Galati et al. v. Johnston et al., 2015 FC 91

• Judge: Rennie, J.
• Court: Federal Court (Canada)
• Case Date: October 23, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 91;(2015), 474 F.T.R. 136 (FC)

Galati v. Johnston (2015), 474 F.T.R. 136 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. FE.021

Rocco Galati, Manuel Azevedo and Constitutional Rights Centre Inc. (applicants) v. His Excellency the Right Honourable Governor General David Johnston, The Honourable Chris Alexander, Minister of Citizenship and Immigration, The Attorney General of Canada and The Minister of Justice (respondent)

(T-1476-14; 2015 FC 91)

Indexed As: Galati et al. v. Johnston et al.

Federal Court

Rennie, J.

January 22, 2015.

Summary:

The applicants sought to set aside the decision of the Governor General to grant royal assent to Bill C-24, the Strengthening Canadian Citizenship Act. Section 8 of the Act amended s. 10 of the Citizenship Act. The amendments allowed the Minister of Citizenship and Immigration to revoke the citizenship of natural-born and naturalized Canadian citizens where a citizen had a conviction relating to national security or terrorism. The applicants contended that s. 8 was beyond the legislative competence of Parliament and that, in the result, the Governor General exceeded the scope of his discretion under the Crown prerogative, as well as his authority under the Royal Assent Act.

The Federal Court dismissed the application. The decision to grant royal assent was a legislative act and not justiciable. The respondents were not federal boards within the ambit of s. 2(1) of the Federal Courts Act. In any event, the substantive argument with respect to the constitutionality of the Strengthening Canadian Citizenship Act failed. Section 8 was within the legislative competence of Parliament.

Administrative Law - Topic 1009

Classification of power or function - General principles - Judicial and legislative powers distinguished - [See first Aliens - Topic 2504 ].

Administrative Law - Topic 1262

Classification of power or function - Powers or functions classified as legislative - What constitutes - [See first Aliens - Topic 2504 ].

Administrative Law - Topic 3205

Judicial review - General - Crown prerogative - [See third Aliens - Topic 2504 ].

Administrative Law - Topic 4567

Judicial review - Declaratory action - Bars - Lack of justiciable issue - [See first Aliens - Topic 2504 ].

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - The Federal Court concluded that the Governor General's grant of royal assent to Bill C-24, the Strengthening Canadian Citizenship Act, was a legislative act - In consequence, the issue of whether the Governor General exceeded his constitutional authority in granting royal assent was not justiciable - "The courts exercise a supervisory jurisdiction once a law has been enacted. Until that time, a court cannot review, enjoin or otherwise engage in the legislative process unless asked by way of a reference framed under the relevant legislation. To conclude otherwise would blur the boundaries that necessarily separate the functions and roles of the legislature and the courts. To review the Governor General's act of granting royal assent, as the applicants request, would conflate the constitutionally discreet roles of the judiciary and the legislature, affecting a radical amendment of the Constitution Act, 1867 and the conventions which underlie our system of government, notably the right of Parliament to consider and pass legislation. The applicants' arguments turn this principle on its head. On the theory advanced, the judiciary would adjudicate on the constitutionality of proposed legislation before it became law. That line, once crossed, would have no limit." - See paragraphs 35 and 36.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - The Federal Court concluded that the Governor General's grant of royal assent to Bill C-24, the Strengthening Canadian Citizenship Act, was a legislative act - In consequence, the issue of whether the Governor General exceeded his constitutional authority in granting royal assent was not justiciable - A constraint on the grant of assent to legislation was a "fetter on the sovereignty of Parliament ... . The courts respect the process and procedures of Parliament from introduction of a bill to its enactment, and do not, absent a reference, comment on the legality of bills before either of the two Houses of Parliament. Questions that come before the courts which engage these issues are not justiciable." - See paragraphs 37 to 40.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - The Federal Court concluded that the Governor General's grant of royal assent to Bill C-24, the Strengthening Canadian Citizenship Act, was a legislative act - In consequence, the issue of whether the Governor General exceeded his constitutional authority in granting royal assent was not justiciable - "The act of assent, although originally a prerogative power and now wholly constrained by constitutional convention, remains a legislative act and therefore not justiciable. ... [I]t is the act of the Sovereign, represented in Canada by the Governor General, which moves a bill from the political, legislative process into the realm of normative law. More prosaically, assent breathes life into the law ... . The Governor General may signify royal assent in writing, and in my view, everything up to the ink used to signify assent being dry is a legislative act and not justiciable." - See paragraphs 41 to 48.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - The applicants sought to set aside the decision of the Governor General to grant royal assent to Bill C-24, the Strengthening Canadian Citizenship Act - In addition to the Governor General, the respondents were the Minister of Citizenship and Immigration and the Attorney General, who voted in support of the passage of Bill C-24 - The threshold statutory objection was whether the respondents were federal boards (Federal Courts Act, s. 2(1)) - The Federal Court dismissed the application - Whether the respondents were federal boards turned on the source of the power in question - "The Governor General, in granting royal assent, is part of Parliament, and as such, is excluded from judicial review jurisdiction. ... [T]he Governor General is not acting under the Royal Assent Act, but is exercising a constitutional responsibility vested in him under s. 55 of the Constitution Act" - See paragraphs 49 to 60 - Members of the House of Commons were exempt from the definition of federal board (Federal Courts Act, s. 2(2)) - The result was no different simply because a Member of Parliament also held a Cabinet portfolio - Further, no decision, order or act was alleged to have been made or taken by either minister which would trigger the Court's jurisdiction - See paragraphs 61 to 65.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - The applicants argued that citizenship was an inalienable right - At the heart of the argument was the principle of jus soli, i.e., that citizenship or nationality followed place of birth - The applicants also asserted that Calvin v. Smith (K.B. 1608) established a common law entitlement to citizenship based on birthplace - They pointed to the evolution of jus soli in the United States from a common law doctrine to a constitutional right of citizenship - The Federal Court held that "no analogy can be made to the consideration of citizenship in American jurisprudence. Since the 14th Amendment in 1868, citizenship on the basis of jus soli has been woven into the constitutional jurisprudence of the Supreme Court of the United States such that it is of historical interest alone to this Court." - Further, Calvin v. Smith was overtaken by the common law and statute law - There was no common law doctrine extant at Confederation which, through the preamble to the Constitution Act, 1867, could become an unwritten constitutional principle of an inalienable right to citizenship - "The proposition that citizenship is an inalienable right that cannot be defined, circumscribed or revoked by Parliament has no support. ... Finally, legislation can always, save the constraint of the division of powers and the Charter, trump common law principles." - See paragraphs 67 and 68, 75 to 80.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - The applicants argued that citizenship was an inalienable and immutable right, essentially cemented in the Canadian constitutional framework in 1867 through the preamble of the Constitution - The genesis of the argument was in the Magna Carta (1215) - The Federal Court held that the Magna Carta, even on a textual basis, did not assist the applicants - Sections 39 and 42 of the Magna Carta, relating to "exile" and the right to leave England and to return, pointed in the opposite direction to that urged by the applicants - Further, the Magna Carta was not a constitutional instrument - Its terms had been displaced by the legislation of Westminster and Parliament - See paragraphs 72 to 74.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - The Federal Court conducted an historical review (pre- and post-1931) of legislation providing loss of citizenship - The historical survey "demonstrates that neither Westminster, nor Parliament, felt constrained by the jus soli principle [that citizenship or nationality followed place of birth]. Nationality or citizenship could be lost, in some cases, retroactively, by conduct, absence from the country, and marriage. As early as 1871 in the United Kingdom and 1881 in Canada, citizens could, of their own volition, revoke their citizenship." - See paragraphs 81 to 90.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - Section 8 of the Strengthening Canadian Citizenship Act amended s. 10 of the Citizenship Act - The amendments allowed the Minister of Citizenship and Immigration to revoke the citizenship of natural-born and naturalized Canadian citizens where a citizen had a conviction relating to national security or terrorism - The Federal Court held that s. 8 was within the legislative competence of Parliament, and had a constitutional foundation in both the general power of s. 91 as well as s. 91(25) of the Constitution Act, 1867 - "Citizenship need not be explicitly listed as a head of power for it to fall within the exclusive jurisdiction of Parliament. ... Citizenship clearly falls within Parliament's residual powers under the opening words of section 91 (peace, order, and good government), as well as section 91(25). ... Section 91(25) complements the general power, and reinforces the conclusion that all aspects of citizenship are within the exclusive and plenary authority of Parliament. ... [T]he Constitution is to be interpreted in a liberal manner that ensures its vitality and relevance to a large, complex and evolving nation. ... The argument that revocation of citizenship is untouchable because the language of 'citizen' or 'citizenship' is not explicitly included in the Constitution is incompatible with the living tree doctrine. ... The principle of exhaustiveness recognizes that there is no legislative power that is not held by either Parliament or the Legislatures. ... Given these principles it is clear that Parliament must enjoy exclusive and unqualified legislative competence over citizenship, subject only to constraints of the Charter of Rights and Freedoms." - See paragraphs 91 to 99.

Aliens - Topic 2561

Naturalization - Appeals and judicial review - General - The applicants sought to set aside the decision of the Governor General to grant royal assent to Bill C-24, the Strengthening Canadian Citizenship Act - The Federal Court stated that "[t]he availability of judicial review and its associated remedies is subject to analytical pre-conditions. It is not every act of a public officer that is reviewable; there are jurisprudential and statutory criteria that must be met before the Federal Court will engage in judicial review and, if granted, discretionary considerations in respect of remedies." - In the end result, the Court dismissed the application - The decision to grant royal assent was a legislative act and not justiciable - See paragraph 4.

Aliens - Topic 2561

Naturalization - Appeals and judicial review - General - The applicants sought to set aside the decision of the Governor General to grant royal assent to Bill C-24, the Strengthening Canadian Citizenship Act - The Federal Court, in considering the availability of judicial review, stated that "[j]usticiability is rooted in the court's understanding of the proper scope or subject matter of judicial review ... . Justiciability is focused on the nature or substance of the question under review; the source of the power exercised, whether statutory or prerogative, is not determinative. In contrast, subsection 2(1) [of the Federal Courts Act] is directed to necessary jurisdictional requirements, and whether it is engaged is very much a question of the source of the power. In this case, consideration of each leads, independently, to the conclusion that the Governor General's grant of royal assent is not justiciable, and that none of the respondents are federal boards within the scope of subsection 2(1) of the Federal Courts Act" - See paragraphs 7 and 8.

Aliens - Topic 4061.1

Practice - Judicial review and appeals - Standing - Galati and Azevedo, both lawyers and naturalized Canadian citizens ("the applicants") sought to set aside the decision of the Governor General to grant royal assent to Bill C-24, the Strengthening Canadian Citizenship Act - As naturalized Canadians, both were theoretically at risk of revocation and removal under the legislation which allowed the Minister of Citizenship and Immigration to revoke the citizenship of natural-born and naturalized Canadian citizens where a citizen had a conviction relating to national security or terrorism - As counsel, the applicants also represented Canadians accused of national security or terrorism offences contemplated by the Act - The Federal Court held that the applicants did not have private interest standing - "The applicants' personal interests are speculative, remote and do not have an objective evidentiary foundation" - The fact that the applicants had access to dual citizenship was, in and of itself, insufficient to establish private interest standing - The provisions of the Act were triggered upon an accused's conviction of a listed offence - "They do not target defence counsel who represent them" - See paragraphs 15 to 19.

Aliens - Topic 4061.1

Practice - Judicial review and appeals - Standing - Galati and Azevedo, both lawyers and naturalized Canadian citizens, and the Constitutional Rights Centre Inc. (collectively, "the applicants") applied to set aside the decision of the Governor General to grant royal assent to Bill C-24, the Strengthening Canadian Citizenship Act - The respondents argued that the applicants had neither private nor public interest standing - The Federal Court held that all three factors set out in "Downtown Eastside" (2012) (S.C.C.), applied purposively and flexibly, favoured granting public interest standing to the applicants - "Having regard to the completeness of the record, the narrow nature of the question, the fact that a serious constitutional question is framed, and the consideration of the most efficient use of scarce judicial resources, I am satisfied that a grant of public interest standing is warranted. The determination of the issues raised in this application is consistent with the efficient administration of justice. Deferring resolution of the question raised to another day benefits neither the applicants, the respondents, nor the Court." - See paragraphs 20 to 29.

Constitutional Law - Topic 5

General principles - Canadian Constitution - What constitutes - Magna Carta - [See sixth Aliens - Topic 2504 ].

Constitutional Law - Topic 11

General - General principles - Position of Sovereign - [See second and third Aliens - Topic 2504 ].

Constitutional Law - Topic 23

General - Raising constitutional issues - Requirement of justiciability - [See first Aliens - Topic 2504 ].

Constitutional Law - Topic 28

General - Raising constitutional issues - Status of party to raise constitutional issue - [See both Aliens - Topic 4061.1 ].

Constitutional Law - Topic 2501.1

Determination of validity of statutes or Acts - General principles - Jurisdiction - [See first Aliens - Topic 2504 ].

Constitutional Law - Topic 1001

Interpretation of Constitution Act - Principle of exhaustiveness - [See eighth Aliens - Topic 2504 ].

Constitutional Law - Topic 1012

Interpretation of Constitution Act - Liberal interpretation - [See eighth Aliens - Topic 2504 ].

Constitutional Law - Topic 4604

Peace, order and good government clause - General principles - Scope of the power - [See eighth Aliens - Topic 2504 ].

Constitutional Law - Topic 6380

Federal jurisdiction (s. 91) - Naturalization and aliens - General - [See eighth Aliens - Topic 2504 ].

Courts - Topic 103

Stare decisis - Authority of judicial decisions - English, American and foreign authorities - American decisions - [See fifth Aliens - Topic 2504 ].

Courts - Topic 2006

Jurisdiction - General principles - Issues not suitable for judicial determination - General - [See first Aliens - Topic 2504 ].

Courts - Topic 2022

Jurisdiction - Conditions precedent - Requirement of justiciable issue - [See first Aliens - Topic 2504 ].

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Federal Court - Relief against federal boards, commissions or tribunals - [See fourth Aliens - Topic 2504 ].

Courts - Topic 4044

Federal Court of Canada - Jurisdiction - Federal Court - Immigration and citizenship - [See first Aliens - Topic 2504 ].

Courts - Topic 4071.4

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Standing - [See both Aliens - Topic 4061.1 ].

Crown - Topic 674

Authority of Ministers - Exercise of - Particular cases - [See fourth Aliens - Topic 2504 ].

Crown - Topic 842

Governor General - Status, role and powers of - [See first Aliens - Topic 2504 ].

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing (incl. requirements of) - [See second Aliens - Topic 4061.1 ].

Statutes - Topic 4543

Operation and effect - Validity - Enactment procedure (incl. royal assent) - [See first Aliens - Topic 2504 ].

Cases Noticed:

Anisman v. Canada Border Services Agency et al. (2010), 400 N.R. 137; 2010 FCA 52, refd to. [para. 5].

Hupacasath First Nation v. Canada (Minister of Foreign Affairs) et al. (2015), 469 N.R. 258; 2015 FCA 4, refd to. [para. 7].

Reference Re Supreme Court Act (2014), 455 N.R. 202; 2014 SCC 21, refd to. [para. 12].

Nova Scotia (Attorney General) v. Canada (Attorney General), [1951] S.C.R. 31, refd to. [para. 20].

Reference Re Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186; 193 N.R. 1; 149 N.S.R.(2d) 1; 432 A.P.R. 1, refd to. [para. 20].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 21].

Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General) (2012), 434 N.R. 257; 325 B.C.A.C. 1; 553 W.A.C. 1; 2012 SCC 45, refd to. [para. 21].

R. v. MacKay, [1980] 2 S.C.R. 370; 33 N.R. 1; 54 C.C.C.(2d) 129, refd to. [para. 28].

Friends of the Earth v. Canada (Governor-in-Council) et al. (2008), 336 F.T.R. 117; 2008 FC 1183, refd to. [para. 33].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 33].

Constitutional Amendment References 1981 (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. l; 95 A.P.R. 1, refd to. [para. 34].

Reference re Resolution to Amend the Constitution - see Constitutional Amendment References 1981 (Man., Nfld., Que.).

Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 36].

Auditor General of Canada v. Canada (Minister of Energy, Mines and Resources) et al., [1989] 2 S.C.R. 49; 97 N.R. 241, refd to. [para. 38].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 51].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 51].

Southam Inc. and Rusnell v. Canada (Attorney General) et al., [1990] 3 F.C. 465; 114 N.R. 255 (F.C.A.), refd to. [para. 54].

Mennes v. Waddell (1997), 220 N.R. 56 (Fed. C.A.), refd to. [para. 63].

Mennes v. Canada - see Mennes v. Waddell.

Calvin v. Smith, 77 Eng. Rep. 377 (K.B. 1608), refd to. [para. 67].

Harper v. Atchison et al. (2011), 369 Sask.R. 134; 2011 SKQB 38, refd to. [para. 74].

Doe on the Demise of Thomas v. Acklam (1824), 2 St. Tr.(N.S.) 105 (K.B.), refd to. [para. 76].

Babcock et al. v. Canada (Attorney General) et al. (2002), 289 N.R. 341; 168 B.C.A.C. 50; 275 W.A.C. 50; 2002 SCC 57, refd to. [para. 78].

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, refd to. [para. 86].

Taylor v. Canada (Minister of Citizenship and Immigration) (2007), 369 N.R. 346; 2007 FCA 349, refd to. [para. 87].

Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887, refd to. [para. 94].

Edwards v. Canada (Attorney General), [1930] A.C. 124 (P.C.), refd to. [para. 97].

Re Aeronautics, [1930] S.C.R. 663, refd to. [para. 97].

Re Radio Reference, [1931] S.C.R. 541, refd to. [para. 97].

Munro v. National Capital Commission, [1966] S.C.R. 663, refd. to [para. 97].

Reference Re Same-Sex Marriage (2004) 328 N.R. 1; 2004 SCC 79, refd to. [para. 98].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 10 [para. 1].

Constitution Act, 1867, sect. 17, sect. 55 [para. 43]; sect. 91, sect. 91(25) [para. 94].

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 2(1) [paras. 5, 61]; sect. 2(2) [para. 62].

Royal Assent Act, S.C. 2002, c. 15, sect. 2 [para. 58].

Strengthening Canadian Citizenship Act, S.C. 2014, c. 22, sect. 8 [para. 2].

Counsel:

Rocco Galati, applicant;

Paul Slansky, for the applicant, Constitutional Rights Centre Inc.;

Gregory G. George and Amina Riaz, for the respondents, Attorney General of Canada.

Solicitors of Record:

Slansky Law Professional Corporation, Toronto, Ontario, for the applicant, Constitutional Rights Centre Inc.;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent, Attorney General of Canada.

This application for judicial review was heard at Toronto, Ontario, on October 23, 2014, before Rennie, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated January 22, 2015, at Ottawa, Ontario.