Benner v. Canada (Secretary of State)  [1997] 1 S.C.R. 358: -- 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

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.

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