Date: 20001109
Docket: T-1663-99
BETWEEN:
RYSZARD FRANKOWSKI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of an officer in the respondent's Ministry denying the applicant's application for proof of Canadian citizenship in the form of a citizenship certificate. The officer wrote:
| The Canadian Citizenship Act, which was in force from January 1, 1947 to February 14, 1977, conferred the privilege of citizenship to a person, if he or she was born in Canada; or if born outside of Canada to a Canadian father (in wedlock), and to a Canadian mother, (if born out of wedlock), and his birth was registered in accordance with the prescribed regulations. Mr. Frankowski was born in Poland to Polish parents, so he did not automatically derive Canadian citizenship at birth. |
The decision letter goes on to acknowledge that the applicant herein, at the same time as he applied for a citizenship certificate, also applied for a grant of Canadian citizenship. That application was also denied. That decision was the subject of a separate application for judicial review which was denied at the Trial Division level by decision dated the 4th August, 2000.1
[2] The decision here under review, that is to say, the denial of the applicant's application for proof of Canadian citizenship, is dated the 20th of August, 1999.
BACKGROUND
[3] The following factual background is drawn largely from the Tribunal Record that was before the Court and from the memoranda filed on behalf of the applicant and the respondent. The only relevant affidavit filed on this application was that of the applicant. It was sworn the 13th of October, 1999. It consists of only two substantive paragraphs, the first attesting to the fact that the applicant filed an application for proof of his Canadian citizenship and the second attesting to the fact that that application was refused. At the opening of the hearing of this matter, the Court raised its concern regarding the inadequacy of the sworn evidence before the Court. More will be said on that subject later in these reasons.
[4] The applicant was born in Poland of Polish parents on the 20th of January, 1958. The applicant and his parents arrived in Canada as landed immigrants or permanent residents on the 25th of May, 1964. Thus, at the time of his arrival in Canada, the applicant was six years of age. At the date of his application for judicial review, the applicant had only returned to Poland on one occasion since his arrival and on that occasion the return was only for a brief visit.
[5] The applicant's parents apparently never applied for Canadian citizenship for the applicant as they were entitled to do after he had been here for five years and before he reached the age of majority. Similarly, after the applicant reached the age of majority, he never applied for Canadian citizenship until the 21st of December, 1998 at which time he filed the applications that resulted in the rejection here under review as well as the rejection of his application for Canadian citizenship.
[6] The applicant was convicted of trafficking in narcotics within the three years preceding the date of his application for Canadian citizenship. It was on this basis that his application for Canadian citizenship was denied. This apparently was not the applicant's first conviction for trafficking.
[7] An opinion that the applicant is a danger to the public in Canada was apparently issued against the applicant under subsection 70(5) of the Immigration Act2 on the 18th of November, 1998.
[8] Very shortly after the decision here under review was made, a removal order issued against the applicant. The applicant was removed to Poland on the 19th of June, 2000.
RELIEF REQUESTED
[9] On this application for judicial review, the applicant requests that, pursuant to section 24 of the Canadian Charter of Rights and Freedoms3 (the "Charter"), the decision under review be set aside, and that the applicant's application for proof of Canadian citizenship be referred back to the respondent with a ruling that, in light of the Charter, the applicant is a citizen of Canada.
THE STATUTORY FRAMEWORK
[10] In the course of argument before me, counsel for the applicant and counsel for the respondent relied on the Canadian Citizenship Act4 as reflecting the relevant law both at the time the applicant was born and at the time he arrived in Canada. Subsections 5(1) and (2) of that Act read as follows:
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. |
(2) A person who is a Canadian citizen under paragraph (1)(b) ceases to be a Canadian citizen upon the date of the expiration of three years after the day on which he attains the age of twenty-one years, unless he
(a) has his place of domicile in Canada at such date; or
(b) has, before such date and after attaining the age of twenty-one years, filed, in accordance with the regulations, a declaration of retention of Canadian citizenship.
5. (1) Une personne née après le 31 décembre 1946 est un citoyen canadien de naissance,
(a) si elle est née au Canada ou sur un navire canadien; ou
(b) si elle est née hors du Canada ailleurs que sur un navire canadien, et si
| (i) son père ou, dans le cas d'un enfant né hors du mariage, sa mère, au moment de la naissance de cette personne, était un citoyen canadien, et si |
| (ii) le fait de sa naissance est inscrit, en conformité des règlements, au cours des deux années qui suivent cet événement ou au cours de la période prolongée que le Ministre peut autoriser en des cas spéciaux. |
(2) Une personne qui est un citoyen canadian aux termes de l'alinéa (1)(b) cesse d'être un citoyen Canadien à la date d'expiration de trois années après le jour où elle a atteint l'âge de vingt et un ans, à moins
(a) qu'elle n'ait son lieu de domicile au Canada à pareille date; ou
(b) que, avant pareille date et après avoir atteint l'âge de vingt et un ans, elle n'ait produit, en conformité des règlements, une déclaration de rétention de citoyenneté canadienne.
[11] It was not in dispute before me that the applicant was not at anytime a "natural-born Canadian citizen" within the foregoing provisions of law.
[12] At the time the applicant applied for Canadian citizenship, the relevant law was found in subsections 3(1) and 4(1) and section 8 of the Citizenship Act5 which read as follows:
3. (1) Subject to this Act, a person is a citizen if
(a) the person was born in Canada after February 14, 1977;
(b) the person was born outside Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen;
(c) the person has been granted or acquired citizenship pursuant to section 5 or 11 and, in the case of a person who is fourteen years of age or over on the day that he is granted citizenship, he has taken the oath of citizenship;
(d) the person was a citizen immediately before February 15, 1977; or
(e) the person was entitled, immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the former Act.
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.
...
...
4. (1) For the purposes of paragraph 3(1)(a), every person who, before apparently attaining the age of seven years, was found as a deserted child in Canada shall be deemed to have been born in Canada, unless the contrary is proved within seven years from the date the person was found.
4. (1) Pour l'application de l'alinéa 3(1)a), l'enfant abandonné trouvé au Canada avant l'âge apparent de sept ans est réputé être né au Canada sauf preuve du contraire faite dans les sept ans qui suivent la date à laquelle il a été trouvé.
...
...
8. Where a person who was born outside Canada after February 14, 1977 is a citizen for the reason that at the time of his birth one of his parents was a citizen by virtue of paragraph 3(1)(b) or (e), that person ceases to be a citizen on attaining the age of twenty-eight years unless that person
(a) makes application to retain his citizenship; and
(b) registers as a citizen and either resides in Canada for a period of at least one year immediately preceding the date of his application or establishes a substantial connection with Canada.
8. La personne qui, née à l'étranger après le 14 février 1977, possède la citoyenneté en raison de la qualité de citoyen reconnue, à sa naissance, à son père ou sa mère au titre de l'alinéa 3(1)b) ou e), la perd à l'âge de vingt-huit ans sauf si_:
a) d'une part, elle demande à conserver sa citoyenneté;
b) d'autre part, elle se fait immatriculer comme citoyen et soit réside au Canada depuis un an à la date de la demande, soit démontre qu'elle a conservé avec le Canada des liens manifestes.
[13] The following provisions of the Charter were referred to in argument before me:
6. (1) Every citizen of Canada has the right to enter, and remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
...
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
...
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.
6. (1) Tout citoyen canadien a le droit de demeurer au Canada, d'y entrer ou d'en sortir.
(2) Tout citoyen canadien et toute personne ayant le statut de résident permanent au Canada ont le
droit :
a) de se déplacer dans tout le pays et d'établir leur résidence dans toute province;
b) de gagner leur vie dans toute province.
(3) Les droits mentionnés au paragraphe (2) sont subordonnés :
a) aux lois et usages d'application générale en vigueur dans une province donnée, s'ils
n'établissent entre les personnes aucune distinction fondée principalement sur la province de
résidence antérieure ou actuelle;
b) aux lois prévoyant de justes conditions de résidence en vue de l'obtention des services
sociaux publics.
(4) Les paragraphes (2) et (3) n'ont pas pour objet d'interdire les lois, programmes ou activités
destinés à améliorer, dans une province, la situation d'individus défavorisés socialement ou
économiquement, si le taux d'emploi dans la province est inférieur à la moyenne nationale.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
...
12. Chacun a droit à la protection contre tous traitements ou peines cruels et inusités.
...
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) 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.
(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.
...
...
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
...
24. (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis
par la présente charte, peut s'adresser à un tribunal compétent pour obtenir la réparation que le tribunal
estime convenable et juste eu égard aux circonstances.
...
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.
32. (1) La présente charte s'applique :
a) au Parlement et au gouvernement du Canada, pour tous les domaines relevant du Parlement,
y compris ceux qui concernent le territoire du Yukon et les territoires du Nord-Ouest;
b) à la législature et au gouvernement de chaque province, pour tous les domaines relevant de
cette législature.
(2) Par dérogation au paragraphe (1), l'article 15 n'a d'effet que trois ans après l'entrée en vigueur du
présent article.
THE ISSUE
[14] In a notice of constitutional question served on the attorneys general of Canada, the provinces and territories and filed with the Court on the 18th of August, 2000, counsel for the applicant described the issue on this application for judicial review in the following terms:
| The applicant intends to question the under inclusiveness of the Citizenship Act because it does not entitle any child to Canadian citizenship who comes to Canada as a permanent resident before the age of seven. |
| ... |
| The following is the legal basis for the constitutional question: |
| There are three different provisions of the Charter the applicant submits are violated by the Citizenship Act: the guarantee to security of the person in accordance with fundamental justice in section 7 of the Charter; the protection from cruel and unusual treatment in section 12 of the Charter; and the guarantee of equality and protection from discrimination on grounds of national origin in section 15 of the Charter. |
[15] In essence, counsel for the applicant urged that an additional paragraph should be read into subsection 3(1) of the Citizenship Act that would deem persons such as the applicant and persons similarly situated to him, that is to say young persons who arrive in Canada as landed immigrants or permanent residents before reaching the age of seven and in the company of their parents, to be Canadian citizens unless the contrary is proved within seven years from the date the young person arrived. Such a provision would confer on the applicant and similarly situated persons the same privilege that is afforded by subsection 4(1) of the Citizenship Act to young persons found as deserted children in Canada.
[16] In a Memorandum of Argument filed before the decision of the Federal Court of Appeal in Solis v. Canada (Minister of Citizenship and Immigration)6, counsel for the applicant further urged that the term "citizen" in section 6 of the Charter should be interpreted to have a broader meaning than is afforded to that term by the Citizenship Act. In the Solis decision, Rothstein J. A., for the Court, wrote at paragraphs 2 to 6:
| The first certified question is: |
| Does the word "citizen" in s. 6 of the Charter of Rights and Freedoms have a meaning independent from statute? If the answer to this question is yes, does an opinion under s. 70(5) of the Immigration Act violate a s. 6 right? |
| The appellant was a permanent resident under the Immigration Act but not a citizen under the Citizenship Act, ... . Relying on subsection 6(1) of the Charter, which entitles a citizen to remain in Canada, the appellant argues that for Charter purposes he was a citizen. In other words, notwithstanding the fact that he was not a citizen under the Citizenship Act, he had an independent Charter-based right to be considered a citizen largely because of his family ties and roots in Canada. This alleged common law right to be treated as a citizen is, according to the appellant, in addition to, but not in substitution of, the statutory provisions for citizenship in the Citizenship Act. |
| We agree with Professor Hogg that the concept of citizenship has no meaning apart from statute. Citizenship is a creature of federal statute law. The Citizenship Act is subject to the overriding provisions of the Charter such that if some provision of the Citizenship Act is found by a court to violate the Charter, a Charter remedy is available. However, the appellant here does not challenge the Citizenship Act as such. He only says there is an additional Charter-based notion of citizenship. For the reasons we have given we cannot agree with this submission. |
| The answer to question 1 is that the word "citizen" in section 6 of Charter has no meaning independent from statute. |
| The second part of question 1 need not be answered as the answer to the first part is in the negative. [citations omitted] |
[17] In light of the foregoing, the argument on behalf of the applicant that the word "citizen" has a meaning in section 6 of the Charter independent from statute was abandoned before me. However, as noted above, here the applicant does challenge the Citizenship Act as such. Thus, the argument as to the Charter violation of an under-inclusive Citizenship Act remains.
ANALYSIS
The Substantive Issue
| (1) Legislative Omission |
[18] In Vriend et al v. Alberta7, the Supreme Court of Canada addressed the question of whether section 32 of the Charter prohibits consideration of a Charter violation when the issue arises from a legislative omission. At paragraph 61 of their reasons, Justices Cory and Iacobucci wrote:
| The IRPA [Individual's Rights Protection Act, R.S.A. 1980, c. I-2] is being challenged as unconstitutional because of its failure to protect Charter rights, that is to say its underinclusiveness. The mere fact that the challenged aspect of the Act is its underinclusiveness should not necessarily render the Charter inapplicable. If an omission were not subject to the Charter, underinclusive legislation which was worded in such a way as to simply omit one class rather than to explicitly exclude it would be immune from Charter challenge. If this position was accepted, the form, rather than the substance, of the legislation would determine whether it was open to challenge. This result would be illogical and more importantly unfair. Therefore, where, as here, the challenge concerns an Act of the legislature that is underinclusive as a result of an omission, s. 32 should not be interpreted as precluding the application of the Charter. |
I am satisfied that the same can be said where the challenge, as here, is in respect of an Act of Parliament.
| (2) Retroactivity / Retrospectivity |
[19] Counsel for the respondent urged that the applicant is here attempting to secure application of the Charter to his situation retroactively or retrospectively. The Supreme Court of Canada dealt with this issue at some length in Benner v. Canada (Secretary of State)8, a matter involving a Charter challenge to the application of the Citizenship Act in respect of Mr. Benner on facts not dissimilar to those at issue here. Mr. Benner, like the applicant here, was born outside Canada, in his case in 1962. His mother was Canadian and was married to his father, a United States citizen. Mr. Benner grew up in California and entered Canada in 1986 when he would have been twenty-four years of age. He was denied Canadian citizenship. Mr. Justice Iacobucci, for the Court, wrote at paragraphs 39 and following:
| The terms "retroactivity" and "retrospectivity", while frequently used in relation to statutory construction, can be confusing. ... |
| ... |
| The Charter does not apply retroactively and this Court has stated on numerous occasions that it cannot apply retrospectively: ... |
| ... |
| At the same time, however, the Court has also rejected a rigid test for determining when a particular application of the Charter would be retrospective, preferring to weigh each case 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. ... |
| ... |
| Section 15 [of the Charter] cannot be used to attack a discrete act which took place before the Charter came into effect. It cannot, for example, be invoked to challenge a pre-Charter conviction: ... Where the effect of a law is simply to impose an on-going discriminatory status or disability on an individual, however, then it will not be insulated from Charter review simply because it happened to be passed before April 17, 1985 [the day on which section 15 of the Charter had effect]. If it continues to impose its effects on new applicants today, then it is susceptible to Charter scrutiny today: ... |
| The question, then, 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? |
| I realize that this distinction will not always be as clear as one might like, since many situations may be reasonably seen to involve both past discrete events and on-going conditions. ... |
| ... |
| I am uncomfortable with the idea of rights or entitlements crystallizing at birth, particularly in the context of s. 15. This suggests that whenever a person born before April 17, 1985, suffers the discriminatory effects of a piece of legislation, these effects may be immunized from Charter review. Our skin colour is determined at birth -- rights or entitlements assigned on the basis of skin colour by a particular law would, by this logic, "crystalize" then. Under the approach proposed by the respondent, individuals born before s. 15 came into effect would therefore be unable to invoke the Charter to challenge even a recent application of such a law. In fact, Parliament or a legislature could insulate discriminatory laws from review by providing that they applied only to persons born before 1985. |
| The preferable way, in my opinion, to characterize the appellant's position is in terms of status or on-going condition. From the time of his birth, he has been a child, born outside Canada prior to February 15, 1977, of a Canadian mother and non-Canadian father. This 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 this day to be denied the automatic right to citizenship granted to children of Canadian fathers. |
| ... |
| While I agree that presence of a date in a piece of legislation may suggest an "event-related" focus rather than a "status-related" one, it cannot alone be determinative. Consideration must still be given to the nature of the characteristic at issue. As I have stated above, there is a difference between characteristics which are ascribed at birth (e.g., race), and those which arise based on some action taken later in life (e.g., being a divorced person). Immutable characteristics arising at birth are, in my opinion, generally more likely to be correctly classified as a "status" than are characteristics resulting from a choice to take some action, e.g., the choice to get married or divorced. ... [citations, quotations and some portions of the text are omitted] |
[20] Against the foregoing analysis, as in Benner, I am satisfied that what is at issue here is the applicant's "status" rather than the date of his birth outside Canada, and his age on arriving in Canada, both discreet facts. While the analysis in Benner is related only to a section 15 challenge, for the purposes of this matter, I am prepared to extend the analysis to the arguments under sections 7 and 12 of the Charter as well.
| (3) Charter Violation - Section 7 |
[21] In relation to the alleged violation by an under-inclusive Citizenship Act of the applicant's rights under section 7 of the Charter to liberty and security, I am satisfied that the argument here on behalf of the applicant is tenuous in the extreme and cannot succeed.
[22] Counsel for the applicant urged that the applicant's liberty and security was violated by the failure of the Citizenship Act to recognize his right to citizenship as a child coming to Canada under the age of seven, in the company of his parents and as a landed immigrant or permanent resident, thereby depriving him of the right to remain in Canada and resulting in his deportation from Canada, a result, counsel urged, that constituted an arbitrary and unjustifiable disruption of his settled life in Canada.
[23] For many years after the applicant arrived in Canada with his parents, and after the expiration of a prescribed waiting period, the applicant's parents could have applied for Canadian citizenship for their son and there is nothing in the evidence before the Court that would lead to a conclusion other than that the application would have been granted. Similarly, after the applicant reached majority and before his criminal convictions, he himself could have applied for Canadian citizenship. Once again, there is nothing whatsoever in the evidence before the Court that would lead me to conclude that such an application would not have been granted. What in fact has triggered the applicant's inability to obtain status as a Canadian citizen has been his criminal conduct, not his place of birth and the nationality of his parents. Thus, it was not his place of birth and the nationality of his parents that might conceivably have put his liberty and security at risk but rather his parents and his own inaction combined with the criminal conduct for which he was convicted.
[24] In the circumstances disclosed by the evidence before the Court, I am satisfied that, if the applicant's rights to liberty and security were put at risk, and I am not satisfied that they were, that result flowed in a manner consistent with the principles of fundamental justice.9 As in Canada (Secretary of State) v. Luitjens10, albeit on very different facts, it was not the failure of Parliament to accord a right to Canadian citizenship to persons such as the applicant that conceivably resulted in a deprivation of the applicant's liberty and security, but rather his parents and his own inaction and his subsequent criminal activity, his convictions for that activity and subsequent processes11 taken under the Immigration Act.12
| (4) Charter Violation - Section 12 |
[25] I am satisfied that much the same could be said in respect of the alleged breach of section 12 of the Charter.
[26] Counsel for the applicant urged that the under-inclusive text of the Citizenship Act, in countenancing a denial of citizenship to a child, the applicant, under the age of seven after arrival in Canada as a landed immigrant or permanent resident, amounted to indirect cruel and unusual treatment because it sanctioned neglect amounting to a form of cruelty to the applicant through his parents' failure to apply for citizenship on his behalf. Such neglect, counsel submitted, was not in the best interest of the child and, as on the facts of this matter, exposed the child to discrimination on the basis of his parents' nationality leading, eventually, to the deportation of the applicant.
[27] In Chiarelli, supra, at pages 735 and 736, Justice Sopinka, for the Court, wrote:
| The general standard for determining an infringement of s. 12 was set out by Lamer J., as he then was, in the following passage in R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072: |
| The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, ... "whether the punishment prescribed is so excessive as to outrage standards of decency". In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate. |
| The deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain in Canada by committing a criminal offence punishable by imprisonment of five years or more, cannot be said to outrage standards of decency. On the contrary it would tend to outrage such standards if individuals granted conditional entry into Canada were permitted, without consequence, to violate those conditions deliberately. |
[28] Here, as in Chiarelli, the applicant's punishment, not for the offence of which he was convicted but for violation of "...an essential condition of his ... being permitted to remain in Canada ..." was deportation. He was not deported by reason of the place of his birth and the nationality of his parents or the failure to include in the Citizenship Act a right to persons such as the applicant to Canadian citizenship. Rather, he was deported by reason of his lack of Canadian citizenship, a status for which he, and earlier his parents, was responsible, not Parliament or the state, combined with his deliberate violation of an essential condition of his being permitted to remain in Canada as a permanent resident.
[29] I find no violation of section 12 of the Charter on the facts of this matter.
| (5) Charter Violation - Section 15 |
[30] I turn then to the alleged violation of section 15 of the Charter. In approaching this issue, I am mindful of the guidance for analysis of a claim of discrimination under section 15 that is provided in Law v. Canada (Minister of Employment and Immigration)13 and more particularly in paragraph 88 and at page 549 of the reasons for the Supreme Court's decision. In the context of that paragraph, Mr. Justice Iacobucci wrote:
| ... |
| (4) In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. |
| (5) The existence of a conflict between the purpose or effect of an impugned law and the purpose of s. 15(1) is essential in order to found a discrimination claim. The determination of whether such a conflict exists is to be made through an analysis of the full context surrounding the claim and the claimant. |
| ... |
[31] That Parliament is entitled to discriminate regarding Canadian citizenship between those born in Canada and those born outside of Canada, of one or both parents who are Canadian citizens, on the one hand, and those born outside of Canada of parents neither of whom is a Canadian citizen on the other, was not in dispute before me. Neither was it in dispute that the applicant fell into the latter category, that is to say those born outside of Canada of parents, neither of whom was a Canadian citizen. Rather, I understood the argument on behalf of the applicant to be limited to this: that the applicant, as an individual born outside of Canada of parents neither of whom was a Canadian citizen, and who accompanied his parents to Canada as a landed immigrant or permanent resident when he was under the age of seven years, is discriminated against by relation to a person under the age of seven years found as a deserted child in Canada.
[32] I am satisfied that such a distinction is not based upon a personal characteristic. Nor is it a distinction that fails to take into account, at least as against this applicant, the applicant's already disadvantaged position within Canadian society. Further, I am satisfied that the differential treatment cited is not based on any ground enumerated in subsection 15(1) of the Charter or on any ground analogous to such an enumerated ground.
[33] Finally, the differential treatment to which persons such as the applicant are subjected by comparison with foundlings of a similar age does not impose a burden upon, or withhold a benefit from, persons such as the applicant in a manner that reflects the stereotypical application of presumed group or personal characteristics or which otherwise might have the effect of perpetuating or promoting the view that an individual such as the applicant is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration with a similarly aged foundling. Rather, the applicant and persons such as the applicant have the distinct advantage in relation to foundlings of the nurturing and support of their parents. Presumably, it is on the latter basis that Parliament saw fit to make a distinction rather than on the basis of any personal characteristic.
[34] The fact situation before the Court in this matter is clearly distinguishable from the fact situation in Benner, supra, where the discrimination contrary to subsection 15(1) of the Charter that was found to exist was not between the applicant and other persons with similarly situated parents, but rather between persons born abroad of parents one of whom was a Canadian citizen and who were differentially treated depending upon whether or not the parent who was a Canadian citizen was the father or mother.
[35] In the result, I determine that the applicant has not been discriminated against in a manner resulting in a contravention of subsection 15(1) of the Charter.
| (6) Charter Violation - Section 1 Justification |
[36] If I had found discrimination contrary to the Charter, it would be necessary for me to turn to an analysis of whether or not such discrimination could be justified under section 1 of the Charter. That issue was not argued before me as a subject of separate analysis. In the light of my findings to this point, I am not obliged to turn to that issue and I decline to do so.
A PROCEDURAL ISSUE
[37] As noted earlier in these reasons, the sole substantive affidavit on this application for judicial review is that of the applicant who, after attesting that he is indeed the applicant, further attests only as follows:
| ... |
| 2. I have applied for proof of citizenship to the Registrar of Canadian Citizenship. My application is to be found in the material filed with the Registry [of the Court] by the tribunal under Federal Court Rule 318. |
| 3. My application for proof of citizenship was refused. The refusal is to be found in the material filed with the Registry [of the Court] by the tribunal under Federal Court Rule 318. |
| ... |
The respondent filed no affidavit.
[38] In his Memorandum of Fact and Law, the applicant recites five paragraphs of fact, each of which is verifiable by reference to the Tribunal Record although no references to the Tribunal Record are provided. In the respondent's Memorandum of Argument, the respondent recites six paragraphs of fact, five of which are referenced to the Tribunal Record. Against the foregoing, it was indeed fortunate that there was no dispute at the hearing before me as to the facts underlying this application as disclosed on the Tribunal Record.
[39] Under the former Federal Court Rules14, Rule 1603(1) required that, at the time of filing of a notice of motion such as the application here before the Court, the applicant was obliged to file "...one or more affidavits verifying the facts relied on by the applicant". Under the former Rule, the applicant's affidavit here filed would have been substantially deficient.
[40] In Dicom Express Inc. v. Dissanayake15, Madame Justice McGillis was faced with a situation where the applicant had failed to file affidavits verifying the facts relied on in support of the application for judicial review, as then required. She concluded:
| Since the applicant has completely failed to file any affidavit evidence whatsoever verifying the facts in this matter as required by Rule 1603(1) of the Federal Court Rules, the application for judicial review must be dismissed. |
I am satisfied that the same result would have followed here if the former Rules remained applicable.
[41] Rule 306 of the Federal Court Rules, 199816, the successor to Rule 1603(1), provides as follows:
306. Within 30 days after issuance of a notice of application, an applicant shall serve and file its supporting affidavits and documentary exhibits.
306. Dans les 30 jours suivant la délivrance de l'avis de demande, le demandeur dépose et signifie les affidavits et les pièces documentaires qu'il entend utiliser à l'appui de la demande.
[42] Clearly, an applicant continues to be required to file and serve one or more supporting affidavits but such affidavits need no longer extend to "...verifying the facts
relied on by the applicant". That being said, except where the applicant's affidavit or affidavits are, as here, clearly pro forma, it is difficult to understand why such affidavit or affidavits would not attest to the facts relied on by the applicant. If the facts in this matter had been in dispute in any significant regard, substantially greater difficulty would have been encountered in disposing of this application for judicial review. Indeed, it might have been impossible to do so on substantive grounds.
[43] As a matter of good practice, affidavits filed pursuant to Rule 306 should, wherever possible and to the extent possible, verify the facts relied on by the applicant.
CONCLUSION
[44] Based on all of the foregoing, this application for judicial review will be dismissed.
[45] At the close of the hearing of this application for judicial review, it was noted that, first, arguments in justification under section 1 of the Charter had not been fully presented during the hearing, second, the form of remedy that the applicant was seeking was not entirely clear, and finally, the issue of costs had not been addressed.
[46] In light of my decision, as reflected in paragraph 35 of these reasons, that I am not obliged to turn to the issue of a justification under section 1 of the Charter and that I decline to do so, and my determination to dismiss this application for judicial review, concerns regarding a section 1 justification and regarding the form of any relief in favour of the applicant are no longer relevant. The sole issue outstanding is that of costs.
[47] These reasons are in final form and have been signed. An order dismissing the application for judicial review will go without further delay. Counsel are invited to exchange and provide to the Court, within ten (10) days of the date of the order herein, any submissions they may wish to provide with respect to costs. In the event that submissions are received within the delay provided, a supplementary order as to costs will follow.
_______________________________
J. F.C.C.
Ottawa, Ontario
November 9, 2000
__________________1 [2000] F.C.J. No. 1253 (Q.L.)(F.C.T.D.).
3 Part I of the Constitution Act, 1982 (R.S.C. 1985, Appendix II, No. 44), being Schedule B to the Canada Act, 1982 (U.K.).
6 [2000] F.C. J. No. 407 (Q.L.)(F.C.A.).; an application for leave to appeal to the Supreme Court of Canada was filed on the 29th of May, 2000; reference no: 27947.
7 [1998] 1 S.C.R. 493 at p. 533.
8 [1997] 1 S.C.R. 358 at pages 381 to 387 and [1997] 3 S.C.R. 389.
9 As to the interpretation of the concept "principles of fundamental justice" see Chiarelli v. Canada (Minister of Employment and Immigration) [1992] 1 S.C.R. 711 at pages 732 and 733.
10 (1992), 142 N.R. 173 (F.C.A.).
11 See Ponnampalam v. Canada (Minister of Citizenship and Immigration) [1996] F.C.J. No. 897 (Q.L.) (F.C.T.D.) at paragraph 8.