Indexed As: Kandola v. Canada (Minister of Citizenship and Immigration) Federal Court of Appeal Noël, Mainville and Webb, JJ.A. March 31, 2014.

Transcription

1 The Minister of Citizenship and Immigration (appellant) v. Nanakmeet Kaur Kandola by her guardian at law Malkiat Singh Kandola (respondent) (A ; 2014 FCA 85) Indexed As: Kandola v. Canada (Minister of Citizenship and Immigration) Federal Court of Appeal Noël, Mainville and Webb, JJ.A. March 31, Summary: Kandola was born in India in An embryo, produced by the egg of an anonymous stranger and fertilized in vitro by the sperm of another anonymous stranger, was implanted in her Indian birth mother. Kandola's guardian, a Canadian citizen, and her birth mother, were married and were registered in India as Kandola's parents. They were also listed on her birth certificate. Her guardian applied for a citizenship certificate on Kandola's behalf at the Canadian High Commission in New Delhi. A citizenship officer dismissed the application on the basis that derivative citizenship required a genetic link between the child and parent. The guardian, on Kandola's behalf, applied for judicial review. The Federal Court, in a decision reported at 430 F.T.R. 101, allowed the application, quashed the officer's decision and remitted the matter for reconsideration by a different officer. The Minister of Citizenship and Immigration appealed. The Federal Court of Appeal, Mainville, J.A., dissenting, allowed the appeal and restored the citizenship officer's decision. Aliens - Topic 2562 Naturalization - Appeals and judicial review - Scope of appeal or review - A Canadian citizen (the father) applied for derivative citizenship for his child who had been conceived through assisted human reproduction technology - The child did not have any genetic link to the father or the foreign birth mother - An immigration officer denied the application on the basis that the child did not have a genetic link to the father (Citizenship Act, s. 3(1)(b)) - The Federal Court of Appeal held that the officer's interpretation of its home statute, was presumed to be reviewable on the reasonable standard - That presumption applied even though the officer's decision was a Ministerial one - However, there was no privative clause and the officer was saddled with a pure question of statutory construction embodying no discretionary element - Further, the officer did not have any expertise over the court - The construction of s. 3(1)(b) required a consideration of the shared meaning rule in the application of bilingual enactments as well as the use that could be made of the French text given that it was enacted in the context of a revision - There was no suggestion that an immigration officer had ever considered either of those questions and nothing in the structure or scheme of the Act suggested that deference should be accorded to the officer - The court concluded that the presumption was rebutted and the correctness standard applied - See paragraphs 29 to 45.

2 Aliens - Topic 2605 Naturalization - Right to citizenship - Child - By virtue of Canadian parent - A Canadian citizen (the father) applied for derivative citizenship for his child (Kandola) who had been conceived through assisted human reproduction technology - The child did not have any genetic link to the father or her foreign gestational mother - An immigration officer denied the application on the basis that Kandola lacked a genetic link to the father (Citizenship Act, s. 3(1)(b)) - An applications judge quashed the decision - The Federal Court of Appeal allowed an appeal - The applications judge presumed, inter alia, that the child/parent relationship provided sufficient evidence that Kandola was the legitimized child of her gestational mother and her legal guardian (the father) under the law of her place of birth (India) - That inference could not stand because only a child who was illegitimate at birth could be "legitimized" - Kandola's legitimacy was presumed from the moment of her birth - Further, derivative citizenship under s. 3(1)(b) was obtained without regard to legitimacy issues - It was not open to the judge to hold that citizenship was granted to Kandola on the basis that she was the legitimized child of her legal guardian - See paragraphs 48 to 55. Aliens - Topic 2605 Naturalization - Right to citizenship - Child - By virtue of Canadian parent - A Canadian citizen (the father) applied for derivative citizenship for his child (Kandola) who had been conceived through assisted human reproduction technology - The child had no genetic link to the father or her foreign gestational mother - An immigration officer denied the application on the basis that Kandola lacked a genetic link to the father (Citizenship Act, s. 3(1)(b)) - An applications judge quashed the decision - The Federal Court of Appeal restored the officer's decision - The French text of s. 3(1)(b) used "née... d'un père ou d'une mère" instead of "parent" - By reason of its greater precision, the French text was to be preferred to the English text - As the French text was adopted in the course of the 1985 statute consolidation exercise, there was a presumption that the changes in terminology were technical or aesthetic in nature and did not change the state of the law - Any new law that could be gleaned from the revisions had to ignored and reliance placed on the original text - However, the revision did not create new law - It made the prior French text more precise without altering its meaning - When regard was had to the manner in which s. 3(1) (b) operated, it was apparent that the only type of connection which could confer derivative citizenship was a genetic/gestational one - A child could not be said to be "née d'un père" absent a genetic link - The same clarity did not exist in the case of a mother as "née d'une mère" could refer to either the genetic or gestational mother - See paragraphs 56 to 80. Crown - Topic 685 Authority of Ministers - Exercise of - Administrative or policy decisions - Appeals or judicial review - [See Aliens - Topic 2562]. Statutes - Topic 1803 Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions - Shared meaning rule - [See second Aliens - Topic 2605]. Statutes - Topic 1806 Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by

3 reference to the other - [See second Aliens - Topic 2605]. Statutes - Topic 6146 Operation and effect - Effect on earlier statutes - Amendments - Change to the law - [See second Aliens - Topic 2605]. Statutes - Topic 6148 Operation and effect - Effect on earlier statutes - Amendments - Inference from amendments - Consolidated statute v. original Act - [See second Aliens - Topic 2605]. Words and Phrases Née d'une mère - The Federal Court of Appeal considered the meaning of this phrase as used in s. 3(1)(b) of the Citizenship Act, R.S.C. 1985, c. C-29 - See paragraphs 56 to 71. Words and Phrases Née d'une père - The Federal Court of Appeal considered the meaning of this phrase as used in s. 3(1)(b) of the Citizenship Act, R.S.C. 1985, c. C-29 - See paragraphs 56 to 71. Words and Phrases Parents - The Federal Court of Appeal considered the meaning of this word as used in s. 3(1)(b) of the Citizenship Act, R.S.C. 1985, c. C-29 - See paragraphs 48 to 80. Cases Noticed: Valois-D'Orleans v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 610 (F.C.), refd to. [para. 15]. Azziz et al. v. Canada (Minister of Citizenship and Immigration) (2010), 368 F.T.R. 281; 2010 FC 663, refd to. [para. 15]. Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, consd. [paras. 20, 86]. Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al. (2012), 427 N.R. 110; 2012 FCA 40, refd to. [paras. 26, 86]. Canada (Minister of Fisheries and Oceans) v. David Suzuki Foundation et al. - see Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al. Mudalige Don v. Canada (Minister of Citizenship and Immigration) et al., [2014] N.R. TBEd. JA.008; 2014 FCA 4, refd to. [para. 29]. Keith v. Correctional Service of Canada (2012), 431 N.R. 121; 2012 FCA 117, refd to. [para. 29] Yu v. Canada (Attorney General) (2011), 414 N.R. 283; 2011 FCA 42, refd to. [para. 29]. Merck Frosst Canada Ltd. v. Canada (Minister of Health) (2012), 426 N.R. 200; 2012 SCC 3, refd to. [para. 32]. New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 32]. Takeda Canada Inc. v. Canada (Minister of Health) et al. (2013), 440 N.R. 346; 2013 CanLII 33948; 2013 FCA 13, refd to. [para. 33]. Lee v. Canada (Minister of Citizenship and Immigration) (2008), 329 F.T.R. 135; 2008 FC 614, refd to. [para. 34].

4 Jabour v. Canada (Minister of Citizenship and Immigration) (2012), 404 F.T.R. 149; 2012 FC 98, refd to. [para. 34]. Kinsel v. Canada (Minister of Citizenship and Immigration) (2012), 423 F.T.R. 299; 2012 FC 1515, refd to. [para. 34]. Rabin v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 749; 2010 FC 1094, refd to. [para. 34]. Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [paras. 35, 86]. Toledo v. Canada (Minister of Citizenship and Immigration) et al., [2013] N.R. TBEd. OC.008; 2013 FCA 2236, refd to. [para. 37]. Prescient Foundation v. Minister of National Revenue (2013), 444 N.R. 234; 2013 FCA 120, refd to. [para. 37]. Bartlett v. Canada (Attorney General) (2012), 434 N.R. 241; 2012 FCA 230, refd to. [para. 37]. Sheldon Inwentash and Lynn Factor Charitable Foundation v. Minister of National Revenue (2012), 432 N.R. 338; 2012 FCA 136, refd to. [para. 37]. Northern Ontario Compassion Club et al. v. Canada (Attorney General), 2013 FC 700, refd to. [para. 38]. Febles v. Canada (Minister of Citizenship and Immigration) (2012), 442 N.R. 290; 2012 FCA 324, refd to., [para. 38]. Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al., [2012] 1 S.C.R. 364; 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 40]. Canada (Attorney General) v. Mowat (2011), 422 N.R. 248; 2011 SCC 53, refd to. [para. 40]. Canadian Human Rights Commission v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat. Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 275 Man.R.(2d) 16; 538 W.A.C. 16; 2011 SCC 59, refd to. [para. 40]. McLean v. British Columbia Securities Commission (2013), 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [paras. 41, 86]. Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., [2012] 2 S.C.R. 283; 432 N.R. 1; 2012 SCC 35, dist. [paras. 42, 87]. Flota Cubana de Pesca (Cuban Fishing Fleet) et al. v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 303; 221 N.R. 356; 154 D.L.R.(4th) 577 (F.C.A.), refd to. [paras. 62, 90]. Goodswimmer et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., [1995] 2 F.C. 389; 180 N.R. 184 (F.C.A.), refd to. [para. 90]. Beothuk Data Systems Ltd., Seawatch Division v. Dean et al., [1998] 1 F.C. 433; 218 N.R. 321 (F.C.A.), refd to. [para. 90]. Felipa v. Canada (Minister of Citizenship and Immigration), [2011] 1 F.C.R. 365; 357 F.T.R. 253; 2010 FC 89, revd. [2012] 1 F.C.R. 3; 422 N.R. 288; 2011 FCA 272, refd to. [para. 90]. Sarvanis v. Canada, [2002] 1 S.C.R. 921; 284 N.R. 263; 2002 SCC 28, refd to. [para. 49].

5 Reference Re Supreme Court Act, [2014] N.R. TBEd. MR.021; 2014 SCC 21, refd to. [para. 94]. Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 95]. Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 95]. Pratten v. British Columbia (Attorney General) et al. (2012), 330 B.C.A.C. 229; 357 D.L.R.(4th) 660; 562 W.A.C. 229, leave to appealed denied [2013] N.R. TBEd. Motion 239 (S.C.C.), refd to. [para. 120]. Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 121]. R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 121]. R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 121]. R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 121]. H. v. Australia (Minister for Immigration and Citizenship), [2010] FCAFA 119, refd to. [para. 122]. Statutes Noticed: Citizenship Act, R.S.C. 1985, c. C-29, sect. 3(1)(b) [para. 94]. Authors and Works Noticed: Campbell, Angela, Conceiving Parents through Law (2007), 21 IJLPF 242, p. 250 [para. 105]. Côté, Pierre-André, The Interpretation of Legislation in Canada (3rd Ed.), pp. 54, 55 [para. 91]. Côté, Pierre-André, The Interpretation of Legislation in Canada (4th Ed. 2011), pp. 58, 61 [para. 62]. Knoppers, Bartha maria, The "Legitimization" of Artificial Insemination: Promise or Problem? (1978) 1 Fam. L. Rev. 108, pp. 108, 114, endnote 8 [para. 109]. Mykitiuk, Roxanne, Beyond Conception: Legal Determinations of Filiation in the Context of Assisted Reproductive Technologies (2002), 39 Osgoode Hall L.J. 771, p. 780 [para. 105]. Presumption of Legitimacy of a Child Born in Wedlock (1919), 33 Harv. Law Rev. 306, pp. 306 to 308 [para. 65]. Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 653, 654 [para. 62]. Counsel: Cheryl D. Mitchell and Kim Sutcliffe, for the appellant; Charles E.D. Groos, for the respondent. Solicitors of Record: William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

6 Charles E.D. Groos, Surrey, British Columbia, for the respondent. This appeal was heard at Vancouver, British Columbia, on February 11, 2014, by Noël, Mainville and Webb, JJ.A., of the Federal Court of Appeal. The reasons for judgment of the court were released on March 31, 2014, with the following opinions: Noël, J.A. (Webb, J.A., concurring) - see paragraphs 1 to 82; Mainville, J.A., dissenting - see paragraphs 83 to 125. Editor: Gary W. McLaughlin Appeal allowed.