Judgments

[1995] 1 F.C. 694

T-2596-93

Attorney General of Canada (Applicant)

v.

Shirley (Starrs) McKenna and Canadian Human Rights Commission (Respondents)

Indexed as: Canada (Attorney General) v. McKenna (T.D.)

Trial Division, Simpson J.—Ottawa, September 14, December 8, 1994.

Human rights — Denial of automatic citizenship to foreign nationals adopted abroad by Canadian citizens not discriminatory practice based on family status — Birthplace, not adopted or family status, governing entitlement to citizenship — As no finding respondent McKenna’s daughters victims, no jurisdiction under CHRA, s. 53(2)(b) to order necessary steps be taken to grant them citizenship.

Citizenship and Immigration — Status in Canada — Citizens — Denial of automatic citizenship to foreign nationals adopted abroad by Canadian citizens not discriminatory practice based on family status — Birthplace, not adopted or family status, governing treatment under Citizenship Act.

Construction of statutes — Retrospectivity — Allegation of discrimination based on family status when adopted foreign nationals refused automatic Canadian citizenship — No retrospective application of Canadian Human Rights Act as differentiation ongoing from births.

This was an application for judicial review. The McKenna family resides permanently in Ireland. Mrs. McKenna has three sons who were born in Canada, and two adopted daughters who were born in Ireland to non-Canadians. The sons have automatic Canadian citizenship, but the daughters could only become Canadian citizens through naturalization. Canadian Human Rights Act, section 5 provides that it is a discriminatory practice to differentiate adversely against any individual on a prohibited ground of discrimination, one of which is family status (section 3). The respondent alleged discrimination on the ground of the daughters’ family status as adopted children. After finding that it was not necessary to give the Canadian Human Rights Act retrospective effect, the Tribunal held that the differentiation in treatment of the sons and daughters was discrimination based on family status.

Citizenship Act, paragraph 5(2)(a) provides that minor, unmarried, adopted children must be granted permanent resident status on meeting certain conditions. The CHRT concluded that in the absence of evidence justifying them, certain of those requirements were not justified. The Attorney General’s submission was that there had been a breach of natural justice in that he had had no notice of the case to be met. Canadian Human Rights Act, paragraph 53(2)(b) permits the CHRT to make an order directing the provision of privileges denied to victims of a discriminatory practice. The Tribunal ordered the Attorney General to take the necessary steps to have citizenship granted to the daughters.

The issues were: whether the Tribunal had (1) erred in finding that the differentiation in treatment constituted discrimination on a prohibited ground; (2) erred in finding that no retrospective application of the Act was involved; (3) violated the rules of natural justice when it addressed the Citizenship Act, paragraph 5(2)(a); (4) erred in ordering that the necessary steps be taken to grant the daughters Canadian citizenship.

Held, the application should be allowed.

(1) The Tribunal erred in finding a discriminatory practice. It was not the daughters’ adopted or family status which governed their treatment under the Citizenship Act, but their status as foreign Irish nationals by birth. Birthplace as a ground for the differentiation is based on long-standing international conventions.

(2) Application of the Canadian Human Rights Act did not involve retrospectivity. Differentiation based on the daughters’ status as aliens had been ongoing from their births to the present.

(3) There was a breach of natural justice in that the Attorney General had had no notice that he was required to defend paragraph 5(2)(a).

(4) The Tribunal lacked jurisdiction to make the order in favour of the daughters because they were not victims under the legislation. Although the Tribunal concluded that the complainant was a victim, there was no finding that the daughters were victims.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, S.C. 1976-77, c. 33.

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 3, 5, 15(g), 40(5)(c), 53(2)(b).

Citizenship Act, R.S.C., 1985, c. C-29, ss. 3, 5(2),(4).

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Immigration Act, R.S.C., 1985, c. I-2, s. 2(1) “landing” (as am. by S.C. 1992, c. 49, s. 1), 19(1) (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3; S.C. 1992, c. 49, s. 11).

Immigration Regulations, 1978, SOR/78-172, ss. 2(1) “adopted” (as am. by SOR/93-44, s. 1), 2(1) “daughter” (as am. by SOR/85-225, s. 1; 93-44, s. 1), 2(1) “son” (as am. SOR/85-225, s. 1; 93-44, s. 1), 4(1)(b) (as am. by SOR/92-101, s. 2; 93-44, s. 4), 6(1)(c)(i) (as am. by SOR/92-101, s. 3; 93-44, s. 5).

APPLICATION for judicial review of CHRT decision (McKenna v. Canada (Department of Secretary of State), [1993] C.H.R.D. No. 18 (QL)) that denial of automatic citizenship to foreign nationals adopted by Canadian citizens abroad was a discriminatory practice under Canadian Human Rights Act, sections 3 and 5. Application allowed.

COUNSEL:

Brian Saunders for applicant.

Prakash Diar for respondent Canadian Human Rights Commission.

No one appearing for respondent Shirley (Starrs) McKenna.

SOLICITORS:

Deputy Attorney General of Canada for applicant.

Canadian Human Rights Commission, Ottawa, for respondent Canadian Human Rights Commission.

The following are the reasons for order rendered in English by

Simpson J.: The McKenna family resides permanently in Dublin, Ireland. Mr. and Mrs. McKenna are Canadian citizens and have five children; three boys born to them in Canada (the sons) and two daughters who were adopted in Ireland in accordance with Irish law (the daughters). The sons have automatic and unconditional Canadian citizenship, but automatic citizenship is not available to the daughters. Hence an application was made to the Canadian Human Rights Commission (the Commission) alleging discrimination on the basis of family status. The Canadian Human Rights Tribunal (the Tribunal) concluded in its decision that a discriminatory practice existed (the decision) [[1993] C.H.R.D. No. 18 (QL)]. In this application, the decision is the subject of judicial review pursuant to section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)].

The Facts

Mrs. Shirley (Starrs) McKenna (the complainant) and her husband adopted their daughters on May 20, 1975 and February 19, 1976. The daughters had been born in Ireland on May 24, 1974 and January 21, 1975 to parents who were not Canadians. In 1979, the McKenna family planned a visit to Canada. At that time, the complainant contacted the Canadian Embassy in Dublin seeking Canadian passports for her daughters. However, she was advised that, as Irish nationals adopted by Canadian citizens in Ireland, her daughters were not entitled to automatic Canadian citizenship. She was later advised that her daughters could become Canadian citizens through the naturalization process. However, as naturalization was conditional on an intention to reside permanently in Canada, an application for naturalization was never made because Mr. and Mrs. McKenna did not intend to make Canada their home. Seven years later, the complainant wrote to see whether the situation had changed. In reply, she received a letter dated May 12, 1986 from Catherine Lane, the Registrar of Canadian Citizenship. It read:

I have for reply your letter of April 10, 1986 in which you commented concerning the fact that your adopted children are not eligible for citizenship in the same way as are your natural children.

Canada has had its own nationality legislation since May 22, 1868. From that date to the present, derivative nationality has occurred in two basic ways. One is through the principle of jus soli whereby nationality or citizenship is derived from the soil without regard to parentage and the other is through the principle of jus sanguinis whereby nationality or citizenship is derived through the blood of a parent without regard to the place of birth. At no time in Canadian nationality legislation has the law viewed the natural and adopted child in the same way. As an illustration, the provisions of paragraph 3(1)(b) of the current Citizenship Act which relate to the citizenship of children born outside Canada of a Canadian parent read as follows:

“Subject to this Act, a person is a citizen if he was born outside Canada after the coming into force of this Act and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen.”

The Citizenship Act came into force on February 15, 1977. As is evident from the provisions of paragraph 3(1)(b) of that Act, the concept of citizenship or nationality being derived through the blood has been maintained. However, while this is so, the provisions of paragraph 5(2)(a) of the Act provide that the minor child of a citizen may be granted citizenship if he or she has been admitted to Canada for permanent residence. Should either or both your adopted children be under eighteen years of age they will be eligible to be granted citizenship once they have been admitted to Canada for permanent residence. If you decide to pursue this course of action, you may wish to contact the immigration authorities at the Canadian Embassy in Dublin.

In closing, while I realize that the information provided in this letter will not prove satisfactory to you, I am, nonetheless, bound by the requirements of the legislation.

As a last resort, the complainant applied under subsection 5(4) of the Citizenship Act [R.S.C., 1985, c. C-29] and asked the Minister to exercise his or her discretion to grant citizenship to the daughters. This the Minister may do in cases of special hardship or to reward services of an exceptional value to Canada. However, it is common ground that the complainant’s request was not granted. Accordingly, the complainant proceeded with her complaint to the Canadian Human Rights Commission (the complaint). Throughout these proceedings and those before the Tribunal, the complainant’s position was advocated by counsel for the Commission.

The present application raised a host of issues. These reasons deal with only those issues which I have determined were arguably relevant on a judicial review application.

They were:

1. Did the Tribunal err in finding that the differentiation in the treatment accorded the complainant’s sons and daughters regarding their entitlement to Canadian citizenship constitutes discrimination on a prohibited ground e.g., family status under the provisions of the Canadian Human Rights Act [R.S.C., 1985, c. H-6] (the CHRA)?

2. Did the Tribunal err in finding that the application of the CHRA in this case did not constitute a retrospective application of the CHRA?

3. Did the Tribunal violate the rules of natural justice or exceed its jurisdiction when it addressed paragraph 5(2)(a) of the Citizenship Act in its decision?

4. Did the Tribunal err in ordering that the Attorney General of Canada take the steps necessary to ensure that the daughters receive Canadian citizenship?

Issue 1—Discrimination on Grounds of Family Status

Section 3 of the CHRA provides that family status is a prohibited ground of discrimination. Section 5 of the CHRA states:

5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public

(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or

(b) to differentiate adversely in relation to any individual,

on a prohibited ground of discrimination.

In its decision the Tribunal identified the central issue in the following terms:

That is, children adopted abroad by Canadians are required to go through the naturalization process in order to acquire Canadian citizenship, whereas the biological children of Canadians who are born abroad acquire Canadian citizenship as of right. The differential treatment is based solely upon the child’s family status as an adopted child.

The complainant’s position is that it was her daughters’ adoptions which brought them into the McKenna family and that the family was the site of the differentiation between the sons and the daughters with respect to Canadian citizenship. Accordingly, discrimination was alleged on the ground of the daughters’ family status as adopted children. It was argued that discrimination exists because the natural born children of Canadian citizens abroad are Canadian citizens automatically while the adopted children of Canadian citizens abroad are differentiated in the sense that they must be naturalized to become Canadian citizens.

Unfortunately, I am unable to agree with this interpretation of the facts. Although it may be desirable that, with minimal procedural restrictions, the adopted children of Canadian citizens be granted Canadian citizenship as of right, this objective cannot be achieved in the course of this litigation. In my view, it is not the daughters’ adopted or family status which lies at the root of their treatment under Canada’s Citizenship Act. Rather, it is their status as foreign Irish nationals by birth which governs their treatment for citizenship purposes. Their adoptions are beside the point and are not the reason for the differentiation. The McKenna family is the place where the differentiation can be observed but, in the language of paragraph 5(b) of the CHRA family status, it is not a ground of or reason for the differentiation and did not create that differentiation. The differentiation between the sons and the daughters which appears in the McKenna family stems from their respective birth places. This ground for the differentiation is based on international conventions of long-standing which provide that citizenship depends on blood and/or place of birth.

Accordingly, the onus on the applicant to show a prima facie case of discrimination was not met, and the Tribunal erred in law in finding a discriminatory practice under subsection 3(1) and section 5 of the CHRA. For this reason, regardless of my findings on the other issues, the application will succeed and the decision will be set aside.

Issue—Retrospectivity

The Tribunal concluded that, to find jurisdiction, it was not necessary to give the CHRA retrospective effect. In my view, this conclusion was supported by the evidence before the Tribunal. The different treatment faced by the daughters under Canada’s Citizenship Act began at the date of their birth when they were identified as aliens for the purposes of Canada’s citizenship legislation. At that time, the CHRA did not exist. It came into force on March 1, 1978 [S.C. 1976-77, c. 33]. However, there has been ongoing differentiation based on the daughters’ status as aliens. It continues to the present. For this reason, the Tribunal did not err when it decided that the CHRA could be applied without a concern about retrospectivity.

Issue 3—Natural Justice

The Attorney General of Canada submits that there has been a failure of natural justice in that he did not know the case he had to meet. His concern stems from the fact that the Tribunal’s decision deals at length with paragraph 5(2)(a) of the Citizenship Act (paragraph 5(2)(a)) and concludes that many of its requirements are unjustified.

Paragraph 5(2)(a) provides that minor unmarried adopted children must be granted permanent resident status under the Immigration Act [R.S.C., 1985, c. I-2] once it is shown that:

—        the child has an intent to reside permanently in Canada;[1]

—        the child has a letter of no objection from the child welfare authority in the province of destination;[2]

—        the adoption occurred before the child was 19[3] and was performed in accordance with the law in the country of the adoption;[4]

—        the necessary health, criminality and security clearances have been obtained;[5]

—        the adoption is not one of convenience.[6]

These provisions will be referred to as the “conditions.”

The Tribunal considered whether the conditions were justified under paragraph 15(g) of the CHRA and concluded that, since no evidence had been adduced by the respondent to justify the permanent residence requirement or the requirements for screening for health, criminality or security, these requirements were not justified. On the evidence before it, the Tribunal also concluded that the age requirement and the letter of no objection were unjustified. As a result of the Tribunal’s decision, adopted children may be granted citizenship if the adoption, 1) was carried out in accordance with local law; 2) created a true parent-child relationship; and 3) was not carried out for the purposes of gaining admission to Canada. It is clear that the decision essentially dismantles the citizenship requirements for adopted children.

The applicant submits that he had no idea that the decision would address paragraph 5(2)(a) and that, accordingly, he did not lead any evidence on justification. He states that the evidence he led about the naturalization process was offered only by way of general background.

I have determined that there was a failure of natural justice which appears to have occurred because the issues were never adequately identified or defined. The complainant did not refer to a section of the Citizenship Act in her complaint. The text of the complaint focuses on automatic citizenship and the daughters’ ineligibility for citizenship as of right. No mention is made of the naturalization process and this makes sense in context. Since the McKenna family had no intention of residing in Canada, the complainant never thought to use the naturalization process to apply for citizenship for her daughters. During the hearing, counsel for the Commission cross-examined at length on the question of permanent residence which, he argues, was relevant only because paragraph 5(2)(a) was at issue. The Commission’s position appears to be that the Attorney General should be expected to discover the fundamental nature of the case from opposing counsel’s cross-examination. This argument cannot succeed especially because paragraph 5(2)(a) was never mentioned by the Commission in final argument—not even in its reply. What the Commission did say in its main argument was that it sought a remedy under section 3 of the Citizenship Act. This is the section which conferred automatic citizenship on the sons.

Much later, at the end of argument in reply, Commission counsel suggested for the first time ”It is 5(2)(b) which is most directly applicable to Mrs. McKenna’s case …. I think 5(2)(b) can cover Mrs. McKenna’s situation.”[7] In response, the Tribunal inquired “Where does that leave you with your request for a remedy then? Your remedy request was directed to section 3.”[8] A discussion followed in which the Tribunal asked counsel for direction about whether she had jurisdiction to “deal with another section that wasn’t involved in this case.”[9] In my view, she did not receive a helpful response. Thereafter, counsel for the respondent closed the hearing by objecting to the Commission’s tactic of raising paragraph 5(2)(b) for the first time in reply. In summary, it is clear that paragraph 5(2)(a) was never discussed. I am therefore satisfied that there was a failure of natural justice in that counsel for the respondent had no notice that he was required to defend and justify paragraph 5(2)(a).

For these reasons, even if I had concluded that there had been a discriminatory practice, the decision in so far as it contains orders relating to paragraph 5(2)(a) of the Citizenship Act would have been set aside and referred back for a re-hearing on the question whether the provisions of paragraph 5(2)(a) are justified under paragraph 15(g) of the CHRA.

Issue 4

The Tribunal made an order in favour of the daughters which provides “that, on the first reasonable occasion, the respondent take the necessary steps so that Siobhan and Caragh McKenna receive grants of Canadian citizenship.”[10] Paragraph 53(2)(b) of the CHRA provides that the Tribunal may make an order directing the provision of privileges denied to victims of a discriminatory practice (my emphasis). Although the Tribunal concluded that the complainant is a victim who meets the requirements of paragraph 40(5)(c) of the CHRA, there was no finding that the daughters were victims under paragraph 40(5)(c).

The Tribunal lacked jurisdiction to make the order in favour of the daughters because they do not qualify as victims under the legislation. Accordingly, by reason of this error, even if I concluded that there had been a discriminatory practice, the portion of the decision which contains the above-quoted order in favour of the daughters would have been set aside.

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