Worthington v. Canada (Minister of Citizenship and Immigration)

Worthington v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2004-11-03
Neutral citation
2004 FC 1546
File numbers
T-247-04
Decision Content
Date: November 3, 2004
Docket: T-247-04
Citation: 2004 FC 1546
Ottawa, Ontario, November 3, 2004
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
DUANE EDWARD WORTHINGTON and
HELEN CHARLOTTE WORTHINGTON
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] On March 9, 1961, Duane Edward Worthington was born in Tacoma, Washington, United States of America. He was taken to the home of and adopted by Frank and Helen Charlotte Worthington. The adoption became final on March 20, 1962. Duane's birth certificate lists Mr. and Mrs. Worthington as his parents. Frank Worthington, now deceased, was a Canadian citizen, having been born in Grand Forks, British Columbia. Mrs. Worthington is also a Canadian citizen, having been born in Sandon, British Columbia. Both Mr. and Mrs. Worthington resided in the United States but neither of them ever acquired American citizenship.
[2] The families of Frank and Helen Worthington live in British Columbia. Helen Worthington and - until his death on October 15, 2002 - her husband had intended to return to British Columbia some years ago. They didn't because their son, Duane, is serving a 35-year sentence in a medium security facility in Oxford, Wisconsin for robbery and drug-related offences. His scheduled release date is 2027. Mrs. Worthington - now 81 years old - wishes to relocate to British Columbia. Her son wants to serve the remainder of his sentence in British Columbia in order to be close to his mother and his extended family. To be eligible for the prison transfer program, Duane Worthington must be a Canadian citizen.
[3] After corresponding with the Canadian Consulate General in Chicago (the Consulate) for some four months, Duane Worthington (whom I will henceforth refer to as Mr. Worthington), on July 4, 2002, submitted an application for citizenship. On July 3, 2003, the Honourable Denis Coderre, then Minister of Citizenship and Immigration, refused the "request for a grant of Canadian citizenship under subsection 5(4) of the Citizenship Act". In December, 2003, Mr. Worthington applied to the Federal Court for an extension of time within which to bring an application for judicial review of the Minister's decision. The respondent did not oppose the motion and by order dated January 7, 2004, Mr. Worthington was granted an extension of time. The application for judicial review, wherein Mr. Worthington and his mother are the applicants, was filed on February 2, 2004.
FACTS
[4] On March 22, 2002, the senior program officer at the Consulate, presumably in response to an inquiry from Mr. Worthington, informed him that he [Worthington] had a possible derivative claim to Canadian citizenship. The Consulate also provided information regarding the process - the necessity to complete an application, provide the requisite supporting documentation, and pay the applicable fee. Mr. Worthington, in a letter dated March 27, 2002, indicated that he wished to proceed and inquired as to whether his incarceration constituted a bar to obtaining citizenship. Shortly after, on April 19, 2002, Mr. Worthington informed the Consulate that both parents were Canadian citizens - apparently he initially thought that only his mother was Canadian.
[5] By correspondence dated April 29, 2002, the Consulate forwarded two applications for citizenship to Mr. Worthington indicating that he should complete the application for a citizenship certificate from outside Canada if his father was still a Canadian citizen at the time of his son's birth. If his father was no longer a citizen when he was born, and his mother remained a citizen, he was to use the application for Canadian citizenship, paragraph 5(2)(b). Mr. Worthington completed the application for a citizenship certificate from outside Canada. The form indicates that the application was made under section 3 [of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act)]. In item 9 of the application, Mr. Worthington indicated that he was applying for delayed registration of birth abroad [as required by paragraph 3(1)(e) and subsection 4(3) of the Act].
[6] Further exchanges of correspondence ensued but are largely irrelevant. They consisted primarily of questions from Mr. Worthington and responses from the Consulate regarding the completion of the application form. As noted earlier, the application was submitted on July 4, 2002, along with the supporting documentation and fee. By letter dated August 30, 2002, the Consulate acknowledged receipt of the application and noted that Mr. Worthington had previously failed to mention that he was the adopted child of a Canadian citizen. The Consulate advised that there was, recently, "new legislation to the Act" permitting adopted children of a Canadian parent to apply for citizenship. The adoption papers would be required as well as completion of a new application form. Enclosed was an application for Canadian citizenship - adults (18 years or older) under subsection 5(1).
[7] Mr. Worthington completed the application as requested. Before submitting it, he forwarded further correspondence to the Consulate on September 11, 2002, in which he advised the Consulate that he was saddened when he learned that he may be regarded as "something less than the child of my parents because we do not share the same DNA". After providing a review of his immediate and extended family circumstances, he stated:
Sir, it would be of great interest to me if you would please respond to this letter, and include the real possibilities and disappointment I may now face because my adoption is an issue. My mom's hopes have been greatly raised because of the seemingly real possibility I would receive Canadian citizenship and I wish to inforn (sic) her with actual facts as to this change of events.
Also, is it possible I could receive the new legislation that applies to adopted children as it has been incorporated into the Citizenship Act, so that I may better understand what has occurred and when this change took place.
Lastly, I'm curious as to why the new application you sent me does not include any references to my Canadian parents and thereby seems to exclude the substantial relationship and connection I have with Canada.
Thank you for your time and support in this matter. I am prepareing (sic) the application you sent me and mom is looking for the adoption papers, I suspect roughly no more than two weeks will transpire before you receive the additional paperwork and $20.00.
[8] The subsection 5(1) application form was submitted on September 17, 2002. Mr. Worthington received no response from the Consulate in relation to his September 11th correspondence. On September 17, 2002, Mrs. Worthington wrote to the Consulate and explained the underlying reason for the adoption (inability to have children). She also described the nature of her relationship with her son and her family's inability to view him as "different than a natural child in any sense".
[9] On December 30, 2002, a case analyst at Citizenship and Immigration Canada (CIC) wrote to Mr. Worthington and explained that special provisions were introduced in July, 2001, to deal with adopted children of Canadian parents. He stated that "[t]hese provisions were enacted to eliminate the distinction between natural-born children and adopted children contained in the Citizenship Act". He went on to say that for those whose adoptions took place between December 31, 1946 and February 15, 1977, the prohibitions set forth in section 22 of the Act apply. After providing an explanation [not totally accurate] of the contents of section 22, he informed Mr. Worthington that CIC could not proceed with his application for Canadian citizenship and requested that he sign and date the enclosed "request for withdrawal" form and return it in the self-addressed envelope.
[10] Mr. Worthington did not sign the request for withdrawal. He wrote to CIC and expressed confusion regarding the CIC statement that the special provisions were introduced to eliminate the distinction between natural and adopted children, born outside of Canada of Canadian parents, yet he was evidently subject to prohibitions because of his adoption. He further questioned, at some length, the wisdom of the CIC statements. The essence of his correspondence dated January 12, 2003 is encapsulated in the following sentence:
I find it difficult to believe that any governmental department would sanction the idea that adopted children must be forced to drink from a different citizenship water fountain than that of natural children.
No further communication occurred until Mr. Worthington received the Minister's correspondence dated July 3, 2003.
[11] The record reveals that, in the interim, there was a flurry of activity at CIC over what to do. Several people were involved in what might aptly be termed brainstorming, some without the benefit of having seen the file. Most individuals, it appears, were operating on the assumption that Mr. Worthington had applied for citizenship under subsection 5(4) of the Act. There was some speculation about whether the matter should be referred to a citizenship judge. That was not done. There is no indication of consensus but the record does contain a recommendation, prepared by the integration branch, regarding Mr. Worthington's application for a special grant of citizenship under the interim measure on adoption (the recommendation). The recommendation provided a statement of the issue (whether the Minister should favourably recommend a special grant of citizenship to an applicant who applied under the interim measure on adoption while incarcerated outside Canada), the factors for consideration, and a recommendation.
[12] The recommendation - a negative one - was relied upon by the individual who ultimately prepared a memorandum to the Minister (the memorandum). The memorandum followed the same format as the recommendation. It identified the issue then provided the background, considerations, an additional comment with respect to federal/provincial consultations, and a recommendation. Unfortunately, the memorandum omitted critical information - regarding the "considerations" - that had been contained in the recommendation. I cannot determine whether that omission was intentional or inadvertent. The synopsis, at the beginning of the memorandum states:
Mr. Duane Edward Worthington is requesting a grant of citizenship under subsection 5(4) of the Citizenship Act, based on the interim measures implemented in July, 2001, for persons adopted by a Canadian citizen residing outside of Canada. Mr. Worthington is currently serving a 35-year sentence in Oxford, Wisconsin. He is requesting a grant of citizenship to allow him to be eligible for a prisoner transfer program, which may enable him to serve the remainder of his sentence in a prison in British Columbia. It is recommended that the Minister refuse this request, and that no recommendation be made to the Governor in Council for a grant of citizenship under subsection 5(4).
[13] Thus, the information presented to the Minister was to the effect that the application was one under subsection 5(4) of the Act. I reiterate that the "considerations" portion of the memorandum omitted critical information - the fact that Mr. Worthington does not come within the provisions of section 22. Counsel for the respondent, prior to the hearing of this application, agreed that the information before the Minister was "erroneous" and that the application should be allowed and the matter remitted for redetermination based on correct information. The applicants' counsel took the position that redetermination is not good enough - Mr. Worthington wants, among other things, an order in the nature of mandamus requiring the Minister to grant Canadian citizenship to him.
ISSUE
The issue to be determined is the nature of the relief that ought to be granted.
THE RELEVANT STATUTORY PROVISIONS
[14] To appreciate the arguments and analysis, the relevant statutory provisions are, for ease of reference, reproduced here. The CIC Operations Memoranda (CP 01-05) entitled "Interim measure concerning persons adopted by a Canadian citizen residing outside of Canada", in its entirety, is attached to these reasons as Schedule "A".
Citizenship Act,
R.S.C. 1985, c. C-39
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.
(2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was
(a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government;
(b) an employee in the service of a person referred to in paragraph (a); or
(c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).
[...]
5. (1) The Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner:
(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
(d) has an adequate knowledge of one of the official languages of Canada;
(e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
(f) is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.
(1.1) Any day during which an applicant for citizenship resided with the applicant's spouse or common-law partner who at the time was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the public service of Canada or of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of residence in Canada for the purposes of paragraph (1)(c) and subsection 11(1).
(2) The Minister shall grant citizenship to any person who
(a) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and is the minor child of a citizen if an application for citizenship is made to the Minister by a person authorized by regulation to make the application on behalf of the minor child; or
(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.
(3) The Minister may, in his discretion, waive on compassionate grounds,
(a) in the case of any person, the requirements of paragraph (1)(d) or (e);
(b) in the case of a minor, the requirement respecting age set out in paragraph (1)(b), the requirement respecting length of residence in Canada set out in paragraph (1)(c) or the requirement to take the oath of citizenship; and
(c) in the case of any person who is prevented from understanding the significance of taking the oath of citizenship by reason of a mental disability, the requirement to take the oath.
(4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.
[...]
12. (1) Subject to any regulations made under paragraph 27(i), the Minister shall issue a certificate of citizenship to any citizen who has made application therefor.
(2) Where an application under section 5 or 8 or subsection 11(1) is approved, the Minister shall issue a certificate of citizenship to the applicant.
(3) A certificate issued pursuant to this section does not take effect until the person to whom it is issued has complied with the requirements of this Act and the regulations respecting the oath of citizenship.
[...]
22. (1) Notwithstanding anything in this Act, a person shall not be granted citizenship under section 5 or subsection 11(1) or take the oath of citizenship
(a) while the person is, pursuant to any enactment in force in Canada,
(i) under a probation order,
(ii) a paroled inmate, or
(iii) confined in or is an inmate of any penitentiary, jail, reformatory or prison;
(b) while the person is charged with, on trial for or subject to or a party to an appeal relating to an offence under subsection 29(2) or (3) or an indictable offence under any Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act;
(c) while the person is under investigation by the Minister of Justice, the Royal Canadian Mounted Police or the Canadian Security Intelligence Service for, or is charged with, on trial for, subject to or a party to an appeal relating to, an offence under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
(d) if the person has been convicted of an offence under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
(e) if the person has not obtained the authorization to return to Canada required under subsection 52(1) of the Immigration and Refugee Protection Act; or
(f) if, during the five years immediately preceding the person's application, the person ceased to be a citizen pursuant to subsection 10(1).
(2) Notwithstanding anything in this Act, but subject to the Criminal Records Act, a person shall not be granted citizenship under section 5 or subsection 11(1) or take the oath of citizenship if,
(a) during the three year period immediately preceding the date of the person's application, or
(b) during the period between the date of the person's application and the date that the person would otherwise be granted citizenship or take the oath of citizenship,
the person has been convicted of an offence under subsection 29(2) or (3) or of an indictable offence under any Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act.
Loi sur la citoyenneté
L.R.C. 1985, ch. C-39
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;
c) ayant obtenu la citoyenneté - par attribution ou acquisition - sous le régime des articles 5 ou 11 et ayant, si elle était âgée d'au moins quatorze ans, prêté le serment de citoyenneté;
d) ayant cette qualité au 14 février 1977;
e) habile, au 14 février 1977, à devenir citoyen aux termes de l'alinéa 5(1)b) de l'ancienne loi.
(2) L'alinéa (1)a) ne s'applique pas à la personne dont, au moment de la naissance, les parents n'avaient qualité ni de citoyens ni de résidents permanents et dont le père ou la mère était_:
a) agent diplomatique ou consulaire, représentant à un autre titre ou au service au Canada d'un gouvernement étranger;
b) au service d'une personne mentionnée à l'alinéa a);
c) fonctionnaire ou au service, au Canada, d'une organisation internationale - notamment d'une institution spécialisée des Nations Unies - bénéficiant sous le régime d'une loi fédérale de privilèges et immunités diplomatiques que le ministre des Affaires étrangères certifie être équivalents à ceux dont jouissent les personnes visées à l'alinéa a).
[...]
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_:
a) en fait la demande;
b) est âgée d'au moins dix-huit ans;
c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante_:
(i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent,
(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;
d) a une connaissance suffisante de l'une des langues officielles du Canada;
e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté;
f) n'est pas sous le coup d'une mesure de renvoi et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20.
(1.1) Est assimilé à un jour de résidence au Canada pour l'application de l'alinéa (1)c) et du paragraphe 11(1) tout jour pendant lequel l'auteur d'une demande de citoyenneté a résidé avec son époux ou conjoint de fait alors que celui-ci était citoyen et était, sans avoir été engagé sur place, au service, à l'étranger, des forces armées canadiennes ou de l'administration publique fédérale ou de celle d'une province.
(2) Le ministre attribue en outre la citoyenneté_:
a) sur demande qui lui est présentée par la personne autorisée par règlement à représenter celui-ci, à l'enfant mineur d'un citoyen qui est résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés;
b) sur demande qui lui est présentée par la personne qui y est autorisée par règlement et avant le 15 février 1979 ou dans le délai ultérieur qu'il autorise, à la personne qui, née à l'étranger avant le 15 février 1977 d'une mère ayant à ce moment-là qualité de citoyen, n'était pas admissible à la citoyenneté aux termes du sous-alinéa 5(1)b)(i) de l'ancienne loi.
(3) Pour des raisons d'ordre humanitaire, le ministre a le pouvoir discrétionnaire d'exempter_:
a) dans tous les cas, des conditions prévues aux alinéas (1)d) ou e);
b) dans le cas d'un mineur, des conditions relatives soit à l'âge ou à la durée de résidence au Canada respectivement énoncées aux alinéas (1)b) et c), soit à la prestation du serment de citoyenneté;
c) dans le cas d'une personne incapable de saisir la portée du serment de citoyenneté en raison d'une déficience mentale, de l'exigence de prêter ce serment.
(4) Afin de remédier à une situation particulière et inhabituelle de détresse ou de récompenser des services exceptionnels rendus au Canada, le gouverneur en conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la présente loi, d'ordonner au ministre d'attribuer la citoyenneté à toute personne qu'il désigne; le ministre procède alors sans délai à l'attribution.
[...]
12. (1) Sous réserve des règlements d'application de l'alinéa 27i), le ministre délivre un certificat de citoyenneté aux citoyens qui en font la demande.
(2) Le ministre délivre un certificat de citoyenneté aux personnes dont la demande présentée au titre des articles 5 ou 8 ou du paragraphe 11(1) a été approuvée.
(3) Le certificat délivré en application du présent article ne prend effet qu'en tant que l'intéressé s'est conformé aux dispositions de la présente loi et aux règlements régissant la prestation du serment de citoyenneté.
[...]
22. (1) Malgré les autres dispositions de la présente loi, nul ne peut recevoir la citoyenneté au titre de l'article 5 ou du paragraphe 11(1) ni prêter le serment de citoyenneté_:
a) pendant la période où, en application d'une disposition législative en vigueur au Canada_:
(i) il est sous le coup d'une ordonnance de probation,
(ii) il bénéficie d'une libération conditionnelle,
(iii) il est détenu dans un pénitencier, une prison ou une maison de correction;
b) tant qu'il est inculpé pour une infraction prévue aux paragraphes 29(2) ou (3) ou pour un acte criminel prévu par une loi fédérale, autre qu'une infraction qualifiée de contravention en vertu de la Loi sur les contraventions, et ce, jusqu'à la date d'épuisement des voies de recours;
c) tant qu'il fait l'objet d'une enquête menée par le ministre de la Justice, la Gendarmerie royale du Canada ou le Service canadien du renseignement de sécurité, relativement à une infraction visée à l'un des articles 4 à 7 de la Loi sur les crimes contre l'humanité et les crimes de guerre, ou tant qu'il est inculpé pour une telle infraction et ce, jusqu'à la date d'épuisement des voies de recours;
d) s'il a été déclaré coupable d'une infraction visée à l'un des articles 4 à 7 de la Loi sur les crimes contre l'humanité et les crimes de guerre;
e) s'il n'a pas obtenu l'autorisation requise préalablement à son retour au Canada par le paragraphe 52(1) de la Loi sur l'immigration et la protection des réfugiés;
f) si, au cours des cinq années qui précèdent sa demande, il a cessé d'être citoyen en application du paragraphe 10(1).
(2) Malgré les autres dispositions de la présente loi, mais sous réserve de la Loi sur le casier judiciaire, nul ne peut recevoir la citoyenneté au titre de l'article 5 ou du paragraphe 11(1) ni prêter le serment de citoyenneté s'il a été déclaré coupable d'une infraction prévue aux paragraphes 29(2) ou (3) ou d'un acte criminel prévu par une loi fédérale, autre qu'une infraction qualifiée de contravention en vertu de la Loi sur les contraventions_:
a) au cours des trois ans précédant la date de sa demande;
b) entre la date de sa demande et celle prévue pour l'attribution de la citoyenneté ou la prestation du serment.
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](the Charter)
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[...]
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.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Annexe B de la Loi constitutionnelle de 1982, partie I, Charte canadienne des droits et libertés, ch. 11 (R.-U.)
[L.R.C., 1985, Appendice II n ° 44](la Charte)
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique.
[...]
15. (1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques.
(2) Le paragraphe (1) n'a pas pour effet d'interdire les lois, programmes ou activités destinés à améliorer la situation d'individus ou de groupes défavorisés, notamment du fait de leur race, de leur origine nationale ou ethnique, de leur couleur, de leur religion, de leur sexe, de leur âge ou de leurs déficiences mentales ou physiques.
THE NOTICE OF APPLICATION
The notice of application filed by the applicants states:
This is an application for judicial review in respect of a decision made by the Honourable Denis Codere (sic), former Minister of Citizenship and Immigration.
By letter communicated to the Applicant on July 3rd, 2002, the Honourable Denis Coderre decided not to grant Canadian citizenship to the Applicant. The Applicant's application for a Certificate of Citizenship was thus denied.
The Applicant makes application for:
1. An order in the nature of Certiorari quashing the decision of the Honourable Denis Coderre dated July 3, 2003 rejecting the Applicant's application;
2. An order in the nature of Mandamus requiring the Respondent Minister of Citizenship and Immigration to grant Canadian Citizenship to the Applicant and to issue a certificate of citizenship to him under s. 12 of the Citizenship Act;
3. Full costs on a solicitor client basis, pursuant to Rule 400 of the Federal Court Rules, 1998;
4. Such further and other relief as this Honourable Court may deem just.
The grounds for the application are:
1. The Respondent's rejection of the Applicant's application for a Certificate of Citizenship is based on discrimination under s. 3 of theCitizenship Act which forces adopted children, such as the Applicant in the case at bar, into the naturalization process thereby infringing their right to equal protection and equal benefit of the law under s. 15 of the Charter, since biological children are not forced into the naturalization process and are given an automatic right to citizenship.
2. The Respondent's decision in rejecting the Applicant's application for citizenship is based on a discriminatory treatment, under the Interim Measure, of the Applicant as a child adopted between December 31st , 1946 and February 15, 1977, as opposed to a child adopted after February 15, 1977, thereby infringing the Applicant's right to equal protection and equal benefit of the law under s. 15 of the Charter, since children adopted between December 31st, 1946 and February 15, 1977 are made subject to the prohibitions of law as set forth in s. 22 of the Citizenship Act while the prohibitions provided for in that section do not apply to children adopted after February 14, 1977;
3. The Respondent acted in any other way that was contrary to law.
THE ARGUMENTS
[15] The applicants' memorandum of fact and law contains a forceful and compelling argument that paragraph 3(1)(e) of the Act is unconstitutional in that it discriminates between natural and adopted children, born abroad, of Canadian citizens. Although not cited as such, it is substantially a recitation of the reasons of Mr. Justice Linden in Canada (Attorney General) v. McKenna, [1999] 1 F.C. 401 (C.A.) (McKenna). The applicants submit that the provision is not saved under section 1 of the Charter because it fails to meet the requirements of rational connection and minimal impairment.
[16] They also argue that the interim measure makes a distinction between children adopted after February 15, 1977 and those adopted before that date. Children adopted between December 31, 1946 and February 15, 1977 encounter a more onerous process with burdensome requirements such as security and criminal records checks. If such checks reveal that an individual has been charged with an offence, the individual is prevented, by section 22 of the Act, from taking the oath of citizenship. Individuals claiming Canadian citizenship on the basis of their post-1977 adoption need not undergo any of these procedures. The applicants argue that this distinction constitutes discrimination based on age (an enumerated ground) and is therefore prohibited, to the extent of its inconsistency, by virtue of section 15 of the Charter. In the applicants' view, the rational connection requirement is not met and the interim measure cannot be saved by section 1 of the Charter.
[17] In the alternative, the applicants maintain that Mr. Worthington does not come within the provisions of section 22 of the Act in any event. A person incarcerated under foreign law cannot fall within the ambit of section 22 because the prohibition applies only to those incarcerated "pursuant to any enactment in force in Canada" or under "any Act of Parliament". The CIC correspondence of December 30, 2002, states that a person shall not be granted citizenship or administered the oath of citizenship while an inmate in any penitentiary. This, say the applicants, is a misstatement of the law and the application for citizenship was therefore rejected erroneously.
[18] The respondent contends that the applicants, in their application for judicial review, seek to challenge two separate decisions - the decision to deny the section 3 application and the decision of the former Minister not to recommend use of the discretionary power by the Governor in Council to grant citizenship under subsection 5(4) of the Act. A decision under section 3 bears no relationship to the former Minister's decision of July 3, 2003. In addition to the fact that an application for judicial review must be limited to a single order (Rule 302), the respondent says that no issue was taken regarding the section 3 decision at the time it was made (August 30, 2002); judicial review was not sought; the time to seek judicial review of the section 3 decision expired long ago and the court therefore lacks jurisdiction to entertain it. Thus, says the respondent Minister, to the extent that the applicants seek judicial review of a decision with respect to section 3 of the Act, the request should be summarily dismissed.
[19] The respondent concedes that the former Minister relied on erroneous information in deciding Mr. Worthington's subsection 5(4) application. Because he is serving a sentence in a United States facility, his circumstances are clearly outside the prohibitions set out in section 22 of the Act. As a result, the respondent agrees that the former Minister's decision ought to be quashed and that the matter should be sent back for redetermination based on correct information. Regarding mandamus, the respondent refers to subsection 5(4) of the Act and notes that the authority pursuant thereto rests with the Governor in Council. The court lacks authority to recommend executive action.
[20] Last, the respondent Minister submits that the notice of application is moot. This submission is premised on the basis that the parties agree that the former Minister's decision ought to be quashed. Since the applicants have failed to provide any argument with respect to the mandatory provisions of section 5 of the Act, the tangible and concrete dispute has disappeared between the parties and the issues identified by the applicants have become academic. Any decision requiring the Minister to make a grant of citizenship would amount to an intrusion into the function of the legislative branch. This issue is further compounded, in the present circumstances, because the Governor in Council has never been provided an opportunity to make a decision in respect of Mr. Worthington's request for citizenship. The respondent asserts that the applicants will receive the relief sought in the notice of application to the extent that the law permits. The true issues can be resolved by quashing the decision under review and remitting it to the Minister for redetermination with directions as the court sees fit.
ANALYSIS
[21] I begin with the request for an order in the nature of mandamus. The Federal Court of Appeal's decision in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A) remains the cornerstone authority regarding an order of mandamus. As I indicated at the hearing of the application, no argument has been advanced in relation to the applicants' request in this regard. The prerequisite conditions articulated in Apotex, supra, must be met in order for the relief to be granted. In the absence of any submissions or argument addressing those conditions, I am not prepared to grant such an order.
[22] As to the request to quash the "decision of the Honourable Denis Coderre dated July 3, 2003 rejecting the Applicant's application", I will grant that relief. It is relief that is sought by the applicants and it is relief that the respondent Minister agrees should be ordered.
[23] With respect to the applicants' position - as opposed to their request for relief - that I seize the opportunity to declare, by virtue of section 15 of the Charter, that both section 3 of the Act and the interim measure are unconstitutional on the basis that they are discriminatory, I respectfully decline the applicants' invitation.
[24] The mere existence of a constitutional question does not mean that the court is obliged to determine it. It is an established practice in Canadian law that, if a judge can decide a case without dealing with a constitutional issue, he or she should do so: R.J. Sharpe, K.E. Swinton and K. Roach, The Charter of Rights and Freedoms, 2nd ed. (Toronto: Irwin Law, 2002) at p. 97. It is incumbent on the court to ensure that a proper factual foundation exists before measuring legislation against the provisions of the Charter, particularly where the effects of impugned legislation are the subject of the attack: Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 at 1099. Adjudicative facts are those that concern the immediate parties. They are specific and must be proved by admissible evidence: ibid. Charter decisions should not and must not be made in a factual vacuum. To do so would trivialize the Charter and inevitably result in ill-considered opinions. The absence of a factual base is not just a technicality that can be overlooked, it is a flaw that is fatal: MacKay v. Manitoba, [1989] 2 S.C.R. 357 at 361.
[25] This application is fraught with difficulties, the nature of judicial review being one of them. Judicial review proceedings are narrow in scope. Their essential purpose is the review of decisions for the purpose of assessing their legality. The reviewing court [absent exceptional circumstances not applicable here] is bound by the record that was before the judge or the board. Fairness to the parties and the court or tribunal under review dictates such a limitation: Bekker v. Canada (2004), 323 N.R. 195 (F.C.A.) (Bekker). The reviewing court must proceed on the record as it exists, confining itself to the criteria for judicial review: McKenna, supra, at paragraph 6.
[26] I do not intend to itemize all of the difficulties that arise in relation to this application. I will deal, briefly, with some of them. There is no affidavit from either of the applicants. The supporting affidavit is that of a so