Taylor v. Canada (Minister of Citizenship and Immigration), 2007 FCA 349

• Judge: Desjardins, Décary and Ryer, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 18, 2007
• Jurisdiction: Canada (Federal)
• Citations: 2007 FCA 349;(2007), 369 N.R. 346 (FCA)

Taylor v. Can. (M.C.I.) (2007), 369 N.R. 346 (FCA)

MLB headnote and full text

Temp. Cite: [2007] N.R. TBEd. NO.040

The Minister of Citizenship and Immigration (appellant) v. Joseph Taylor (respondent)

(A-417-06; 2007 FCA 349)

Indexed As: Taylor v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Desjardins, Décary and Ryer, JJ.A.

November 2, 2007.

Summary:

Taylor was the natural son of a Canadian soldier who served overseas during World War II. He was born in England in 1944. His parents married in 1945. He landed in Canada with his mother in 1946. Taylor's parents' marriage broke up after a few months. Taylor and his mother returned to England six weeks before the 1947 Canadian Citizenship Act came into force. In 2003 Taylor applied for proof of citizenship. A citizenship officer ruled that Taylor had never obtained Canadian citizenship. Taylor applied for judicial review.

The Federal Court, in a decision reported 299 F.T.R. 158, reviewing the matter on the standard of correctness, allowed the application. The court held that Taylor was a Canadian citizen, that the impugned decision rendered by the citizenship officer should be set aside, and that the Minister of Citizenship and Immigration (MCI) be directed to issue a certificate of citizenship. The court also rejected an alternative argument by the Minister to the effect that if Taylor ever was a Canadian citizen, he had lost his citizenship by operation of law. The court opined that the provisions of the citizenship legislation giving rise to that result were contrary to due process and infringed ss. 1(a) and (e) of the Canadian Bill of Rights and the right of an individual not to be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice guaranteed by s. 7 of the Charter. Those infringements were not justified under s. 1 of the Charter and as a result, the above provisions were inoperative. Furthermore the provisions of the 1985 Citizenship Act dealing with children born out of wedlock were contrary to s. 15(1) of the Charter and not justified under s. 1. The MCI appealed.

The Federal Court of Appeal allowed the appeal, set aside the decision below and restored the decision of the citizenship officer dismissing Taylor's application for a citizenship certificate. The court held that on a proper interpretation of the applicable legislation, Taylor never became a citizen under the 1947 Act, and in any event, was subject to the loss of citizenship provisions in ss. 4(2) and 20 of the Act. The court held that s. 15 of the Charter did not apply retroactively or retrospectively to the 1947 Citizenship Act that was repealed before the Charter came into force. There being no administrative proceedings in issue, neither the concept of fair hearing referred to in s. 2(e) of the Canadian Bill of Rights, nor that of procedural fairness came into play. As to s. 1(a) of the Bill of Rights, due process did not require the government to warn those who might be impacted by legislation. Here the legislation went through the usual public enactment process. Taylor failed to meet the burden of identifying any principle of fundamental justice required to establish a breach of s. 7 of the Charter.

Aliens - Topic 2504

Naturalization - General - Revocation - Loss of citizenship - Taylor was the natural son of a Canadian soldier who served overseas during World War II - He was born in England in 1944 - His parents married in 1945 - He landed in Canada with his mother (i.e., a war bride) in 1946 - Taylor's parents' marriage broke up after a few months - Taylor and his mother returned to England six weeks before the 1947 Citizenship Act came into force - In 2003, Taylor applied for proof of citizenship - A citizenship officer ruled that Taylor had never obtained Canadian citizenship - Taylor applied for judicial review - The Federal Court allowed the application, holding that Taylor was a Canadian citizen - The Minister of Citizenship and Immigration appealed - The Federal Court of Appeal allowed the appeal and restored the decision of the citizenship officer - The court held that on a proper interpretation of the applicable legislation, Taylor never became a citizen under the 1947 Act, and in any event, was subject to the loss of citizenship provisions in ss. 4(2) and 20 of the Act - The court held that s. 15 of the Charter did not apply retroactively or retrospectively to the 1947 Citizenship Act that was repealed before the Charter came into force - There being no administrative proceedings in issue, neither the concept of fair hearing referred to in s. 2(e) of the Canadian Bill of Rights, nor that of procedural fairness came into play - As to s. 1(a) of the Bill of Rights, due process did not require the government to warn those who might be impacted by legislation - Here the legislation went through the usual public enactment process - Taylor failed to meet the burden of identifying any principle of fundamental justice required to establish a breach of s. 7 of the Charter.

Aliens - Topic 2602

Naturalization - Right to citizenship - Citizen defined - [See Aliens - Topic 2504 ].

Aliens - Topic 2605

Naturalization - Right to citizenship - Child - By virtue of Canadian parent - [See Aliens - Topic 2504 ].

Civil Rights - Topic 3110

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Due process - General - [See Aliens - Topic 2504 ].

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure not contrary to fundamental justice - [See Aliens - Topic 2504 ].

Civil Rights - Topic 5671.2

Equality and protection of the law - Citizenship - [See Aliens - Topic 2504 ].

Civil Rights - Topic 8005

Canadian or provincial bill of rights - Principles of operation and interpretation - Due process - Right to life, liberty, security and enjoyment of property - [See Aliens - Topic 2504 ].

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - Retrospectivity - [See Aliens - Topic 2504 ].

Cases Noticed:

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, refd to. [para. 48].

Solis v. Canada (Minister of Citizenship and Immigration) (2000), 254 N.R. 362; 186 D.L.R.(4th) 512 (F.C.A.), leave to appeal refused (2000), 265 N.R. 398 (S.C.C.), refd to. [para. 50].

McLean v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 127; 270 N.R. 133 (F.C.A.), affing. (1999), 177 F.T.R. 219 (T.D.), refd to. [para. 50].

Veleta v. Canada (Minister of Citizenship and Immigration) (2006), 350 N.R. 94; 268 D.L.R.(4th) 513; 2006 FCA 138, refd to. [para. 50].

Wilson v. Canada (Minister of Citizenship and Immigration) (2003), 244 F.T.R. 148; 2003 FC 1475, refd to. [para. 68].

Dubey v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2002), 222 F.T.R. 1; 2002 FCT 582, refd to. [para. 68].

MacBain v. Canadian Human Rights Commission et al., [1985] 1 F.C. 856; 62 N.R. 117 (F.C.A.), refd to. [para. 87].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363, refd to. [para. 87].

Prentice v. Royal Canadian Mounted Police (2005), 346 N.R. 201; 2005 FCA 365, refd to. [para. 88].

McNeil v. Canada (Secretary of State) et al. (2000), 193 F.T.R. 88 (T.D.), refd to. [para. 93].

R. v. Molis, [1980] 2 S.C.R. 356; 33 N.R. 411, refd to. [para. 93].

dela Fuente v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 387; 350 N.R. 362 (F.C.A.), refd to. [para. 94].

Augier v. Canada (Minister of Citizenship and Immigration) (2004), 256 F.T.R. 231; 2004 FC 613, refd to. [para. 103].

R. v. Seo (1986), 13 O.A.C. 359; 54 O.R.(2d) 293 (C.A.), refd to. [para. 106].

Davidson v. Davidson Estate 33 (1986), 33 D.L.R.(4th) 161 (B.C.C.A.), refd to. [para. 106].

Mack et al. v. Canada (Attorney General) (2002), 165 O.A.C. 17; 217 D.L.R.(4th) 583 (C.A.), refd to. [para. 106].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1985, App. III, sect. 1(a), sect. 2(e) [para. 85].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 85]; sect. 15 [para. 99].

Canadian Nationals Act, S.C. 1921, c. 4, sect. 2 [para. 29].

Citizenship Act, S.C. 1946, c. 15, sect. 2(a) [para. 45]; sect. 4(b) [para. 44]; sect. 4(2) [para. 80]; sect. 9(1) [para. 44]; sect. 20 [para. 82]; sect. 26, sect. 27, sect. 28, sect. 45, sect. 46 [para. 44].

Citizenship Act, R.S.C. 1985, c. C-29, sect. 3(1)(d), sect. 3(1)(e) [para. 99].

Order-in-Council (Can.), P.C. 1927-858, generally [para. 34].

Immigration Act, S.C. 1910, c. 27, sect. 2(b) [para. 19]; 2(e)(i) [para. 20]; sect. 2(e)(ii) [para. 74]; sect. 2(l) [para. 21]; sect. 28 [para. 22]; sect. 29 [para. 23]; sect. 37(a),  sect. 40 [para. 24].

Naturalization Act, S.C. 1914, c. 44, sect. 3 [para. 26]; sect. 4, sect. 5, sect. 7 [para. 27]; sect. 20 [para. 28].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates (April 2, 1946), pp. 502 to 510 [para. 39].

Canada, Hansard, House of Commons Debates (March 8, 1921), p. 645 [para. 30].

Canada, Hansard, House of Commons Debates (May 21, 1975), pp. 5983 [para. 40]; 5984 [paras. 40, 70].

Canada, House of Commons, Standing Committee on Broadcasting, Films and Assistance to the Arts, Bill C-20, An Act Respecting Citizenship, Minutes of Proceedings and Evidence, Issue No. 36 (February 27, 1976), p. 6 [para. 70].

Hansard - see Canada, Hansard, House of Commons Debates.

Counsel:

R. Keith Reimer, for the appellant;

B. Rory B. Morahan, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Morahan & Company Law Offices, Victoria, B.C., for the respondent.

This appeal was heard at Vancouver, British Columbia, on September 18, 2007, by Desjardins, Décary and Ryer, JJ.A, of the Federal Court of Appeal. The following decision of the court was delivered at Ottawa, Ontario, on November 2, 2007, by Décary, J.A.