Benner v. Canada (Secretary of State), (1997) 208 N.R. 81 (SCC)

• Judge: Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 01, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1997), 208 N.R. 81 (SCC);[1997] ACS no 26;42 CRR (2d) 1;208 NR 81;1997 CanLII 376 (SCC);[1997] SCJ No 26 (QL);143 DLR (4th) 577;[1997] 1 SCR 358;125 FTR 240

Benner v. Can. (1997), 208 N.R. 81 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Mark Donald Benner (appellant) v. The Secretary of State of Canada and the Registrar of Citizenship (respondents) and The Federal Superannuates National Association (intervener)

(23811)

Indexed As: Benner v. Canada (Secretary of State)

Supreme Court of Canada

Lamer, C.J.C., La Forest,

L'Heureux-Dubé, Sopinka, Gonthier,

Cory, McLachlin, Iacobucci and

Major, JJ.

February 27, 1997.

Summary:

The Citizenship Act provided that a child born abroad before February 15, 1977, to a Canadian father could claim citizenship upon registration of his or birth. However, a similar child of a Canadian mother had to apply for citizenship which involved swear­ing an oath of allegiance and passing a security and criminal clearance check. Benner was born in 1962 in the United States. His mother was a Canadian citizen and was married to his father, a U.S. citizen. Benner entered Canada in 1986 and applied for citizenship in 1988. His application was rejected because he had been charged with several criminal offences. He applied for certiorari to quash the decision denying him citizenship and sought mandamus requiring the Registrar of Citizenship to grant him citizenship without requiring him to take the oath of citizenship. Benner alleged that the differential treatment of those born before 1977 who wished to become citizens who had Canadian mothers, as opposed to Ca­nadian fathers, violated s. 15 of the Charter.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 43 F.T.R. 180, dismissed Benner's application. Benner appealed.

The Federal Court of Appeal, in a decision reported 155 N.R. 321, dismissed the appeal. Benner appealed. At issue was whether applying s. 15 of the Charter to Benner's case involved an illegitimate retroactive or retrospective application of the Charter, whether the differential treatment of children born abroad to Canadian mothers before February 15, 1977, offended s. 15 of the Charter, and if so, whether the provisions of the Act were saved by s. 1.

The Supreme Court of Canada allowed the appeal. The court set aside the judgment of the Court of Appeal, quashed the decision of the Registrar of Citizenship and ordered the Registrar to deal with Benner's application in accordance with these reasons. The court held that intent of its decision was to declare provisions of the Citizenship Act insofar as they authorized differential treatment of children born abroad of Canadian mothers to be of no force and effect. The court noted however that the parties were jointly unable to specify all the legislative provisions affected. Therefore, the court remained seized of the case and following the parties agreement on the precise terms of the order, the order would be incorporated into the court's reasons for judgment.

Aliens - Topic 2524

Naturalization - Qualifications - Born abroad to Canadian parent - Under the Citizenship Act, a child born abroad before February 15, 1977, to a Canadian father obtained citizenship by registering the birth - A similar child of a Canadian mother had to apply for citizenship, which involved swearing an oath of allegiance and passing a security and criminal clearance check - Benner who was born abroad in 1962 to a Canadian mother sought Canadian citizenship in 1988 - His claim was rejected in 1989 because of criminal charges - Benner challenged the constitutionality of the differential treat­ment of children with Canadian mothers - The Supreme Court of Canada held that this differential treatment constituted dis­crimination contrary to s. 15 and could not be saved under s. 1 - The court declared the legislation in question to be of no force or effect insofar as it authorized this dif­ferential treatment - See paragraphs 60 to 107.

Aliens - Topic 2605

Naturalization - Right to citizenship - Child - By virtue of Canadian parent - [See Aliens - Topic 2524 ].

Civil Rights - Topic 1066

Discrimination - By sex - What consti­tutes - [See Aliens - Topic 2524 ].

Civil Rights - Topic 5516

Equality and protection of the law - Tests for inequality - General - Under the Citizenship Act, a child born abroad before February 15, 1977, to a Canadian father obtained citizenship by registering the birth - A similar child of a Canadian mother had to apply for citizenship - In determining whether this differential treat­ment offended s. 15 of the Charter, the Supreme Court of Canada discussed the three approaches to s. 15 analysis set out by the court in a 1995 trilogy of cases (Miron v. Trudel, Egan v. Canada and Thibaudeau v. Canada) - In this case, the court utilized the approach set out by McLachlin, J., in Miron, and a similar test set out by Cory, J., in Egan, but noted that the result in this appeal would be the same no matter which test was applied - See paragraphs 60 to 72.

Civil Rights - Topic 5671.2

Equality and protection of the law - Citizenship - Under the Citizenship Act, a child born abroad before February 15, 1977, to a Canadian father obtained citizenship by registering the birth - A similar child of a Canadian mother had to apply for citizenship - The Crown argued that this differential treatment was not discriminatory because the 1977 changes to the Act were intended to remedy the injustice caused by the 1947 Act's failure to recognize children of Canadian mother's at all and the true source of the differential treatment was the 1947 Act - The Supreme Court of Canada rejected this agrument - See paragraphs 73 to 75.

Civil Rights - Topic 5671.2

Equality and protection of the law - Citizenship - Under the Citizenship Act, a child born abroad before February 15, 1977, to a Canadian father obtained citizenship by registering the birth - A similar child of a Canadian mother had to apply for citizenship - Benner who was born abroad in 1962 to a Canadian mother sought Canadian citizenship in 1988 - When his claim was rejected in 1989 because of criminal charges, Benner argued that the differential treatment of children with Canadian mothers offended s. 15 of the Charter - An issue arose respecting retroactive or retrospective application of the Charter - The Supreme Court of Canada held that this case did not involve either a retroactive or a retrospec­tive application of the Charter - Benner's citizenship application was denied on October 17, 1989, long after s. 15 came into effect and that denial was therefore open to Charter scrutiny - See paragraphs 39 to 59.

Civil Rights - Topic 5671.2

Equality and protection of the law - Citizenship - [See Aliens - Topic 2524 ].

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - Retrospectivity - The Supreme Court of Canada stated that the Charter does not apply retroactively or retrospectively - The court noted that it had rejected a rigid test for determining when a particular application of the Char­ter would be retrospective, preferring to weigh each case in its own factual and legal context, with attention to the nature of the particular Charter right at issue - The court stated that not every situation involving events which took place before the Charter came into force will neces­sarily involve a retrospective application of the Charter - The court stated that in considering the application of the Charter in relation to facts which took place before it came into force, it is important to look at whether the facts in question constitute a discrete event or establish an ongoing status or characteristic - See paragraphs 39 to 42.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - Retrospectivity - The Supreme Court of Canada stated that s. 15 of the Charter cannot be used to attack a discrete act which took place before the Charter came into effect - However, when the effect of the law is simply to impose an ongoing discriminatory status or dis­ability on an individual then it will not be insulated from Charter review simply because it happened to be passed before April 17, 1985 - If it continues to impose its effects on new applicants today, then it is susceptible to Charter scrutiny today - The court stated that "the question, then, is one of characterization: is the situation really one of going back to redress an old event which took place before the Charter created the right sought to be vindicated, or is it simply one of assessing the con­temporary application of a law which happened to be passed before the Charter came into effect?" - See paragraphs 44, 45.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - Retrospectivity - [See second Civil Rights - Topic 5671.2 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Applications - Exceptions - Reasonable limits prescribed by law (s. 1) - [See Aliens - Topic 2524 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Dec­laration of statute invalidity - [See Aliens - Topic 2524 ].

Civil Rights - Topic 8508

Canadian Charter of Rights and Freedoms - Enforcement - Who may apply - Under the Citizenship Act, a child born abroad before February 15, 1977, to a Canadian father obtained citizenship by registering the birth - A similar child of a Canadian mother had to apply for citizenship - Benner who was born abroad in 1962 to a Canadian mother unsuccessfully applied for Canadian citizenship in 1988 - Benner argued that the differential treatment of children with Canadian mothers offended s. 15 of the Charter - The Crown sub­mitted that any discrimination imposed by the Act was really imposed on the mother, not upon Benner - The Supreme Court of Canada held that Benner was the primary target of the sex-based discrimination mandated by the legislation and possessed the necessary standing to raise the issue before the court - See paragraphs 77 to 91.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - [See Civil Rights - Topic 8508 ].

Civil Rights - Topic 8661

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - General - [See Civil Rights - Topic 5516 ].

Civil Rights - Topic 8664

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Application - [See first and second Civil Rights - Topic 8304 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What consti­tutes a breach of s. 15 - [See Aliens - Topic 2524 ].

Cases Noticed:

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81; 66 C.R.(3d) 193; 45 C.C.C.(3d) 204, refd to. [para. 11].

Reference Re Sections 32 and 34 of the Workers' Compensation Act (Nfld.), [1989] 1 S.C.R. 922; 96 N.R. 227; 76 Nfld. & P.E.I.R. 181; 235 A.P.R. 181; 56 D.L.R.(4th) 765; 40 C.R.R. 135, refd to. [para. 11].

R. v. Stevens, [1988] 1 S.C.R. 1153; 86 N.R. 85; 28 O.A.C. 243; 41 C.C.C.(3d) 193; 64 C.R.(3d) 297, refd to. [para. 40].

R. v. Stewart, [1991] 3 S.C.R. 324; 130 N.R. 159; 120 A.R. 32; 8 W.A.C. 32, refd to. [para. 40].

R. v. Dubois, [1985] 2 S.C.R. 350; 62 N.R. 50; 66 A.R. 202, refd to. [para. 40].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1; 28 C.R.R. 1, refd to. [para. 44].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, refd to. [para. 44].

R. v. Sarson (J.A.), [1996] 2 S.C.R. 223; 197 N.R. 125; 91 O.A.C. 124, refd to. [para. 47].

Crease v. Canada (Minister of State for Multiculturalism and Citizenship) et al., [1994] 3 F.C. 480; 78 F.T.R. 192, refd to. [para. 50].

Murray v. Canada (Minister of National Health and Welfare), [1994] 1 F.C. 603; 69 F.T.R. 297 (T.D.), refd to. [para. 53].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 60].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 60].

Thibaudeau v. Minister of National Reve­nue, [1995] 2 S.C.R. 627; 182 N.R. 1, refd to. [para. 60].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115; 48 C.C.C.(3d) 8; 69 C.R.(3d) 97; 39 C.R.R. 193, refd to. [para. 64].

Conway v. Canada, [1993] 2 S.C.R. 872; 154 N.R. 392, refd to. [para. 69].

Weatherall v. Canada (Attorney General) - see Conway v. Canada.

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, dist. [para. 78].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 38 C.R.R. 232; 57 D.L.R.(4th) 231; 47 C.C.C.(3d) 1; 33 C.P.C.(2d) 105; [1989] 3 W.W.R. 97, dist. [para. 78].

R. v. Big M Drug Mart, [1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [para. 80].

Cheung et al. v. Minister of Employment and Immigration, [1993] 2 F.C. 314; 153 N.R. 145, refd to. [para. 81].

Elias v. United States Department of State (1989), 721 F. Supp. 243 (N.D. Cal.), refd to. [para. 81].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 92].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 104].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 15(1) [para. 10].

Canadian Citizenship Act, R.S.C. 1970, c. C-19, sect. 5(1)(a), sect. 5(1)(b) [para. 10].

Citizenship Act, R.S.C. 1985, c. C-29, sect. 3(1)(a), sect. 3(1)(b), sect. 3(1)(c), sect. 3(1)(d), sect. 3(1)(e), sect. 4(3), sect. 5(2)(b), sect. 12(2), sect. 12(3), sect. 22(1)(b), sect. 22(2)(a) [para. 10].

Citizenship Act Regulations (Can.), Citizenship Regulations, C.R.C. 400, sect. 20(1) [para. 10].

Constitution Act, 1982, sect. 52 [para. 103].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Stat­utes (2nd Ed. 1983), p. 192 [para. 42].

Driedger, Elmer A., Statutes: Retroactive Retrospective Reflections (1978), 56 Can. Bar Rev. 264, pp. 268, 269 [para. 39].

Counsel:

Mark M. Yang, for the appellant;

Roslyn J. Levine, Q.C., and Debra M. McAllister, for the respondents;

Neil R. Wilson, for the intervener.

Solicitors of Record:

Clark, Wilson, Vancouver, British Colum­bia, for the appellant;

Attorney General of Canada, Ottawa, Ontario, for the respondents;

Growling, Strathy & Henderson, Ottawa, Ontario, for the intervener.

This appeal was heard on October 1, 1996, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada. The following decision was delivered in both official languages, for the court, by Iacobucci, J., on February 27, 1997.