Benner v. Canada (Secretary of State)

Benner v. Canada (Secretary of State)
Collection
Supreme Court Judgments
Date
1997-02-27
Report
[1997] 1 SCR 358
Case number
23811
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Notes
SCC Case Information: 23811
Decision Content
Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358
Mark Donald Benner Appellant
v.
The Secretary of State of Canada and
the Registrar of Citizenship Respondents
and
The Federal Superannuates National Association Intervener
Indexed as: Benner v. Canada (Secretary of State)
File No.: 23811.
1996: October 1; 1997: February 27.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the federal court of appeal
Constitutional law ‑‑ Charter of Rights ‑‑ Equality rights ‑‑ Citizenship ‑‑ Children born abroad before February 15, 1977 of Canadian fathers granted citizenship on application but those of Canadian mothers required to undergo security check and to take citizenship oath ‑‑ U.S.‑born son of a Canadian mother denied citizenship because of criminal charges ‑‑ Whether applying s. 15(1) of Charter involves illegitimate retroactive or retrospective application ‑‑ If not, whether the treatment accorded to children born abroad to Canadian mothers before February 15, 1977 by the Citizenship Act offending s. 15(1) ‑‑ If so, whether saved by s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 15(1) ‑‑ Citizenship Act, R.S.C., 1985, c. C‑29, ss. 3(1) , 4(3) , 5(1) (b), (2) (b), 12(2) , (3) , 22(1) (b),(d), (2) (b) ‑‑ Citizenship Regulations, C.R.C., c. 400, s. 20(1).
The appellant, who was born in 1962 in the United States of a Canadian mother and an American father, applied for Canadian citizenship and perfected his application on October 27, 1988. The Citizenship Act provided that persons born abroad before February 15, 1977, would be granted citizenship on application if born of a Canadian father but would be required to undergo a security check and to swear an oath if born of a Canadian mother. The appellant therefore underwent a security check, during which the Registrar of Citizenship discovered that he had been charged with several criminal offences. The Registrar advised that he was prohibited from acquiring citizenship and his application was rejected.
The appellant applied for an order in the nature of certiorari quashing the Registrar’s decision and for an order in the nature of mandamus requiring the Registrar to grant him citizenship without swearing an oath or being subject to a security check. The application was dismissed by the Federal Court, Trial Division and an appeal from that decision to the Federal Court of Appeal was also dismissed. The appellant was deported. The appeal raised three issues: (1) whether applying s. 15(1) ‑‑ the equality provision‑‑of the Canadian Charter of Rights and Freedoms involved an illegitimate retroactive or retrospective application of the Charter ; (2) if not, whether the treatment accorded to children born abroad to Canadian mothers before February 15, 1977 by the Citizenship Act offends s. 15(1) of the Charter ; and (3) if so, whether the impugned legislation was saved by s. 1 . The constitutional questions as stated were found wanting.
Held: The appeal should be allowed.
The Charter does not apply retroactively. The Court has not adopted a rigid test for determining when a particular application of the Charter would be retrospective. Rather, each case is to be weighed in its own factual and legal context, with attention to the nature of the particular Charter right at issue. Not every situation involving events which took place before the Charter came into force will necessarily involve a retrospective application of the Charter . Where the fact situation is a status or characteristic, the enactment is not given retrospective effect when it is applied to persons or things that acquired that status or characteristic before the enactment, if they have it when the enactment comes into force; but where the fact situation is an event, then the enactment would be given retrospective effect if it is applied so as to attach a new duty, penalty or disability to an event that took place before the enactment. The question is one of characterization: is the situation really one of going back to redress an old event which took place before the Charter created the right sought to be vindicated, or is it simply one of assessing the contemporary application of a law which happened to be passed before the Charter came into effect?
This case does not involve either a retroactive or a retrospective application of the Charter . The notion that rights or entitlements crystallize at birth, particularly in the context of s. 15 of the Charter , suggests that whenever a person born before s. 15 came into effect (April 17, 1985) suffers the discriminatory effects of a piece of legislation these effects may be immunized from Charter review. This is not so.
The appellant’s situation should instead be seen in terms of status or ongoing condition. His status from birth -- as a person born abroad prior to February 15, 1977 of a Canadian mother and a non‑Canadian father -- is no less a “status” than being of a particular skin colour or ethnic or religious background: it is an ongoing state of affairs. People in the appellant’s condition continue to be denied the automatic right to citizenship granted to children of Canadian fathers. The presence of a date in a piece of legislation, while it may suggest an “event‑related” focus rather than a “status‑related” one, cannot alone be determinative. Consideration must still be given to the nature of the characteristic at issue. A difference exists between characteristics ascribed at birth (e.g., race) and those based on some action taken later in life (e.g., being a divorced person). Immutable characteristics arising at birth are generally more likely to be correctly classified as a “status” than are characteristics resulting from a choice to take some action.
In applying s. 15 to questions of status, the critical time is not when the individual acquires the status in question but when that status is held against the person or disentitles the person to a benefit. Here, that moment was when the Registrar considered and rejected the appellant’s application. Since this occurred well after s. 15 came into effect, subjecting the appellant’s treatment by the respondent to Charter scrutiny involves neither retroactive nor retrospective application of the Charter . Had the appellant applied for citizenship before s. 15 came into effect and been refused, he could not now come before the Court and ask that s. 15 be applied to that refusal. The appellant, however, had not engaged the legislation governing his entitlement to citizenship until his application in 1988. Until he actually made an application for citizenship, the law set out only what his rights to citizenship would be if and when he applied, not what they were.
Several approaches to s. 15 have been advanced in the recent jurisprudence of this Court. It is not necessary for the purposes of this appeal to say determinatively which of these approaches is the most appropriate since the result is the same no matter which test is used in the application of s. 15 .
The fact that children born abroad of a Canadian mother are required to undergo a security check and to swear the oath, when those born abroad of a Canadian father are not required to do so, constitutes a denial of equal benefit of the law guaranteed by s. 15 of the Charter . Access to the valuable privilege of Canadian citizenship is restricted in different degrees depending on the gender of an applicant’s Canadian parent; sex is one of the enumerated grounds in s. 15 .
The fact that Parliament attempted to remedy the inequity found in the 1947 legislation by amending it does not insulate the amended legislation from further review under the Charter . The true source of the differential treatment for children born abroad of Canadian mothers cannot be said to be the 1947 Act, as opposed to the current Act, because the earlier Act does not exist anymore. It is only the operation of the current Act and the treatment it accords the appellant because his Canadian parent was his mother which is in issue. The current Act, to the extent that it carries on the discrimination of its predecessor legislation, may itself be reviewed under s. 15 .
The appellant is not attempting to raise the infringement of someone else’s rights for his own benefit. He is the primary target of the sex‑based discrimination mandated by the legislation and possesses the necessary standing to raise it. The appellant’s mother is implicated only because the extent of his rights are made dependent on the gender of his Canadian parent. Where access to a benefit such as citizenship is restricted on the basis of something so intimately connected to and so completely beyond the control of an applicant as the gender of his or her Canadian parent, that applicant may invoke the protection of s. 15. Permitting s. 15 scrutiny of the treatment of the appellant’s citizenship application simply allows the protection against discrimination guaranteed to him by s. 15 to extend to the full range of the discrimination. This is precisely the “purposive” interpretation of Charter rights mandated by earlier decisions of this Court.
These reasons do not create a general doctrine of “discrimination by association”. The link between child and parent is of a particularly unique and intimate nature. A child has no choice who his or her parents are. Whether this analysis should extend to situations where the association is voluntary rather than involuntary or where the characteristic of the parent upon which the differential treatment is based is not an enumerated or analogous ground are questions for another day.
That the differential treatment of children born abroad with Canadian mothers as opposed to those with Canadian fathers may be a product of historical legislative circumstance, not of discriminatory stereotypical thinking, is not relevant to deciding whether or not the impugned provisions are discriminatory. The motivation behind Parliament’s decision to maintain a discriminatory denial of equal treatment cannot make the continued denial any less discriminatory. This legislation continues to suggest that, at least in some cases, men and women are not equally capable of passing on whatever it takes to be a good Canadian citizen.
The impugned legislation was not saved under s. 1 of the Charter . Ensuring that potential citizens are committed to Canada and do not pose a risk to the country are pressing and substantial objectives which are not reasonably advanced by the two‑tiered application system created by the impugned provisions. The impugned legislation was not rationally connected to its objectives. The question to be asked in this regard is not whether it is reasonable to demand that prospective citizens swear an oath and undergo a security check before being granted citizenship but whether it is reasonable to make these demands only of children born abroad of Canadian mothers, as opposed to those born abroad of Canadian fathers. Clearly no inherent connection exists between this distinction and the desired legislative objectives.
Although retroactively imposing automatic Canadian citizenship in 1977 on children already born abroad of Canadian mothers could have caused difficulties for those children by interfering with rights or duties of citizenship already held in other countries, the Act clearly demonstrates that citizenship based on lineage was never imposed automatically, even on children born abroad of Canadian fathers. Treating children born abroad of Canadian mothers similarly to those born of Canadian fathers would therefore not have caused any undesirable retroactive effects. Anyone not wanting Canadian citizenship through an extension of those rights enjoyed by children of Canadian fathers to those born abroad of Canadian mothers would have had the option of simply not registering his or her birth. Only those children born abroad of Canadian mothers willing to take on Canadian citizenship would have it. It should also be noted that the current Act does not require these procedures for any children born abroad of a Canadian parent after February 15, 1977, no matter how old. If such children do not pose a potential threat to national security such that an oath and security check are required, it is difficult to see why someone in the appellant’s class does.
It was probable that the impugned legislation would likely fail the proportionality test as well.
The offending legislation was declared to be of no force or effect.
Cases Cited
Considered: R. v. Gamble, [1988] 2 S.C.R. 595; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Sarson, [1996] 2 S.C.R. 223; Murray v. Canada (Minister of Health and Welfare), [1994] 1 F.C. 603; Miron v. Trudel, [1995] 2 S.C.R. 418; Egan v. Canada, [1995] 2 S.C.R. 513; Thibaudeau v. Canada, [1995] 2 S.C.R. 627; Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314; Elias v. U.S. Department of State, 721 F.Supp. 243 (1989); distinguished: R. v. Edwards, [1996] 1 S.C.R. 128; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; referred to: Reference re Workers’ Compensation Act, 1983 (Nfld.), [1989] 1 S.C.R. 922; R. v. Stevens, [1988] 1 S.C.R. 1153; R. v. Stewart, [1991] 3 S.C.R. 324; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Crease v. Canada, [1994] 3 F.C. 480; R. v. Turpin, [1989] 1 S.C.R. 1296; Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872; R. v. Big M Drug Mart, Ltd., [1985] 1 S.C.R. 295; R. v. Oakes, [1986] 1 S.C.R. 103; Schachter v. Canada, [1992] 2 S.C.R. 679.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C., 1985, App. III, s. 1(b).
Canadian Charter of Rights and Freedoms, ss. 1 , 15 .
Canadian Citizenship Act, R.S.C. 1970, c. C-19 [formerly R.S.C. 1952, c. 33], s. 5(1) .
Citizenship Act, R.S.C., 1985, c. C‑29 [formerly S.C. 1974-75-76, c. 108], ss. 3(1) , 4(3) , 5(1) (b), (2) (b), 12(2) , (3) , 22(1) (b), (d), (2) (b).
Citizenship Regulations, C.R.C., c. 400, s. 20(1).
Authors Cited
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Driedger, Elmer A. “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. B. Rev. 264.
APPEAL from a judgment of the Federal Court of Appeal, [1994] 1 F.C. 250, (1993), 105 D.L.R. (4th) 121, 155 N.R. 321, 16 C.R.R. (2d) 15, [1993] F.C.J. 658, dismissing an appeal from a judgment of Jerome A.C.J., [1992] 1 F.C. 771, (1991), 43 F.T.R. 180, 14 Imm. L.R. (2d) 266, dismissing an application for certiorari and mandamus with respect to the dismissal of an application for citizenship by the Registrar of Citizenship. Appeal allowed.
Mark M. Yang, for the appellant.
Roslyn J. Levine, Q.C., and Debra M. McAllister, for the respondents.
Neil R. Wilson, for the intervener.
//Iacobucci J.//
The judgment of the Court was delivered by
1 Iacobucci J. -- This appeal raises the constitutionality of certain provisions of the Citizenship Act , S.C. 1974-75-76, c. 108, and proclaimed in force February 15, 1977 by SI/77-43, (hereinafter cited from R.S.C., 1985, c. C-29 (the “Act ”)), which provide for differential treatment of persons wishing to become citizens of Canada who had Canadian mothers, as opposed to those whose fathers were Canadian. For the reasons which follow, I find that this differential treatment violates s. 15 of the Canadian Charter of Rights and Freedoms and cannot be saved under s. 1 of the Charter . The offending provisions are therefore, to the extent of the unconstitutionality, of no force or effect.
1. Facts
2 Sections 3 to 6, inclusive, of the Act set out the requirements for entitlement to Canadian citizenship. These requirements depend to some extent on the date of birth of the applicant. Persons born abroad after February 14, 1977, are Canadian citizens if either of their parents was a Canadian citizen at the time of the birth: s. 3(1) (a). For people born abroad before February 14, 1977, the process of acquiring citizenship varies depending upon whether their mother or their father was Canadian.
3 According to s. 3(1) (e), a person is a citizen if he or she was entitled to citizenship under s. 5(1)(b) of the earlier 1947 Canadian Citizenship Act, R.S.C. 1970, c. C-19 (formerly R.S.C. 1952, c. 13, which was first enacted by S.C. 1946, c. 15, and declared to be in force January 1, 1947). This section provided that a person born outside Canada was still a “natural-born citizen” if his or her father (or, in the case of a child born out of wedlock, his or her mother) was a Canadian citizen at the time of that person’s birth and if his or her birth was registered within two years of its occurrence or within such extended period as the Minister might authorize. A person, therefore, whose father was a Canadian citizen is entitled under the current Act to citizenship upon registration of his or her birth.
4 The situation is different for those persons who have Canadian mothers but not Canadian fathers. Section 5(2) (b) of the Act provides that the Minister shall grant citizenship to a person who was born abroad before February 15, 1977 and whose mother, but not father, was Canadian, only if an application for citizenship is made before February 15, 1979, or within such extended period as the Minister may authorize. That is, while a child born abroad before February 15, 1977, to a Canadian father may claim citizenship upon registration of his or her birth, a similar child of a Canadian mother must apply for citizenship. This application process involves, inter alia, swearing an oath of allegiance, passing a criminal clearance check, and passing a security check: ss. 3(1) (c), 12(2) , (3) and 22 .
5 The appellant, Mark Donald Benner, was born on August 29, 1962, in the United States. His mother was Canadian and was married to his father, a U.S. citizen. The appellant grew up in California and entered Canada on October 10, 1986. An inquiry into his status in Canada was commenced on July 9, 1987, but was interrupted on September 24, 1987, by an application for citizenship from the appellant under s. 5(2)(b) of the current Act .
6 The appellant failed to produce the required documentation, and a deportation order was issued against him. On October 27, 1988, however, he provided the necessary material and on November 3 of that year, the deportation order was set aside so that his application could be processed. The respondent Registrar of Citizenship began a process of examination which included a criminal clearance check and a security check.
7 The Registrar discovered that the appellant had been charged with several criminal offences, including murder. The Registrar wrote to the appellant on August 31, 1989, advising him that he was prohibited from acquiring citizenship by s. 22 of the Act because of these outstanding charges, and giving him 30 days to demonstrate that he was in fact not prohibited from acquiring citizenship. The appellant did not reply, and on October 17, 1989, his application for citizenship was rejected.
8 The appellant pleaded guilty to manslaughter and was sentenced to three years’ imprisonment. He applied for an order in the nature of certiorari quashing the respondent Registrar’s decision to deny him citizenship, and for an order in the nature of mandamus requiring the Registrar to grant him citizenship without requiring an oath. This application was dismissed by Jerome A.C.J. of the Federal Court, Trial Division, on July 9, 1991. The Federal Court of Appeal dismissed his appeal, Linden J.A. concurring in the result only, and in September of 1993, he was deported to the United States. Leave to appeal his case was granted by this Court on March 10, 1994 ([1994] 1 S.C.R. v), and three constitutional questions were stated:
1. Do ss. 3(1)(e), 5(2)(b), and 22 of the Citizenship Act, R.S.C., 1985, c. C-29 , and s. 20 of the Citizenship Regulations, C.R.C., c. 400, violate, in whole or in part, s. 15(1) of the Canadian Charter of Rights and Freedoms , in so far as they impose more onerous requirements on those claiming Canadian citizenship based on maternal lineage than on those claiming Canadian citizenship based on paternal lineage?
2. If the answer to (1) is “yes”, do ss. 3(1) (e), 5(2) (b), and 22 of the Citizenship Act, R.S.C., 1985, c. C-29 , and s. 20 of the Citizenship Regulations, C.R.C., c. 400, constitute a reasonable limit prescribed by law pursuant to s. 1 of the Charter ?
3. Do ss. 3(1)(e), 5(2)(b), and 22 of the Citizenship Act, R.S.C., 1985, c. C-29 , and s. 20 of the Citizenship Regulations, C.R.C., c. 400, infringe, in whole or in part, the right contained in s. 1(b) of the Canadian Bill of Rights, R.S.C., 1985, App. III, in so far as they impose more onerous requirements on those claiming Canadian citizenship based on maternal lineage than on those claiming Canadian citizenship based on paternal lineage?
9 After an original hearing at which it was suggested that the questions were incomplete and needed to be restated, the parties were unfortunately unable to come to an agreement as to all the legislative provisions implicated by the issues raised in this appeal.
2. Relevant Statutory and Constitutional Provisions
10 Canadian Citizenship Act, R.S.C. 1970, c. C-19
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 authorize in special cases.
Citizenship Act, R.S.C., 1985, c. C-29 . (For convenience, I refer generally in these reasons to the most recent version of the law, even though the 1985 revisions did not come into force until December 12, 1988, several weeks after the appellant’s application was received by the respondent. No relevant change was made by these revisions.)
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 .
4. . . .
(3) For the purposes of paragraph 3(1)(e), a person otherwise entitled under paragraph 5(1)(b) of the former Act to become a citizen immediately before February 15, 1977 remains so entitled notwithstanding that his birth is registered, after February 14, 1977, in accordance with the regulations made under the former Act ,
(a) within two years after the occurrence of his birth; or
(b) within such extended period as the Minister may authorize after February 15, 1977 or has authorized before that date.
(Material was admitted at the hearing of the appeal indicating that the date for registration pursuant to ss. 4(3) and 5(2)(b) of this Act has been extended up to and including the hearing date of this case.)
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.
12. . . .
(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
. . .
(b) while the person is charged with, on trial for, subject to or a party to an appeal relating to, an offence under subsection 29(2) or (3) or to an indictable offence under any Act of Parliament;
. . .
(d) if the person has been convicted of an offence in respect of an act or omission referred to in subsection 7(3.71) of the Criminal Code ;
(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 ...
the person has been convicted of an offence under subsection 29(2) or (3) or of an indictable offence under any Act of Parliament.
Citizenship Regulations, C.R.C., c. 400
20. (1) Subject to subsection 5(3) of the Act and section 22 of these Regulations, a person who is 14 years of age or over on the day that he has been granted citizenship under subsection 5(2) , 5(4) or 10(1) of the Act shall take the oath of citizenship by swearing or affirming it. . . .
Canadian Charter of Rights and Freedoms
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.
3. Judicial History
A. Federal Court, Trial Division, [1992] 1 F.C. 771
11 Jerome A.C.J. held that the Charter could not be applied to the appellant’s case. He examined the decisions of this Court in R. v. Gamble, [1988] 2 S.C.R. 595, and Reference re Workers’ Compensation Act, 1983 (Nfld.), [1989] 1 S.C.R. 922, and concluded at p. 788 that the appellant was seeking a retrospective application of the Charter :
The Charter is clearly not intended to apply retrospectively and subsection 15(1) particularly was not intended to have effect until April 17, 1985. The difficulty here arises because the applicant’s citizenship application was delayed post-Charter in 1990. However, the citizenship legislation provides that the date of [the appellant’s] birth is the date by which his eligibility for preferred Canadian citizenship status is determined and the “discrete event” at issue, therefore, is whether the date of his birth is pre- or post-February 14, 1977.
12 The fact that the appellant did not apply for citizenship until after s. 15(1) had come into effect was not determinative for Jerome A.C.J., because the citizenship legislation fixed the date of birth as the relevant date for purposes of determining citizenship status (either before or after February 15, 1977). Applying s. 15(1) to the appellant’s situation would involve applying the Charter to rights which crystallized at the point of the appellant’s birth -- long before the Charter came into effect.
13 Jerome A.C.J. recognized that where a continuing discriminatory practice exists, then applying s. 15(1) to it will generally not involve retrospective application of the Charter . On these facts, however, he did not find such a continuing practice. In fact, he found that any discrimination was corrected in 1977 by the new Act which provided for equal citizenship status for children born abroad after 1977, whether their mother or father was Canadian.
14 Although he felt the appellant’s claim could be rejected for these reasons, Jerome A.C.J. went on to address the Charter arguments made by the appellant. He held that, while the application process imposed on children born abroad of Canadian mothers by s. 5(2)(b) of the new Act constituted a burden, this burden was not discriminatory in purpose or effect, and therefore did not offend s. 15(1) . He wrote at pp. 793-94:
It is evident then that, with the passage of the 1977 Citizenship Act , Parliament chose to grant preferred access to Canadian citizenship to all individuals born to a Canadian parent from its effective date, February 14, 1977. . . . This type of “line drawing,” however, is clearly within the authority of Parliament and has occurred on many occasions, notably with respect to income tax, unemployment insurance and other benefits legislation. In the 1977 Citizenship Act Parliament chose as well to extend a limited preferential access to a group of persons previously denied such treatment. This, too, is a decision that Parliament is competent to make.
. . .
When it amended the citizenship legislation, Parliament clearly considered “the social and political setting” and determined that an application procedure, subject to an oath requirement, would adequately protect the rights of the existing citizenry and at the same time, extend preferential status to individuals like [the appellant]. Therefore, although a “distinction” exists between the group of individuals previously entitled to preferential citizenship status before February 14, 1977 and those who were conferred a more limited right to preferred citizenship if born before the effective date of the new legislation, this distinction is not based upon the personal characteristics of the individuals. Rather, it is based on their merits and capacities and, in any event, it cannot be said that it is based on irrelevant personal differences.
15 According to Jerome A.C.J., any difficulties encountered by someone in the appellant’s position would be due to his or her unwillingness to swear an oath of citizenship or to failure to pass a security check. Neither of these was sufficient, in his view, to constitute a s. 15(1) violation.
B. Federal Court of Appeal, [1994] 1 F.C. 250
16 The Federal Court of Appeal unanimously dismissed the appellant’s appeal. Marceau and Létourneau JJ.A. held that the appellant sought a retrospective or retroactive application of s. 15(1), and that moreover, the impugned provisions were not discriminatory within the meaning of s. 15(1). Linden J.A. concluded that s. 15(1) applied to the appellant’s case, and that the legislation was discriminatory, but that it was saved under s. 1 .
17 Marceau J.A. stated, at pp. 259-60, that “[i]t is not the moment when a claimant has been actually affected by the provisions of an Act . . . that is relevant to determine whether he or she seeks a retroactive application of the Charter ; it is whether the contended discrimination would flow from the provisions themselves or rather from the previously acquired legal situation that those provisions acted upon.” Since the appellant’s non-acquisition of citizenship by birth was definitively settled at the time of his birth according to the law in force at the time, to go back and review that non-acquisition now in light of the Charter would clearly be to make the Charter apply retroactively. It would apply the Charter to an entitlement of rights which crystallized at the time the appellant was born.
18 Moreover, he held, “sex” should not be confused with “parental lineage”. The idea that children born abroad in wedlock acquire the citizenship of their fathers may have something to do with the sex of the parents, but it has nothing to do with the sex of the children. The appellant, one of these children, raised only his own s. 15(1) rights, not those of his mother. Marceau J. did not believe these rights were infringed by the impugned legislation.
19 Létourneau J.A. pointed out that the real source of the appellant’s complaint was the old 1947 Act , which assigned Canadian citizenship only to children born abroad in wedlock who had Canadian fathers. The 1977 Act sought to correct this by making citizens any children born abroad of either Canadian parent after February 14, 1977 (the date the new Act came into effect). The appellant’s complaint, according to Létourneau J.A., was that by not addressing persons born before February 14, 1977, the new Act did not go far enough in correcting the injustices of the old Act , and just as s. 15(1) could not be applied retroactively to bring the 1947 Act in line with the Charter , neither could it be applied to the 1977 Act .
20 Nor, he continued, was this a case of a “continuing discriminatory practice”. As he stated at p. 291:
For section 15 to apply, there has to be an actual or an on-going discrimination which deprives one of equal protection and benefit of the law. It is not enough for one to say that one still suffers from a discriminatory event or legislation which took place or existed prior to the Charter . Otherwise, just about every instance of past discrimination since the turn of the century could be reviewed under section 15 , provided the victims still suffer from that past discrimination.
21 According to Létourneau J.A., any discrimination against the appellant crystallized on the date of his birth in a foreign country when the old Act refused him citizenship because his father was not Canadian. It was at the point of his birth -- August 29, 1962 -- that legal consequences were attached to his situation. Section 15 was not intended to have retrospective effect and therefore cannot be used to go back and review that discrimination. The Charter cannot make the appellant a Canadian citizen as of the date of his birth. There is no “actual or . . . on-going discrimination” for the Charter to correct because the 1977 Act corrected the injustices of the old Act as of the date of its coming into force (i.e., for persons born after February 14, 1977).
22 Létourneau J.A. was also of the view that the impugned provisions were not discriminatory within the meaning of s. 15(1). For one thing, any discrimination was on the basis of marital status, not sex, since even under the old Act , an unwed Canadian mother could pass her citizenship on to her child.
23 More importantly, the impugned provisions represented a reasonable compromise of the situation faced by Parliament when creating the 1977 Act . Rather than forcing Canadian citizenship on everyone in the appellant’s position, Parliament chose to give them access to citizenship through a process of application involving minimal conditions. This in his view was not discrimination.
24 Linden J.A., however, disagreed. In his opinion, the Charter could be applied to the appellant’s case. He noted that the appellant was not seeking to have his citizenship changed retroactively to the point of his birth; rather, he was simply seeking to become a Canadian citizen on the date of his application -- October 27, 1988. The law in force in Canada at that time was the 1977 Act and that law was liable to Charter scrutiny. Whether he was a Canadian citizen prior to his application was not directly relevant, since the real question was the constitutional legitimacy of the access to citizenship provided for in the Act at the time of his application. No retroactive or retrospective application of the Charter was therefore required. The relevant date was that of the rejection of the appellant’s application for citizenship, not his date of birth.
25 According to Linden J.A., the Act set out two separate schemes for those applicants born before February 15, 1977: one for those relying on maternal lineage and one for those relying on paternal lineage. Only those relying on maternal lineage were required to satisfy a criminal clearance and to swear an oath of citizenship. The requirements of claiming citizenship were therefore more onerous for those who, like the appellant, had Canadian mothers but not Canadian fathers. This difference in treatment was enough, in his opinion, to constitute discrimination under s. 15(1) .
26 This was not a case of one individual trying to assert the Charter rights of another, since to deny the appellant access to citizenship on the grounds of his mother’s sex was (at p. 277) “surely as unjust as if the discrimination were aimed at the child directly”. It was an indirect form of sex discrimination, based upon the appellant’s association with a group of individuals -- women -- discriminated against on the basis of their sex.
27 Linden J.A. found that the discrimination was justified under s. 1 , however, largely for the reasons of Létourneau J.A. The objectives of requiring people in the appellant’s position to go through an application process -- establishing allegiance to Canada and maintaining security -- were pressing and substantial. The oath and security check embodied in the process were modest measures rationally connected to these objectives. In order to make children born abroad of Canadian fathers undergo these requirements, Parliament would (in passing the new Act ) have had to derogate from the already existing power to acquire citizenship upon registration granted to such children in the old Act . Linden J.A. was unable to say that faced with a choice between taking rights away from one group of people or refusing to grant them to another one, Parliament had made an unreasonable choice in opting for the second. Accordingly, he, too, dismissed the appellant’s claim.
4. Issues
28 This appeal raises three issues:
1. Does applying s. 15(1) to the appellant’s case involve an illegitimate retroactive or retrospective application of the Charter ?
2. If not, does the treatment accorded to children born abroad to Canadian mothers before February 15, 1977, by the 1977 Citizenship Act offend s. 15(1) of the Charter ?
3. If so, is it saved by s. 1 of the Charter ?
5. Analysis
29 In order to address these issues fully, it is necessary to understand the legislative and historical context of the impugned provisions. Accordingly, I will start by briefly discussing this context.
A. The Development of the 1977 Citizenship Act
30 Before 1947, there was no concept of Canadian citizenship. In 1946, Parliament passed the first Canadian Citizenship Act. Section 5(1) (b) (R.S.C. 1970, c. C-19) of that Act provided that Canadian fathers could pass their citizenship to their children born abroad, but that Canadian mothers could not, unless they were unwed at the time of the child’s birth. Section 5(1) (b) read as follows:
5. (1) A person born after the 31st day of December, 1946 is a natural-born Canadian citizen,
. . .
(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 authorize in special cases.
31 Children of Canadian fathers were entitle