Canada (Citizenship and Immigration) v. Kandola

Canada (Citizenship and Immigration) v. Kandola
Court (s) Database
Federal Court of Appeal Decisions
Date
2014-03-31
Neutral citation
2014 FCA 85
File numbers
A-154-13
Notes
Reported Decision
Decision Content
Date: 20140331
Docket: A-154-13
Citation: 2014 FCA 85
CORAM:
NOËL J.A.
MAINVILLE J.A.
WEBB J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
Nanakmeet Kaur KANDOLA by her guardian at law Malkiat Singh KANDOLA
Respondent
Heard at Vancouver, British Columbia, on February 11, 2014.
Judgment delivered at Ottawa, Ontario, on March 31, 2014.
REASONS FOR JUDGMENT BY:
NOËL J.A
CONCURRED IN BY:
WEBB J.A.
DISSENTING REASONS BY:
MAINVILLE J.A
Date: 20140331
Docket: A-154-13
Citation: 2014 FCA 85
CORAM:
NOËL J.A.
MAINVILLE J.A.
WEBB J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
Nanakmeet Kaur KANDOLA by her guardian at law Malkiat Singh KANDOLA
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1] This is an appeal from a decision of the Federal Court, wherein Blanchard J. (the Federal Court judge) allowed Ms. Nanakmeet Kaur Kandola’s (the respondent) application for judicial review filed in her name by her guardian at law Malkiat Singh Kandola (Mr. Kandola or the legal guardian) of the decision of a citizenship officer of the Minister of the Citizenship and Immigration (the appellant or the Minister) rejecting her application for a Canadian citizenship certificate pursuant to paragraph 3(1)(b) of the Citizenship Act, R.S.C., 1985, c. C-29 (the Act).
[2] The issue turns on whether the Canadian father of a child conceived through assisted human reproduction (AHR) technology, without any genetic link to him or to her foreign birth mother obtains derivative citizenship pursuant to paragraph 3(1)(b) of the Act.
[3] The citizenship officer answered this question in the negative and the Federal Court judge came to the opposite conclusion. For the reasons that follow, I am of the view that the appeal should be allowed and the citizenship officer’s decision restored.
STATUTORY PROVISIONS
[4] The statutory provisions which are relevant to the analysis are the following:
Citizenship Act, RSC 1985, c C-29
Definitions
2. (1) In this Act,
…
“certificate of citizenship”
« certificat de citoyenneté »
“certificate of citizenship” means a certificate of citizenship issued or granted under this Act or under the former Act;
…
“child”
« enfant »
“child” includes a child adopted or legitimized in accordance with the laws of the place where the adoption or legitimation took place;
…
Persons who are citizens
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;
…
Adoptees — minors
5.1 (1) Subject to subsection (3), the Minister shall on application grant citizenship to a person who was adopted by a citizen on or after January 1, 1947 while the person was a minor child if the adoption
(a) was in the best interests of the child;
(b) created a genuine relationship of parent and child;
(c) was in accordance with the laws of the place where the adoption took place and the laws of the country of residence of the adopting citizen; and
(d) was not entered into primarily for the purpose of acquiring a status or privilege in relation to immigration or citizenship.
Loi sur la citoyenneté, LRC 1985, c C-29
Définitions
2. (1) Les définitions qui suivent s’appliquent à la présente loi.
[…]
« certificat de citoyenneté »
“certificate of citizenship”
« certificat de citoyenneté » Le certificat de citoyenneté délivré en vertu de la présente loi ou accordé en vertu de l’ancienne loi.
[…]
« enfant »
“child”
Tout enfant, y compris l’enfant adopté ou légitimé conformément au droit du lieu de l’adoption ou de la légitimation.
[…]
Citoyens
3. (1) Sous réserve des autres dispositions de la présente loi, a qualité de citoyen toute personne :
a) née au Canada après le 14 février 1977;
b) née à l’étranger après le 14 février 1977 d’un père ou d’une mère ayant qualité de citoyen au moment de la naissance;
[…]
Cas de personnes adoptées — mineurs
5.1 (1) Sous réserve du paragraphe (3), le ministre attribue, sur demande, la citoyenneté à la personne adoptée par un citoyen le 1er janvier 1947 ou subséquemment lorsqu’elle était un enfant mineur. L’adoption doit par ailleurs satisfaire aux conditions suivantes :
a) elle a été faite dans l’intérêt supérieur de l’enfant;
b) elle a créé un véritable lien affectif parent-enfant entre l’adoptant et l’adopté;
c) elle a été faite conformément au droit du lieu de l’adoption et du pays de résidence de l’adoptant;
d) elle ne visait pas principalement l’acquisition d’un statut ou d’un privilège relatifs à l’immigration ou à la citoyenneté.
[5] It is also useful for comparative purposes to quote paragraph 3(1)(b) of the Act as it read immediately prior to the enactment of the above quoted version (Citizenship Act, S.C. 1974-75-76, c. 108 (the 1977 Act)):
3. (1) Subject to this Act, a person is a citizen if
…
(b) he was born outside Canada after the coming into force of this Act and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen;
…
3. (1) Sous réserve des autres dispositions de la présente loi, est citoyen toute personne
[…]
(b) qui est née hors du Canada après l’entrée en vigueur de la présente loi et dont, au moment de sa naissance, le père ou la mère, mais non un parent adoptif, était citoyen canadien
[…]
FACTUAL BACKGROUND
[6] The respondent was born in India on June 3, 2009 (appeal book, p. 114; reasons, para. 3). At the time of her birth, her legal guardian and her birth mother (Mrs. Kandola) were already married (appeal book, p. 115). Both are respectively listed as father and mother on the respondent’s Indian birth certificate (appeal book, pp. 133 and 257). At the time of the respondent’s birth, Mr. Kandola was a Canadian citizen, while Mrs. Kandola had undertaken steps to become a permanent resident through the sponsorship process (reasons, paras. 3 and 4).
[7] The respondent was conceived through in vitro fertilization, where embryos created from sperm and eggs from two anonymous donors were implanted in the respondent’s birth mother (reasons, para. 3). Mr. and Mrs. Kandola resorted to this technique because they were infertile and incapable of making a genetic contribution of their own (appeal book, pp. 116 to 132). Rather than adopting, they opted for child bearing through AHR. The result is the unusual situation where the respondent was carried by Mrs. Kandola with the view of giving birth to her and raising her as a child of the couple, in circumstances where she has no genetic connection with either parent.
[8] The appellant was made aware of this information through proceedings incidental to
Mrs. Kandola’s sponsorship application (appeal book, pp. 51 to 64; reasons, para. 4). As part of these proceedings, a DNA test was conducted at the request of Canadian immigration authorities, which confirmed the absence of a genetic link between the respondent and both her legal guardian and her birth mother (appeal book, pp. 197 and 198).
[9] Parallel to his spouse’s sponsorship application, Mr. Kandola made two unsuccessful applications for a citizenship certificate on behalf of the respondent pursuant to paragraph 3(1)(b) of the Act. In both cases, Mr. Kandola checked the box ”Natural father” as opposed to “Adoptive father”, the only other option available on the citizenship form to describe his relationship with the respondent (appeal book, pp.189 and 244). In both cases, however, the respondent’s applications were denied on the basis that she was genetically unrelated to her Canadian parent (appeal book, pp. 166, 167, 177 and 178).
[10] The present appeal stems from Mr. Kandola’s second citizenship application filed on September 30, 2011 (appeal book, pp. 101 to 109). In support of this second application, the respondent and his counsel both made submissions regarding Indian law, namely section 112 of the Indian Evidence Act, 1872, which provides that a child born during the course of her birth mother’s marriage is presumed to be the legitimate child of the mother’s husband (appeal book, pp. 96 to 99).
[11] On April 25, 2012, this second application was denied based on the DNA evidence proving that the respondent was not genetically related to her Canadian parent, that is Mr. Kandola (appeal book, pp. 29 and 30). The citizenship officer explained that:
[f]or the purposes of determining citizenship by birth outside Canada to a Canadian parent (derivative citizenship), Canadian law relies on evidence of a blood connection (or genetic link) between parent and child which can be proven by DNA testing. This principle of jus sanguinis has deep historical roots both in Canada and internationally, and it is evident from the legislative history of the [Act] that Parliament has always intended the term “parent” to refer to genetic parents for derivative citizenship purposes.
[12] The respondent’s subsequent judicial review application against the citizenship officer’s decision was successful. The Minister now appeals from the Federal Court’s decision before this Court.
DECISION OF THE FEDERAL COURT
[13] Applying a standard of correctness, the Federal Court judge found that the citizenship officer erred by requiring “a genetic link thereby refusing to consider parents by legitimization to be parents for the purposes of paragraph 3(1)(b) of the Act” (reasons, paras. 21 and 43).
[14] At the outset, the Federal Court judge took the position that the respondent’s Indian birth certificate, which designates her legal guardian and birth mother as her parents, provides satisfactory evidence that there exists a child/parent relationship under Indian law, which the appellant does not contest (reasons, para. 33). The Federal Court judge inferred from that evidence that “the [respondent] is the legitimized child of her birth mother and her Canadian legal guardian under Indian law” (ibidem).
[15] The Federal Court judge rejected the narrow interpretation of the term “parent” based on the case law and the scheme of the Act. According to the Federal Court judge, this case should be distinguished from the decisions Valois-d'Orleans v. Canada (Minister of Citizenship and Immigration), 2005 FC 1009, paragraph 16 and Azziz v. Canada (Citizenship and Immigration), 2010 FC 663, paragraph 73 (Azziz), which appear to have restricted the notion of “parent” to a person having blood relationships with his or her child; unlike the present case, these decisions involved fraud and did not concern a situation of legitimization by a foreign state (reasons, paras. 26 and 27).
[16] The Federal Court judge further discarded the appellant’s assertion that Parliament intended that the term “parent” be circumscribed to genetic parents, as evidenced by the fact that adopted children are explicitly excluded from paragraph 3(1)(b) of the Act (reasons, para. 31). On the contrary, “[b]y excepting only an adoptive parent from this provision under the Act, an inference arises from the legislation that any other type of parent (genetic or legitimized) is sufficient to satisfy paragraph 3(1)(b)” (reasons, para. 39).
[17] The Federal Court judge then turned to the definition of the term “child” in section 2 of the Act (reasons, para. 36). Given that the definition of “child” includes both adopted and legitimized children, and given that the concepts of child and parent are necessarily correlative, the Federal Court judge concluded that the parent of a legitimized child should be recognized as a “parent” for the purposes of paragraph 3(1)(b) of the Act (reasons, paras. 37 and 38).
[18] In the Federal Court judge’s opinion, the term “parent” in paragraph 3(1)(b) “include[s] the lawfully recognized parents of a legitimized child in accordance with the laws of the place where the legitimization took place: in this instance, India” (reasons, para. 41). Since one of the respondent’s parents, her legal guardian, was a Canadian citizen at the time of her birth pursuant to paragraph 3(1)(b) of the Act, there was no reason to deny her application for citizenship due to the absence of genetic link (reasons, para. 42).
POSITION OF THE MINISTER
[19] The Minister raises three main grounds of appeal.
[20] First, concerning the standard of review, the Minister argues that the Federal Court judge erred in reviewing the citizenship officer’s decision on a standard of correctness (appellant’s memorandum, paras. 5 and 30). Relying on the Supreme Court’s decision in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 (Agraira), the Minister contends that the standard of reasonableness applies to an officer’s interpretation of his home statute as in the case at bar (appellant’s memorandum, paras. 33 to 36).
[21] Second, the Minister argues that the Federal Court judge erred in extending the interpretation of the term “parent” in paragraph 3(1)(b) of the Act to include the parents of a legitimized child with whom there exists no genetic connection (appellant’s memorandum, paras. 6 and 31). The Minister’s basic position is that “the term ‘parent’ [in paragraph 3(1)(b) of the Act] refers to a person who has begotten or borne a child and who is genetically related to the child” (appellant’s memorandum, para. 52) [emphasis added].
[22] In support of this contention, the Minister submits that the unambiguous French text of paragraph 3(1)(b) of the Act – which confirms that a parent must have contributed to his or her child’s genes – must prevail under the shared meaning rule. Indeed, while the English term “parent” gives rise to some ambiguity, the French words “née […] d’un père ou d’une mère” clearly emphasize the requirement of a genetic link (appellant’s memorandum, para. 56). This is further supported by the fact that the legislature did not see the need to exclude adopted children in the French text of paragraph 3(1)(b), because the term “parent” is already restricted to a person who has begotten or borne a child (appellant’s memorandum, para. 57).
[23] In addition, the legislative evolution and history of the Act show that parenthood based on a genetic connection remains an essential feature of the derivative citizenship process provided for in paragraph 3(1)(b). Although Parliament has expressed willingness to expand the ways in which a child may acquire citizenship – for example by making the parents’ marital status irrelevant under paragraph 3(1)(b) and minimizing distinctions between foreign-born adopted children and foreign-born children genetically-related to a Canadian citizen – it has always sought to preserve the genetic nature of the jus sanguinis concept (appellant’s memorandum, paras. 58 to 76). The Minister adds that Parliament has implemented legislative responses to reproductive technologies in other areas of the law and that failure to do so with respect to citizenship matters reflects a clear intent to leave the current regime unchanged (appellant’s memorandum, para. 77).
[24] Consistent with this are the Minister’s policy guidelines (Operational Bulletin 381) and Canadian case law, which have both reiterated that the term “parent” in paragraph 3(1)(b) refers to a person who shares a genetic connection to his or her child (appellant’s memorandum, paras. 82 to 89). Furthermore, the original meaning rule also points to a narrow interpretation of the term “parent”; AHR technologies were still in their infancy at the time the Act came into force and thus could not have been contemplated by the legislature (appellant’s memorandum, para. 90). A dynamic interpretation of the term “parent” is inappropriate in the case at bar, since this would lead the Court to intrude unduly on the role of Parliament in defining the scope of derivative citizenship (appellant’s memorandum, paras. 92 to 94).
[25] Third, the Minister alleges that the Federal Court judge erred in finding that the respondent was a “legitimized” child within the meaning of section 2 of the Act, despite the fact that her birth mother and legal guardian were already married at the time of her birth (appellant’s memorandum, paras. 7 and 32). Indeed, the legislative history of the Act demonstrates that the term “legitimized” traditionally refers to a child born out of wedlock, and whose paternity is recognized by subsequent marriage (appellant’s memorandum, paras. 95 to 101). Since the respondent was born in wedlock, and was thus legitimate at birth, she cannot be considered as having been “legitimized” (appellant’s memorandum, paras. 101, 102 and 106).
POSITION OF THE RESPONDENT
[26] With respect to the standard of review, the respondent supports the Federal Court judge’s finding that the standard of correctness applies to the citizenship officer’s interpretation of statutory definitions contained in the Act. The respondent underscores that the Supreme Court’s decision in Agraira did not overrule this Court’s reasons in Canada (Fisheries and Oceans) v. David Suzuki Foundation, 2012 FCA 40 at paragraph 6 (David Suzuki Foundation), wherein Mainville J.A. refused to grant any deference to an officer of the Minister on a question of statutory interpretation (respondent’s memorandum, para. 11). The respondent adds that contrary to Agraira, the present case does not involve Ministerial discretion, but rather turns on the interpretation of a section of the Act, and more specifically the scope and definition to be given to the term “parent” (respondent’s memorandum, paras. 12 and 13).
[27] The respondent objects to the Minister’s construction of the term “parent” in paragraph 3(1)(b) (respondent’s memorandum, paras. 15 to 52). Focusing on the link between mother and child, the respondent argues that the term “parent” in paragraph 3(1)(b) must necessarily include “the woman from whom that person first emerged as a live human being unless that relationship has subsequently been replaced by operation of law” (respondent’s memorandum, para. 15). According to the respondent, this interpretation is supported by the ordinary meaning of the term “parent” and the definition of the correlative term “child” (respondent’s memorandum, paras. 20 and 38). The respondent establishes a distinction between a blood relationship resulting from child bearing and a blood relationship resulting from a genetic contribution and claims that neither are required for the purposes of paragraph 3(1)(b) of the Act (respondent’s memorandum, paras. 20 to 23).
[28] With respect to legitimization, the respondent concedes that the Federal Court judge improperly characterized her as a “legitimized child”. The respondent explains that at no point in time was she considered illegitimate (respondent’s memorandum, para. 53). Since her birth mother and legal guardian were married at the time of her birth, her legitimacy is presumed under both Indian law and the law of most Canadian provinces (respondent’s memorandum, paras 53 and 54). This presumption is codified by the Indian Evidence Act, 1872, an act of the Imperial Parliament, which the Federal Court judge could take judicial notice of pursuant to section 17 of the Canada Evidence Act, R.S.C., 1985, c. C-5 and which applicability was never called into question (respondent’s memorandum, paras. 57 and 58).
ANALYSIS
Applicable standard of review
[29] It is now well established that “[i]n appeal of a judgment concerning a judicial review application, the role of this Court is to determine whether the applications judge identified and applied the correct standard of review, and in the event [he or] she has not, to assess the impugned decision in light of the correct standard of review” (Canada (Citizenship and Immigration) v. Jayamaha Mudalige Don, 2014 FCA 4, para. 37; Keith v. Correctional Service of Canada, 2012 FCA 117, para. 41; and Yu v. Canada (Attorney General), 2011 FCA 42, para. 19). Concretely, “[w]hat this means in practice is that in ‘step[ping] into the shoes’ of the lower court, an appellate court’s focus is, in effect, on the administrative decision …” [emphasis added] (Merck Frosst Canada Ltd. v Canada (Health), 2012 SCC 3, para. 247 and Agraira, para. 46) .
[30] The standard of review being dependent on the nature of the question to be decided, regard must be had to the specific determination which the citizenship officer was called upon to make in the case. It is undisputed that the central issue in the case is one of statutory interpretation, and more particularly whether the respondent’s qualifies as a “parent” within the meaning of paragraph 3(1)(b) of the Act.
[31] The parties disagree as to the standard which should apply to the review of the citizenship officer’s interpretation. Relying on Agraira, the appellant suggests that an administrative body’s interpretation of its home statute attracts a standard of reasonableness (appellant’s memorandum, para. 34). For her part, the respondent argues that Agraira should be distinguished from the present case because it involved the exercise of Ministerial discretion, which inherently calls for deference, and that in any event, this Court should follow the precedent set in the David Suzuki Foundation case.
[32] At the outset, it should be noted that Agraira did not alter the two-step analysis put forth in Dunsmuir v. New Brunswick, 2008 SCC 9, paragraph 62 (Dunsmuir) to identify the proper standard of review to be applied:
In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.
[Emphasis added]
[33] Therefore, it must first be determined whether judicial precedents have satisfactorily established the standard of review applicable to the Minister’s interpretation of the Act. In this regard, the Federal Court judge observed that recent case law from this Court suggests that the standard of review applicable to questions of law decided by the Minister is that of correctness (reasons, para. 21, citing David Suzuki Foundation, para. 6 and Takeda Canada Inc. v. Canada (Health), 2013 FCA 13 (Takeda), leave to appeal denied 2013 CanLII 33948 (SCC)).
[34] Consistent with this are decisions of the Federal Court which have applied the standard of correctness to a citizenship officer’s interpretation of paragraph 3(1)(b) of the Act (Azziz, para. 27; Chang Lee v. Canada (Citizenship and Immigration), 2008 FC 614, para. 20) (see contra, where the standard of reasonableness was applied to the citizenship officer’s interpretation of statutory requirements under the Act: Jabour v. Canada (Citizenship and Immigration), 2012 FC 98, paras. 21 to 28; Kinsel v. Canada (Citizenship and Immigration), 2012 FC 1515, paras. 17 to 21; Rabin v. Canada (Citizenship and Immigration), 2010 FC 1094, paras. 16 and 17).
[35] However, regardless of the state of the jurisprudence as to the standard of review applicable in similar situations, the Supreme Court cautioned in Agraira that it may prove necessary to proceed to the second stage of the analysis where the relevant precedents are incompatible with recent developments (Agraira, para. 48). Among such developments is a recent Supreme Court decision which held that reviews of an administrative body’s interpretation of its home statute must begin with the presumption that the standard to be applied is reasonableness (see Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, para. 39 (Alberta Teachers’)).
[36] The application of this presumption to non-judicial bodies, and more particularly to Ministerial decisions has given rise to diverging opinions. Two main trends are discernable. On the one hand, some decisions stand for the proposition that the presumption of deference laid out in Alberta Teachers’ does not apply to decision-makers who do not exercise adjudicative functions. For example, in David Suzuki Foundation at paragraphs 88 and 96, Mainville J.A. writing for Nadon and Sharlow JJ.A. found that:
[88] … deference on a question of law will not always apply, notably where the administrative body whose decision or action is subject to review is not acting as an adjudicative tribunal, is not protected by a privative clause, and is not empowered by its enabling legislation to authoritatively decide questions of law. A standard of review analysis is still required in appropriate cases. …
[96] [T]his presumption must be understood in the context in which they were developed: they concern adjudicative tribunals. The presumption is derived from the past jurisprudence which had extensively considered the standard of review applicable to the decisions of such tribunals. By empowering an administrative tribunal to adjudicate a matter between parties, Parliament is presumed to have restricted judicial review of that tribunal’s interpretation of its enabling statute and of statutes closely connected to its adjudicative functions. …
[Emphasis added]
[37] This approach has been followed in a number of cases (Takeda (reasons by Dawson J.A., concurred by Pelletier, J.A.); Canada (Citizenship and Immigration) v. Tobar Toledo, 2013 FCA 226, para. 43 (reasons by Pelletier J.A, concurred by Gauthier and Trudel JJ.A.); Prescient Foundation v. Canada (National Revenue), 2013 FCA 120, para. 13 (reasons by Mainville J.A, concurred by Pelletier and Gauthier JJ.A.); Bartlett v. Canada (Attorney General), 2012 FCA 230, para. 46 (reasons by Mainville J.A, concurred by Sharlow and Pelletier JJ.A.); Sheldon Inwentash and Lynn Factor Charitable Foundation v. Canada, 2012 FCA 136, para. 23 (reasons by Dawson J.A., concurred by Trudel and Stratas JJ.A.).
[38] The second approach is that adopted in Stratas J.A.’s dissenting opinion in Takeda (followed by Northern Ontario Compassion Club v. Canada (Attorney General), 2013 FC 700, paras. 15 to 17, reasons by Annis J.; see also Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324, reasons by Evans J.A., concurred by Sharlow J.A., concurring reasons by Stratas J.A., leave to appeal granted 2013 CanLII 40344 (SCC)). In his reasons, Stratas J.A. chose to follow the direction given by the Supreme Court in Alberta Teachers’, stating that (Takeda, para. 33):
I am reluctant to carve out administrative decisions from the Alberta Teachers’ Association approach merely because the administrative decision-maker is a Minister, as is the case here. For one thing, the Alberta Teachers’ Association approach aptly handles the breadth of Ministerial decision-making, which comes in all shapes and sizes, and arises in different contexts for different purposes. In addition, Ministerial decision-making power is commonly delegated, as happened here. It would be arbitrary to apply the Alberta Teachers’ Association approach to decisions of administrative board members appointed by a Minister (or, practically speaking, a group of Ministers in the form of the Governor in Council), but apply the [David Suzuki Foundation] approach to decisions of delegates chosen by a Minister. Finally, although this Court’s decision in [David Suzuki Foundation] postdates that of the Supreme Court in Alberta Teachers’ Association, I consider myself bound by the latter absent further direction from the Supreme Court: see Canada v. Craig, 2012 SCC 43 (CanLII), 2012 SCC 43 at paragraphs 18-23 …
[Emphasis added]
[39] Stratas J.A. however commented that the presumption of deference for which Alberta Teachers’ stands for could be rebutted based on an analysis of the Dunsmuir factors (Takeda, para. 28). He found that the presumption was overcome, as the nature of the question was purely legal, there was no privative clause, and the Minister had no expertise in legal interpretation (Takeda, para. 29).
[40] In my respectful view, the question whether all decisions, including those properly labelled as Ministerial, are presumed to be reasonable was open to debate before Agraira as the Supreme Court had only applied the presumption in the context of decisions made by adjudicative tribunals (see Alberta Teachers’, Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, the Nova Scotia Human Rights Commission; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, the Canadian Human Rights Tribunal; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, a labour arbitration board). However, it now seems clear that the presumption extends to Ministerial decisions. I refer in particular to the following passage in Agraira which dealt with the review of a decision made by a Ministerial officer (para. 50):
The applicability of the reasonableness standard can be confirmed by following the approach discussed in Dunsmuir. As this Court noted in that case, at para. 53, “[w]here the question is one of fact, discretion or policy, deference will usually apply automatically”. Since a decision by the Minister under [subsection] 34(2) is discretionary, the deferential standard of reasonableness applies. Also, because such a decision involves the interpretation of the term “national interest” in [subsection] 34(2), it may be said that it involves a decision maker “interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (Dunsmuir, at para. 54). This factor, too, confirms that the applicable standard is reasonableness.
[Emphasis added]
[41] Significantly, the quoted words from Dunsmuir in the above excerpt are the words which were quoted in Alberta Teachers’ to support the creation of the presumption that the standard of reasonableness applies (Alberta Teachers’, para. 34). The only difference is that the word “Tribunal” which precedes the quote in Alberta Teachers’ was replaced by the broader term “decision-maker”. The same broad language was more recently used, seemingly for the same purpose, in McLean v. British Columbia (Securities Commission), 2013 SCC 67, para. 21 (McLean) in the context of a decision made by the British Columbia Securities Commission.
[42] It therefore appears that the analysis must start from the premise that reasonableness applies to the review of the citizenship officer’s interpretation of paragraph 3(1)(b). However, as in Takeda (paras. 28 and 29), this presumption can be quickly rebutted (McLean, para. 22; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, para. 16).
[43] Specifically, there is no privative clause and the citizenship officer was saddled with a pure question of statutory construction embodying no discretionary element. The question which he was called upon to decide is challenging and the citizenship officer cannot claim to have any expertise over and above that of a Court of Appeal whose sole reason for being is resolving such questions.
[44] In this respect, I note that construing paragraph 3(1)(b) requires a consideration of the shared meaning rule in the application of bilingual enactments as well as the use that may be made of the French text given that it was enacted in the context of a revision. There is no suggestion that an immigration officer was ever asked to consider either of those questions and nothing in the structure or scheme of the Act suggests that deference should be accorded to the immigration officer on the question which he had to decide.
[45] I am therefore satisfied that the presumption is rebutted.
The use of words
[46] In the reasons which follow, the expression “gestational mother” is used in relation to the respondent to identify the person who carried her. The expression “genetic mother” is used to identify the person who contributed the eggs. The connection between the respondent and her gestational mother is described as “gestational” and her connection with the persons who contributed the eggs and the sperm from which she was conceived is described as “genetic”.
[47] Further, while the relevant consideration for the conveyance of derivative citizenship was identified by reference to the Latin words jus sanguinis (blood relationship) in 1977, the means of testing the existence of this relationship has evolved with the emergence of genetic science. Although the reasons make continuous reference to a “genetic link or connection”, the issue remains the same as it was in 1977, i.e. whether there is proof of filiation pursuant to paragraph 3(1)(b).
Interpretation of the term parent in paragraph 3(1)(b) of the Act
[48] Before turning to the analysis, it is useful to retrace the origin of paragraph 3(1)(b). This provision was introduced by the 1977 Act which came into force on February 17, 1977.
[49] Paragraph 3(1)(b) allowed a child born outside Canada after February 14, 1977 to be automatically recognized as a Canadian citizen when born of a Canadian parent, regardless of the parent’s marital status at the time of birth. As the appellant points out, this made a child’s “legitimacy” irrelevant to derivative citizenship under paragraph 3(1)(b) (appellant’s memorandum, para. 66). However, the notion of legitimacy did not thereby become irrelevant since subsection 5(2) of the 1977 Act allowed for a grant of citizenship for a permanent resident who was the minor child of a citizen, including children who were adopted or “legitimized”.
[50] Further amendments were brought to the Act in 2007 (An Act to Amend the Citizenship Act, (adoption), S.C. 2007, c. 24). The effect of these amendments was to streamline the treatment of children born to a Canadian parent and children adopted by a Canadian parent. Before these amendments, a child born to a Canadian parent outside Canada automatically became a Canadian citizen whereas a foreign child adopted by a Canadian parent had no such right. Section 5.1 of the Act somewhat equalizes the playing field by providing that on application the Minister “shall” grant citizenship to a foreign child adopted by a Canadian parent subject to certain terms and conditions.
[51] Against this background, one can understand why the Federal Court judge attempted to construe paragraph 3(1)(b) so as to confer citizenship on the respondent. As he explained, citizenship can now be conveyed as of right through parentage or by adoption (reasons, para. 40). In this case the respondent, by reason of the fact that she was carried by her gestational mother in the course of a legitimate family project, has a closer connection with her parents than she would with adoptive parents. Yet, the interpretation given by the citizenship officer denies the respondent this entitlement. The difficulty which flows from this result is compounded by the fact that because the respondent is presumed to be the legitimate child of her father, adoption may not to be an option (appeal book, pp. 153 to 156; reasons para. 40). As a result, the respondent cannot obtain citizenship otherwise than by way of Ministerial discretion or the citizenship process designed for foreign nationals (appeal book, p. 30).
[52] Faced with the ambiguous meaning of the term “parent” in paragraph 3(1)(b) of the Act, the Federal Court judge relied on the correlative definition of “child” in section 2 of the Act, which “includes a child adopted or legitimized in accordance with the laws of the place where the adoption or legitimization took place”. The crux of the Federal Court judge’s reasoning is contained in paragraph 33 of his reasons, where he held that the respondent was the “legitimized child” of her mother and father according to her birth certificate and therefore came under the definition of “child” within the meaning of the definition set out in section 2 of the Act. The Federal Court judge reasoned that as the respondent was the child of her parents pursuant to this definition, the word “parent” in paragraph 3(1)(b) should be construed as including them.
[53] In order to arrive at that conclusion, the Federal Court judge made two inferences: 1) that the birth certificate satisfactorily established the existence of a child/parent relationship; 2) that this relationship provided sufficient evidence that the respondent was the legitimized child of her gestational mother and her legal guardian under Indian law.
[54] However, this second inference cannot stand given that only a child who is illegitimate at birth can be said to be subsequently “legitimized”. In this respect, the respondent recognized before us that “[t]here was no stage of her life at which she was an illegitimate child” and that “her legitimacy is to be presumed from the moment of her birth until the contrary has been proven” (respondent’s memorandum, para. 53). For the same reason, the respondent insists that the use of the term “legitimized” in the Federal Court judge’s reasons was inappropriate. Further as we have seen, the notion of “legitimatization” is not relevant to the application of paragraph 3(1)(b) as derivative citizenship is obtained without regard to issues of legitimacy (see paras. 48 and 49 above).
[55] It was therefore not open to the Federal Court judge to hold that citizenship was granted to the respondent on the basis that she was the legitimized child of her legal guardian.
[56] The question that remains is whether, leaving aside the definition of “child” as an interpretative aid, the respondent’s legal guardian falls under the category of “parent” pursuant to paragraph 3(1)(b) of the Act. This gives rise to a pure question of statutory construction. As in all such cases, the question must be addressed with the following principle in mind:
[t]oday there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (Re Rizzo & Rizzo Shoes, [1998] 1 S.C.R. 27, paras. 21 and 22).
[57] The appellant invites this Court to apply the shared meaning rule for the interpretation of bilingual enactments, arguing that the French text of paragraph 3(1)(b) of the Act is clear and unequivocal (“née d’un père ou d’une mère”) and should be preferred to the term “parent” in the English text, which carries a latent ambiguity.
[58] According to the appellant, the words “née d’un père” and “née […] d’une mère” presuppose that the mother or father contributed to the child’s genes. The appellant adds that the fact that an adoption cannot be contemplated when a child is “née d’un père” or “née […] d’une mère” explains why the words “other than a parent who adopted him” which appear in the English text were omitted from the French text of paragraph 3(1)(b).
[59] I agree that this omission cannot be explained otherwise and that the French text by reason of its greater precision should be preferred to the English text. I also agree that the words “née d’un père” presuppose that the father, in this case the respondent’s legal guardian, contributed to the child’s genes as there is no other way in which a child can conceivably be said to be “née d’un père”. In the case of the father, the conclusion that there must be a genetic link seems inescapable.
[60] That said, the panel raised the question during the hearing whether the French text of paragraph 3(1)(b) could be relied upon in construing the intent of Parliament given that it was enacted through a revision. The parties were invited to make written submissions on this point, which have since been received.
[61] The French text of pa