Veleta v. Canada (Minister of Citizenship and Immigration), 2005 FC 572

• Judge: Mactavish, J.
• Court: Federal Court (Canada)
• Case Date: April 06, 2005
• Jurisdiction: Canada (Federal)
• Citations: 2005 FC 572;(2005), 273 F.T.R. 108 (FC)

Veleta v. Can. (M.C.I.) (2005), 273 F.T.R. 108 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. MY.074

Debbie Stephanie Giesbrecht Veleta, Brandon Jake Giesbrecht Veleta, Thomas Alexander Giesbrecht Veleta and Joseph Toby Giesbrecht Veleta (applicants) v. The Minister of Citizenship and Immigration (respondent)

(T-543-04; 2005 FC 572)

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

Federal Court

Mactavish, J.

April 27, 2005.

Summary:

Peter Giesbrecht and Anna Peters were Mennonites who were born in Canada, but moved to Mexico in the early 1920s and remained there for the rest of their lives. They were married in a religious ceremony in 1924 and had seven children, including David born in 1933. The couple went through a civil marriage in Mexico in 1937. Only civil marriages were recognized under Mexican law. David obtained a certificate of Canadian citizenship in 1966, with an effective date of September 27, 1957. David's son, Jacob obtained his own certificate of Canadian citizenship in 1982. Jacob had four children between 1993 and 2001. The children applied for proof of Canadian citizenship. A citizenship officer rejected the children's claim on the basis that their grandfather, David Giesbrecht, was born out of wedlock (i.e., before his parents' civil marriage in Mexico) and therefore was not entitled to Canadian citizenship. Therefore, neither David Giesbrecht's son, Jacob, nor Jacob's children were entitled to derive Canadian citizenship through David Giesbrecht. The children applied for judicial review of the citizenship officer's decision to refuse their applications for proof of the Canadian citizenship.

The Federal Court dismissed the application.

Aliens - Topic 2524

Naturalization - Qualifications - Born abroad to Canadian parent - [See all Aliens - Topic 2605 ].

Aliens - Topic 2605

Naturalization - Right to citizenship - Child - By virtue of Canadian parent - A citizenship officer refused the application for proof of Canadian citizenship by four children, who were born outside of Canada, on the basis that their grandfather, through whom they claimed citizenship, was born out of wedlock - The grandfather was born in Mexico to Canadian parents, but at that time the parents had been married in a religious ceremony, but not by a civil ceremony, the only type of marriage recognized under Mexican law - The children applied for judicial review, arguing that the citizenship officer erred in failing to find that their great grandparents' religious marriage and subsequent marital relationship constituted a valid marriage, with the result that their grandfather was in fact born in wedlock - The Federal Court rejected this argument, holding that the citizenship officer did not err in finding that the children's great grandparents were not legally married in Mexico until they had a civil marriage and, therefore the children's grandfather was born out of wedlock - The court stated that the formal validity (or lack thereof) of a marriage was governed by the law of the country where the marriage contract was entered into (i.e., the lex loci celebrationis) - See paragraphs 13 to 19.

Aliens - Topic 2605

Naturalization - Right to citizenship - Child - By virtue of Canadian parent - A citizenship officer refused the application for proof of Canadian citizenship by four children, who were born outside of Canada, on the basis that their grandfather, through whom they claimed citizenship, was born out of wedlock - The grandfather was born in Mexico to Canadian parents, but while married in a religious ceremony, they were not married by a civil ceremony, the only type of marriage recognized under Mexican law - The children applied for judicial review, arguing that the citizenship officer erred by failing to consider the grandfather's claim to Canadian citizenship through his Canadian-born mother (Citizenship Act, 1947, s. 4(b)) - The Federal Court dismissed the application - Although the officer should have considered this issue, it would not have changed the result because when the grandfather was born, there was no provision in the Naturalization Act for a child to acquire the status of British subject through his or her mother, regardless of whether the child was born in or out of wedlock - Therefore, the grandfather, having been born out of wedlock became a citizen of Mexico and thus, being an alien when the 1947 Citizenship Act came into force, was not entitled to derive Canadian citizenship through his mother - See paragraphs 20 to 45.

Aliens - Topic 2605

Naturalization - Right to citizenship - Child - By virtue of Canadian parent - Section 4(b)(i) of the Citizenship Act 1947 provided that "a person, born before the commencement of this Act, is a natural born Canadian citizen ... (b) if he was born outside of Canada elsewhere than on a Canadian ship and his father, or in the case of a person born out of wedlock, his mother, (i) was born in Canada or on a Canadian ship and had not become an alien at the time of that person's birth ... if, at the commencement of this Act, that person has not become an alien , and has either been lawfully admitted to Canada for permanent residence or is a minor" - Applicants claiming citizenship on the basis of s. 4(b)(i) argued that the requirement that one "has not become an alien" should be interpreted to mean that individuals who were aliens in 1947, and who had always been aliens, were entitled to Canadian citizenship, provided they were able to meet the other requirements of the section - The Federal Court rejected this interpretation of s. 4(b)(i), holding that to be entitled to Canadian citizenship under s. 4(b)(i), the requirement that the individual in question not have "become an alien" should properly be interpreted to mean that the person in question "was not an alien" - See paragraphs 20 to 41.

Aliens - Topic 2605

Naturalization - Right to citizenship - Child - By virtue of Canadian parent - A citizenship officer refused the application for proof of Canadian citizenship by four children, who were born outside of Canada, on the basis that their grandfather, through whom they claimed citizenship, was born out of wedlock - The grandfather was born in Mexico to Canadian parents, but at that time the parents had been married in a religious ceremony, but not by a civil ceremony, the only type of marriage recognized under Mexican law - The children applied for judicial review, challenging the validity, applicability or constitutional effect of ss. 3(1)(d), 3(1)(e) and 5(2)(b) of the Citizenship Act, 1977, arguing that those provisions violated s. 15 of the Charter insofar as they continued the discriminatory effects of the 1947 and 1970 Citizenship Acts, wherein individuals born out of wedlock were treated differently than those born in wedlock - The Federal Court dismissed the application because the children were attempting to give the Charter retroactive effect (i.e., there were seeking to change the historical consequences of repealed legislation so as to confer ex post facto Canadian citizenship upon their grandfather) - See paragraphs 52 to 74.

Aliens - Topic 2605

Naturalization - Right to citizenship - Child - By virtue of Canadian parent - A citizenship officer refused the application for proof of Canadian citizenship by four children, who were born outside of Canada, on the basis that their grandfather, through whom they claimed citizenship, was born out of wedlock - The grandfather was born in Mexico to Canadian parents, but at that time the parents had been married in a religious ceremony, but not by a civil ceremony, the only type of marriage recognized under Mexican law - The children applied for judicial review, arguing that denying the children citizenship on the basis that their paternal grandfather was born out of wedlock violated their right to equal treatment guaranteed by s. 1(b) of the Canadian Bill of Rights - The Federal Court dismissed the application, holding that the children were not entitled to any relief under the Bill of Rights - The Bill of Rights did not apply retroactively and, in any event, did not guarantee individuals the equal benefit of the law, but only equality in the administration of the law - See paragraphs 75 to 81.

Civil Rights - Topic 5671.2

Equality and protection of the law - Particular cases - Citizenship - [See fourth Aliens - Topic 2605 ].

Civil Rights - Topic 8007

Canadian or provincial bill of rights - Principles of operation and interpretation - Equality before the law - [See fifth Aliens - Topic 2605 ].

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - General (incl. retrospectivity and retroactivity) - [See fourth Aliens - Topic 2605 ].

Conflict of Laws - Topic 2047

Family law - Marriage - Law applicable (lex loci celebrationis) - [See first Aliens - Topic 2605 ].

Family Law - Topic 234

Marriage - Formalities - Failure to comply - Effect of - [See first Aliens - Topic 2605 ].

Words and Phrases

Has not become an alien - The Federal Court discussed the meaning of this phrase as used in s. 4(b)(i) of the Citizenship Act, S.C. 1946, c. 15 - See paragraphs 20 to 41.

Cases Noticed:

Luu v. Ma, [1999] O.T.C. Uned. 108 (Sup. Ct.), not folld. [para. 14].

Friedman v. Smookler, [1964] 1 O.R. 577 (H.C.), not folld. [para. 14].

Alspector v. Alspector, [1957] O.R. 454 (C.A.), not folld. [para. 14].

Berthiaume v. Dastous, [1930] 1 D.L.R. 849, refd to. [para. 18].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 35].

Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; 163 N.R. 27; 115 Nfld. & P.E.I.R. 334; 360 A.P.R. 334, refd to. [para. 45].

Yassine v. Minister of Employment and Immigration (1994), 172 N.R. 308 (F.C.A.), refd to. [para. 45].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 48].

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81; 42 C.R.R.(2d) 1, additional reasons [1997] 3 S.C.R. 389, refd to. [para. 55].

Augier v. Canada (Minister of Citizenship and Immigration) (2004), 256 F.T.R. 231 (T.D.), refd to. [para. 64].

Mack et al. v. Canada (Attorney General) (2002), 165 O.A.C. 17; 60 O.R.(3d) 737 (C.A.), refd to. [para. 67].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, refd to. [para. 77].

Bear v. Canada (Attorney General) (2003), 300 N.R. 57 (F.C.A.), leave to appeal denied (2003), 321 N.R. 395 (S.C.C.), refd to. [para. 80].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 52].

Canadian Citizenship Act, S.C. 1946, c. 15, sect. 4(b)(i) [para. 21].

Citizenship Act, R.S.C. 1985, c. C-29, sect. 3(1)(b) [para. 51]; sect. 3(1)(d), sect. 3(1)(e), sect. 5(2)(b) [para. 50].

Naturalization Act, R.S.C. 1927, c. 138, sect. 3 [para. 28].

Authors and Works Noticed:

McLeod, James G., Conflict of Laws (1983), p. 253 [para. 17].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 548 [para. 54].

Counsel:

Gregory J. Willoughby and Sean Stynes, for the applicants;

Greg George and Allison Phillips, for the respondent.

Solicitors of Record:

Gregory J. Willoughby, Toronto, Ontario, for the applicants.

John H. Sims, Q.C., Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard in Toronto, Ontario, on April 6, 2005, before Mactavish, J., of the Federal Court, who delivered the following judgment on April 27, 2005, in Ottawa, Ontario.