Digests

Wilson v. Canada (Minister of Citizenship and Immigration)

T-210-03

2003 FC 1475, Harrington J.

16/12/03

8 pp.

Citizenship officer (officer) refused to issue certificate on ground applicant not Canadian citizen--Applicant brought application for judicial review, claiming any law deterring him in quest violates Charter--Whether applicant natural-born Canadian or American--Applicant born in U.S.A. in 1946-- Father and mother both Canadian-born, but were living in U.S.A. when married in 1940--Father became naturalized U.S. citizen in 1941--Fact applicant's father took out American citizenship also affected his mother--Their marriage turned her into alien--As applicant was born in U.S. of American father, presumption applicant American citizen-- No indication applicant did anything in this regard, nothing he could do because applicant was born in wedlock, and his father alien--Under current Citizenship Act, s. 5(2), person born outside Canada before February 15, 1977, such as applicant, of mother who was Canadian citizen at time of applicant's birth (1946) and who was not entitled to become citizen under former Act because father alien, entitled as of right to citizenship--However, applicant's mother not Canadian citizen at time of birth, because no Canadian citizenship before 1947, and unless mother took steps to contrary she had lost her status as British subject by virtue of husband taking out American papers in 1941--As to alleged Charter violation, obvious entitlement to citizenship through one's father and not one's mother, unless born out of wedlock, as provided in Naturalization Act, and Canadian Citizenship Act and Citizenship Act violates Charter, s. 15--However all these statutes repealed long before s. 15 came into force-- Before then, not unlawful to discriminate on grounds of race, origin, sex or age--Citizenship Act had no application pertinent to applicant born before 1947--Applicant's mother not Canadian citizen at time of applicant's birth--In addition, Citizenship Act snapped chain of causality, so applicant really asking to redress old event--Citizenship Act purported to redress distinction between Canadian fathers and Canadian mothers for persons born outside Canada after January 1, 1947, and before February 15, 1977--Since Citizenship Act not dealing with people such as applicant born in 1946, Citizenship Act did not carry forward legislative discrimination which would have been assessed against Charter--Acts not giving applicant status he asserts have no current application and thus not subject to Charter--Judicial review dismissed--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], s.15--Naturalization Act, R.S.C. 1927, c. 138, s. 13--Canadian Citizenship Act (The), S.C. 1946, c. 15-- Citizenship Act, S.C. 1974-75-76, c. 108, s. 5(2).