IMM-984-96
Minister of Citizenship and Immigration (Applicant)
v.
Shiu Dular (Respondent)
Indexed as: Canada (Minister of Citizenship and Immigration) v. Dular (T.D.)
Trial Division, Wetston J."Vancouver, May 30; Ottawa, October 21, 1997.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Visa officer refusing to approve respondent's application for landing of adopted son as definition of —son— in Immigration Regulations, 1978, s. 2(1) not met — Adoption taking place 5 days after son's 19th birthday — Respondent able to sponsor adopted son for landing if son unmarried, under 19 years of age — Age 19 restriction creating distinction between parents of biological, adopted sons under 19 and parents adopting sons over 19 — Distinction amounting to discrimination under Charter, s. 15 but saved by s. 1 as objective (preventing use of adoption provisions to circumvent immigration requirements) pressing, substantial.
Constitutional law — Charter of Rights — Equality rights — Immigration and Refugee Board finding age 19 restriction concerning adopted children in Immigration Regulations, 1978, s. 2(1) contravenes Charter, s. 15 — Respondent entitled to sponsor adopted son's application for landing only if son unmarried, under 19 years of age — Restriction creating distinction based on biological parents of children over 19, adoptive parents of children over 19 — Distinction discriminatory on basis of analogous ground of adoptive parentage — Age 19 restriction violating Charter, s. 15 but saved by s. 1 as objective (preventing use of adoption provisions to circumvent immigration requirements) pressing, substantial.
Constitutional law — Charter of Rights — Limitation clause — Immigration Regulations, 1978, s. 2(1) concerning age 19 restriction for adopted sons found to contravene Charter, s. 15 — Whether saved by s. 1 — Application of test in The Queen v. Oakes — S. 1 analysis exercise based on facts, not abstractions — While state's justification need not be established to scientific certainty, must provide something sufficient in way of justification — One underlying purpose of provision to prevent adoptions of children over 19 to circumvent immigration requirements — Board erred in confusing s. 15(1) analysis of discriminatory effect with objectives of measure — Objective of age 19 restriction pressing, substantial — Where social science evidence inconclusive, sufficient Parliament had reasonable basis for means chosen.
This was an application for judicial review of a decision of the Immigration and Refugee Board finding that the age restriction imposed by the Immigration Regulations, 1978 on adopted children contravenes section 15 of the Charter. The respondent is the adoptive parent of a son born on December 12, 1971 but who was not officially adopted until December 17, 1990, five days after his 19th birthday. The visa officer dismissed the respondent's application for landing of his adopted son as the young man did not come within the definition of "son" found in subsection 2(1) of the Regulations, as amended, which requires that a son must be adopted before having attained 19 years of age. The Board found that the restriction creates a distinction between parents who have biological sons or who have adopted sons prior to their attaining the age of 19 and parents who have adopted sons older than 19. It concluded that the distinction is discriminatory, based on the analogous ground of adoptive parentage and, therefore, contravenes section 15 of the Charter. The issues raised herein were: 1) whether the Board erred in determining that the phrase "before having attained 19 years of age" is inconsistent with section 15 of the Charter, and 2) if inconsistent, whether those words are saved by section 1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society.
Held, the application should be allowed.
1) The phrase "before having attained 19 years of age" draws a distinction between parents who have biological sons or parents who have adopted their sons before having attained 19 years of age and those parents who have adopted their sons after they attain 19 years of age. The respondent would have been able to sponsor his son for landing as his "unmarried son" but for the age 19 restriction. The effect of this distinction is to deny parents who have legally adopted sons abroad the opportunity to be reunited in Canada with them, solely on the basis that such adoptions took place on or after their son's nineteenth birthday. These adoptive parents are being denied the equal benefit of the law, an enumerated right under section 15 of the Charter. The Board correctly characterized the distinction as based on "adoptive parentage". It is made on the basis of "biological parents of children over 19" and "adoptive parents of children over 19", since biological parents may sponsor their unmarried sons under the family class while adoptive parents may sponsor their unmarried sons only if the child was adopted before his nineteenth birthday. This distinction is, in part, based on the stereotypical attributes ascribed to adoptive parents as compared to biological parents. The effect of the Immigration Regulations, 1978 is clearly discriminatory, since adoptive parents are denied the opportunity to sponsor their son for landing where the adoption takes place after his nineteenth birthday. The Board did not err in finding that under the "dependent son" provisions, natural parents are given the opportunity to show that a child remains dependent on the parent, notwithstanding his adulthood, whereas adoptive parents are denied this opportunity, should their child have been adopted after attaining 19 years of age. The applicant's argument, that the effect of the Regulations is trivial, must fail.
2) The section 1 analysis is not an exercise based on abstractions, but on facts. While a measure need not be justified to the standard of a scientific certainty, the state must bring forward something sufficient by way of justification. One of the underlying purposes of the amended Regulations is to prevent the potential use of the adoption provisions to circumvent immigration requirements. In undertaking its section 1 analysis, the Board appears to have confused its subsection 15(1) analysis of the discriminatory effect of the age 19 restriction with the actual objectives of the measure. In so doing, the Board erred in its section 1 analysis of the restriction. The placing of restrictions on the entry and landing of non-Canadians is a fundamental component of immigration policy. The objective behind the enactment of the age 19 restriction is pressing and substantial. The Board erred in its application of the first branch of the Oakes test to the facts of this case. Where the social science evidence proves inconclusive, it is sufficient that Parliament had a reasonable basis for the mode of intervention chosen.
The Board's decision had to be set aside, the matter referred back to a differently constituted panel for rehearing and questions certified.
statutes and regulations judicially considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 15.
Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3.
Immigration Regulations, 1978, SOR/78-172, ss. 2(1) "adopted" (as am. by SOR/93-44, s. 1), "dependant" (as am. by SOR/92-101, s. 1; 93-44, s. 1), "dependent son" (as enacted by SOR/92-101, s. 1), "member of the family class" (as enacted by SOR/93-44, s. 1), "son" (as am. by SOR/85-225, s. 1; 93-44, s. 1), 4(1) (as am. by SOR/84-140, s. 1; 88-286, s. 2), 6 (as am. by SOR/94-242, s. 1).
Interpretation Act, R.S.C., 1985, c. I-21, s. 43(c).
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 30, 32.
cases judicially considered
applied:
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; Schafer v. Canada (Attorney General) (1997), 35 O.R. (3d) 1; 149 D.L.R. (4th) 705 (C.A.); The Queen v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 14 O.A.C. 335; R. v. Butler, [1992] 1 S.C.R. 452; (1992), 89 D.L.R. (4th) 449; [1992] 2 W.W.R. 577; 70 C.C.C. (3d) 129; 11 C.R. (4th) 137; 8 C.R.R. (2d) 1; 78 Man. R. (2d) 1; 134 N.R. 81; 16 W.A.C. 1.
considered:
Schachter v. Canada, [1988] 3 F.C. 515; (1988), 52 D.L.R. (4th) 525; 20 C.C.E.L. 301; 9 C.H.R.R. D/5320; 88 CLLC 14,021; 18 F.T.R. 199 (T.D.); RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; (1995), 127 D.L.R. (4th) 1; 100 C.C.C. (3d) 449; 62 C.P.R. (3d) 417; 31 C.R.R. (2d) 189; 187 N.R. 1.
referred to:
Kahlon v. Canada (Minister of Employment and Immigration) (1989), 7 Imm. L.R. (2d) 91; 97 N.R. 349 (F.C.A.); Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161.
authors cited
Regulatory Impact Analysis Statement, SOR/93-44. (1993), 127 Canada Gazette, Part II, No. 3.
APPLICATION for judicial review of a decision of the Immigration and Refugee Board ([1996] I.A.D.D. No. 837 (QL)) that the age restriction imposed by subsection 2(1) of the Immigration Regulations, 1978 on adopted children contravenes section 15 of the Canadian Charter of Rights and Freedoms. Application allowed.
counsel:
Esta Resnick for applicant.
appearance:
Shiu Dular on his own behalf.
solicitors:
Deputy Attorney General of Canada for applicant.
Respondent, Shiu Dular, on his own behalf, Vancouver.
The following are the reasons for order rendered in English by
Wetston J.:
FACTS AND BACKGROUND
This is an application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board dated February 26, 1996 [Dular v. Canada (Minister of Citizenship and Immigration), [1996] I.A.D.D. No. 837 (QL)]. The Board held that the visa officer's refusal to approve the respondent's application for landing of his adopted son was not in accordance with the law, based on a finding that the age restriction pertaining to adopted children contravenes the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. The respondent was not represented in this hearing and made no submissions.
The respondent, Shiu Dular, is the adoptive parent of Dharmendra Prakash Dular (hereinafter Prakash). Prakash was born on December 12, 1971. He was under the respondent's continuous care since December 18, 1971, but was not officially adopted until December 17, 1990, five days after his nineteenth birthday. According to the Fijian Adoption of Infants Act, the effect of the adoption was to put Prakash in the same position as a biological child of the respondent.
In May or June 1991, the respondent Shiu Dular filed an undertaking of assistance of Prakash. On October 15, 1991, Prakash submitted his application for landing. Prakash sought landing as a member of the family class, based on the fact that he is the adopted son of the respondent. By way of letter dated June 3, 1992, Prakash's application for landing was refused.
The relevant portions of the refusal letter provide:
I regret to advise that I must refuse your application as you have been determined not to be a member of the Family Class as described in Section 4 of the Immigration Regulations is (sic) that you do not meet the definition of "son" as described in section 2(1) of the Regulations.
The section reads as follows:
"2(1): "Son" means, with request (sic) to a person a male
(a) who is the issue of that person and who has not been adopted by another person, or
(b) who has been adopted by that person before having attained thirteen years of age."
As you were born on 12 December 1971 and were not adopted by your sponsors Shiu Dular and Raj Kuan, until 17 December 1990, you do not comply with the above definition. Accordingly, you are not a member of the Family Class and your application has been refused pursuant to paragraph 19(2)(d) of the Immigration Act.
Humanitarian and compassionate grounds for acceptance were considered in your case, but, given the information provided at your interview on 1 April 1992, were found not to apply.
The definition of "son", was, at this time, contained in subsection 2(1) of the Immigration Regulations, 1978 [SOR/78-172 (as am. by SOR/85-225, s. 1)] which provided that adoption take place before the child's thirteenth birthday. Section 4 [as am. by SOR/84-140, s. 1; 88-286, s. 2] of the Regulations provided that:
4. (1) Subject to subsections (2) and (3), every Canadian citizen and every permanent resident may, if he is residing in Canada and is at least eighteen years of age, sponsor an application for landing made
. . .
(b) by his unmarried son or daughter;
The term "adopted" was defined in the following manner:
2. (1) . . .
"adopted" means adopted in accordance with the laws of any province of Canada or of any country other than Canada or any political subdivision thereof where the adoption created a relationship of parent and child;
Thus, at the time that Prakash filed his application for landing, the respondent could sponsor an adopted unmarried son, as long as the adoption occurred before his son's thirteenth birthday.
On February 6, 1992, the Regulations were changed to provide that a person could sponsor a "dependent son". Dependent son [as enacted by SOR/92-101, s. 1] was defined as follows:
2. (1) . . .
"dependent son" means a son who
(a) is less than 19 years of age and unmarried,
(b) is enrolled and in attendance as a full-time student in an academic, professional or vocational program at a university, college or other educational institution and
(i) has been continuously enrolled and in attendance in such a program since attaining 19 years of age or, if married before 19 years of age, the time of his marriage, and
(ii) is determined by an immigration officer, on the basis of information received by the immigration officer, to be wholly or substantially financially supported by his parents since attaining 19 years of age or, if married before 19 years of age, the time of his marriage, or
(c) is wholly or substantially financially supported by his parents and
(i) is determined by a medical officer to be suffering from a physical or mental disability, and
(ii) is determined by an immigration officer, on the basis of information received by the immigration officer, including information from the medical officer referred to in subparagraph (i), to be incapable of supporting himself by reason of such disability.
A transitional provision, enacted at the same time, provided that the former definition would continue to apply to applications for landing filed prior to February 6, 1992.
On February 1, 1993, the Regulations were amended once again. The definition of "son" was amended in the following manner [as am. by SOR/93-44, s. 1]:
2. (1) . . .
"son" means, with respect to a person, a male
(a) who is the issue of that person and who has not been adopted by another person or,
(b) who has been adopted by that person before having attained 19 years of age.
The definition of "adopted" [as am. idem ] was also amended to exclude an "adoption of convenience". There were no transitional provisions regarding the application of these laws.
The Regulations were further amended on March 17, 1994 to provide that the "adoption of convenience" exclusion extended to an application pending on April 15, 1994 [s. 6 (as am. by SOR/94-242, s. 1)].
The Board determined that the relevant provisions relating to the respondent and Prakash, were the February 19, 1993 definition of "son", the pre-February 1, 1993 definition of "adopted" and the regulation which provided that the respondent could sponsor his "unmarried son". Thus, as long as Prakash was adopted before his nineteenth birthday, and was unmarried, the respondent could sponsor his application for landing.
The Board found, however, that Prakash was legally adopted five days after his nineteenth birthday, and that there were no provisions for customary adoptions in the applicable Fijian law. The Board then considered whether the age 19 restriction found in the revised Regulations violated the equality rights provided under section 15 of the Charter, and, if so, whether the Regulations could nonetheless be justified under section 1 of the Charter.
In consideration of whether the age 19 restriction violates section 15 of the Charter, the Board found that the restriction creates a distinction between parents who have biological sons or who have adopted sons prior to their attaining the age of 19 and parents who have adopted sons older than 19. Having determined the existence of a distinction, the Board found that the distinction is discriminatory, based on the analogous ground of adoptive parentage. While the Board acknowledged that the purpose of the distinction is not discriminatory, it found that the effect of the distinction is discriminatory, being based, in part, on stereotypical reasoning about adoptive parenthood, rather than on the true capacity or worth of such parents, or their individual circumstances. The Board therefore found that the age 19 restriction contravenes section 15 of the Charter.
The Board then assessed whether the legislation could be demonstrably justified in a free and democratic society, as required under section 1 of the Charter. While the Board found that the objective behind the legislation is pressing and substantial, the Board held that there is no rational connection between the age 19 restriction and its objectives. The Board also found that a "blanket" age 19 restriction does not constitute "minimal impairment" of equality rights under the Charter, because a less intrusive means could readily be found within the remainder of the impugned regulations. The means would be an assessment of dependency on a case-by-case basis.
ISSUES
The following issues are raised in this application for judicial review:
1. Did the Board err in determining that the phrase "before having attained 19 years of age", in the current definition of adopted "son", is inconsistent with section 15 of the Charter?
2. If the words are inconsistent with the Charter, are they saved by section 1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society?
APPLICANT'S POSITION
The applicant argues that the Board erred in determining that the words "before having attained 19 years of age" in the definition of adopted "son" contravenes section 15 of the Charter. The applicant argues that the Board erred in finding that the distinction is covered by subsection 15(1). Moreover, the applicant argues that the Board erred in finding that the distinction was not saved by section 1 of the Charter.
Is there a distinction?
The applicant argues that the phrase "before having attained 19 years of age" must be examined in conjunction with the other legislative amendments to the scheme of sponsoring members of the family class. The amendment made to the definition of "son", to include a son adopted "before having attained 19 years of age", was accompanied by an amendment to the definition of "member of the family class" [as enacted by SOR/93-44, s. 1]. This amendment provides that only a "dependent son", defined as an unmarried son who is less than 19 years of age or who is financially dependent upon his parents due to his status as a full-time student or because of a mental or physical disability, can be sponsored as a member of the family class. The definition of "adopted" was also restricted to exclude persons adopted "for the purpose of gaining admission to Canada".
The objectives of the amendments were outlined in the Regulatory Impact Analysis Statement (RIAS). The RIAS reads, in part:
The amendments extend the eligibility of an adopted child for the purposes of immigration to children under nineteen years of age, thus bringing the adoption provisions in line with the other immigration provisions dealing with sponsorship of children and dependency.
The amendments also seek to address the potential for use of the adoption provisions to circumvent immigration requirements. The family relationship created by adoptions would normally preclude the ability of the child to sponsor the birth family. To prevent misuse of the adoption provisions for the purpose of immigration, regulations are amended to prohibit adoptions of convenience. These amendments are modelled on the marriage of convenience clause and permit an assessment of the authenticity of the adoption.
The applicant contends that the amendment to the definition of "adopted" reduces the potential of adoptions of convenience, while the amendment to the definitions of "dependant" [as am. by SOR/92-101, s. 1; 93-44, s. 1] and "son" facilitates the admission of persons into Canada of children genuinely in need of parental care.
The Minister argues that the respondent bears the onus of establishing more than that he belongs to a group of adoptive parents of adults over 19 years of age, who are defined by a personal characteristic and who have suffered historic disadvantage. Rather, the applicant argues that the respondent must prove that the historic disadvantage of adoptive parents of adults over 19 years of age is related or connected to the purpose of the legislation. This means that the respondent must establish that the historic disadvantage of adoptive parents of adults over 19 years of age is relevant to facilitating the admission of children who are genuinely dependent on parental care. According to the applicant, the respondent has not discharged this onus.
The applicant argues that the Board erred in determining that the "age 19 distinction" in the definition of "son" breaches the right of adoptive parents by denying them the "opportunity to be reunited in Canada with these sons, solely on the basis that their adoptions took place on or after their nineteenth birthdays." This is because the definitions of "dependent son" and "member of the family class" operate to render Prakash unable to gain landing in Canada under the family class (since he is over 19 years of age, and not a full-time student, nor physically or mentally disabled). Since no evidence was led to establish that Prakash falls into these exceptions, it is the applicant's position that Prakash is ineligible to be sponsored.
As indicated above, the amendments, which took effect on February 6, 1992, do not permit family class admission to Canada of children over 19 years of age. The applicant states that the Board did not have before it any evidence pertaining to the distinction between "adoptive parents of children over age 19" and "adoptive parents of children under age 19" who apply to land their children under the family class. Thus, the applicant submits that ignoring the words "before having attained 19 years of age" in the definition of adopted "son" was artificial since Prakash did not meet the definition of "dependent son" and could not be admitted into Canada.
Is the distinction discriminatory?
The applicant argues that, while "adoptive parentage" may be an analogous ground, the respondent has failed to lead evidence to prove that adoptive parentage is an analogous ground in this case.
Moreover, the applicant argues that there is no evidence to show that the distinction is discriminatory (i.e. based on personal characteristics attributed to an individual in a particular group). Rather, the Regulations are designed to permit landing in Canada under the family class only to those individuals who are genuinely dependent. It is argued that the legal relationship between parent and child is not central to the operation of the Regulations since they apply to all "dependent children" regardless of whether a child is adopted.
In summary, on whether the distinction is discriminatory, the applicant argues that the Board erred in finding that the aim of the words "before having attained 19 years of age" is intended to curb attempts by adoptive parents to circumvent immigration requirements. The age requirement was amended to bring the Regulations into line with international and provincial norms; and that since an individual over the age of 19 is not a "dependant" whether adopted or not, and is not admissible into Canada as a member of the family class, the effect of the words "before having attained 19 years of age" in the definition of adopted son is minimal. The applicant states that the Board's conclusion is based on the belief that parents who have biological sons or who have adopted sons before they are 19 can sponsor their sons when they are over 19 years of age as "dependent sons". The applicant contends this is incorrect because a person must establish that he is dependent after attaining 19 years of age because he is a full-time student or is mentally or physically disabled. In this case, there was no evidence before the Board that Prakash fell within either of these exceptions. The requirement of "dependency" applies to all children over age 19, whether adopted or not, and, as such, is not discriminatory.
Section 1 of the Charter
The applicant argues further that if the phrase "before having attained 19 years of age" in the definition of adopted "son" violates section 15 of the Charter, the Board erred in finding that this provision was not justified under section 1 of the Charter.
The applicant states that, because the Board erred in determining the correct objective of the age 19 restriction, its section 1 analysis was fatally flawed. The applicant also argues that the Board failed to give regard to the context of this case, and in particular, the fundamental principle of immigration law that non-citizens have no right to enter and remain in Canada. In doing so, the Board also failed to properly balance the rights of the individual and that of the state in its analysis.
The applicant also argues that the definition of "son" is rationally connected to the objective, since it serves to limit the number of adults who can be admitted to Canada under the family class. Furthermore, the applicant states that the definition impairs the rights in question as little as possible and that there is proportionality between effects of the legislation and its objectives.
ANALYSIS
In my opinion, the Board correctly applied the Regulations which apply to this case, i.e., the pre-February 1993 definition of "adopted", the definition of "unmarried son" and the age 19 definition of "son": Kahlon v. Canada (Minister of Employment and Immigration) (1989), 7 Imm. L.R. (2d) 91 (F.C.A.). The Board was also correct in deciding that paragraph 43(c) of the Interpretation Act [R.S.C., 1985, c. I-21] entitles the respondent to rely on the unamended, less-restrictive definition of "adopted." Accordingly, Prakash must establish that he is not, and has not been, married. The definitions relating to "dependent son" came into effect after Prakash submitted his application for landing and thus are not applicable to him.
I. SECTION 15 OF THE CHARTER
1. Is there a distinction?
The applicant has argued that there is no distinction created by the application of the Regulations because the "dependency" requirements apply to both adopted children and non-adopted children. However, it is important to keep in mind the relevant provisions of the legislation which apply in this case. Specifically, dependency does not have to be established for Prakash to be eligible for landing, as it would for those applying today.
Accordingly, I find that the phrase "before having attained 19 years of age" does draw a distinction between parents who have biological sons or parents who have adopted their sons before having attained 19 years of age and those parents who have adopted their sons after they attain 19 years of age. The former group is entitled to sponsor their sons as members of the family class while the latter cannot. I base this finding on the fact that the respondent would have been able to sponsor Prakash for landing as his "unmarried son" but for the age 19 restriction.
2. Does this measure result in the denial of equality rights?
The Board correctly noted that the effect of this distinction is to deny parents who have legally adopted sons abroad the opportunity to be reunited in Canada with their sons, solely on the basis that such adoptions take place on or after an adopted son's nineteenth birthday. As such, these adoptive parents have been denied the equal benefit of the law"an enumerated right under section 15 of the Charter.
3. Does this distinction amount to discrimination?
The Supreme Court of Canada has effectively established that unequal treatment alone does not establish a breach of section 15 of the Charter. The distinction must give rise to discrimination. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, the Supreme Court of Canada defined discrimination as follows, at pages 174-175:
. . . a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capabilities will rarely be so classed.
Specifically, a claimant must establish that the unequal treatment is based on one of the grounds mentioned in subsection 15(1) or on the basis of an analogous ground.
(a) Analogous Ground
Counsel for the applicant argued that the Board erred in its finding that there is an analogous ground, specifically "adoptive parentage." She states that even if there is a distinction, it is a distinction between "adoptive parents of children under 19" and "adoptive parents of children over 19". This being the appropriate classification, she states that there is no evidence to show that the distinction is based on the personal characteristics attributed to an individual in a particular group. Rather, the legislation is designed to facilitate admission of persons under the family class on the basis of that person's dependency on the parental care of the sponsor.
I cannot agree with the applicant's submissions on this point. The Board correctly characterized the distinction as being on the basis of "adoptive parentage". The age restriction only applies to adopted children; it does not apply to biological children and thus the proper consideration is "adoptive parentage". While the applicant correctly notes that the amended Regulations require a biological child who is 19 years of age or older to show dependency before he can be sponsored as a member of the family class, a similar provision is not provided for children adopted after their nineteenth birthdays. Thus, the distinction is made on the basis of "biological parents of children over 19" and "adoptive parents of children over 19", since biological parents may sponsor their unmarried sons under the family class while adoptive parents may sponsor their unmarried sons only if the child was adopted before his nineteenth birthday. Similarly, in the case of "dependent sons" biological parents are given the opportunity to demonstrate dependency while the adoptive parents are not given the same opportunity.
This distinction is, in part, based on the stereotypical attributes ascribed to adoptive parents as compared to biological parents. A careful reading of the RIAS reveals that at least some of the underlying reasoning for the distinction is an assumption that the adoption of adult children is likely done to circumvent immigration requirements. According to the RIAS, the age 19 definition was brought about to address several concerns, including the need to bring the adoption provisions in line with other immigration provisions dealing with sponsorship of children and dependency. However, according to the RIAS, consideration was given to retaining the status quo because of the potential for abuse. It was decided that the amendments would "facilitate the admission of persons who genuinely require parental care while ensuring control over the use of adoptions to circumvent immigration requirements." Further, the amendments were seen to balance the "considerations of equality and fairness, concerns regarding the welfare of the child, and the use of the family class provisions to circumvent immigration requirements."
The applicant argues that the age 19 restriction was designed to address an inconsistency between the age 13 definition and the United Nations Convention on the Rights of the Child [[1992] Can. T.S. No. 3], and that the amendment to the definition of "adopted" was to address the potential for use of the adoption provisions to circumvent immigration requirements. I find that the legislative purposes cannot be so easily separated. The goal of reducing the potential for adoptions of convenience was addressed in changes to the definition of "adopted," as well as through an increase in the age restriction for adopted sons and daughters. Thus, I find that the legislation was based, in part, on stereotypical attitudes ascribed to adoptive, as opposed to biological, parents.
The applicant submitted that because the respondent failed to adduce evidence concerning the personal characteristics of the group against which the purported discrimination has been found, and his membership in it, the Board erred in finding that discrimination, in fact, exists. However, the Board did have sufficient authority upon which to base its finding.
In Schachter v. Canada, [1988] 3 F.C. 515 (T.D.), an approach to determining analogous grounds"later sanctioned by the Supreme Court in Andrews v. Law Society of British Columbia , [1989] 1 S.C.R. 143"was used in consideration of whether a distinction between natural fathers and adoptive parents made in the context of entitlement under sections 30 and 32 of the Unemployment Insurance Act, 1971 , S.C. 1970-71-72, c. 48. In Schachter, an analogous ground was determined to exist. The government chose not to pursue this finding in its appeal of this decision.
I would also note the recent decision of the Ontario Court of Appeal, in Schafer v. Canada (Attorney General) (1997), 35 O.R. (3d) 1 (C.A.), in which it was determined that adoptive parentage is an analogous ground under subsection 15(1) of the Charter.
The Board had sufficient evidence before it to determine whether the respondent fell within the analogous ground considered in Schachter, which the Board applied. Accordingly, I find that the Board did not err in holding that discrimination based on adoptive parentage is an analogous ground under section 15 of the Charter.
(b) Aim of the Legislation
The applicant argues that the aim of the phrase "before having attained 19 years of age" is not intended to address concerns over abuse of the adoption provisions to circumvent immigration requirements. Rather, this phrase is designed to facilitate admission of children into Canada under the family class where they are genuinely dependent upon parental care. This aim is not discriminatory in its purpose, nor in its effect since any person over the age of 19 is not a dependant, whether or not the individual is adopted.
Two comments need to be made with respect to this argument. First, the relevant Regulations, for purposes of this case, provide that unmarried sons can be sponsored for landing, but with a restriction on adopted sons, specifically that the adoption take place before their nineteenth birthday. The effect of the Regulations is clearly discriminatory, since the adoptive parent is denied the opportunity to sponsor their son for landing.
Second, the Board, in its reasons, has also addressed the effect of the "dependent son" provisions. The Board found that under the "dependent son" provisions, natural parents are given the opportunity to show that a child remains dependent on the parent, notwithstanding his adulthood, whereas adoptive parents are denied this opportunity, should their child have been adopted after attaining 19 years of age. The Board did not err in this finding. The applicant has failed to consider that natural parents are currently entitled to show that their sons fall within the exceptions to the general rule that children over the age of 19 are not dependants, whereas adoptive parents are not so entitled. Thus, the applicant's argument on this ground must fail.
(c) Trivial Effect
Furthermore, counsel for the applicant argues that the age 19 restriction has no effect on a person seeking landing as a "dependent son" when that person is over 19, since the person does not qualify as a "dependant". However, the exceptions to the general rule apply only to biological sons and not to sons adopted after attaining 19 years of age. Similarly, the applicable Regulations, in this case, do not require Prakash to demonstrate that he is financially dependent on his parents; he merely has to demonstrate that he is unmarried. Thus, the applicant's argument on this ground must fail, since the effect of the Regulations is not trivial.
II. SECTION 1 OF THE CHARTER
Having found that the words "before having attained 19 years of age" in the definition of adopted "son" violates section 15 of the Charter, it is necessary to determine whether this provision is justified under section 1 of the Charter.
In its decision, the Board properly outlined the two-branch test enunciated by the Supreme Court of Canada in The Queen v. Oakes, [1986] 1 S.C.R. 103. The test calls for the Minister to prove, on a balance of probabilities, that a measure which has been found to breach a Charter right or freedom is a reasonable limit which can be demonstrably justified. To do so, the applicant must first establish that the objective behind the measure is sufficiently important to warrant overriding a constitutionally protected right or freedom.
Second, the applicant must prove that the means chosen to achieve this objective are reasonable and demonstrably justified in a free and democratic society. Application of the second branch of the Oakes test requires satisfaction of three elements:
i. that the measure be rationally connected to the objective;
ii. that the measure chosen as a means to achieve the objective minimally impair the right or freedom in question; and
iii. that proportionality exists between the means chosen and the degree of impairment of the right or freedom.
In RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at page 331, McLachlin J. clarified that the section 1 analysis is not an exercise based on abstractions, but on facts. While justification for a measure may be established through the application of "common sense," and may certainly fall below what one might call a "scientific certainty," the state must nonetheless provide something sufficient in the way of justification for the measure to be justified.
What are the objectives of the impugned measure; and are they "pressing and substantial"?
Counsel for the applicant argues that the Board mischaracterised the objectives of the Regulations and that this mischaracterization led the Board into error in its section 1 analysis. Specifically, the applicant argues that Board erred in holding that the age 19 restriction is aimed at preventing abuse of the immigration system by circumventing requirements for admission through adult adoptions. The Board found this objective to be pressing and substantial but found that this objective was not rationally connected to the age 19 restriction. The applicant argues that the age 19 restriction serves to restrict the ability of persons to choose to adopt and then sponsor non-Canadian adults who do not meet the ordinary selection criteria.
As indicated previously, one of the underlying purposes of the amended Regulations is to prevent the adoption of children over 19 years of age in order to circumvent immigration requirements. However, the objective of the age 19 restriction is to restrict the ability of persons, such as the respondent, to sponsor non-Canadian adults, as well as to bring the Regulations which concern adopted children into line with this country's international obligations by facilitating admission of children under the family class that are in genuine need of parental care.
In undertaking its section 1 analysis, the Board appears to have confused its subsection 15(1) analysis of the discriminatory effect of the age 19 restriction (in which it found that the measure was based on a stereotypical assumption about adult adoptions) with the actual objectives of the measure. In so doing, the Board erred in its section 1 analysis of the restriction.
The placing of restrictions on the entry and landing of non-Canadians is a fundamental component of immigration policy. Parliament has the authority to enact legislation and regulations, which prescribe the conditions under which non-citizens will be permitted to enter and remain in Canada: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711. As such, the objective behind the enactment of the age 19 restriction is pressing and substantial.
The Board erred in its application of the first branch of the Oakes test to the facts of this case. I am satisfied, therefore, that the application should be allowed.
In consideration of the first stage of the second branch of the Oakes test, concerning whether a rational connection exists between the means chosen to fulfill a pressing and substantial objective, and the objective, the Board should have regard to the comments of Sopinka J., in R. v. Butler, [1992] 1 S.C.R. 452, at page 502, in which he indicated that "[i]n the face of inconclusive social science evidence . . . in choosing its mode of intervention, it is sufficient that Parliament had a reasonable basis [for its choice of means]".
At the conclusion of the hearing, counsel for the applicant asked that the following questions be certified:
Do the words "before having attained 19 years of age" in the definition of adopted "son" in s. 2(1) of the Immigration Regulations, 1978 which serve to exclude male persons adopted over 19 years of age from satisfying the definition of "son", discriminate against the group of "adoptive parents who adopt male persons over 19 years of age" on the analogous ground of "adoptive parentage" and deny them "equal benefit of the law" contrary to s. 15 of the Charter?
If the words "before having attained 19 years of age" in the said definition of adopted "son" are inconsistent with s. 15 of the Charter, are they saved by s. 1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society?
The application for judicial review shall be allowed. The decision of the Board shall be set aside and the matter referred back to a differently constituted panel for rehearing and reconsideration in accordance with these reasons.
The above questions, as proposed by the applicant, shall also be certified.