph 5(2)(b) of the Citizenship Act, S.C. 1974-75-76, c. 108 (now R.S.C., 1985, c. C-29) (the “1977 Act”).
FACTS
The plaintiff, Mr. Crease, is a Venezuelan citizen who was born in the city of Caracas, Venezuela, on April 3, 1943. The plaintiff continues to reside in Venezuela, although he was present in Canada at the time that the statement of claim in this action was filed. His mother was born in Toronto in 1904 but left Canada in 1932, when she met and married the plaintiff’s father, a British subject, and moved with him to Venezuela. The plaintiff attended high school in St. Catherines, Ontario, and received a Bachelor of Arts degree from the University of Toronto in 1964. Mr. Crease has returned to Canada repeatedly throughout his life.
On January 17, 1979, the plaintiff applied to the Minister for a grant of Canadian citizenship pursuant to paragraph 5(2)(b) of the Act. The plaintiff was informed by letter dated May 14, 1979, that his application for citizenship had been rejected for the following reasons:
Until the first Canadian Citizenship Act came into effect on January 1, 1947, there was no such term as “Canadian citizen.” Before that date, Canada was subject to British nationality law and anyone born or naturalized in Canada was a British subject.
As you are aware, the current Citizenship Act, was proclaimed on February 15, 1979. Section 5(2)(b) refers to any person who was born outside of Canada after January 1, 1947, and before the coming into force of this Act, of a mother who was a citizen at the time of his birth. The term “Canadian citizen” did not come into effect until January 1, 1947, the effective date of the first Canadian Citizenship Act. Unfortunately, before that date this term was not interchangeable in Canada with that of British subject. In Mr. Crease’s situation, his mother was a British subject and not a Canadian citizen at the time of his birth in 1943.
The plaintiff later sought clarification of the interpretation of paragraph 5(2)(b) of the Citizenship Act from the then Secretary of State, the Honourable Francis Fox. Mr. Fox reiterated the reasons stated in the original reply, namely that the term “Canadian citizen” did not come into effect until January 1, 1947, and therefore, Mr. Crease’s mother was not a “citizen” at the time of the plaintiff’s birth as required by paragraph 5(2)(b). The plaintiff applied again on October 17, 1989, but was rejected for the same reasons.
Due to the rejection of the plaintiff’s application, an action was commenced in which plaintiff seeks the following:
(a) A declaration that a grant of citizenship is available upon application under paragraph 5(2)(b) of the Act to a person born outside Canada, before January 1, 1947, to a non-Canadian father and to a mother who would have been a citizen at the time of his birth had the Act been in force at that time, on the same terms as a person born outside Canada after December 31, 1946, and before February 15, 1977, to a non-Canadian father and to a mother who was a citizen at the time of his birth;
(b) An order requiring the Minister to authorize an extension of the period of time, if required, in which an application pursuant to paragraph 5(2)(b) of the Act can be made so that the plaintiff may, if necessary, re-apply for a grant of Canadian citizenship under this section;
ISSUES
The following preliminary questions have come before the Court by order of Giles A.S.P. dated March 19, 1993:
(i) does the plaintiff have standing to commence this action?
(ii) does the 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]] apply to the facts before the Court?
(iii) on the facts before the Court, have the plaintiff’s rights under subsection 15(1) of the Canadian Charter of Rights and Freedoms, been infringed and/or denied?
STATUTORY FRAMEWORK
In 1947, the concept of Canadian citizenship was brought into existence with the enactment of the first Canadian Citizenship Act, [The Canadian Citizenship Act, S.C. 1946, c. 15 (later Canadian Citizenship Act, R.S.C. 1952, c. 33)] (hereinafter the “1947 Act”). Sections 4 and 5 [quotes are from R.S.C. 1952, c. 33] of the 1947 Citizenship Act provide as follows:
4. A person born before the 1st day of January, 1947, is a natural-born Canadian citizen
(a) if he was born in Canada or on a Canadian ship and had not become an alien before the 1st day of January, 1947; or
(b) if he was born outside of Canada elsewhere than on a Canadian ship and his father, or in the case of a 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, before the 1st day of January, 1947, that person had 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 31st day of December, 1946, is a natural-born Canadian citizen,
(a) if he is born in Canada or on a Canadian ship; or
(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, under the regulations, authorize in special cases.
These were the provisions in place when Mr. Crease was about four years old. On February 15, 1977, the 1947 Citizenship Act was repealed, and the current Citizenship Act came into force. The 1977 Act amended the above sections to address the discriminatory effect of these provisions which allowed for the automatic grant of citizenship to children born abroad to Canadian fathers or born to Canadian mothers out of wedlock. The children born abroad to Canadian mothers married to foreign national fathers abroad were not entitled under the 1947 Act to an automatic grant of Canadian citizenship. The 1977 Act allowed the children born abroad to Canadian citizen mothers after January 1, 1947, and prior to February 15, 1977, to apply for a grant of citizenship.
The relevant provisions of the 1977 Act are set out below. Subsection 3(1) provides as follows:
3. (1) Subject to this Act, a person is a citizen if
(a) the person was born in Canada after February 14, 1977;
(b) the person was born outside Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen;
(c) the person has been granted or acquired citizenship pursuant to section 5 or 11 and, in the case of a person who is fourteen years of age or over on the day that he is granted citizenship, he has taken the oath of citizenship;
(d) the person was a citizen immediately before February 15, 1977; or
(e) the person was entitled immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the former Act.
Paragraph 5(2)(b) of the Citizenship Act, which the plaintiff challenges, provides as follows:
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, 1979, 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. [Emphasis added.]
1. Standing
In general terms, standing to commence an action will be established if there is a justiciable issue, i.e., a legal interest capable of adjudication by the courts, and the party seeking the intervention of the court is directly affected or injured; Thorson v. Attorney-General of Canada et al. (No. 2) (1971), 22 D.L.R. (3d) 274 (Ont. H.C.); Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607. Borowski and Finlay dealt with the discretion of the Court in granting discretionary public interest standing to challenge the validity of a statutory provision, not private interest standing. The plaintiff submits that his individual rights have been directly affected by the denial of his application for citizenship and, therefore, has standing to seek a declaration that paragraph 5(2)(b) is constitutionally invalid. He does not rely upon the doctrine of public interest standing. However, Mr. Crease is a non-citizen residing outside Canada who seeks to avail himself of the protections afforded by the Charter. Indeed, his claim is dependent upon Charter relief. The defendants contend that the Charter has no extraterritorial application and, therefore, Mr. Crease has no standing to seek such relief.
In Finlay, supra, the question whether the plaintiff, a recipient of social assistance, was directly affected by federal transfer payments to the Government of Manitoba was answered in the negative. The link between the alleged unlawfulness of the payments and the remedy requested by the respondent, Finlay, supra, was in the words of Le Dain J., at page 624:
… too indirect, remote or speculative to be a sufficient causative relationship for standing under the general rule.
In this case, it is clear that Mr. Crease is directly affected and there is a sufficient causal link between the requested declaration of unconstitutionality and the remedy requested. Thus, standing could be established in the traditional sense. However, this does not, in and of itself, satisfy the question of whether Mr. Crease has standing to seek Charter relief. The plaintiff relied on four alternative arguments regarding standing under the Charter. First, it is argued that because Mr. Crease was physically present in Canada when the action was filed, he has standing to invoke the Charter. The plaintiff relies upon Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pages 201-202 where Wilson J., in considering the scope of the application of section 7, stated that “everyone” within section 7:
… includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.
The plaintiff submits that “every individual” in subsection 15(1) should be given the same meaning as Wilson J. gave to “everyone” in section 7. Secondly, counsel for the plaintiff submits that the Charter applies to non-citizens outside Canada, and urges the Court to focus upon “amenable to Canadian law” rather than “physical presence” as the determinative factor in determining whether the Charter can be invoked by the plaintiff. He contends that since other Charter sections specifically apply to citizens or permanent residents (section 3, subsections 6(1), 6(2), 20(1)), one must read “every individual” as all inclusive, since subsection 15(1) includes no express qualification or limitation upon its application. Thirdly, it is contended that subsection 32(1) of the Charter applies to all matters within the authority of Parliament and thus, the Charter should be applied equally to all individuals subject to Canadian law whether or not they are present in Canada. Fourthly, it was argued that the particular nature of the plaintiff’s claim allows for standing. Essentially it was argued that it would be contrary to the values of the Charter to deny the plaintiff standing on the basis that he lacks Canadian citizenship as it is the denial of this status which he is seeking to challenge as discriminatory.
The defendants contend that whether the plaintiff claims to have sufficient private interest standing or satisfies the requirements for public interest standing, he is a non-citizen residing outside Canada and, therefore, has no standing to invoke the protection of the Charter. To apply the Charter would amount, in the submission of the defendants, to giving the Charter extraterritorial effect. The defendants submit that only in exceptional circumstances has the Charter been applied in such a manner; R. v. A, [1990] 1 S.C.R. 995, at page 1001. The defendants argue that the Court should be concerned with the proper allocation of judicial resources and that a broad finding that the Charter applies to aliens outside of Canada would severely jeopardize the access of both Canadian citizens and aliens resident in Canada to the courts. These cautions have been traditionally considered by the courts in cases where public interest standing has been invoked.
The question of the extraterritorial application of the Charter has arisen in the context of extradition proceedings. In Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, the Supreme Court held that the guarantee against cruel and unusual punishment in section 12 of the Charter does not apply to section 25 of the Extradition Act, R.S.C., 1985, c. E-23, which allows the Minister of Justice to make the final decision regarding the surrender of a fugitive. Cory J. describes the approach that should be taken in applying the Charter in an extradition context as follows, at page 819:
Although the Charter has no extraterritorial application, persons in Canada who are subject to extradition proceedings must be accorded all the rights which flow from the Charter. The approach to be taken is indicated by this court in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. In that case the refugee claimants contended that Canada’s decision not to extend Convention refugee status to them placed them at risk that they would be prosecuted in their home country for their political beliefs. Wilson J., for the plurality, found that this decision deprived the claimants of their s. 7 right to security of the person and that this was sufficient to trigger the protection of the Charter. Specifically, Wilson J., stressed that the Charter affords freedom not only from actual punishment but also from the threat of punishment. [Own emphasis.]
Moreover, at page 845 of Kindler, supra, McLachlin J. stated:
For the same reasons, this Court has emphasized that we must avoid extraterritorial application of the guarantees of our Charter under the guise of ruling extradition procedures unconstitutional. As La Forest J. put it in Schmidt, at p. 518, “the Charter cannot be given extraterritorial effect to govern how criminal proceedings in a foreign country are to be conducted.” [Own emphasis.]
If Mr. Crease was granted standing, would this, in the words of McLachlin J. in Kindler, supra, at page 846, improperly “cast the net of the Charter broadly in extraterritorial waters”? Caution against imposing our constitutional guarantees on other states was advocated by the Supreme Court. Therefore, it would appear that the Charter should not be applied in an extraterritorial manner to the legal process of a foreign jurisdiction. The extraterritorial application of Canadian law can give rise to friction between nation states. Of course, extradition and citizenship involve vastly different legal and policy considerations. Citizenship law is an important component of a country’s sovereignty whereas extradition (assistance to another country) is a vital component of a country’s criminal justice system. The application of the Citizenship Act, while having both domestic and international implications, does not involve the application of the Charter to the actions of a foreign government or to foreign nationals appearing before foreign courts. Thus, the primary concerns regarding the extraterritorial application of the Charter in extradition cases are not present in the citizenship context. As such, I do not view this line of authority dealing with extradition as a bar to the application of the Charter in this case. Of course, that does not end the matter. Also, it should be noted that the application of the Charter to Canadian citizens resident outside of Canada has not been entirely precluded; R. v. A, supra. However, at this time, only the application of the Charter to Canadian citizens beyond the borders of Canada has been considered by the courts.
Counsel for the defendants relies on two authorities of the Federal Court which circumscribe the capacity of a non-citizen who permanently resides outside of Canada to invoke the protections of the Charter. In Canadian Council of Churches v. Canada, [1990] 2 F.C. 534 (C.A.); affd on other grounds, [1992] 1 S.C.R. 236, the Council sought public interest standing in a declaratory action challenging certain provisions of the Immigration Act, 1976, S.C. 1976-77, c. 52, as unconstitutional. In addition to the question of public interest standing, the Court also considered whether the statement of claim disclosed a reasonable cause of action. In considering various aspects of a very “wide, sweeping and disjointed” statement of claim, MacGuigan J.A. in the Court of Appeal, stated at page 563:
In paragraph 15 the respondent claims violations of sections 2, 7, 8 and 10(b) of the Charter in relation to certain criminal sanctions, including those which criminalize the aiding and abetting of the entry into Canada of persons not in possession of required visas, passports or travel documents. In my analysis all such provisions can effectively be challenged by the claimants themselves or by the other persons who may also be charged with infractions, with the possible exception of the claim in paragraph 15(b) to the effect that, by deterring lawyers from giving proper advice to undocumented refugees through threat of sanctions, the Act may deny claimants the right to counsel. This could found a right of standing, but cannot constitute a reasonable cause of action since the claimants affected would all be non-citizens outside Canada with no claim to admission, and therefore beyond the scope of the Charter. [Emphasis added.]
The Supreme Court of Canada denied the Canadian Council of Churches standing to challenge the constitutionality of various provisions of the Immigration Act, 1976 on the basis that refugee claimants who were directly affected could themselves challenge the provisions. While the Court was concerned that laws not be immunized from review (a rationale for public interest standing) it also had to consider the impact of allowing such claims on strained judicial resources; K. Roach, Constitutional Remedies in Canada, 1994, at pages 5-11 and 5-12. It is my view that in the case at bar, the considerations relevant to public interest standing cases are not necessarily applicable since the Citizenship Act is being challenged by a private litigant who is directly and personally affected by the law. The Supreme Court in Canadian Council of Churches, supra, did not address the question of the application of the Charter to non-citizens, nor did they consider the comments of MacGuigan J.A. cited above.
Canadian Council of Churches, supra, was applied by Muldoon J. in Ruparel v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 615 (T.D.). Mr. Ruparel applied for permanent residence from the United Kingdom but was refused on the basis that he was an inadmissible person under subparagraph 19(2)(a)(i) of the Immigration Act, 1976, S.C. 1976-77, c. 52. He had a conviction for drunk driving in England. The impugned provision required a waiting period of five years if the applicant was over 21 years old at the time of the offence. If the applicant was under 21, the provision required only a two-year waiting period. Mr. Ruparel contended that subparagraph 19(2)(a)(i) of the Immigration Act, 1976 was discriminatory on the basis of age and therefore, contrary to subsection 15(1) of the Charter.
Mr. Justice Muldoon concluded that the provisions under review violated subsection 15(1) of the Charter, but reluctantly dismissed the claim because the plaintiff was not physically present in Canada and, therefore, had no cause of action. Muldoon J. applied Singh, supra, concluding that physical presence in Canada was a condition precedent to invoking all those Charter rights not reserved for citizens; D. Galloway, “The Extraterritorial Application of the Charter to Visa Applicants” (1991), 23 Ottawa L. Rev. 335. Both Canadian Council of Churches, supra, and Ruparel, supra, were cases under the Immigration Act, 1976. The former dealt with refugee matters, the latter with an application for permanent residence. The case at bar involves an application for citizenship and I will consider later whether Mr. Crease has a “claim to admission” unlike the non-citizens in the Canadian Council of Churches decision, supra, and Ruparel, supra.
While I am of the opinion that Mr. Crease has been directly affected by the alleged unconstitutional provision of the Act and that public interest standing considerations should not apply, the defendants argue that in considering the issue of standing generally, the Court must always balance access to the courts with the allocation of judicial resources. In particular, the defendants argue that a number of the same considerations that the courts have adopted regarding the test for public interest standing should be adopted for non-resident, non-citizen actions dependent upon the Charter. The defendants submit that to allow the resources of the Court to be taken up by Charter actions instituted by aliens outside Canada would be unfair to litigants, both aliens and citizens resident in Canada. This submission dictates that physical presence in Canada be the determinative factor with respect to the ability of a private litigant to invoke the Charter.
For the purposes of determining whether Mr. Crease is entitled to invoke the Charter, I do not accept that arguments of judicial resources are persuasive in this case. In Canadian Council of Churches, supra, Cory J., writing for the Court, comments on the role of the courts as follows, at page 252:
It is essential that a balance be struck between ensuring access to the courts and preserving judicial resources. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants.
The case brought by the plaintiff is fundamentally different from that considered by Cory J. above, in that Mr. Crease is a private litigant. The courts appear to make reference to citizens when considering issues of standing. At page 250 of Canadian Council of Churches, supra, Cory J. quotes from Martland J. in Canada v. Borowski, supra:
… to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court. [Own emphasis.]
Borowski, supra, was also a public interest standing case. Further, at page 250, Cory J. refers to citizens wherein he states:
The rule of law is thus recognized as a corner stone of our democratic form of government. It is the rule of law which guarantees the rights of citizens to protection against arbitrary and unconstitutional government action. This same right is affirmed in s. 52(1) …. [Own emphasis.]
However, I do not believe that the reference to citizens restricts the invocation of the Charter to only such persons, Singh, supra. The issue to be determined is whether Mr. Crease, as a directly affected non-citizen outside Canada, has standing to invoke the Charter. This determination requires the consideration of two further questions:
(a) Does the Charter exclude Mr. Crease from initiating the proceeding?
(b) Does Mr. Crease have a claim to apply for a grant of citizenship?
(a) Exclusion
Mr. Crease is not expressly excluded from either the capacity to bring a Charter action under subsection 24(1) nor is he expressly disentitled from the equality rights conferred by subsection 15(1). Both provisions utilize the phrase “every individual” and as indicated previously, other provisions of the Charter make reference to “every citizen” (mobility rights, section 6), “citizens of Canada” (minority language educational rights, section 23), “permanent residents” (mobility rights, section 6), and “members of the public in Canada” (official languages, subsection 20(1)).
The plaintiff submits that if a limitation on the application of subsection 24(1) or subsection 15(1) was intended, then Parliament would have manifested such a limitation as in other parts of the Charter. It is also contended that subsection 15(1) should be interpreted in accordance with its plain and ordinary meaning so that it can be relied upon by persons who, regardless of their physical presence in Canada, are “amenable to Canadian law.”
Professor D. Galloway, supra, comments on this as follows, at page 339:
Second, physical presence in Canada was not presented by Wilson J. in Singh as a factor which is important in itself. Her precise words should be noted. The word “everyone” was held to include “every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law”. Wilson J. raised the issue of physical presence only because those who are in Canada are amenable to Canadian law. It was this latter factor that was the salient one. Singh had a cause of action because he was subject to Canadian law. The more reasonable extrapolation from her precise words is that everyone who is amenable to Canadian law, whether or not they find themselves in Canada, is embraced by the relevant sections of the Charter. [Footnotes omitted.]
While I can accept such an interpretation, the meaning of “amenable to Canadian law” must still be considered. Mr. Crease lives in Venezuela so it cannot be said that he is accountable or answerable to the laws of Canada in a general sense. He is, however, subject to Canadian citizenship law and he has been deprived of the recognition of his birth to a Canadian mother by paragraph 5(2)(b) of the Act. Does this make him amenable to Canadian law? Singh, supra, was dealing with a refugee situation in which the application of the Charter to the claimants before the Court was conceded by the crown. The question of the scope of the Charter before Wilson J. emanates from the perspective of inclusion rather than exclusion. In addition, section 7, which protects the security of the person from the arbitrary action of the state, is fundamentally different from subsection 15(1) which provides protection against discriminatory state action. Mr. Crease has been deprived of a benefit which he alleges is based upon a discriminatory distinction. In my view, neither the provisions of the Charter nor the language of Wilson J. in Singh, supra, precludes standing in this case.
(b) The Claim
Osborne’s Concise Law Dictionary, 6th ed. defines claim as “the assertion of a right.” Dukelow & Nuse, The Dictionary of Canadian Law defines claim as “[t]he demand or the subject matter for which any action, suit, or proceeding is brought.”
Citizenship itself is not a right but rather a political status conferred by the state; Winner v. S.M.T., [1951] S.C.R. 887, at pages 918-919; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at page 196. While the Citizenship Act has international implications it is essentially a domestic law. As indicated previously, certain rights are only available to citizens; the right to vote, to become members in the House of Commons or a provincial legislature, the right to freedom of movement and the right to obtain a minority-language education. The defendants submit that the determination of who shall be recognized as a Canadian citizen is a policy matter involving considerations such as national security, the impact of Canadian citizenship on foreign states and Canada’s national identity. Obviously, the power to confer citizenship is an inherent part of a nation’s sovereignty. In W. Kaplan, Belonging: The Meaning and Future of Canadian Citizenship, (Montréal: McGill-Queen’s University Press, 1993), at page 250, the author states:
It is fair to say that the most fundamental principle underlying all legal entitlements to citizenship is the existence of a connection with the state.
Connection is established by legal title, and most nationality legislation is based on one of the following titles, or on a combination of them: (a) jus soli; (b) jus sanguinis; (c) marriage; (d) incorporation of territory; (e) option in special circumstance; (f) adoption, legitimation, and recognition of paternity; or (g) naturalization. Of these, jus soli, jus sanguinis, and naturalization are the most common methods of acquiring citizenship in a state.
Jus soli is the rule under which nationality is acquired by the mere fact of birth within the territory of the state (although by international custom, it does not apply to the birth of children of diplomatic staff, and so on, born on the territory of the receiving state). Depending on the particular country, the nationality of the parents may or may not be relevant. Jus sanguinis provides that nationality is acquired by descent wherever the child is born. Application of this rule varies considerably from one country to the next. Historically, jus sanguinis has been limited to transmission of the nationality of the father only or, where the mother was unmarried, to allow for transmission of her nationality. Most countries have now amended their domestic legislation so as to do away with this discriminatory characteristic. [Footnotes omitted.]
Canadian nationality law incorporates a number of the methods of acquiring citizenship discussed by Kaplan above. Paragraphs 3(1)(b) and 5(2)(b) of the Act in particular operate on the basis of jus sanguinis. The historical discrimination referred to by Kaplan was removed from the Canadian law in 1977. Mr. Crease claims however, that a discriminatory effect remains in the operation of the jus sanguinis rule in paragraph 5(2)(b). While there are clearly international policy implications associated with citizenship, there is little doubt that it is domestic law which ultimately determines state citizenship and that this law is subject to Charter scrutiny. The question of course is whether Mr. Crease has the capacity to put this process of Charter scrutiny into motion. An important consideration with respect to this question is the connection Mr. Crease has to Canada.
The plaintiff wishes to obtain citizenship by application of the rule jus sanguinis. In this regard he has a connection to Canada which is based upon his mother’s birth in Canada. However, because his birth was before 1947, this connection is not recognized by paragraph 5(2)(b) and as a result his applications for citizenship have been rejected. In Ruparel, supra, the application for permanent residence was made from outside the country by an individual with absolutely no relationship by birth to Canada and he was held to have no claim. Mr. Crease, however, has a connection by birth to Canada, which I view as a claim to Canada. Nor is this a situation similar to the factual vacuum referred to by MacGuigan J.A. in Canadian Council of Churches, supra, where there were no directly affected claimants before the Court.
The facts of this case, in my view, weigh in favour of granting standing to Mr. Crease. First, the best possible litigant is before the Court as Mr. Crease has been directly affected by the application of the Act. Secondly, this application does not in my view raise concerns regarding the extraterritorial application of the Charter. Thirdly, Mr. Crease has a direct connection to Canada by birth to a Canadian born mother. Finally, a negative finding on standing would put Mr. Crease in the untenable position of being denied standing on the basis that he is a non-citizen when he would be able to make an application to become a citizen but for the very distinction in the Act which he is seeking to challenge under subsection 15(1) as being discriminatory. Therefore, Mr. Crease has standing to commence this action.
2. Retrospectivity
Does the Charter apply to the facts before the Court? The answer to this question depends on whether the Charter is being applied retrospectively. Briefly, the plaintiff submits that the Charter is being applied prospectively and asks the Court to focus its attention on the continued operation and effect of the discrimination contained in paragraph 5(2)(b) of the 1977 Act which is currently in force.
Prior to 1947, there was no status known as Canadian citizenship. Those born in Canada prior to 1947 were British subjects. Between 1947 and 1977 only persons born abroad to Canadian citizen fathers and unwed Canadian citizen mothers were granted citizenship at birth. In 1977, the present Citizenship Act came into force and from that point forward, children born outside Canada to Canadian mothers and fathers would be treated equally. By means of paragraph 5(2)(b) of the 1977 Act, a child born outside Canada to a married Canadian mother between 1947 and 1977 could also apply for a grant of Canadian citizenship. Paragraph 5(2)(b) specifically refers to a person who was born outside Canada to a mother who was a citizen at the time of his birth. Mr. Crease was born in 1943 and his mother was not a citizen at the time of his birth. The present Act continues to accord different treatment to persons born outside of Canada to a Canadian mother before 1947. A person born before 1947 outside Canada of a Canadian father or Canadian unmarried mother could be a citizen if, before 1947, that person obtained permanent residence in Canada or was a minor. Therefore, if this was a paternal or maternal (unmarried woman) case, Mr. Crease would have been eligible for a grant of citizenship. In summary, I would describe Mr. Crease’s status under the law as a person born before 1947 outside of Canada to a Canadian non-citizen mother married to a foreign national. The plaintiff argues that the 1977 Act is currently discriminatory and discriminated against him when he applied for citizenship in 1979 as well as 1989.
Both parties agree that the Charter cannot be applied retrospectively and that subsection 15(1) cannot be used to remedy discrimination which had its full effect prior to April 17, 1985; R. v. Stevens, [1988] 1 S.C.R. 1153. In Murray v. Canada (Minister of Health and Welfare), [1994] 1 F.C. 603 (T.D.), Rothstein J. extensively examined the law relating to the retrospective application of the Charter. After considering R. v. Gamble, [1988] 2 S.C.R. 595, at pages 625-626, Rothstein J. considers two types of cases that involve the application of the Charter. He states, at pages 615-616 as follows:
The first is what may be termed the “event-related” case. This would be a case in which the alleged contravention of the Charter is related to a discrete event which occurred before the Charter came into force. The jurisprudence indicates that in a pre-Charter event related case, an applicant will not have a Charter remedy. Criminal cases often fall into this category, with the time an offence is committed, a conviction entered or sentence imposed being the critical elements. When an offence has been committed, conviction entered or sentence imposed before the coming into force of the Charter, Charter relief will not normally be available to an accused. See for example, R. v. Stevens, supra.
The second type of case that touches on the issue of the retrospective application of the Charter is what may be termed the “status related” case. This is a case in which regard is to be had to an ongoing state of affairs. In such a case, a Charter remedy may be available if it can be demonstrated that there is an ongoing violation of the Charter, even though, for this to be found, there may have to be some cognizance of pre-Charter events.
Recognizing that sharp distinctions between status and event related cases are not always achievable, Rothstein J. suggests that it is necessary to examine the following matters, at page 618:
(i) the provisions of the Charter upon which reliance is placed, (ii) where applicable, the statutory provision being challenged and (iii) the relevant event or ongoing condition.
Firstly, the plaintiff submitted that this is a case involving an ongoing condition or status requiring the application of subsection 15(1) of the Charter. The plaintiff submitted that section 15 of the Charter is broad enough to protect against such discrimination. I am satisfied that it is; Benner v. Canada (Secretary of State), [1992] 1 F.C. 771 (T.D.); affd [1994] 1 F.C. 250 (C.A.); leave to appeal granted (March 10, 1994), No. 23811 (S.C.C.); and Murray, supra, at pages 618-619.
Secondly, the plaintiff, in arguing that paragraph 5(2)(b) creates the alleged discrimination on the basis of status, submitted that paragraph 5(2)(b) of the 1977 Act does not have regard to a discrete date and that the two dates found in the section are of little significance. It is submitted that the first date, February 15, 1977, only determines the date which persons born to Canadian mothers abroad would be entitled to apply for citizenship. The second date, February 15, 1979, is simply a deadline for applications from individuals entitled to apply under this section. Counsel for the plaintiff pointed out that this date has been repeatedly extended by the Minister, most recently until February 1994, thereby suggesting that it is related to an on-going condition. The plaintiff argues that the reference in the section to the date of birth of the plaintiff, i.e., prior to 1947, arises only by implication.
With respect to the third matter, the plaintiff submits that the event in this case, the birth of Mr. Crease, has resulted in an on-going condition, i.e., the status of being a person born outside Canada to a Canadian mother prior to 1947 who is precluded from applying for citizenship. When a discrete event does give rise to an on-going status, it is necessary to examine the section, in this case paragraph 5(2)(b), to determine whether it is event or status related.
In Benner, supra, a majority of the Federal Court of Appeal found that the application of the Charter was retrospective. However, the plaintiff submits that Benner, supra, is inapplicable to the case at bar. In Benner, supra, the applicant was born in wedlock to a Canadian mother and an American father outside Canada in 1962. Subparagraph 5(1)(b)(i) of the 1947 Act provided that a person born outside of Canada after December 31, 1946 was a citizen if his father, or in the case of a child born out of wedlock, his mother, was a Canadian citizen. Prior to 1977, there was no similar benefit accorded maternal lineage. Accordingly, Mr. Benner, at the time of his birth (1962) was not entitled to an automatic grant of citizenship.
In Benner, supra, Létourneau J.A. was of the opinion that since the applicant was alleging discrimination on the basis of maternal lineage, the real complaint was not with paragraph 5(2)(b) of the 1977 Act, but rather with subparagraph 5(1)(b)(i) of the 1947 Act which first distinguished the treatment between children of Canadian mothers and children of Canadian fathers. Paragraph 5(2)(b) eliminated, in part, this discriminatory treatment for the past and fully for the future. It is submitted that Mr. Benner was in fact seeking an automatic grant of citizenship which was not available to him under the circumstances. Subparagraph 5(1)(b)(i) was repealed in 1977, and as such, it ceased to have any effect before the Charter came into effect. In other words, subparagraph 5(1)(b)(i) had its complete effect before subsection 15(1) of the Charter came into force. Benner, supra, was asking the Court to use the Charter to correct an inequality which had its complete effect prior to 1977. In this regard the application of the Charter would be retrospective. The plaintiff also distinguished this case in that Mr. Benner was seeking an automatic grant of citizenship retroactive to the date of his birth and therefore the crucial event was the date of his birth. In this case, counsel contends that Mr. Crease is not seeking to change his citizenship as of 1943. He is only requesting the right to apply for citizenship prospectively.
In Murray, supra, the plaintiff submits that while the Court found that the Charter was being applied retrospectively that case was also distinguishable. In Murray, supra, the plaintiff was alleging that subsection 53.2(1) of the Canada Pension Plan, R.S.C. 1970, c. C-5 [as enacted by S.C. 1976-77, c. 36, s. 7], was discriminatory on the basis of marital status, age and sex. Rothstein J. found that subsection 15(1) was broad enough to cover ongoing discrimination and that divorce was a discrete event which gave rise to an on-going condition of being divorced. In this regard, Rothstein J. returned to focus on the statute and concluded that the provision in issue was event related. The plaintiff argued that in Murray, supra, the focus of subsection 53.2(1) was on two specific dates which resulted in the subsection being characterized as event related. He distinguishes paragraph 5(2)(b) of the 1977 Act by concluding that the date of February 15, 1977, is simply a cutoff date for applications which has been frequently extended. The plaintiff submits that there is a lower cutoff date that arises by implication in that paragraph 5(2)(b) refers to the 1947 Act. I cannot accept this characterization of paragraph 5(2)(b). Paragraph 5(2)(b) specifically makes reference to the former Act and indeed the use of the language “citizen at the time of his birth” requires that the 1947 Act be part of the legislative framework applicable to citizenship.
The defendants took a somewhat different approach in considering the application of the Charter to the facts in this case. In relying upon R. v. Gamble, supra, counsel addressed three matters discussed by Wilson J. at pages 625-630:
(i) What is the event alleged to be in contravention of the Charter?
(ii) What is the nature of the constitutional right which is alleged to have been violated?
(iii) What are the particular facts of the claim?
Regarding the first question, it is submitted that citizenship is a status acquired at birth or is conferred on particular categories of applicants pursuant to the Act. It is contended that the event is the plaintiff’s date of birth, April 3, 1943, since Mr. Crease claims Canadian citizenship by virtue of his mother’s status as a Canadian born British subject. Alternatively, the event is the refusal of Canadian citizenship communicated by letter on May 14, 1979. The nature of the Charter right involved is subsection 15(1) which did not come into force until April 17, 1985. The defendants argue that subsection 15(1) cannot reach back before April 17, 1985, and reverse the legal consequences of fact and law existing before that time. Stated another way by counsel, one cannot use subsection 15(1) to avoid having the law apply as it existed at that time. As to the facts of the claim, the defendants argue that there was no concept of Canadian citizenship before 1947 and that paragraph 5(2)(b) simply excludes persons, like the plaintiff, who were born outside Canada before 1947 of a mother born in Canada but who was not a citizen. Counsel argued that to invoke subsection 15(1) would require reaching back in time to change the legal consequences which attached to the plaintiff on the date of his birth in 1943.
The defendants accept that subsection 15(1) is broad enough to remedy ongoing discrimination and that the birth of Mr. Crease has given rise to an ongoing condition. However, counsel contends that paragraph 5(2)(b) hinges upon the birth of the applicant to a Canadian citizen abroad and that this event must take place after December 31, 1946, since paragraph 5(2)(b) refers to the 1947 Act. The defendants rely upon the opinion of Létourneau J.A. in Benner, supra, at pages 291-292, wherein he held that the alleged discrimination in that case crystallized on the date of Mr. Benner’s birth. Counsel submits that Mr. Crease is in the same position and seeks the retroactive application of the Charter to the facts before the Court.
A date in legislation dictates that considerable emphasis should be accorded the event envisaged therein; Murray, supra, at pages 618-619. Subsection 15(1) of the Charter is applicable to a discrete event of discrimination as well as discrimination of an ongoing nature; Gamble, supra, at pages 627-629; Benner, supra, at pages 291-292; Murray, supra, at pages 618-619. The birth of Mr. Crease has given rise to an ongoing condition or status, being the child, born outside Canada prior to 1947, of a mother born in Canada. Such a person continues to be unable to apply for citizenship under the Citizenship Act. However, it must be determined whether the primary focus of paragraph 5(2)(b) is the date of his birth (the event giving rise to Mr. Crease’s status) or whether it is on his ongoing condition (status).
The Citizenship Act creates categories of individuals who have an entitlement to citizenship based on their place of birth, their date of birth, their nationality and, in some cases, the marital status of their parents. In this case, the combination of these factors makes Mr. Crease a member of a class of individuals who was born abroad to Canadian mothers wed to foreign nationals prior to 1947. Paragraph 5(2)(b) is obviously concerned with the status of those who make an application pursuant to that provision. However, it also focuses on the date of birth as an important factor in determining a person’s status that gives rise to an entitlement to citizenship. It is apparent that, under these circumstances, the focus of the section becomes problematic. The Court is of the opinion that what is of primary importance in the application of paragraph 5(2)(b) is whether Mr. Crease’s mother was a citizen at the time of his birth. Since citizenship did not exist prior to 1947 in Canada, paragraph 5(2)(b) is event driven, and, therefore, the application of subsection 15(1) to the facts before the Court would be retrospective.
3. Discrimination under subsection 15(1)
The plaintiff challenges paragraph 5(2)(b) of the Act as contrary to subsection 15(1) of the 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], which provides as follows:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Both parties agree that the two-fold approach established in Andrews v. Law Society of British Columbia, supra, and adopted in R. v. Turpin, [1989] 1 S.C.R. 1296 is the proper framework to determine whether subsection 15(1) has been breached in this case. First, the party alleging an infringement of subsection 15(1) must establish a violation of one of the four equality rights, namely the rights of equality before and under the law and the rights of equal benefit and equal protection of the law. Secondly, this violation of the right must be shown to be discriminatory in its purpose or effect. The plaintiff submits, and the defendants concede, that the threshold for the satisfaction of the first branch of the test is very low. It need only be established that there is a distinction in treatment which results in the denial of a benefit which is available to others.
In moving to the second stage of the analysis, which requires an examination as to whether the violation of one of the four equality rights is discriminatory in purpose or effect, the plaintiff relies on the statements of McIntyre J. in Andrews, supra, who at pages 174-175 defined discrimination as:
… a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.
The plaintiff submits that if it is positively determined that the distinction is made solely on the basis of an enumerated ground, in this case age, there is no need to engage in an analysis of historical disadvantage or stereotyping to make a finding that the distinction is discriminatory. The plaintiff relies on Schachter v. Canada, [1988] 3 F.C. 515 (T.D.), at pages 528-529; affd [1990] 2 F.C. 129 (C.A.) which held that such an analysis should be reserved for situations in which distinctions are held to be made on the basis of grounds analogous to those enumerated in subsection 15(1).
Counsel for the plaintiff points out that Mr. Crease has the same ties to Canada as a person born abroad to a Canadian mother after December 31, 1946. Under paragraph 4(a) of the 1947 Act, Mr. Crease would have automatically become a Canadian citizen. The plaintiff submits that he has been denied the equal benefit of the law solely on the basis that he was born to a Canadian mother abroad three years and nine months prior to January 1, 1947. Counsel for the plaintiff also pointed out that prior to 1947 Canadian born British subjects travelled on passports which were identified on the front cover as originating from Canada. The plaintiff contends that Canadian born British subjects had all the rights and obligations of Canadian citizens and the distinction in treatment arises only from the arbitrary choice of 1947 as the cutoff date to define individuals who were previously British subjects as Canadian citizens. This distinction, which the plaintiff characterizes as solely age based, precludes an entire group of individuals from the benefit of citizenship without any consideration that those born abroad to Canadian mothers before 1947 have the same ties and connections to Canada as those born abroad to Canadian mothers after 1947.
In Benner, supra, the applicant was born in 1962 in the United States to an American father and a Canadian mother. After the amendments to the Act in 1977, Mr. Benner was entitled to apply for citizenship under paragraph 5(2)(b); however, his application was subject to a review process and particularly section 22 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 11] of the Act which precludes the grant of citizenship to individuals who have been convicted of an indictable offence. At the time of his citizenship application, Mr. Benner was serving a sentence in a Canadian prison for manslaughter. Mr. Benner argued that paragraph 5(2)(b) discriminated on the basis of sex because, if his father had been Canadian citizen, he would have been entitled to an automatic grant of citizenship effective from the date of his birth and section 22 would have no application. Both Marceau J.A. and Létourneau J.A. held that the distinction in treatment was not made upon the enumerated ground of sex. Létourneau J.A. found that this distinction was made upon marital status because under the 1947 Act a child born abroad of an unmarried Canadian mother was entitled to citizenship while the child born abroad of a Canadian mother married to a foreign national could not. Marceau J.A. held that the distinction was drawn on the basis of parental lineage. Both concluded that paragraph 5(2)(b) did not infringe Mr. Benner’s rights under subsection 15(1).
The plaintiff submits that Benner, supra, is also distinguishable with respect to the discrimination issue. In the case at bar, the distinction which denies Mr. Crease the benefit of citizenship does not depend on his mother’s marital status but rather arises from the difference in treatment between those born abroad to Canadian mothers before 1947 and those born abroad to Canadian mothers after 1947 and before January 1, 1977. The latter group is entitled to the benefit of applying for Canadian citizenship, while the former group, of which Mr. Crease is a member, is denied this benefit by the operation of paragraph 5(2)(b). This distinction in treatment is, in the plaintiff’s view, based solely upon the enumerated ground of age.
The defendants concede that the first arm of the two-part test is met in this case in that there has been a distinction which has given rise to a denial of one of the four basic equality rights. However, the defendants submit that the differential treatment accorded to the plaintiff is not based on the enumerated ground of age but rather upon several factors, including the plaintiff’s status as a foreign national, the date on which the legal concept of Canadian citizenship was created and the statutory regime which was in place at the time of the plaintiff’s birth. This distinction arises from the differential treatment of various categories of applicants for citizenship. The defendants submit that none of these distinctions are based upon personal characteristics which are enumerated in subsection 15(1).
The defendants further argue that if the distinctions are based upon personal characteristics which constitute analogous grounds, it is necessary to examine the larger social and political context in order to determine whether the distinction is truly discriminatory; R. v. Turpin, supra, at pages 1331-1332:
In determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also to the larger social, political and legal context….
Accordingly, it is only by examining the larger context that a court can determine whether differential treatment results in inequality or whether, contrariwise, it would be identical treatment which would in the particular context result in inequality or foster disadvantage. A finding that there is discrimination will, I think, in most but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged.
Counsel for the defendants contend that the distinctions made in paragraph 5(2)(b) create a disparate group of individuals born prior to 1947. There is no defining characteristic which draws them together and identifies them as a historically disadvantaged group. Therefore, having established no distinction based on either enumerated or analogous grounds, the defendants submit that paragraph 5(2)(b) does not infringe subsection 15(1) of the Charter.
The Court recognizes that a distinction in treatment has been made with respect to Mr. Crease as he is denied the equal benefit of applying for citizenship under paragraph 5(2)(b) of the Act, but not every distinction in the law can be considered discriminatory; Andrews, supra, at page 168. Rather, subsection 15(1) is intended to promote the ideal that “a law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another”: Andrews, supra, at page 165. The Supreme Court of Canada has provided some guidance in determining when distinctions are in fact discriminatory. Lamer C.J. in R. v. Swain, [1991] 1 S.C.R. 933 reframed the two-part test first set out in Andrews, supra. This approach was recently followed by the majority in Symes v. Canada, [1993] 4 S.C.R. 695. In Swain, supra, Lamer C.J. stated, at page 992:
The court must first determine whether the claimant has shown that one of the four basic equality rights has been denied (i.e., equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This inquiry will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics. Next, the court must determine whether the denial can be said to result in “discrimination”. This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed on others or of withholding or limiting access to opportunities, benefits and advantages available to others. Furthermore, in determining whether the claimant’s s. 15(1) rights have been violated the court must consider whether the personal characteristic in question falls within the grounds enumerated in the section or within an analogous ground, so as to ensure that the claim fits within the overall purpose of s. 15—namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.
Having found that there is a denial of one of the four equality rights, which can be described as the right to apply for citizenship under paragraph 5(2)(b), I will now deal with the plaintiff’s submission that this distinction in treatment is based solely on the enumerated ground of age.
Wilson J. in McKinney v. University of Guelph, [1990] 3 S.C.R. 229 discussed the significance of the enumerated grounds in subsection 15(1) and clarified the approach which should be taken. The case specifically dealt with the enumerated ground of age in the context of mandatory retirement, at pages 392-393:
The grounds enumerated in s. 15 represent some blatant examples of discrimination which society has at last come to recognize as such. Their common characteristic is political, social and legal disadvantage and vulnerability. The listing of sex, age and race, for example, is not meant to suggest that any distinction drawn on these grounds is per se discriminatory. Their enumeration is intended rather to assist in the recognition of prejudice when it exists. At the same time, however, once a distinction on one of the enumerated grounds has been drawn, one would be hard pressed to show that the distinction was not in fact discriminatory.
It follows in my opinion, that the mere fact that the distinction drawn in this case has been drawn on the basis of age does not automatically lead to some kind of irrebutable presumption of prejudice. Rather it compels one to ask the question: is there prejudice? Is the mandatory retirement policy a reflection of the stereotype of old age? Is there an element of human dignity at issue? Are academics being required to retire at age 65 on the unarticulated premise that with age comes increasing incompetence and decreasing intellectual capacity? I think the answer to these questions is clearly yes and that s. 15 is accordingly infringed.
One cannot deny that the plaintiff would have been able to apply for citizenship under paragraph 5(2)(b) had he been born three years and nine months later. However, does this signify that the differential treatment afforded to the plaintiff is based upon age? In determining whether the plaintiff falls within the scope of paragraph 5(2)(b) of the Act it is of absolutely no consequence how old the plaintiff was in 1947 when the Act was passed. If he was 3, 13, or 23 years old in 1947, he would still be denied the opportunity of applying for citizenship under paragraph 5(2)(b). The distinction is made between two broad groups of people, those born before January 1, 1947, and those born after this date. It is this distinction which must be examined to determine if it is drawn upon the basis of age within the meaning of subsection 15(1).
To compare the case at bar to the mandatory retirement situation in McKinney, supra, one cannot say that the distinction made with respect to Mr. Crease is based on the assumption that persons of a particular age are in some sense unable to receive a particular benefit. Rather a distinction is drawn between two categories of people, where the members of each category represent people of different ages. In other words, neither category is defined by a particular age which is relevant to the differential treatment they have received.
Legislation may attach particular legal rights associated with the attainment of a specific age. For example, the right to consume alcohol in a public place, to drive a motor vehicle or to vote in public elections. A condition precedent to participation in these activities is, among other things, a specific age. In this case, while Mr. Crease is unable to apply because he was born before 1947, he is not being denied citizenship because he was a particular age in 1947. Being born before a certain date is not the same as a distinction dependent upon being a particular age at a certain date.
In comparing those born before January 1947 and those born after, the best that can be said is that one group will be older than the other. The plaintiff, and all those who belong to the group born before 1947, are being denied the opportunity to apply under paragraph 5(2)(b) because their mothers were not Canadian citizens when they were born. Their ages have little to do with the determination that they fall outside the scope of paragraph 5(2)(b). Therefore, the distinction in my view, is not based upon the enumerated ground of age. In my view, the differential treatment accorded to Mr. Crease is based upon other considerations; particularly the status of his mother when he was born.
The defendants contend that the differential treatment of Mr. Crease results from the fact that Parliament chose in 1947 to legislate Canadian citizenship. Prior to this, all those born in Canada were British subjects. These individuals became Canadian citizens automatically by virtue of the 1947 Act. However, those born abroad to Canadian parents warranted different consideration. It was argued that the members of this class of individuals were born on foreign soil and were likely subject to the citizenship laws in that country. This would have been a key consideration in determining the treatment of individuals like Mr. Crease when the Act was passed in 1947.
There was virtually no evidence before the Court with respect to the policy underlying the passage of the Act in 1947. Therefore, the Court is unable to determine the purpose, intent or underlying objectives of Parliament in 1947 in treating differently those born to Canadian mothers abroad before this time; a policy decision which is still reflected in paragraph 5(2)(b) of the Act. The comments of Létourneau J.A. in Benner, supra, are, however, of some assistance in highlighting the international concerns and implications which were considered by Parliament in amending the Act in 1977 to allow those individuals born to Canadian mothers abroad between January 1, 1947 and January 1, 1977 to apply for citizenship. Létourneau J.A. states, at page 294:
Parliament was very much aware of the second option which involved retroactively conferring and imposing Canadian citizenship on foreign nationals. This would have eliminated the distinction created in 1947 between the children born to a married Canadian mother and those born to a Canadian father whose Canadian citizenship was legally maintained by paragraph 3(1)(e) of the 1977 Act. However, Parliament was sensitive to the national and international as well as individual implications that a retroactive legislation could have. For instance, one could lose his foreign nationality if his country of origin did not allow its nationals to have a double nationality. One could avoid compulsory military service. In other words, one could be relieved of duties imposed by his country of origin or could become, by virtue of a new nationality imposed upon him, subject to all kinds of obligations that he does not necessarily want.
The denial of an entitlement to citizenship, or the right to apply for citizenship under paragraph 5(2)(b), arises from the regime applicable in Canada which determined that the plaintiff’s mother was a British subject in 1943 when the plaintiff was born. The fact that Mr. Crease would have been entitled to apply for citizenship under paragraph 5(2)(b) had he been born three years and nine months later does not in itself give rise to discrimination based on age. This distinction is an unavoidable consequence of the fact that the concept of Canadian citizenship did not exist in 1943 and that Parliament decided in 1947 to enact the first Citizenship Act. This distinction must be examined in the context of the considerations outlined by Létourneau J.A., in Benner, supra. I conclude, therefore, that on the facts before the Court, the plaintiff’s rights under subsection 15(1) of the Charter have not been infringed or denied.