Digests

Sieradzki v. Canada (Minister of Citizenship and Immigration)

T-1460-01

2003 FCT 225, Kelen J.

25/2/03

6 pp.

Judicial review of Citizenship Officer's decision denying applicant's request for certificate of Canadian citizenship as had lost status as Canadian citizen in 1969--Applicant born on April 15, 1956 in Thunder Bay, Ontario to Canadian parents--In 1962, applicant moved with parents to United States--On January 14, 1969, applicant's parents became citizens of United States--Thus, under Canadian Citizenship Act (former Act), s. 15(1), applicant's parents ceased to be Canadian citizens--Applicant obtained American citizenship on same day as parents, and by operation of former Act, s. 20(1), also ceased to be Canadian citizen--In September 2000, applicant submitted application for certificate of Canadian citizenship and obtained passport for one year-- Later, applicant informed not Canadian citizen by operation of former Act, ss. 15(1), 20(1) and would not receive certificate of Canadian citizenship--Applicant later required to return Canadian passport--Applicant professional golfer on Malaysian PGA Tour, claiming that without ability to travel, will lose position on tour and sole source of income--Sole issue whether applicant has suffered discrimination based on age, contrary to Charter, s. 15--Issue of retroactive and retrospective application of Charter addressed extensively in Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358: "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 assessing the contemporary application of a law which happened to be passed before the Charter came into effect?"--Present case involving both past discrete event and on-going condition--Past discrete event, applicant's loss of citizenship in 1969 and current status as non-citizen stemming from applicant's loss of citizenship-- Nonetheless, case at bar properly characterized as one essentially "event-driven" because most significant or relevant feature past event, not on-going condition--Present case involving characteristic of applicant (status as non-citizen) arising as result of applicant's parents' choice to take some action (obtain American citizenship in 1969)--If Charter applied in these circumstances, Court would be required to go back and re-assess legal effect of pre-Charter choices resulting in retroactive application of Charter, which has been ruled out by Supreme Court on numerous occasions, e.g. R. v. Stevens, [1988] 1 S.C.R. 1153--Consequently, Charter not applicable in present case--Judicial review dismissed--Canadian Citizenship Act, R.S.C. 1952, c. 33, ss. 15(1), 20(1)-- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.