Benjamin was born in the Netherlands in a same-sex parented family. His Canadian citizenship application was refused by the government because there is no biological link between Benjamin and his Canadian parent, which was interpreted as an essential requirement for derivative citizenship according to section 3(1)(b) of the Citizenship Act (“Act”). Instead of applying for judicial review before the Federal Court of Canada, the plaintiffs seek an order declaring that the government’s interpretation of s. 3(1)(b) of the Act breached and continues to breach their Charter right to equality before the Superior Court of Quebec. Interestingly, the Attorney General of Canada also agrees with the plaintiffs that the government’s interpretation of s. 3(1)(b) brings it in conflict with s. 15(1) of Canadian Charter of Rights and Freedoms (“Charter”). In July 2020, Mr. Justice Frédéric Bachand declared that in order to conform with Canadian human rights legislation as well as with the Charter, the interpretation requiring a biological link between Benjamin and his Canadian parent breaches his Charter right and that the terms “père et mère” in the French text should refer to both biological and legal parentage. This judgment protects same-sex couples’ rights to start and raise families of their own in Canada (Caron c. Attorney General of Canada, 2020 QCCS 2700).
Key Facts
Ms. Caron is a Canadian citizen. Her same-sex couple is Ms. van der Ven, a Dutch citizen.
Ms. van der Ven carried and gave birth to Benjamin pursuant to the assisted human reproduction (“AHR”) in the Netherlands.
The Minister of Immigration, Refugees and Citizenship refused Ms. Caron’s application for a certificate of Canadian citizenship for her son Benjamin, who was born in the Netherlands.
In contrast, Ms. Caron carried and gave birth to Anna with the assisted human reproduction (“AHR”) afterwards. Anna was recognized as a Canadian citizen as Ms. Caron is a Canadian citizen according to the section 3(1)(b) of the Citizenship Act (“Act”) within a few months after the submission of her application.
The plaintiffs have not commenced judicial review before the Federal Court of Canada in order to quash the administrative decision to deny Benjamin’s citizenship application.
The plaintiffs seek an order declaring that the Minister’s interpretation of section 3(1)(b) of the Act as requiring a biological link between Benjamin and Ms. Caron breached and continues to breach their – as well as Benjamin’s – Charter right to equality stipulated in the section 15(1) of Canadian Charter of Rights and Freedoms (“Charter”) in front of the Superior Court of Quebec.
The Attorney General of Canada agrees with the plaintiffs that the Minister’s interpretation of the section 3(1)(b) brings it in conflict with section 15(1) of Charter and that the Court ought to issue a declaratory order clarifying the proper interpretation of section 3(1)(b) of the Act.
On July 3, 2020, Mr. Justice Frédéric Bachand rendered his judgment orally.
On August 27, 2020, Mr. Justice Bachand provided the reasons for this judgement in written.
Applicable Laws and Relevant Jurisprudence
Section 3(1)(b) of the Citizenship Act provides that a child born outside Canada is considered to be a Canadian citizen if one of his/her parents, other than an adoptive parent, was a Canadian citizen at the time of his/her birth.
Section 5(4) of the Citizenship Act provides that the Minister may, in his or her discretion, grant citizenship to a person to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada despite of any other provision of the Act, including the Section 3(1)(b).
Section 15(1) of the Canadian Charter of Rights and Freedoms provides that every individual has the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Section 24 (1) of the Charter provides that every individual whose rights or freedoms, as guaranteed by the Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain remedy as the court considers appropriate and just in the circumstances.
The Supreme Court of Canada’s decision on Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 reminds us that the test for a prima facie violation of s. 15 should proceed in two stages: First, does the Minister’s interpretation of the law creates a distinction based on grounds that are expressly enumerated in section 15(1) or analogous thereto? Second, if so, does the Minister’s interpretation of the law impose burdens or deny benefits in a manner that reinforces, perpetuates or exacerbates disadvantages faced by those who are treated differently on the basis of the enumerated or analogous grounds.
Analysis of the Court
1. Is section 3(1)(b) of the Citizenship Act ambiguous?
Yes. The Federal Court of Appeal’s split decision on Canada (Citizenship and Immigration) v. Kandola, 2014 FCA 85 shows that section 3(1)(b) of the Citizenship Act is ambiguous.
First, Mr. Justice Noël, writing for the majority, found that there was a significant discrepancy between the English and French versions of section 3(1)(b) of the Act.
According to the majority, the wordings in the French version “née […] d’un père ou d’une mère” implies that a biological link must exist between the child and the Canadian parent, while the wordings in the English version does not require the child be “born to” a Canadian parent.
Second, the majority found that the French text should be preferred to the English text (para. 59 of Kandola, 2014 FCA 85). On one hand, the majority found that the terms “le père ou la mère” signaled Parliament’s intention to limit the scope of section 3(1)(b) to biological parents because the definitions of “père” and “mère” convey the idea that there must be a genetic/gestational connection according to Le Petit Robert, 2006, Le Grand Robert, 1996, Le Petit Larousse, 1999 and Multidictionnaire de la langue française, 2003. On the other hand, the majority found that interpreting the section 3(1)(b) as requiring a biological link between the child and the Canadian parent was consistent with the provision’s purpose of conferring derivative citizenship in an automatic manner (paras. 65-67 of Kandola, 2014 FCA 85).
Third, the dissenting judge, Mr. Justice Robert Mainville found that both the French version and the English version not only read exactly the same, but also contained language indicating that Parliament had not intended to limit the provision’s scope to biological parents. Mr. Justice Mainville noted that if the Parliament intended to use the term “parent” exclusively in its biological or genetic sense, it would not have been necessary to expressly exclude adoptive parents from the ambit of paragraph 3(1)(b). In other words, Mr. Mainville found that the notion of “parent” is intended to refer to a legally recognized parent (para. 100 of Kandola, 2014 FCA 85). Mr. Justice Mainville further emphasized that the purpose of the section 3(1)(b) of the Act is to treat all children of Canadian citizens substantially equally, irrespective of the circumstances of their birth (para. 119 of Kandola, 2014 FCA 85).
The split interpretation of the section 3(1)(b) of the Act from the judges of Federal Court of Appeal demonstrates that section 3(1)(b) of the Act is ambiguous.
2. Does the Minister’s interpretation of section 3(1)(b) of the Act bring it in conflict with section 15(1) of the Charter?
Yes. Mr. Justice Bachand follows the test for a prima facie violation of s. 15 Charter illustrated in the Supreme Court’s decision on Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17.
First, the Minister’s interpretation creates a distinction based on the manner of conception, which is considered to be an analogous ground of discrimination for the purposes of section 15(1) of the Charter (see para. 33 of Withler v. Canada (Attorney General), 2011 SCC 12 and page. 219 of Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203). As a consequence, the Minister’s interpretation causes section 3(1)(b) of the Act to have a disproportionately negative impact on same-sex families because most children of same-sex couples do not have a biological link to both parents and section 3(1)(b) will only apply to children conceived pursuant to an AHR process that led to the creation of a biological link with their Canadian parent. Following the Minister’s interpretation, Benjamin will have to apply for Canadian citizenship via a much more complex and uncertain regular immigration process, which may need over 7 years simply due to the fact that Benjamin was conceived by Ms. van der Ven who is not yet a Canadian citizen pursuant to an AHR process. On the other hand, the Minister’s interpretation may impose the plaintiffs to fight for Benjamin’s Canadian citizenship through the discretionary grant process provided in section 5(4) of the Act after the judicial review. This process is acknowledged to be time-consuming and unpredictable as well (paras. 22 to 24 of Caron c. Attorney General of Canada, 2020 QCCS 2700).
Second, the Minister’s interpretation denies benefits in a manner that reinforces, perpetuates or exacerbates disadvantages faced by same-sex families. The Court found that the Minister’s interpretation constituted a denial of equal benefit of the law because it restricted access to the valuable privilege of Canadian citizenship […] in different degrees depending on the manner of conception due to the circumstance of same-sex family. Furthermore, the Minister’s interpretation perpetuates the disadvantages faced by the same-sex couples like Ms. Caron and Ms. van der Ven, which entailed, among other things, that same-sex couples were denied equal opportunities to start families of their own. The Minister’s interpretation also significantly compromises the dignity of same-sex parents who are denied the possibility of passing on their Canadian citizenship to their foreign-born children. It widens the gap between the historically disadvantaged group, the members of the LGBTQ+ community, and the rest of society (paras 31 to 37 of Caron c. Attorney General of Canada, 2020 QCCS 2700).
The rule of interpretation reminds us that if the text of the legislation is capable of bearing a meaning that is constitutionally valid, the courts should give it that meaning (para. 28 of Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58). Therefore, the Court found that section 3(1)(b) of the Citizenship Act should be read as not requiring a biological link between the child and his or her Canadian parent.
3. What remedies can the Court provide to the plaintiffs?
Based on section 24(1) of the Charter, the plaintiffs are asking for an order declaring that the Minister’s interpretation of section 3(1)(b), as applied to Benjamin, breaches section 15(1) of the Charter (paras. 24 to 25 of Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62).
The plaintiffs claim that with the declaratory order from the Superior Court of Quebec, it can be assumed that the government will comply promptly and fully with it. Thus, that order constitutes an effective and meaningful remedy to which the plaintiffs are entitled.
Therefore, the Court declared that s. 3(1)(b) of the Act should be read as not requiring a biological link between the child and his or her Canadian parent and that in order to comply with s. 15(1) of the Charter, s. 3(1)(b) of the Act must be read and applied such that the word “parent” in the English text and the words “père et mère” in the French text refer to both biological and legal parentage.
Reflection
Generally speaking, applicants who have been denied citizenship certificates would have access to judicial review of the decision with leave of the Federal Court of Canada. According to s. 22.1 of the Citizenship Act, the application for leave must be filed in the Registry of the Court and served on the other party within 30 days after the day on which the applicant is notified or informed by a letter of the negative decision. The standard of review of the administrative decisions is fully discussed in the Supreme Court decision on Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Accordingly, the reasonableness standard is presumed to be the proper standard to judicial review of the administrative decisions. The legislative intention and the rule of law [constitutional questions, general questions of law of central importance to the legal system as a whole (para. 61 of Vavilov, 2019 SCC 65) and questions regarding the jurisdictional boundaries between 2 or more administrative bodies] are all of the situations in which a reviewing court should apply correctness standard (para. 69 of Vavilov, 2019 SCC 65).
In Caron v. Attorney General of Canada, the plaintiffs strategically seek a declaratory order in front of the Superior Court of Quebec on the matter of the interpretation of s. 3(1)(b) of the Citizenship Act to enhance their chance of success on winning the citizenship status for Benjamin and to protect same-sex couples’ rights to start and raise families of their own in Canada.
(Reminder: The purpose of this article is to provide general legal information. It does not contain a full analysis of the law nor does it constitute a legal advice on the points of law discussed. To minimize the legal risk for your business, you must take specific legal advice from a lawyer on any particular matter which concerns you. Thanks for your attention. ?)
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