Kinsel v. Canada (Minister of Citizenship and
Immigration)
Between
Helen Jean Kinsel and Barbara Elizabeth Kinsel, Applicant, and
Minister of Citizenship and Immigration, Respondent
Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 1642
2012 FC 1515
Docket T-1958-11
Federal Court
Vancouver, British Columbia
Simpson J.
Heard: June 28, 2012.
Judgment: December 19, 2012.
Docket T-1958-11
Federal Court
Vancouver, British Columbia
Simpson J.
Heard: June 28, 2012.
Judgment: December 19, 2012.
(48 paras.)
·
REASONS FOR ORDER AND ORDER
1 SIMPSON J.:-- Helen and Barbara Kinsel [the
Applicants], bring this Application for judicial review [the Application] of a
decision made by an Officer [the Officer] of Citizenship and Immigration Canada
dated October 3, 2011, in which the Officer refused the Applicants'
applications for Certificates of Citizenship under the Citizenship Act, RSC, 1985, c C-29 [the Act].
The Earlier Proceedings
2 By
Order of Prothonotary Tabib dated May 30, 2012, Mr. William Kinsel was appointed
litigation guardian for Barbara Kinsel (age 17) and was authorized to represent
her pursuant to Rule 121 of the Federal Court Rules, SOR/98-106. Mr. Kinsel is a lawyer in the USA, and is the
Applicants' father. He will be described as the Father or the Applicants'
Father.
3 Regarding
Helen Kinsel (age 20), Protonotary Tabib noted that she was not a person under
disability and was therefore capable of representing herself. She therefore
refused to appoint William Kinsel as Helen's litigation guardian. However, the
Prothonotary noted that it would be open to the judge hearing the merits of the
Application to allow William Kinsel to make oral representations on behalf of
both his daughters. Accordingly, at the hearing, Mr. Kinsel was permitted to represent
both Applicants.
The Background
4 Joan
Winifred Napier, the Applicants' grandmother, was born in Canada on May 15,
1928. She was considered a British subject because Canada did not have
citizenship legislation at that time. Joan Napier was deemed to be a
natural-born Canadian citizen when the Canadian
Citizenship Act, SC 1946, c. 15 [the 1947 Act] came
into force.
5 Joan
Winifred Napier married William Keith Kinsel in California on August 27, 1949.
She became a naturalized citizen of the United States of America [USA] on March
30, 1955 and, on that date, she ceased to be a Canadian citizen by operation of
the 1947 Act.
6 William
Kinsel was born to Joan Winifred Napier and William Keith Kinsel on December
29, 1959, in the USA. As noted above, both his parents were US citizens and
neither were Canadian citizens at his date of birth.
7 Helen
Kinsel was born to William Kinsel and his wife on June 20, 1992 in Seattle,
Washington, USA. Her sister, Barbara Kinsel, was born on May 23, 1995, also in
Seattle. When the Applicants were born, neither of their parents were Canadian
citizens.
8 On
April 17, 2009 the Act was amended when Bill C-37 [the Bill], Act to Amend the Citizenship Act, SC
2008, c 14 came into force. Under the Bill, Joan Winifred Napier's Canadian
citizenship was restored retroactive to March 30, 1955. That was the date on
which she had lost her citizenship under the 1947 Act.
9 At
the same time, William Kinsel also became a Canadian citizen by virtue of
paragraph 3(1)(g) of the Act. His citizenship was deemed retroactive to his
date of birth by virtue of paragraph 3(7)(e) of the Act [the Provision]. It reads
as follows:
·
3.(7) Despite any provision of
this Act or any Act respecting naturalization or citizenship that was in force
in Canada at any time before the day on which this subsection comes into
force
·
(e) a person referred to in paragraph (1)(g) or (h) is deemed to
be a citizen from the time that he or she was born;
* * *
·
3.(7) Malgré les autres
dispositions de la présente loi et l'ensemble des lois concernant la
naturalisation ou la citoyenneté en vigueur au Canada avant l'entrée en vigueur
du présent paragraphe :
·
e) la
personne visée aux alinéas (1)g)
ou h) est réputée être citoyen à
partir du moment de sa naissance;
10 On
December 21, 2010, the Applicants' Father and the Applicants applied to
Citizenship and Immigration Canada [CIC] for Certificates of Canadian
Citizenship [Certificates].
The Decision
11 On
October 3, 2011 the Officer approved the Applicants' Father's application for a
Certificate pursuant to paragraphs 3(1)(g) and 3(1)(e) of the Act. This
approval meant that William Kinsel was given proof of his Canadian citizenship
as of his date of birth. However, the Officer refused to issue Certificates to
the Applicants.
12 In
her decision, the Officer noted that paragraph 3(1)(b) of the Act provides that
certain persons born outside Canada after February 14, 1977, are Canadian
citizens. It appears to apply to the Applicants because their Father was deemed
to be a citizen at the time of their birth by operation of the Provision. The
section reads as follows:
·
3.(1) Subject to this Act, a
person is a citizen if
·
(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;
* * *
·
3.(1) Sous réserve des autres
dispositions de la présente loi, a qualité de citoyen toute personne :
·
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;
13 However,
the Officer concluded that section 3(3)(a) of the Act precludes the application
of paragraph 3(1)(b) to the Applicants because the Applicants' Father is a
Canadian who was born outside Canada and who acquired citizenship under
paragraph 3(1)(g) of the Act. Paragraph 3(3)(a) states:
·
3.(3) Subsection (1) does not
apply to a person born outside Canada
·
(a) if, at the time of his or her birth or adoption, only one of the
person's parents is a citizen and that parent is a citizen under paragraph (1)(b), (c.1), (e), (g) or (h), or both of the person's parents are citizens under any of those
paragraphs; or
* * *
(3) Le paragraphe (1) ne
s'applique pas à la personne née à l'étranger dont, selon le cas :
·
a) au
moment de la naissance ou de l'adoption, seul le père ou la mère a qualité de
citoyen, et ce, au titre de l'un des alinéas (1)b), c.1), e), g) et h), ou les deux parents
ont cette qualité au titre de l'un de ces alinéas;
14 The
Officer noted that section 3(3)(a) "limits citizenship by descent to the
first generation born outside Canada." The Officer therefore concluded
that the Applicants do not meet the statutory requirements for citizenship
found in paragraph 3(1)(b) of the Act [the Decision].
15 In
reaching this Decision the Officer did not consider i) the relevance of section
3(4) of the Act, ii) the relevance of the United Nations Convention on the Reduction
of Statelessness (the Convention) and iii) whether section 15 of the Canadian Charter of Rights and Freedom (the Charter) had a bearing on her Decision.
The Issues
16 I
have characterized the issues as follows:
What is the appropriate
standard of review?
Did the Officer err in
her interpretation of sections 3(1)(b) and 3(3)(a) and 3(4) of the Act?
Did the Officer err when
she disregarded the Convention?
Do the Applicants have
standing to bring a Charter
challenge and if so, do the Officer's interpretation of the Act and her
Decision violate the Applicants' equality rights under section 15 of the Charter. Lastly, if there is a violation, is
the Decision saved under section 1 of the Charter?
1. The Standard of Review
17 The
Applicants submit that the standard of review on the second issue is
correctness, and they cite Dunsmuir v New Brunswick, [2008] 1 SCR 190, at paragraph 55. They submit that no special
expertise is required to read the simple documents submitted with their
applications for Certificates and they note that Citizenship is an issue of
fundamental importance to Canadians.
18 The
Respondent submits that the second issue is a question of law and statutory
interpretation and that the applicable standard is reasonableness. The
Respondent also refers to Dunsmuir, at paragraphs 51 and 54, saying that the Supreme Court recognized
that some questions of law may be subject to a more deferential standard when
the decision-maker is interpreting its home statute and has developed a special
expertise in a discrete and special administrative regime (see also MCI v Khosa, 2009 SCC 12, at para 44; and Nolan v Kerry, 2009 SCC 39, at paras 29-31).
19 The
Respondent also relies on Rabin v Canada (Minister of
Citizenship and Immigration), 2010 FC 1094, at paras
16-17, 19 and 29, Jabour v Canada (Minister of
Citizenship and Immigration), 2012 FC 98, at paras 23
and 28 to show that this Court has twice applied the reasonableness standard
when reviewing CIC decisions such as the one in this case.
20 I
have not found the Applicants' submissions persuasive on this issue because, in
my view, paragraph 55 of Dunsmuir
is not applicable. Although citizenship is important to Canadians it is not of
central importance to the legal system. Further, in my view, the question of
who is and who is not a Canadian citizen falls squarely within CIC's expertise
in dealing with the Act.
21 For
these reasons I am satisfied, as were my colleagues in Rabin and Jabour, that
reasonableness is the applicable standard of review on issue number two. For
reasons given below it is not necessary to consider the standard of review for
issues three and four.
2. The Officer's Interpretation of the Act
22 The
Applicants say that the Officer erred in that she failed to consider section
3(4) of the Act. It provides that:
·
3(4) Subsection (3) does not
apply to a person who, on the coming into force of that subsection, is a
citizen. 3(4) Le paragraphe (3) ne s'applique pas à la personne qui, à la date
d'entrée en vigueur de ce paragraphe, a qualité de citoyen.
23 The
Respondent says that this provision applies only to those who were citizens
"before" the Bill came into force and that it was intended to ensure
that such citizens would not be affected by the Bill even if they were members
of the second or subsequent generations born abroad.
24 The
Applicants deny that section 3(4) applies only to those who were citizens
"before" Bill C-37 came into force. Instead they say that this
provision provides them with citizenship because when Bill C-37 came into force
their father became a Canadian citizen as of his date of birth. They say that
because of that retroactivity they are deemed to have been born to a Canadian
parent after February 15, 1977 and were therefore citizens under section
3(1)(a) of the Act on the coming into force of Bill C-37. Accordingly, in their
view, section 3(4) forecloses the operation of section 3(3)(a).
25 There
are two difficulties with this interpretation. The first is that it contradicts
the purpose of Bill C-37 which was to preclude citizenship by descent after the
first generation born abroad [the Purpose]. Applied in this case, the Purpose
would mean that the Applicants' Father would be the last citizen born outside
Canada in his family.
26 The
Purpose is described in a document dealing with Bill C-37 prepared by the
Library of Parliament Information and Research Service dated January 9, 2008
[the Report] which the Applicants acknowledge provides authoritative
legislative history of the Bill. The Report indicates at page 7 that Bill C-37
amends the Citizenship Act
in four main ways. Among other things, "it precludes Canadians from
passing down Canadian citizenship to their offspring born abroad after one
generation."
27 The
Report returns to the issue at page 13 and there makes the following statement
about the Purpose:
·
A second contentious issue
raised by the bill relates to citizenship by descent. Under Bill C-37, the
child born abroad to a parent who derived his or her citizenship from a
Canadian parent who was also born abroad will not automatically become a
Canadian citizen. In other words, Bill C-37 cuts off citizenship by descent
after the first generation born abroad. The benefits of this approach include
clarity and certainty; the opportunity to repeal retention and registration
requirements that the Government has no way of communicating to those at risk
of losing their citizenship; and an end to possibility of Canadian citizenship
being passed down indefinitely to people who have little or no connection with
Canada. ...
28 The
second difficulty with the Applicants' interpretation of section 3(4) is that
it suggests that their Father's retroactive citizenship under section 3(7)(e)
of the Act was conferred earlier in time than their loss of citizenship under
section 3(3)(a). However, in my view, the following events happened
simultaneously when Bill C-37 came into force:
The Father became a
citizen retroactive to his birth;
The Applicants became
entitled to citizenship; and
The Applicants'
entitlement was foreclosed by section 3(3)(a).
29 The
fact that section 3(4) of the Act applies only to those born before Bill C-37
came into force, is confirmed by the following evidence:
The Clause by Clause
Analysis of Bill C-37 [the Analysis] which says:
·
Subsection 3(4) clarifies that,
despite subsection 3(3) no one will lose their Canadian citizenship on the
coming into force of the bill even if they are already the second or subsequent
generation born abroad.
* * *
·
Le paragraphe 3(4) précise que,
malgré ce que prévoit le paragraphe 3(3), personne ne perdra la citoyenneté
canadienne lors de l'entrée en vigueur du projet de loi, même quelqu'un qui
fait déjà partie de la deuxième génération, ou d'une génération subséquente,
née à l'étranger.
·
This analysis was prepared by
CIC for the assistance of the House of Commons Standing Committee on
Citizenship and Immigration. The Committee initially met on December 10, 2007
and issued its report on February 14, 2008. The Applicants say that the
Analysis should not be treated as reliable legislative history because it was
drafted by CIC. However, since the Passage spent more than one year before the
Committee and was not corrected, I have concluded that it can be said to
accurately reflect the Committee's view of the meaning of section 3(4) of the Act.
A CIC News Release
issued on December 10, 2007 when Bill C-37 was tabled which said, inter alia,
·
Anyone born abroad to a Canadian
on or after January 1, 1947, if not already a citizen, would be recognized as a
Canadian citizen from birth, but only if they are the first generation born
abroad. The exceptions would be those who renounced their citizenship.
·
No one who is a citizen today
would lose their citizenship as a result of these amendments.
·
Bill C-37 came into force 16
months after it was tabled. In my view, if the passage quoted above had been
incorrect, it would have been corrected before the Bill became law.
CIC's Operational
Bulletin 102 dated February 26, 2009 and entitled "Implementation of Bill
C-37 and Act to amend the Citizenship Act." In addition to setting out the Purpose the bulletin says that
it is important to note that Bill C-37 will not take citizenship away from any
person who is a citizen when the Bill comes into force. This bulletin was
issued approximately two months before Bill C-37 came into force.
Minutes of proceedings
before the Standing Senate Committee on Social Affairs, Science and Technology
dealing with , inter alia, Bill
C-37 show that the Minister of Citizenship and Immigration appeared in 2008 and
testified in part that:
·
Those who have Canadian
citizenship when the amendments come into force would remain Canadian
citizens.
* * *
·
Les personnes qui auront le
status de citoyen Canadian au moment de l'entrée en vigueur des modifications
conserveront leur status.
·
In my view, this testimony
refers to section 3(4) and confirms that it applies to those who had
citizenship prior to the coming into force of Bill C-37.
The Report also deals
with section 3(4) of the Act and says: "People born before the rule comes into effect and who are
second - or subsequent generation Canadians born abroad retain their existing
Canadian citizenship (new section 3(4))." [my emphasis].
30 Finally,
the Applicants rely on a statement in the Report which, in my view, is not
accurate. It is found at page 10 and the relevant portion [the Passage] reads
as follows:
·
This new rule cutting off
citizenship after one generation born abroad is only applicable to people born
after the rule comes into effect.
31 Since
the Applicants were born in 1992 and 1995, before the Act came into effect on
April 17, 2009, they submit that the Passage shows that section 3(3)(a) of the
Act does not apply to them. However, there is no basis in the Act for the
Passage and, in my view, it is simply inaccurate. It cannot be the case that
legislation which the evidence clearly shows was designed to limit the
acquisition of Canadian citizenship by descent to the first generation abroad
includes a provision which negates the Purpose.
32 For
all these reasons, I am satisfied that the Officer's Decision to refuse the
Applicants' application for Certificates based on section 3(3)(a) of the Act
was reasonable.
3. The U.N. Convention
33 The
United Nations Convention was not mentioned in William Kinsel's letter/brief of
December 15, 2010. Accordingly, this issue was not before the Officer. On
judicial review the Court's role is to determine whether the Officer's decision
was reasonable based on the record before her. See: Ochapowace
First Nation v Canada (Attorney General of Canada),
[2008] 3 FCR 571.
34 For
this reason, I will not consider whether the Officer's interpretation of the
Act is unreasonable because it allegedly permits a breach of Canada's
obligations under the Convention.
4. The Charter
35 The
Charter was first raised as an
issue when the Applicants filed their Memorandum of Fact and Law for this
judicial review on March 27, 2012 [the Memorandum]. An affidavit of service
sworn by William Kinsel on April 3, 2012 shows that Canada's Attorneys General
were served with a Notice of Constitutional Question.
36 The
Charter challenge is predicated
on a construct developed by the Applicants. They say that the Officer has
erroneously interpreted the Act and that CIC has created three classes of
second generation Canadians born abroad. These groups are described as follows
in paragraph 2 of the Applicants' Memorandum:
The First Class consists of those Second
Generation Canadians born abroad on or before April 17, 2009, who are descended
from "never lost" Canadian grandparents and parents. The First Class
Second Generation Canadian ("First Class SGCs") routinely receive
their citizenship certificates form CIC.
The Second Class consists of those Second
Generation Canadians born abroad on or before April 17, 2009, who are descended
from "lost-but-now-found" Canadian grandparents and parents.
Applicants Helen and Barbara Kinsel find themselves in this disfavoured class.
Based on the record and evidence available to the Applicants, these Second
Class Second Generation Canadians ("Second Class SGCs") are routinely
denied their citizenship certificates by CIC, even though they are now Canadian
citizens under the correct interpretation of the Act. See, e.g., Jabour v Canada (Minister of Citizenship and Immigration), 2012 FC 98 (example of denials of requests from Second Class
SGCs).
The Third Class consists of those Second
Generation Canadians who were born abroad after the April 17, 2009 effective
date of Bill C-37 ("Third Class SGCs"). No distinction is drawn in
this class based on whether the individual is descended from a Canadian
grandparent or parent who was previously lost or not. All of these Third Class
SGCs are now, under the Act, not
Canadian citizens, unless some other provisions of the Act grants that
right.
37 In
my view, these descriptions show that the fundamental discrimination the
Applicants seek to address is that faced by their Father who, as a lost
Canadian whose citizenship was created retroactively under Bill C-37, does not
have a full compliment of citizenship rights because, unlike citizens of his
day who were never lost, he is not entitled to pass his citizenship to his
daughters.
38 The
fact that the Applicants' constitutional challenge is based on CIC's
interpretation of the Act primarily as it relates to the Applicants' Father is
illustrated by the following passages from their Memorandum.
·
At paragraph 5:
·
The CIC's error springs from its
failure to understand the impact of, and to properly apply the Act with respect
to, the retroactive restoration of Canadian citizenship
to lost Canadians, and to lost First Generation
Canadians born abroad. ...
·
And at paragraph 9:
·
Alternatively, if this Court
ultimately determines that CIC accurately interpreted Bill C-37 when it created
its de facto three-class system,
then the Applicants submit that the Act itself is unconstitutional, and that it
must be re-written in a manner similar to that in Augier, 2004 FC 613 at para27, to make clear that all Second Generation
Canadians born before or on April 17, 2009 are subject to the same requirements
for citizenship, and not differing ones based on
whether their Canadian grandparents and parents were ever lost or not.
·
And at paragraph 45:
·
... Most simply and obviously
stated, Parliament made the restoration of citizenship to formerly-lost
Canadians retroactive precisely because Parliament intended William A. Kinsel to be able to pass on
citizenship to his Second Generation Canadian daughters Helen and Barbara
Kinsel, both of whom were born before April 17, 2009. This
result is necessary to place formerly-lost citizens and
their descendants on a completely equal footing with
their fellow Canadian citizens who were never lost. By
contrast, CIC's three-tier class scheme perpetuates forever yet another form of
second class citizenship for formerly-lost Canadians, and for formerly-lost
First Generation Canadians, because CIC discriminates against them and the
Applicants by refusing to acknowledge that Bill C-37 granted citizenship to
Second Class SGCs born on or before April 17, 2009.
·
At paragraph 46:
·
As the Benner Court held, a retroactive statute operates backwards and changes the
law from what it was, here for the purpose of allowing William Kinsel to pass
citizenship to Helen and Barbara Kinsel on the dates of their respective
births. It is a form of a legal-time machine that changes the legal facts as
they once existed into something else entirely, with the corresponding, logical
changes in other legal rights and conditions that flow from that underlying
retroactive change. To deny that conclusion is to render the retroactive
provisions of the Act a nullity, for then there is no
purpose to the retroactive restoration of citizenship to William Kinsel, or to
all of the other formerly-lost First Generation Canadians. To put it differently, Mr. Kinsel's status as a Canadian citizen
would be no different under the CIC's scheme if the Act had simply granted him
citizenship prospectively from
April 17, 2009 onward. ...
·
At paragraph 50:
·
We begin with the easy example,
specifically with the situation related to all Second Generation Canadians born
after April 17, 2009. With respect to that group of descendents born abroad, all Canadian citizens lost the
"stick" that allowed them to pass on citizenship to grandchildren,
great grandchildren, and so on, that had previously existed before the Act's
effective date. (See AR 162; AR
333.) By contrast, when Parliament retroactively
restored citizenship to formerly lost Canadians and
formerly-lost First Generation Canadians, Parliament
restored to them all rights of citizenship that are held by similarly-situated
Canadian citizens of the same status, including the right to pass on
citizenship to Second Generation Canadians born on or before April 17, 2009.
·
At paragraph 51:
·
... There is absolutely nothing in the Act that re-defines
the bundle of rights that is granted to "a citizen" under those
subparagraphs, as compared to other Canadian citizens with descendants born
abroad who were never lost. Yet, CIC has imposed such a distinction by creating
its three-tier class system for Second Generation Canadians. And, by doing so,
CIC has also created a form of second-class, inferior
citizenship for formerly-lost Canadian citizens, and for formerly-lost First
Generation Canadians, with absolutely no statutory authority to do so.
·
At paragraph 52:
·
... CIC's system is substantially
more complex than the one actually created by Parliament, and it perpetuates the discrimination against formerly-lost Canadians that was based on the unfounded and unwarranted belief that they
were somehow less worthy of respect, less trustworthy, and simply less valuable
to Canadian society because they found themselves in situations where, e.g.,
dual citizenship was needed but unavailable. With the removal of the
prohibition against dual citizenship, however, there is no rational basis for
such discrimination.
·
At paragraph 65:
·
... Yet, under the Second Class
SGC classification, Mr. Kinsel is prevented from
passing on to his daughters their citizenship. ...
[the emphasis is mine throughout]
39 In
my view, the Applicants' Father is the proper party to bring a Charter challenge. He is the citizen who says
that he has been denied full citizenship rights. While the alleged
discriminatory conduct certainly has an impact on the Applicants they are not,
notwithstanding their submissions, the primary targets of the alleged
discriminatory treatment. The Charter challenge is, in reality, about the alleged discriminatory treatment
of "lost citizens" as compared to "not lost citizens".
40 The
Applicants rely on the Supreme Court of Canada's decision in Benner v Canada (Secretary of State), [1997] 1
SCR 358. Benner dealt with the
1976 Citizenship Act which
came into effect on February 14, 1977 and provided that, with respect to
children born abroad before that date, those born with Canadian fathers became
citizens automatically while those born of Canadian mothers had to make an
application for citizenship, undergo a security check and take an oath of
citizenship.
41 Mr.
Benner was born in the USA in 1962 of an American father and Canadian mother. At
age 24 he came to Canada and applied for citizenship. When it was discovered
that he had been charged with murder in Canada his application was refused.
42 The
Supreme Court of Canada concluded that Mr. Benner was the primary target of the
sex-based discrimination mandated by the 1976 Citizenship Act and that he therefore had standing to raise a section 15 Charter issue. The Court concluded that Mr.
Benner was not alleging an infringement of his mother's section 15 rights as
the basis for his challenge. In other words, the 1977 citizenship did not
impact her citizenship rights in the sense that she was permitted to pass on
her citizenship by descent regardless of the gender of her child. The impact
was only felt by Mr. Benner because he had to make an application to take up
his citizenship.
43 However,
in the present case the situation is different. The Applicants are relying on
an alleged denial of their Father's right to one of the indicia of citizenship
i.e. the ability to pass his citizenship by descent. Put another way, the
Applicants' rights cannot be determined without a determination of their
Father's rights and it is settled law that a party cannot generally rely on the
violation of a third party's rights. See Benner at para 78. Accordingly, although the Applicants' Father may be
entitled to assert a section 15 right, he is not a party to this Application
and the Applicants have no standing to make the challenge.
44 There
is another problem with the Applicants' standing. They are not Canadian
citizens and are not present in Canada. The question of whether such
individuals can benefit from the rights and freedoms granted by the Charter was
most recently dealt with in Slahi v Canada (Minister of
Justice), 2009 FCA 259 [Slahi] (leave to appeal to the Supreme Court of Canada dismissed without
reasons on February 18, 2010, (2010) 405 NR 390).
45 In
Slahi, the Federal Court of
Appeal upheld Mr. Justice Blanchard's conclusion that, but for one limited
exception, the Charter does not
apply to non-Canadians outside Canada. The exception is that the Charter applies extraterritorially when
Canadian officials are involved in a foreign process that violates Canada's
international law obligations. See R. v Hape, 2007 SCC 26, [2007] 2 SCR 292.
46 A
summary of Mr. Justice Blanchard's findings is found at paragraph 47. There he
said:
·
In summary, the jurisprudence of
the Supreme Court teaches that section 7 Charter protections may be available
to non-Canadians when they are physically present in Canada [See Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177] or subject to a criminal trial in Canada [See R. v. Cook, [1998] 2 SCR 597], and that
Canadian citizens, in certain circumstances, may assert their section 7 Charter
rights when they are outside Canada [See Hape and Khadr]. In the
latter case, it is generally recognized that this will happen only in
exceptional circumstances. What emerges from the noted jurisprudence is that,
in the three cases of Canadian nationals claiming abroad, non-Canadians
claiming within Canada, and non-Canadians claiming abroad, for section 7
Charter rights to apply, the circumstances must connect the claimant with
Canada, whether it be by virtue of their presence in Canada, a criminal trial
in Canada, or Canadian citizenship.
47 The
Applicants lack standing to bring a Charter challenge because they are not the primary targets of the alleged
violation of section 15 and because they are not Canadian citizens or
residents. For these reasons it is not necessary to consider the merits of
their Charter challenge.
Conclusion
48 For
all the above reasons, the application will be dismissed.
ORDER
THIS COURT ORDERS that: this
application is dismissed.
SIMPSON J.
No comments:
Post a Comment