A-247-91
Anita Lea Glynos and Leonidas Jason Glynos
(Appellants)
v.
Her Majesty the Queen in Right of Canada
(Respondent)
INDEXED AS. GLYNOS V. CANADA (C.A.)
Court of Appeal, Heald, Décary and Létourneau B.A.
—Vancouver, September 14; Ottawa, September 24,
1992.
Citizenship — Appeal from refusal to declare Jason Glynos
eligible for citizenship and to issue writ of mandamus compel
ling grant thereof — Glynos born to Canadian parents outside
Canada in 1967 — Lost Canadian citizenship under old Citi
zenship Act when father became American citizen — Applica
tion for citizenship pursuant to new Act, s. 5(2)(b) refused on
ground applied only to persons who had never been Canadian
citizens — Trial Judge held issue of entitlement pursuant to s.
5(2)(b) moot as entitled to apply for resumption of citizenship
under s. 11— Appeal allowed — Issue not moot — Entitlement
to citizenship under s. 11 irrelevant to entitlement under s. 5 —
Different procedures with different objectives, requirements,
formalities, effects — Minister cannot force applicant to
choose longer, uncertain and more difficult route — Entitled to
citizenship by birth.
Construction of statutes — Citizenship Act, s. 5(2)(b) provid
ing Minister shall grant citizenship to person born outside
Canada before February 15, 1977 of Canadian mother and
who was not entitled immediately before that date to become
citizen — Legislative history indicating Parliament intending
anyone born to Canadian mother prior to enactment of new
Act, and who had been adversely affected by former Act's dis
criminatory provisions, entitled to citizenship under s. 5(2) —
Construction whereby "become" excluding "become again"
not compelled by structure of Act, contradicts Minister's appli
cation of Act, leads to absurd and unjust situations and ignores
mischief Parliament seeking to correct — French text
examined to determine Parliament's intention — All persons
born outside Canada to Canadian parent prior to coming into
force of new Act have right to citizenship under Part I.
Judicial review — Equitable remedies — Declarations —
Appeal from refusal to declare Jason Glynos eligible for grant
of Canadian citizenship and to issue writ of mandamus com
pelling grant thereof — Trial Judge erred in law in holding
issue of entitlement pursuant to Citizenship Act, s. 5(2)(b)
moot, and in construction thereof— Glynos entitled to citizen
ship by birth under s. 5(2)(b) — Cannot be forced to take
longer, uncertain and more difficult procedure for resumption
of citizenship under s. 11— No adequate alternative remedy —
Declaratory relief appropriate, but mandamus inappropriate
as s. 5(2)(b) deadline for application not met — Minister
expected to honour undertaking to waive requirement.
This was an appeal from the Trial Judge's refusal to declare
that Jason Glynos was eligible for a grant of Canadian citizen
ship and to issue a writ of mandamus to compel the grant of
Canadian citizenship to him. Jason Glynos was born in the
U.S.A. in 1967. He was a Canadian citizen because his father
was a Canadian citizen. When his father became an American
citizen in 1970, Jason automatically lost his Canadian citizen
ship under the former Canadian Citizenship Act. Paragraph
5(2)(b) of the new Act, which came into force in 1977, pro
vides that the Minister shall grant citizenship to any person
born outside Canada before February 15, 1977 of a mother
who was a Canadian citizen at the time of his birth and who
was not entitled immediately before that date to become a citi
zen under subparagraph 5(1)(b)(i) of the former Act, if an
application for citizenship was made before February 15, 1979.
(The Minister had agreed to waive the requirement that the
application be made by that date.) In 1987 Jason's mother
applied for citizenship on his behalf. It was refused on the
ground that paragraph 5(2)(b) applied only to persons who had
never been Canadian citizens. Jason Glynos, who had been
studying abroad, returned to Canada in 1989. In 1990, after
residing in Canada for one year, he was entitled to apply for
resumption of citizenship pursuant to subsection 11(1), but
refused to do so because he believed that he was entitled to
citizenship under paragraph 5(2)(b). The Trial Judge held that
the issue of entitlement to citizenship under that paragraph was
moot. The issues herein were: whether the issue of entitlement
under paragraph 5(2)(b) was moot; whether Jason Glynos was
entitled to citizenship under paragraph 5(2)(b); and, whether
this was a proper case in which to grant declaratory relief.
Held, the appeal should be allowed.
Whether Jason Glynos can receive citizenship under subsec
tion 11(1) was irrelevant to the question of whether he was
entitled to Canadian citizenship by virtue of his mother's Cana-
dian citizenship under paragraph 5(2)(b). The two sections pro
vide different procedures, the objectives, requirements, formal
ities and effects of which also differ. Under paragraph 5(2)(b)
citizenship is bestowed on an applicant by reason of his birth
alone, and his application goes directly to the Minister. Under
subsection 11(1) an applicant resumes his citizenship upon
meeting certain conditions, and his application must first be
processed by a citizenship judge. The Minister cannot force an
applicant to choose a longer, uncertain and more difficult
route, nor can he by denying an application under paragraph
5(2)(b) and then indicating that he would now grant an appli
cation under section 11, prevent the Court from dealing with
the issue. Furthermore, if citizenship were granted under para
graph 5(2)(b), it would recognize that in fact he had been a
Canadian citizen all his life.
Glynos was entitled to be granted citizenship by birth. The
legislative history of the Citizenship Act demonstrated that Par
liament intended that anyone born to a Canadian mother at any
time prior to the enactment of the Act, and who had been
adversely affected by the former Act's discriminatory provi
sions was to be entitled to citizenship under subsection 5(2).
Jason met the four criteria in paragraph 5(2)(b).
The respondent's argument that the word "become"
excluded "become again", so that Part I in which section 5 is
found, applies only to those who have never been Canadian
citizens, offended the wording of the provision, was not com
pelled by the structure of the Act, contradicted the Minister's
own application of the Act, lead to absurd and unjust situations
and ignored the mischief that was sought to be corrected by
Parliament. The French text uses the words "n'était pas admis
sible à la citoyenneté" to correspond to the words "not enti
tled ... to become a citizen". A person is a citizen or he is not.
A person is "admissible" or he is not. Clearly, Jason Glynos
was not "admissible" on February 14, 1977. Nor was he then a
Canadian citizen. While the English text is not ambiguous, the
French text better reflects the intention of Parliament. Part I is
not exclusive of Part III. The Minister has already granted
Jason's younger brother, who had ceased to be a citizen before
February 15, 1977 for the same reason as Jason, citizenship
under paragraph 5(2)(a). It would be absurd to suggest that two
brothers born out of the country prior to the coming into force
of the Act and having the same status under the former Act are
subject to a different treatment under the new Act. All children
born outside Canada to a Canadian father or to a Canadian
mother prior to the coming into force of the 1976 Act have the
right to citizenship under Part I of that Act.
This was a proper case in which to grant declaratory relief.
The Trial Judge refused to exercise his discretion under a mis
take of law as to the issue of mootness, as well as to that of the
true construction of paragraph 5(2)(b). He also wrongly
applied Terrasses Zarolega Inc. et al. v. Régie des installations
olympiques, [1981] 1 S.C.R. 94. Terrasses Zarolega does not
hold that when a statute presents two sets of means, an appli
cant can be forced to choose the means favoured by the
Administration. This case is not one of adequate alternative
remedy.
Mandamus should not, however, issue because the Court
could not order the Minister to waive the requirement that the
application for citizenship be made before February 15, 1979,
although he would be expected to respect his undertaking to
waive that requirement.
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].
Canadian Citizenship Act, R.S.C. 1970, c. C-19, ss.
5(1)(b)(î), 20(1).
Citizenship Act, S.C. 1974-75-76, c. 108.
Citizenship Act, R.S.C., 1985, c. C-29, ss. 2(1), 3(1)(b),
(c), 5 (2)(a),(b), 11(1).
Official Languages Act, R.S.C., 1985, c. O-3, s. 9(2)(d).
Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Attorney General) v. Young, [1989] 3 F.C. 647;
(1989), 27 C.C.E.L. 161; 89 CLLC 14,046; 100 N.R. 333
(C.A.); Benner v. Canada (Secretary of State), [1992] 1
F.C. 771; (1991), 43 F.T.R. 180 (T.D.).
CONSIDERED:
Borowski v. Canada (Attorney General), [1989] 1 S.C.R.
342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75
Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38
C.R.R. 232; 92 N.R. 110; Hills v. Canada (Attorney Gen
eral), [1988] 1 S.C.R. 513; (1988), 48 D.L.R. (4th) 193;
88 CLLC 14,011; 84 N.R. 86; Terrasses Zarolega Inc. et
al. v. Régie des installations olympiques, [1981] 1 S.C.R.
94; (1981), 124 D.L.R. (3d) 204; 23 L.C.R. 97; 38 N.R.
411; Barraclough v. Brown, [1897] A.C. 615 (H.L.).
REFERRED TO:
Benner v. Minister of Employment and Immigration
(1988), 93 N.R. 250 (F.C.A.); Lor-Wes Contracting Ltd. v.
The Queen, [1986] 1 F.C. 346; [1985] CTC 79; (1985), 85
DTC 5310; 60 N.R. 321 (C.A.); Thomson v. Canada,
[1988] 3 F.C. 108; (1988), 50 D.L.R. (4th) 454; 31
Admin. L.R. 14; 84 N.R. 169 (C.A.); Vaillancourt v. Dep
uty M.N.R., [1991] 3 F.C. 663; [1991] 2 C.T.C. 42;
(1991), 91 DTC 5408 (Eng.); (1991), 91 DTC 5352 (Fr.)
(C.A.); Public Service Alliance of Canada et al. v.
Canada (Treasury Board) et al. (1990), 36 F.T.R. 182
(F.C.T.D.).
AUTHORS CITED
Canada, House of Commons Debates, Vol. VI, 1st Sess.,
30th Parl., 1975, at page 5984.
Canada, Report of the Royal Commission on the Status of
Women in Canada, Ottawa, Information Canada, 1970.
Coté, Pierre-André The Interpretation of Legislation in
Canada, 2nd ed., Cowansville, Qué.: Editions Yvon
Biais, 1990.
APPEAL from refusal to declare that Jason Glynos
was eligible for a grant of Canadian citizenship and
to issue a writ of mandamus to compel the grant of
Canadian citizenship to him (Glynos v. Canada
(1991), 13 Imm. L.R. (2d) 83; 42 F.T.R. 183
(F.C.T.D.)). Appeal allowed with respect to the dec
laration.
COUNSEL:
Peter A. Gall and Robin M. Elliot for appellants.
Harry Wruck, Q.C. for respondent.
SOLICITORS:
Heenan, Blaikie, Vancouver, for appellants.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for judgment ren
dered in English by
DÉCARY J.A.: Jason Glynos was born to Canadian
parents, Anita Glynos and Michael Glynos, in the
United States in 1967. His father being a Canadian
citizen, he himself became a Canadian citizen upon
his birth pursuant to subparagraph 5(1)(b)(i) of the
former Canadian Citizenship Act, R.S.C. 1970, c.
C-19 (the former Act). 1
In 1970, his father became a citizen of the United
States and therefore, under the former Act, was
forced to relinquish his Canadian citizenship. As a
result of the application of subsection 20(1) of the
former Act, Jason Glynos, as well as his younger
brother Byron, also born in the United States, auto
matically ceased to be Canadian citizens. Their
1 5. (1) A person born after the 31st day of December 1946
is a natural-born Canadian citizen,
(b) if he is born outside of Canada elsewhere than on a
Canadian ship, and
(i) his father, or in the case of a child born out of wed
lock, his mother, at the time of that person's birth, is a
Canadian citizen, and ....
mother, Anita Glynos, remained a Canadian citizen at
all material times.
On February 15, 1977, the Citizenship Act, S.C.
1974-75-76, c. 108; now R.S.C., 1985, c. C-29 (the
Act) came into force. Paragraph 3(1)(b) confers citi
zenship on a person born outside Canada after Febru-
ary 14, 1977 when one of his parents at the time of
his birth was a Canadian citizen. With respect to chil
dren born outside Canada before February 15, 1977,
paragraph 5(2)(b) of the Act provides as follows:
5....
(2) The Minister shall grant citizenship to any person who
(b) was born outside Canada, before February 15, 1977, of a
mother who was a citizen at the time of his birth, and was
not entitled, immediately before February 15, 1977, to
become a citizen under subparagraph 5(1)(b)(1) of the for
mer Act, if, before February 15, 1979, or within such
extended period as the Minister may authorize, an applica
tion for citizenship is made to the Minister by a person
authorized by regulation to make the application.
In 1985, Jason's mother, Anita Glynos, was
informed by the Vancouver Citizenship Office that
her sons Jason and Byron were no longer Canadian
citizens. She made an application for Canadian citi
zenship on behalf of her minor son Byron, pursuant
to paragraph 5(2)(a) of the Act 2 and the Minister
granted such citizenship to Byron Glynos effective
January 5, 1987. The Court was informed at the hear
ing that no such application could have been made by
Anita Glynos with respect to her son Jason because at
that time Jason Glynos had attained the age of eigh
teen years and was no longer a "minor" child for the
purposes of the Act (subsection 2(1)).
Anita Glynos was nevertheless convinced that she
had the right under the Act to pass on her Canadian
citizenship to her son Jason and she commenced cor
responding with the Secretary of State. She eventu-
2 5....
(2) The Minister shall grant citizenship to any person who
(a) has been lawfully admitted to Canada for permanent
residence, has not ceased since that admission to be a per
manent resident pursuant to section 24 of the Immigration
Act, and is the minor child of a citizen if an application
for citizenship is made to the Minister by a person autho
rized by regulation to make the application on behalf of
the minor child; or....
ally submitted an application for citizenship on behalf
of her son Jason on August 6, 1987 and on December
1, 1987, the Secretary of State refused to grant the
application on the basis, essentially, that paragraph
5(2)(b) of the Act was in his view applicable only to
persons who had never been Canadian citizens. 3
On September 12, 1989, Anita Glynos and Jason
Glynos commenced the present action and sought a
declaration that, on the true construction of paragraph
5(2)(b), Jason Glynos was eligible for a grant of
Canadian citizenship. They also asked the Court to
issue a writ of mandamus to compel the Secretary of
State to grant Canadian citizenship to Jason Glynos.
While the relief sought is couched in terms that relate
to 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 Charter), the Trial
Judge [(1991), 13 Imm. L.R. (2d) 83] and counsel for
all parties addressed the question as being one of stat
utory interpretation in addition to being one of appli
cation of the Charter. At the hearing before us, coun
sel for the appellants did not insist on the Charter
argument. It has been conceded by the Minister that
in the event the Court should find that paragraph
5(2)(b) applies, the Minister will not invoke the
requirement that the application for citizenship be
made before February 15, 1979.
In the meantime Jason Glynos, who had been stud
ying at Cambridge University, had returned to Van-
couver in July of 1989. Sometime in 1990, having
resided in Canada for at least one year, he became
entitled to apply for resumption of citizenship pursu
ant to subsection 11(1) of the Act. 4 It is stated, in par
agraph 29 of the statement of agreed facts, that
3 It is not clear on what basis Anita Glynos could submit an
application on behalf of her son. Section 5 of the Citizenship
Regulations [C.R.C., c. 400] which deals with applications
made under paragraph 5(2)(b) of the Act does not identify the
person authorized to make the application. The issue was not
raised by the Minister and I shall assume that the application
was made by an authorized person.
4 11. (1) The Minister shall grant citizenship to any person
who, having ceased to be a citizen,
(a) makes an application for resumption of citizenship;
(Continued on next page)
"Jason Glynos has not made an application for Cana-
dian citizenship pursuant to s. 11 of the Act, and fur
thermore has refused to make such application
because both he and his mother believe very strongly
that Jason should be entitled to Canadian citizenship
under s. 5(2)(b) of the Act and not have to qualify for
citizenship under s. 11 of the Act."
At the commencement of the hearing in the Trial
Division, the respondent raised an issue that the hear
ing should not proceed because the issue was moot—
Jason Glynos now being entitled to receive citizen
ship pursuant to section 11 of the Act and it being
agreed that the Minister would grant him citizenship
as soon as he made an application under that section
—and also that the Court should not render a declara-
tory judgment, especially on a Charter issue, merely
to answer a question which need not be answered to
settle the action. According to the Crown, since there
was a simple method for Jason Glynos to obtain his
citizenship, i.e. a section 11 application, he and his
mother should not choose to use another section of
the Act involving a Charter issue merely to settle a
women's rights issue which they wish to have settled.
The Trial Judge first addressed himself to the statu
tory interpretation of paragraph 5(2)(b) and he found
that it did not apply to Jason Glynos. Before embark
ing on an examination of the Charter issue, he
examined the issue of mootness and reached the con
clusion that the issue was moot. He went on to
examine the issue of judicial discretion and con
cluded as follows [at pages 92-93]:
(Continued from previous page)
(b) is not the subject of an order of or a declaration by the
Governor in Council made pursuant to section 10 or 20 of
this Act or section 18 of the former Act;
(c) is not under a deportation order; and
(d) has been lawfully admitted to Canada for permanent
residence after having ceased to be a citizen, has not cea
sed since that admission to be a permanent resident pur
suant to section 24 of the Immigration Act and has resided
in Canada since that admission for at least one year
immediately preceding the date of his application.
In my view, this is not a case in which judicial discretion
should be exercised and declaratory relief granted, whether by
interpreting s. 5(2)(b) as plaintiffs seek or by finding it to be
ineffective in whole or in part as contrary to the Charter, when
this is not necessary to decide the issue, which for all practical
purposes is moot. The time of the Courts is too valuable to
spend it in deciding hypothetical issues merely because of their
possible future consequences in other cases when no such issue
needs to be decided in the present case.
The issue of mootness
It is common ground that at the time of the com
mencement of the action, on September 12, 1989,
Jason Glynos had been denied citizenship on the
basis that he could not apply under paragraph 5(2)(b)
of the Act. It is also common ground that he did not,
then, satisfy the requirement of residence imposed by
paragraph 11(1)(d) of the Act. It is also agreed that at
some time before trial, he had met that requirement
and that at trial, he had become entitled to apply for
Canadian citizenship pursuant to subsection 11(1) of
the Act. It is on that basis that the Trial Judge decided
that the issue was moot.
The doctrine of mootness was well canvassed by
Sopinka J. in Borowski v. Canada (Attorney Gen
eral), [1989] 1 S.C.R. 342. The Trial Judge relied
particularly on the following passage, at page 353:
Accordingly if, subsequent to the initiation of the action or
proceeding, events occur which affect the relationship of the
parties so that no present live controversy exists which affects
the rights of the parties, the case is said to be moot.
and concluded that [at page 90]
While plaintiff Jason may not have had a year's residence
when proceedings were started on September 13, 1989 he has
this qualification now.
Even if I were to accept for the sake of argument
that "anticipated mootness"—the Court cannot order
Jason Glynos to make an application under section 11
of the Act, he is not yet a Canadian citizen and I can
not assume that he will become one—might equate to
"actual mootness", whether Jason Glynos can now
receive citizenship under subsection 11(1) of the Act
is irrelevant to the question of whether he is entitled
to receive Canadian citizenship, without any further
requirement, by virtue of his mother's Canadian citi
zenship under paragraph 5(2)(b) of the Act.
We are dealing, here, with two very distinct proce
dures whose objectives, requirements, formalities
and, possibly, effects are not the same.
Under paragraph 5(2)(b), citizenship is bestowed
on an applicant by reason of his birth alone and his
application goes directly to the Minister. Under sub
section 11(1), an applicant resumes his citizenship
upon certain conditions being met, notably one of a
one-year residence in Canada prior to the application,
and his application rather than going directly to the
Minister is first processed by a citizenship judge
who, pursuant to section 14, "shall, within sixty
days ... determine whether or not the person who
made the application meets the requirements of this
Act and the regulations with respect to the applica
tion."
Clearly, in my view, Parliament has provided per
sons who are entitled to citizenship by birth with a
procedural avenue of instant citizenship which has
been described by the Associate Chief Justice as a
"preferential treatment" (Benner v. Canada (Secre-
tary of State), [1992] 1 F.C. 771 (T.D.), at page 788)
and has been seen by this Court as a "speedy and eco
nomical resolution" of the problem Jason Glynos
wishes the Court to deal with (Benner v. Minister of
Employment and Immigration (1988), 93 N.R. 250
(F.C.A.), at page 251, per Mahoney J.). The Minister
cannot force an applicant to choose a longer, uncer
tain and more difficult route nor can he, by denying
an application made under paragraph 5(2)(b) and by
then claiming that he would now grant an application
under section 11, prevent the Court from dealing with
the issue. Furthermore, in the event that Jason Gly-
nos' interpretation should prevail, the granting of citi
zenship would amount to a recognition that in fact,
though not in law because the Act does not appear to
have a retroactive effect, he had been a Canadian citi
zen all his life.
I would like to say a few words with respect to
Jason's mother, Anita Glynos, who is a co-plaintiff in
the proceedings and whose standing as such has not
been questioned by the respondent. The Trial Judge
appears to be blaming her for seeking to correct long-
standing discrimination against Canadian women that
prevented her from passing her Canadian citizenship
to her son Jason. While she has no right, technically
speaking, to pass on her citizenship, it being granted
by the State, she nevertheless has an interest as a
Canadian woman and mother in knowing whether her
son can be declared a citizen by birth and in being
part of a proceeding seeking a declaration to that
effect.
To be a Canadian citizen by birth is a most cher
ished privilege and to seek a declaration that the Min
ister was wrong in denying it to the child of a Cana-
dian woman is certainly a live controversy. Jason
Glynos is not as of now a Canadian citizen. The issue
of whether he can claim to be a citizen by birth is not
moot.
The right to citizenship under paragraph 5(2)(b)
As recently stated by L'Heurcux-Dubé J., "A good
starting point to interpret a statute properly is to
examine, however briefly, its legislative history."
(Hills v. Canada (Attorney General), [1988] 1 S.C.R.
513, at page 528). In addition, as stated by my
brother Heald J.A., "Recent jurisprudence has made
it clear that courts are entitled to look to the Debates
of the House of Commons in order to ascertain the
`mischief or `evil' that a particular enactment was
designed to correct." (Canada (Attorney General) v.
Young, [1989] 3 F.C. 647 (C.A.), at page 657). 5 I
shall therefore examine briefly the legislative history
of and the Parliamentary Debates relating to para
graph 5(2)(b) of the Act.
Paragraph 5(2)(b) was specifically introduced into
the Citizenship Act of 1976 to eliminate the discrimi
natory policy against women that flowed from the
5 See also: Lor-Wes Contracting Ltd. v. The Queen, [1986] 1
F.C. 346 (C.A); Thomson v. Canada, [1988] 3 F.C. 108 (CA.);
Vaillancourt v. Deputy M.N.R., [1991] 3 F.C. 663 (C.A.) and
P.A. Côté, The Interpretation of Legislation in Canada, 2nd ed.
(Cowansville: Yvon Blais, 1990), at pp. 353-367.
former Act, under which the child of a married Cana-
dian woman born outside Canada could not acquire
citizenship through her. In proposing the second
reading of Bill C-20 which was finally enacted as the
Citizenship Act, the then Secretary of State, the
Honourable James Faulkner, remarked that the new
Bill was meant to correct "five very important ways
in which the present Citizenship Act discriminates
against women". These ways had been pointed out in
the Report of the Royal Commission on the Status of
Women in Canada [at page 364] (House of Commons
Debates, May 21, 1975, at page 5984) which had, in
particular, recommended that sections 4 and 5 of the
Act be amended "to provide that a child born outside
Canada is a natural-born Canadian if either of his
parents is a Canadian citizen."
After receiving second reading Bill C-20 was
referred to the Standing Committee on Broadcasting,
Films and Assistance to the Arts for consideration. In
the course of that Committee's deliberations, the fact
that Bill C-20 made no provision allowing children
born outside of Canada to Canadian women before
February 15, 1977 to acquire citizenship was the sub
ject of much debate and concern. The addition of
paragraphs 5(2)(a) and (b) was therefore proposed
for the purpose of treating in the same way "those
who happen to be born after the Act comes into
place" and "those who are alive now and who have
been affected adversely by the previous legislation"
(Minutes of Proceedings and Evidence of the Stand
ing Committee on Broadcasting, Films and Assis
tance to the Arts, Issue 36, February 27, 1976, 39:
6-7).
Bill C-20, with the amendments recommended by
the Standing Committee, including that to subsection
5(2), received third reading in the House of Com
mons on April 13, 1976. Bill C-20 then came into
force as of February 15, 1977 as the Citizenship Act,
S.C. 1974-75-76, c. 108.
The foregoing demonstrates that the legislator
intended that anyone born to a Canadian mother at
any time prior to the enactment of the Act and who
had been adversely affected by the former Act's dis-
criminatory provisions was to be entitled to receive
citizenship under subsection 5(2). Whether that intent
was carried into the wording used by Parliament is
what remains to be seen.
Paragraph 5(2)(b) sets out four criteria for citizen
ship:
(i) born outside Canada;
(ii) before February 15, 1977;
(iii) or a mother who was a Canadian citizen at the
time of the birth;
(iv) who was not entitled, immediately before Feb-
ruary 15, 1977, to become a citizen under subpara-
graph 5(1)(b)(i) of the former Act.
It is common ground that Jason Glynos meets the
first three of these criteria. The dispute is solely over
whether he meets the fourth criterion. In my view,
upon a plain reading of the provision, whether one
considers the English text or the French text, Jason
Glynos does clearly meet the fourth criterion. He was
not entitled immediately before February 15, 1977 to
become a citizen under subparagraph 5(1)(b)(i) of the
former Act. It is true that he had once been a Cana-
dian citizen, but at the time of the coming into force
of the Act—which is really what is meant by the
words "immediately before February 15, 1977",
"avant le 15 février 1977", the absence in the French
text of the word "immediately" being in my view a
question of style and conciseness—he had ceased to
be a citizen and he was simply not entitled to become
a citizen at that time.
Counsel for the respondent would want us to read
the word "become" as excluding "become again". He
argues that Part I of the Act, "THE RIGHT TO CITI
ZENSHIP", in which section 5 is to be found, applies
only to those persons who have never been granted
Canadian citizenship and that Part III, "RESUMP-
TION OF CITIZENSHIP", which contains section
11, applies to those persons who, having once been
Canadian citizens, have ceased to be citizens.
This suggestion has no merit. It offends the word
ing of the provision; it is not compelled by the struc
ture of the Act; it contradicts the Minister's own
application of the Act; it leads to absurd and unjust
situations; and it ignores the mischief that was sought
to be corrected by the Act.
The French version of paragraph 5(2)(b) uses the
words "n'était pas admissible à la citoyenneté" to
correspond to the words "not entitled ... to become
a citizen". A person is a citizen or he is not. A person
is "admissible" or he is not. Clearly, Jason Glynos
was not "admissible" on February 14, 1977. Nor was
he then a Canadian citizen. Even if there had been
ambiguity in the English text, and in my view there is
none, I would give preference to the French text for it
best reflects the intention of Parliament. 6
Paragraph 3(1)(c), which appears in Part I, confers
the right to citizenship on a person who "has been
granted or acquired citizenship pursuant to section 5
or 11." As section 11 is found in Part III, one can
hardly suggest that Part I is exclusive of Part III. Fur
ther, Jason's brother, Byron, who had ceased to be a
citizen before February 15, 1977 for the same reason
as Jason, was nevertheless granted citizenship by the
Minister under paragraph 5(2)(a). The Minister can
simply not now argue that Part I, where paragraph
5(2)(a) appears, only applies to persons who have
never been citizens. It would be absurd, absent a for
mal text to the contrary, to suggest that two brothers
born out of the country prior to the coming into force
of the Act and having the same status under the for
mer Act are subject to a different treatment under the
new Act. It would also be absurd to suggest that the
paragraph 5(2)(b) application process is accorded to a
6 S. 9(2)(d) of the former Official Languages Act, R.S.C.,
1985, c. O-3, provided that if the two versions of an enactment
differed, "preference shall be given to the version thereof that,
according to the true spirit, intent and meaning of the
enactment, best insures the attainment of its objects". The new
Official Languages Act, R.S.C., 1985, (4th Supp.), c. 31 has no
provisions concerning interpretation of bilingual enactments.
However, as noted by Côté, supra, note 5, at p. 273, "In federal
law, section 8 (9 in the Revised Statutes of 1985) of the Offi
cial Languages Act ... , prior to its repeal in 1988, set out cer
tain principles of interpretation applicable to federal
enactments. Reynald Boult noted that section 8 merely codified
principles already developed by Canadian courts. The principal
consequence of its repeal will be to restore the unwritten law
that the legislator had temporarily borrowed ... ".
person born outside Canada whose mother was Cana-
dian and whose father was not Canadian at the time
of the birth (see Benner v. Canada (Secretary of
State), supra), but is denied to a person born outside
Canada whose mother was Canadian and whose
father was also Canadian at the time of birth.
Finally, to illustrate how Parliament wanted to
"catch" all the children born outside Canada before
February 15, 1977, subsection 4(3) provides that the
person entitled before February 15, 1977 to become a
citizen because his father was a Canadian citizen,
"remains so entitled notwithstanding that his birth is
registered, after February 14, 1977".
When read altogether, these provisions lead to the
inescapable conclusion that all children born outside
Canada to a Canadian father or to a Canadian mother
prior to the coming into force of the 1976 Act have
the right to citizenship under Part I of that Act.
I fully endorse the following conclusion reached,
albeit in a different context, by the Associate Chief
Justice in Benner:
It is evident then that, with the passage of the 1977 Citizen
ship Act, Parliament chose to grant preferred access to Cana-
dian citizenship to all individuals born to a Canadian parent
from its effective date, February 14, 1977. [supra, at page
793].
Jason Glynos is entitled to be granted citizenship
by birth.
The issue of judicial discretion
I am satisfied that this is a proper case to award
declaratory relief. I appreciate that the Trial Judge
had a discretion not to grant declaratory relief sought
by the appellants, but in my view he exercised his
discretion under a mistake of law as to the issue of
mootness as well as to that of the true construction of
paragraph 5(2)(b) of the Act. Furthermore, he
wrongly applied the decision of the Supreme Court of
Canada in Terrasses Zarolega Inc. et al. v. Régie des
installations olympiques, [1981] 1 S.C.R. 94, at page
105, where Chouinard J. quoted from the House of
Lords in Barraclough v. Brown, [1897] A.C. 615, at
page 620:
I do not think the appellant can claim to recover by virtue of
the statute, and at the same time insist upon doing so by means
other than those prescribed by the statute which alone confers
the right.
In the case at bar, the means used by the appellants
are precisely those presented by the statute. Terrasses
Zarolega is no authority to the effect that when a stat
ute presents two sets of means, an applicant can be
forced to choose the means favoured by the Adminis
tration. This case, in my view, is not one of "adequate
alternative remedy". (See Public Service Alliance of
Canada et al. v. Canada (Treasury Board) et al.
(1990), 36 F.T.R. 182 (F.C.T.D.)).
No mandamus, however, should issue, because the
Court cannot order the Secretary of State to waive the
requirement that the application for citizenship be
made before February 15, 1979. I understand, as
noted previously, that the Secretary of State has
agreed to waive that requirement and I would expect
him to respect his undertaking.
Disposition of the appeal
I would allow the appeal with costs in both Divi
sions and declare that Jason Glynos is, on the true
construction of paragraph 5(2)(b) of the Citizenship
Act, eligible for a grant of citizenship.
HEALD J.A.: I concur.
LÉToURNEAU J.A.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.