T-442-90
Mark Donald Benner (Applicant)
v.
The Secretary of State of Canada and the
Registrar of Citizenship (Respondents)
INDEXED AS: BENNER V. CANADA (SECRETARY OF STATE)
(T.D.)
Trial Division, Jerome A.C.J.—Toronto, August 2
and 31, 1990; Ottawa, July 9, 1991.
Citizenship — Applicant born in U.S.A. in 1962 of marriage
of Canadian mother, American father — Citizenship Act then
in force conferring citizenship upon child born abroad of
Canadian father or, if parents unmarried, Canadian mother —
Act now in force conferring automatic citizenship upon child
born abroad of Canadian parent after February 14, 1977 —
Persons born abroad to Canadian mother in wedlock before
February 15, 1977 having to apply, meet conditions, swear
oath — Whether contrary to Charter of Rights — Act, s. 22
prohibiting grant of citizenship to person charged with indicta
ble offence or under sentence — Applicant refused citizenship
pending determination of murder charge — Charter of rights
not retroactive — Applying to continuing discrimination, not to
discrete event occurring before entry into force — Entitlement
to citizenship fixed by discrete event of birth.
Constitutional law — Charter of Rights — Equality rights —
Citizenship Act conferring citizenship upon persons born
abroad to Canadian parent after February 14, 1977 — Per
sons born abroad before February 15, 1977 to Canadian
father or unwed Canadian mother entitled to citizenship —
Persons born abroad to Canadian mother in wedlock before
date having to apply, meet conditions, swear oath — Whether
discrimination under s. 15 — Invalidity under s. 15 requiring
both unequal treatment and discriminatory purpose or effect —
Refusal of citizenship to person charged with indictable offence
based on merit, not personal characteristics analogous to pro
hibited grounds of discrimination.
Constitutional law — Charter of Rights — Criminal process
— Denial of citizenship to applicant charged with indictable
offence not violation of right to be presumed innocent.
The applicant was born on August 29, 1962, in the United
States, of the marriage of a Canadian mother and an American
father. At that time, paragraph 5(l)(b) of the Citizenship Act
conferred citizenship upon the child, born abroad, of a Cana-
dian father or, if the parents were not married, of a Canadian
mother. In 1977, the Act was amended to include, as citizens,
persons born abroad after February 14, 1977 of whom either
parent was a citizen. Provision was made in paragraph 5(2)(b)
for persons, like the applicant, born abroad before that date to
a Canadian mother and not entitled to citizenship under the for
mer Act, by requiring the Minister to accept their applications
for citizenship. Section 22, however, prohibits the gant of citi
zenship under section 5 to, inter alia, a person who is under
sentence for an offence or charged with an indictable offence.
Section 20 of the Regulations requires that an applicant over
14 years of age take the oath of citizenship.
In 1987, the applicant applied for Canadian citizenship
under paragraph 5(2)(b) of the Citizenship Act. In the course of
that proceeding, the RCMP advised that the applicant appeared
to be charged with murder; the applicant's counsel asked that
the application be held in abeyance until the charges were dealt
with. The Registrar advised that the applicant had 30 days to
demonstrate that he was not prohibited from acquiring citizen
ship under section 22 of the Act. On October 17, 1989, the
citizenship application was rejected.
The applicant seeks certiorari to quash that decision and
mandamus to order the Registrar to grant citizenship, without
requiring the citizenship oath, on the grounds that section 22 of
the Act and section 20 of the Regulations are contrary to the
Charter.
Held, the application should be dismissed.
Section 15 of the Charter does not apply to causes of action
which arose before it came into force on April 17, 1985. The
purpose of the three-year delay in the coming into force of sec
tion 15 was to allow governments time to meet its require
ments. That purpose would be defeated by retrospective appli
cation. To determine whether the Charter applies, a court must
ask whether it was in force when the allegedly infringing event
took place or had its effect. Different rights and freedoms will
crystallize at different times. The Charter will apply to a con
tinuing, current violation of rights even although the violation
first arose pre-Charter. Here, there is not a continuing discrimi
natory practice post-Charter; rather, the applicant's citizenship
status was determined by and at the time of the discrete event
of his birth. The section 7 rights to life, liberty and security of
the person do not entail a right to citizenship. Nor does the
delay imposed by section 22 of the Citizenship Act violate the
right of an accused in criminal proceedings to be presumed
innocent.
Even if the applicant's cause of action were considered to
have arisen after the Charter came into force, a breach of sec
tion 15 occurs only when a distinction is made against a person
which violates one of the equality rights, and that violation is
discriminatory in its purpose or effect. Here, the distinction
made between persons born to married parents and those born
out of wedlock does deny the applicant the equal benefit of the
law. Not every distinction is discriminatory, however. Govern
ments may classify individuals and groups; applying different
rules to those so classified is necessary for the governance of
modern society. An unacceptable distinction is one based on
personal characteristics enumerated in section 15 or one analo
gous to them. Distinctions based on an individual's merits and
capacities will rarely be discriminatory. By the 1977 Citizen
ship Act, Parliament chose to extend preferential access to citi
zenship to a group previously denied such treatment. The tem
poral demarcation between persons born before a certain date
and those born after is a distinction Parliament is competent to
make, like those made in taxation and social benefits legisla
tion. With the provision of an application procedure and oath
requirement for persons in the applicant's position, Parliament
drew a distinction based, not on their personal characteristics,
but on their merits and capacities. There is, therefore, no dis
criminatory purpose or effect.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
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], ss. 1, 7, 11(d), 15(1), 24.
Canadian Citizenship Act, R.S.C. 1970, c. C-19, s.
5(1)(b).
Citizenship Act, R.S.C., 1985, c. C-29, ss. 3(1), 4(3),
5(2)(b), 22(2)(a).
Citizenship Act, S.C. 1974-75-76, c. 108, ss. 3(1), 4(3),
5(2)(b), 20(2) (as am. by S.C. 1977-78, c. 22, s. 8;
1987, c. 37, s. 13).
Citizenship Regulations, C.R.C., c. 400, s. 20.
Criminal Code, R.S.C. 1970, c. C-34, s. 214 (as am. by
R.S.C. 1970, c. C-35, s. 4(1); S.C. 1973-74, c. 38, ss. 2,
10, 11; 1974-75-76, c. 105, s. 4).
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Immigration Act, R.S.C., 1985, c. I-2, s. 27(2)(f).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 27(2)(f).
CASES JUDICIALLY CONSIDERED
APPLIED:
In re Citizenship Act and in re Noailles, [1985] 1 F.C. 852
(T.D.); Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2
W.W.R. 289; 34 B.C.L.R. (2d) 273; 36 C.R.R. 193; 91
N.R. 255; R. v. Turpin, [1989] 1 S.C.R. 1296; (1989), 48
C.C.C. (3d) 8; 69 C.R. (3d) 97.
CONSIDERED:
Benner v. Minister of Employment and Immigration
(1988), 93 N.R. 250 (F.C.A.); R. v. Longtin (1983), 41
O.R. (2d) 545; 147 D.L.R. (3d) 604; 5 C.C.C. (3d) 12; 8
C.R.R. 136 (C.A.); R. v. James, Kirsten and Rosenthal
(1986), 55 O.R. (2d) 609; (1986), 27 C.C.C. (3d) 1;
[1986] 2 C.T.C. 288; 86 D.T.C. 6432; 15 O.A.C. 319
(C.A.) affirmed sub nom. R. v. James, [1988] 1 S.C.R.
669; (1988), 63 O.R. (2d) 635; 40 C.C.C. (3d) 576; [1988]
2 C.T.C. 1; 88 DTC 6273; 85 N.R. 1; R. v. Stevens, [1988]
1 S.C.R. 1153; (1988), 41 C.C.C. (3d) 193; 64 C.R. (3d)
297; 86 N.R. 85; 28 O.A.C. 243; Reference Re Sections
32 and 34 of the Workers' Compensation Act, (Nfld.)
(1987), 67 Nfld. & P.E.I.R. 16; 44 D.L.R. (4th) 501; 206
A.P.R. 16; 36 C.R.R. 112 (C.A.) affd [1989] 1 S.C.R.
922; (1989), 76 Nfld. & P.E.I.R. 181; 56 D.L.R. (4th)
765; 235 A.P.R. 181; 40 C.R.R. 135; 96 N.R. 227; David-
son et al. v. Davidson (1986), 33 D.L.R. (4th) 161; [1987]
2 W.W.R. 642; 10 B.C.L.R. (2d) 88; 26 C.C.L.I. 134
(B.C.C.A.); R v. Gamble, [1988] 2 S.C.R. 595; (1988), 31
O.A.C. 81; 45 C.C.C. (3d) 204; 66 C.R. (3d) 193; 89 N.R.
161; R. v. S. (S.), [1990] 2 S.C.R. 254; (1990), 57 C.C.C.
(3d) 115; 77 C.R. (3d) 273; 49 C.R.R. 79; 110 N.R. 321;
41 O.A.C. 81.
REFERRED TO:
Reyes v. Attorney General of Canada, [1983] 2 F.C. 125;
(1983), 149 D.L.R. (3d) 748; 3 Admin. L.R. 141; 13
C.R.R. 235 (T.D.); Orontes v. Minister of Employment
and Immigration (1990), 34 F.T.R. 184 (F.C.T.D.).
AUTHORS CITED
Driedger, Elmer A., "Statutes: Retroactive Retrospective
Reflections" (1978), 56 Can. Bar Rev. 264.
COUNSEL:
Richard Vanderkooy for applicant.
Jaqueline Ott for respondents.
SOLICITORS:
Posthumus & Abols, Toronto, for applicant.
Deputy Attorney General of Canada for respon
dents.
The following are the reasons for order rendered in
English by
JEROME A.C.J.: This matter came on for hearing at
Toronto, Ontario on August 2 and August 31, 1990.
By notice of motion dated February 14, 1990, the
applicant seeks, pursuant to section 18 of the Federal
Court Act, R.S.C., 1985, c. F-7:
1. An order in the nature of certiorari quashing the Respon
dent Registrar of Canadian Citizenship's decision of October
17, 1989 rejecting the Applicant's application to be granted
Canadian citizenship.
2. An order in the nature of mandamus requiring the Respon
dent Secretary of State of Canada to grant Canadian citizenship
to the Applicant without requiring the oath of citizenship, and
to issue a certificate of citizenship to him under s. 12 of the
Citizenship Act, R.S.C. 1985, c. C-29, as amended.
3. Full costs on a solicitor and client basis, pursuant to Rule
344.
4. Such further and other relief as to this Honourable Court
may seem just.
FACTS:
The salient facts, as set out in the applicant's affi
davit sworn February 14, 1990 and the affidavit of
Colette Arnal, Chief, Citizenship Registration and
Promotion, Department of Secretary of State, sworn
April 26, 1990, are as follows. The applicant was
born in wedlock in the United States of America on
August 29, 1962. His mother was a Canadian citizen
and his father was an American citizen when the
applicant was born. During his childhood, the appli
cant was separated from his parents and he resided in
California. He entered Canada on October 10, 1986,
after having relocated his mother in the Toronto area.
On July 9, 1987 an inquiry into his status in Canada
was commenced pursuant to paragraph 27(2)(f) of the
Immigration Act, 1976, S.C. 1976-77, c. 52 [now
R.S.C., 1985, c. I-2.] The applicant claimed to be a
Canadian citizen and on September 24, 1987, he
applied for Canadian citizenship pursuant to para
graph 5(2)(b) of the Citizenship Act, S.C. 1974-75-
76, c. 108 [now R.S.C., 1985, c. C-29, as amended]
(the "Act") to the Court of Canadian Citizenship in
Mississauga, Ontario (the "Citizenship Court"). The
respondents state, however, that he failed to provide
all the necessary documentation prescribed by the
Citizenship Regulations [C.R.C., c. 400].
A "Notification of Adjournment of Immigration
Inquiry to Verify Claim of Citizenship" dated Nov-
ember 19, 1987 was sent to the Citizenship Court by
Employment and Immigration Canada ("EIC"). On
November 26, 1987 the Citizenship Court advised
EIC that a search initiated on November 18, 1987
indicated that there was no record of the applicant in
the Citizenship Registration Index. On January 27,
1988 a deportation order was made in respect of the
applicant pursuant to the Immigration Inquiry. On
August 25, 1988 the applicant applied to the Federal
Court of Appeal to have the deportation order set
aside. On November 3, 1988 the Court set aside the
deportation order because the applicant's citizenship
application had not been determined and in order that
the citizenship application could proceed.!
The applicant appeared at the Citizenship Court on
October 27, 1988 and provided the missing informa
tion and documentation. In accordance with criminal
clearance procedures, his application was forwarded
to the Royal Canadian Mounted Police (the
"RCMP"). On December 5, 1988 the RCMP advised
that the applicant may have a criminal record and
from May to August, 1989 the following information
concerning the applicant's record was obtained:
(i) conviction of theft over $1,000 in Brampton on June 1,
1987 (subsequently appealed and withdrawn by the
Crown on March 9, 1988);
(ii) outstanding charge, murder (York);
(iii) outstanding charge, obstruct justice and personation
(Peel); and
(iv) four outstanding warrants of committal.
Requests for fingerprints were sent to the applicant
on December 16, 1988 and on March 8, 1989. In a
letter to the Citizenship Court dated May 1, 1989,
counsel for the applicant advised that the applicant
had been charged with an indictable offence and
requested that the citizenship application be held in
abeyance until a determination was reached in
respect of the charge. On August 31, 1989 the
respondent Registrar of Canadian Citizenship advised
the applicant that the file evidence appeared to pro
hibit his application and that it would be held in
abeyance for 30 days to permit him to demonstrate
that he was not prohibited:
Based on the above information [criminal record], it would
seem that you are prohibited from acquiring citizenship by vir
tue of section 22 of the Citizenship Act. In order to help verify
this information, on two occasions, both by registered mail,
1 Benner v. Minister of Employment and Immigration
(1988), 93 N.R. 250 (F.C.A.).
you were requested to provide your fingerprints but have failed
to do so.
Your application will be held in abeyance for the next thirty
days in order to allow you to demonstrate that you are not pro
hibited to be granted Canadian Citizenship.
No reply was received from the applicant and in a
letter dated October 17, 1989 the Registrar informed
the applicant that his citizenship application under
paragraph 5(2)(b) of the Act was rejected.
The applicant requests that this Court, pursuant to
its remedial powers under section 24 of the Charter,
quash the respondent Registrar of Canadian Citizen-
ship's decision rejecting the applicant's application
for citizenship and order the respondent Secretary of
State of Canada to grant citizenship to the applicant
without requiring him to take the oath of citizenship.
The basis of this request is that section 22 of the Act
[R.S.C., 1985, c. C-29] and section 20 of the Regula
tions are inoperable to the extent that they refer to an
application for citizenship by maternal heritage.
ISSUE:
The applicant's application for Canadian citizen
ship has been "delayed" in accordance with section
22 of the Act because of the criminal charges out
standing against him. The respondents state that if the
charges are ultimately dismissed or if the applicant is
found to be innocent the Citizenship application shall
proceed. However, if he is ultimately convicted of the
offences, the grant of citizenship will be delayed in
accordance with paragraph 22(2)(a), for three years
following the date that such conviction is no longer
outstanding. The applicant argues that he is subject to
section 22 because he was born outside Canada of
maternal heritage (in wedlock) before February 14,
1977 and consequently must make an application for
citizenship under paragraph 5(2)(b) of the Act. The
issue then is whether the preferential paragraph
5(2)(b) application process accorded to non-citizens
born of Canadian maternal heritage (in wedlock)
prior to February 14, 1977 infringes the Charter.
STATUTORY PROVISIONS:
The statutory provisions relevant to this matter are
subsections 3(1) and 4(3), paragraph 5(2)(b), and sec
tion 22 of the Citizenship Act, S.C. 1974-75-76, c.
108 (the "1977 Citizenship Act"), paragraph 5(1)(b)
of the former Canadian Citizenship Act, R.S.C. 1970,
c. C-19 (the "1947 Citizenship Act"), section 20 of
the Citizenship Regulations, C.R.C., c. 400, and sub
section 15(1), section 7, and paragraph 11(d) of the
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]] (the "Charter").
Canada's citizenship legislation, "An Act respect
ing Citizenship, Nationality, Naturalization and Sta
tus of Aliens", R.S.C. 1952, c. 33, as amended [by
S.C. 1952-53, c. 23, s. 14] (the "1947 Citizenship
Act") became effective January 1, 1947. Subsection
5(1) of the 1947 Citizenship Act provided that a per
son born after December 31, 1946 was a natural-born
Canadian if such person was:
5. (1)...
(a) ... born in Canada or on a Canadian ship; or
(b) ... born outside Canada elsewhere than on a Canadian
ship and
(i) his father, or in the case of a child born out of wed
lock, his mother, at the time of that person's birth is a
Canadian citizen, and
(ii) the fact of his birth is registered in accordance with
the regulations, within two years after its occurrence or
within such extended period as the Ministry may author
ize in special cases. [Emphasis added.]
The Citizenship Act, S.C. 1974-75-76, c. 108 [now
R.S.C., 1985, c. C-29 as amended] was declared in
force on February 15, 1977 and the 1947 Citizenship
Act was repealed. The relevant provisions are as fol
lows:
3. (1) Subject to this Act, a person is a citizen if
(a) the person was born in Canada after February 14, 1977;
(b) the person was born outside Canada after February 14,
1977 and at the time of his birth one of his parents, other
than a parent who adopted him, was a citizen;
(c) the person has been granted or acquired citizenship pur
suant to section 5 or 11 and, in the case of a person who is
fourteen years of age or over on the day that he is granted
citizenship, he has taken the oath of citizenship;
(d) the person was a citizen immediately before February 15,
1977; or
(e) the person was entitled immediately before February 15,
1977, to become a citizen under paragraph 5(1)(b) of the
former Act.
4....
(3) For the purposes of paragraph 3(1)(e), a person other
wise entitled under paragraph 5(1)(b) of the former Act to
become a citizen immediately before February 15, 1977
remains so entitled notwithstanding that his birth is registered
after February 14, 1977, in accordance with the regulations
made under the former Act,
(a) within two years after the occurrence of his birth; or
(b) within such extended period as the Minister may author
ize after February 15, 1977 or has authorized before that
date. 2
5....
(2) The Minister shall grant citizenship to any person who
(b) was born outside Canada, before February 15, 1977, of a
mother who was a citizen at the time of his birth, and was
not entitled, immediately before February 15, 1977, to
become a citizen under subparagraph 5(1)(b)(î) of the for
mer Act, if, before February 15, 1977, or within such
extended period as the Minister may authorize, an applica
tion for citizenship is made to the Minister by a person
authorized by regulation to make the application. 3
22. (1) Notwithstanding anything in this Act, a person shall
not be granted citizenship under section 5 or subsection 11(1)
or administered the oath of citizenship
(a) while the person is, pursuant to any enactment in force in
Canada,
(i) under a probation order,
(ii) a paroled inmate, or
(iii) confined in or is an inmate of any penitentiary, jail,
reformatory or prison;
(b) while the person is charged with, on trial for, or subject
to or party to an appeal relating to an offence under subsec
tion 29(2) or (3) or an indictable offence under any Act of
Parliament; or
(c) if the person requires but has not obtained the consent of
the Minister of Employment and Immigration, under subsec-
2 The date for registration pursuant to s. 4(3) and s. 5(2)(b)
of the 1977 Citizenship Act has been extended to February 15,
1992.
3 Ibid.
tion 55(1) of the Immigration Act, to be admitted to and
remain in Canada as a permanent resident.
(2) Notwithstanding anything in this Act, but subject to the
Criminal Records Act, a person shall not be granted citizenship
under section 5 or subsection 11(1) or administered the oath of
citizenship if
(a) during the three year period immediately preceding the
date of his application, or
(b) during the period between the date of his application and
the date that the person would otherwise be granted citizen
ship or administered the oath of citizenship the person has
been convicted of an offence under subsection 29(2) or (3)
or of an indictable offence under any Act of Parliament.
Section 20 of the Citizenship Regulations provides:
20. (1) Subject to subsection 5(3) of the Act and section 22
of the Regulations, a person who is 14 years of age or over on
the day that he has been granted citizenship under subsection
5(2), 5(4) or 10(1) of the Act shall take the oath of citizenship
by swearing or affirming it ...
The relevant provisions of the Charter are as fol
lows:
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in accor
dance with the principles of fundamental justice.
11. Any person charged with an offence has the right...
(d) to be presumed innocent until proven guilty according to
law in a fair and public hearing by an independent and
impartial tribunal;
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without dis
crimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
APPLICANT'S ARGUMENT:
The applicant submits that he is denied his right to
equal protection and equal benefit of the law in that
he is denied Canadian citizenship by reason of the
sex of his parent holding Canadian citizenship at the
time of his birth outside Canada before February 15,
1977. The discriminatory treatment under the Citi
zenship Act on the basis of the sex or marital status of
the parent holding Canadian citizenship is presump-
tively pejorative on a constitutionally prohibited
ground because:
(a) the discrimination is on grounds closely analogous to those
enumerated in s. 15(1);
(b) it is strongly and obviously linked to the enumerated, pro
hibited ground of sex which is one of the "most socially
destructive and historically practiced bases of discrimination";
(c) it is based on natural and immutable personal characteris
tics; and,
(d) it results in a major, non-trivial effect upon members of the
Applicant's class in that it denies Canadian citizenship and the
opportunity for dual Canadian/American citizenship.
The applicant further submits that citizenship cannot
be considered a "privilege" and that his Charter sec
tion 7 right to life, liberty and security of the person
is infringed. Specifically, his right to status ab initio
as a Canadian citizen acquired by birth, his right to
enter and remain in Canada, and his right to the full
benefit of the doctrine that one is presumed innocent
until proven guilty under paragraph 11(d) of the
Charter are infringed.
The applicant states that the infringement of his
subsection 15(1) and section 7 rights cannot be justi
fied under section 1 of the Charter. He suggests that
the objectives of the relevant provisions of the Citi
zenship Act are not reasonable and cannot be justified
in a free and democratic society which embodies a
commitment to social justice and equality. He sub
mits that the purposes and impact of the Citizenship
Act are under-inclusive of the equality requirements
of subsection 15(1) of the Charter in that the rights,
benefits and protection of Canadian citizenship are
granted to those who claim it by virtue of their pater
nal or bastard heritage, but not to those who claim it
on the basis of their maternal heritage. The objectives
of limiting citizenship to those deserving of it and the
desire to protect Canadian security interests are not
properly addressed because the irrelevant characteris
tic of maternal heritage has been isolated. Further, the
bar under section 22, invoked as a consequence of the
applicant being charged with an indictable offence,
violates the constitutionally protected doctrine of the
presumption of innocence and is not rationally con
nected to the security interests of Canada. The appli
cant submits, therefore, that the measures used to
achieve the objectives noted above are disproportion
ate in that they greatly impair the protected rights to
equality, to security of the person, and to the pre
sumption of innocence.
RESPONDENTS' ARGUMENT:
The respondents submit that the Charter does not
apply retrospectively to legislation in force and hav
ing effect in Canada prior to the Charter's entrench
ment and, with respect to section 15, prior to April
17, 1985. Relying on Reyes v. Attorney General of
Canada, [1983] 2 F.C. 125 (T.D.), at page 142, the
respondents submit that citizenship status is deter
mined on the date of an individual's birth or in accor
dance with and subject to state laws of naturalization
in force on such date. The applicant, born August 29,
1962, was subject to citizenship legislation effective
in 1947 and it is submitted that he is now seeking to
compare himself to other persons whose citizenship
status was determined in accordance with the 1947
Citizenship Act. The respondents state that the appli
cant is seeking to have this Court "regulate the com
position of the Canadian state on April 30, 1990 and
alter the composition of the Canadian citizenry from
January 1, 1947 forward."
Alternatively, it is submitted that subsection 15(1),
paragraph 11(d) and section 7 of the Charter are not
infringed in this instance. The decisions of the Fed
eral Court in Reyes and in Orantes v. Minister of
Employment and Immigration (1990), 34 F.T.R. 184
(F.C.T.D.) are cited as authority for the proposition
that section 7 of the Charter does not encompass a
guarantee of citizenship and that the refusal of a grant
of citizenship, therefore, does not infringe the appli
cant's right to life, liberty and security of the person.
As well, the paragraph 11(d) right to be presumed
innocent in criminal proceedings does not apply to
this non-criminal proceeding.
The respondents submit that citizenship is a statu-
torily defined "status" composed of rights, duties,
privileges and obligations and that, except as specifi
cally provided in the Citizenship Act, no person has a
"right" to Canadian citizenship. The conditions and
criteria of citizenship relate to fundamental policy
decisions entrusted exclusively to Parliament that are
determined in accordance with the interface and
impact of Canadian citizenship status on: (i) foreign
states and foreign nationals of varying links to
Canada; (ii) Canada's national identity and integrally
related matters, such as national security; and (iii) all
domestic laws relating to the obligations, rights and
privileges of citizenship.
The application process provided for in paragraph
5(2)(b) of the 1977 Citizenship Act was designed to
offer preferred access to the status of Canadian citi
zenship to non-citizens born in wedlock to Canadian
mothers before February 14, 1977. At the same time
Parliament sought to avoid prejudice to their foreign
national status as a result of a retroactive conferral of
citizenship and to ensure that the rights of existing
citizens are not jeopardized. Paragraph 5(2)(b) and
section 22 do not, therefore, by object infringe sub
section 15(1) of the Charter.
The real distinction according to the respondents is
not the sex or marital status of the applicant's Cana-
dian parent but the alleged criminal activity of the
applicant. It is not a distinction based upon personal
characteristics but upon an individual's merit or
capacity to uphold the laws of Canada and it is, there
fore, not discriminatory. The criteria and conditions
regulating access to Canadian citizenship are not
related to individual characteristics but to historical,
social, national, political and international factors.
The respondents submit that Parliament specifically
addressed the extent to which preferred citizenship
status should be provided to individuals born outside
Canada before the effective date of the new legisla-
tion to Canadian mothers in wedlock and that the pol
icy choices ultimately embodied in paragraph 5(2)(b)
and section 22 are demonstrably justified within sec
tion 1 of the Charter.
ANALYSIS:
1. Does the Charter apply to this particular fact situa
tion?
In R. v. Longtin (1983), 41 O.R. (2d) 545 (C.A.),
Blair J.A. held that the Charter does not have retro
spective application. Tarnopolsky J.A. in R. v. James,
Kirsten and Rosenthal (1986), 55 O.R. (2d) 609
(C.A.), affirmed [1988] 1 S.C.R. 669, observed that
the Supreme Court of Canada had not questioned this
proposition but had to date simply considered
whether, in a particular case, giving effect to a provi
sion in the Charter does or does not amount to a ret
rospective application. He referred (at page 624) to E.
A. Driedger in "Statutes: Retroactive Retrospective
Reflections" (1978), 56 Can. Bar Rev. 264, at pages
268-269, to outline the difference between a retroac
tive and a retrospective statute:
A retroactive statute is one that operates as of a time prior to
its enactment. A retrospective statute is one that operates for
the future only. It is prospective, but it imposes new results in
respect of a past event. A retroactive statute operates back-
warcLs. A retrospective statute operates forwards, but it looks
backwards in that it attaches new consequences for the future
to an event that took place before the statute was enacted. A
retroactive statute changes the law from what it was; a retro
spective statute changes the law from what it otherwise would
be with respect to a prior event.
In R. v. Stevens, [1988] 1 S.C.R. 1153 at page
1159, Mr. Justice Le Dain, for the majority, held that
the Charter should not be applied retrospectively so
as to change the substantive law applicable to a Crim
inal Code [R.S.C. 1970, c. C-34] offence:
The criminal liability to imprisonment for the offence created
by s. 146(1) was imposed by s. 146(1), in respect of the
offence committed by the appellant, at the time the offence was
committed. The liability imposed by law would ordinarily be
established at trial in a particular case in accordance with the
relevant substantive law, including any applicable constitu
tional provisions, as it existed at the time the offence was com
mitted. It would give a retrospective application to s. 7 of the
Charter to apply it to s. 146(1) of the Code merely because the
liability imposed by s. 146(1) continued after the Charter came
into force. It would be to change the applicable substantive law
with retrospective effect.
Here, we are dealing specifically with section 15 of
the Charter. Although the Charter came into force on
April 17, 1982, section 15 did not take effect until
three years later on April 17, 1985. Recently, in Ref
erence Re Sections 32 and 34 of the Workers' Com
pensation Act, (Nfld.) (1987), 67 Nfld. & P.E.I.R. 16
(C.A.), affirmed [1989] 1 S.C.R. 922, the Supreme
Court of Canada confirmed that subsection 15(1) of
the Charter does not apply to causes of action arising
prior to April 17, 1985. In fact, as noted by Macfar-
lane J.A. in Davidson et al. v. Davidson (1986), 33
D.L.R. (4th) 161 (B.C.C.A.), at page 171, the purpose
behind the three-year delay was to provide a period
of grace to allow governments to reorganize their
affairs and to amend legislation to satisfy the consti
tutional guarantees provided by section 15. There
fore, giving section 15 retrospective effect would
completely ignore the purpose of the three-year
delay.
In R. v. Gamble, [1988] 2 S.C.R. 595, the retro-
spectivity question was dealt with at length and
guidelines for determining whether the Charter
applies in a given circumstance were established.
Both Dickson C.J. (as he then was) in dissent and
Wilson J. for the majority agreed that in order to
determine whether the Charter is applicable law, a
court must ask whether the Charter was in force at
the time at which the act or event which is alleged to
infringe the Charter took place or had its effect.
Dickson C.J. noted, however, that "this is not neces
sarily a straight-forward task" and Wilson J. cau
tioned that "an all or nothing approach which artifi
cially divides the chronology of events into the
mutually exclusive categories of pre and post-Char
ter" should be avoided and that pre-Charter history
should be considered as well as the nature of the par
ticular constitutional right alleged to be violated. She
stated [at pages 627-631]:
Such an approach seems to me to be consistent with our gen
eral purposive approach to the interpretation of constitutional
rights. Different rights and freedoms, depending on their pur
pose and the interests they are meant to protect, will crystallize
and protect the individual at different times ... For example,
procedural rights will crystallize at the time of the process:
Irvine v. Canada (Restrictive Trade Practices Commission),
[1987] 1 S.C.R. 181. Rights against unreasonable searches and
seizures will crystallize at the time of the search and seizure: R.
v. James, [1988] 1 S.C.R. 669. Substantive guarantees that the
accused receive the benefit of his or her subjective mistake of
fact crystallize at the time the offence was committed: R. v.
Stevens, supra. The right against the introduction of self-
incriminating evidence crystallizes at the time the evidence is
sought to be introduced in a proceeding even although the tes
timony was originally provided well before the Charter came
into force: Dubois v. The Queen, [1985] 2 S.C.R. 350....
Some rights and freedoms in the Charter seem to me to be
particularly susceptible of current application even although
such application will of necessity take cognizance of pre-Char
ter events. Those Charter rights the purpose of which is to pro
hibit certain conditions or states of affairs would appear to fall
into this category. Such rights are not designed to protect
against discrete events but rather to protect against an ongoing
condition or state of affairs. Pre-trial delay under s. 11(b) is a
good example: R. v. Antoine. Section 15 may also fall into this
category. Morden J.A. recognized in Re McDonald and the
Queen (1985), 21 C.C.C. (3d) 330 (Ont. C.A.) that there was
such a thing as a continuing discriminatory practice under s. 15
of the Charter.
Not only will the scope and content of the particular right
and freedom be relevant in determining whether an applicant is
seeking to have the Charter applied prospectively or retrospec
tively, but the particular facts of the claim will be relevant. For
example, in R. v. Edwards Books and Art Ltd., [ 1986] 2 S.C.R.
713, s. 15 was not applied because it was being invoked to
challenge a pre-Charter conviction. Dickson C.J. noted at p.
786:
The retailers in the present appeals opened their stores,
were charged and were convicted at a time when the Charter
did not confer a right to equality before and under the law.
Even if it could be said that the Retail Business Holidays Act
has abridged the retailers' s. 15 rights since April 17, 1985, I
cannot see how this might have any bearing on the legality
of their convictions or of the Act prior to that time.
Section 15 could not be used to invalidate a discrete pre-Char
ter act, namely a particular conviction.
When, as is the case here, the appellant claims a continuing
current violation of her liberty interest, it is the duty of the
courts to consider her Charter claim and, in the context of that
claim, to consider pre-Charter history to the extent it explains
or contributes to what is alleged to be a current Charter viola
tion. This is especially true when the pre-Charter history is
alleged to include unlawful conduct on the part of the
Crown.... In the case at hand the overwhelming significant
fact is that the applicant was not "properly convicted and sen
tenced". She was convicted and sentenced under the wrong
law. In short this is not a case in which an applicant is trying to
avoid having the law as it existed at the time of the offence
applied to him or her. It is the very opposite. The appellant has
not had the proper law applied to her situation, nor can she
have it now.
This unlawfulness is part of the pre-Charter history, indeed a
very significant part of it and has, in the appellant's submis
sions, largely contributed to her current continuing unconstitu
tional detention.
In Gamble, the appellant was convicted of first
degree murder under section 214 of the Criminal
Code [R.S.C. 1970, c. C-34, as am. by R.S.C. 1970,
c. C-35, s. 4(1); S.C. 1973-74, c. 38, ss. 2, 10, 11;
1974-75-76, c. 105, s. 4]. On appeal it was deter
mined that she should have been tried under the old
provisions of the Code that were in force at the time
the offence was committed. However, because transi
tional provisions passed when the Code was amended
dictated that the sentence received by the appellant
would be the same in any event, the Court of Appeal
found that there was no miscarriage of justice. The
appellant then argued before the Supreme Court that
she was suffering a continuing deprivation of liberty
in the form of extended parole ineligibility contrary
to the principle of fundamental justice that an
accused person must be tried and punished under the
law in force at the time an offence is committed. This
"unlawfulness," as noted in the passage quoted
above, was critical to the success of her argument.
I am not convinced that the Charter is applicable
here. The history of the Canadian citizenship legisla
tion shows that on January 1, 1947 persons born
outside of Canada to Canadian fathers and unwed
Canadian mothers were considered to be natural born
citizens. Effective February 15, 1977, Parliament pro
vided that all individuals born outside Canada after
that date to a Canadian parent would be considered to
be Canadian citizens. The individuals who had
benefitted by the earlier legislation continued to be so
benefitted but Parliament further provided that indi
viduals born outside Canada to Canadian mothers (in
wedlock) prior to February 15, 1977 could apply
under paragraph 5(2)(b) to be granted citizenship sta
tus on a preferential basis.
In essence, the applicant is asking this Court to
consider whether the preferential treatment accorded
to individuals born outside Canada between January
1, 1946 and February 15, 1977 to Canadian mothers
(in wedlock) goes far enough to comply with rights
currently recognized by the Charter. There is no
question that the extension of the entitlement to claim
citizenship through parental heritage since the effec
tive date of the 1977 Citizenship Act is not contrary
to the Charter. What is at issue, however, is the extent
of the rights granted retroactively to those individuals
not covered by the repealed 1947 Citizenship Act
which was effective until February 15, 1977.
The Charter is clearly not intended to apply retro
spectively and subsection 15(1) particularly was not
intended to have effect until April 17, 1985. The dif
ficulty here arises because the applicant's citizenship
application was delayed post-Charter in 1990. How
ever, the citizenship legislation provides that the date
of the applicant's birth is the date by which his eligi
bility for preferred Canadian citizenship status is
determined and the "discrete event" at issue, there
fore, is whether the date of his birth is pre- or post-
February 14, 1977. Although I could agree that a con
tinuing discriminatory practice under section 15
would generally not involve a retrospective applica
tion of the Charter, on these facts, a continuing dis
criminatory practice does not exist. In fact, the alleg
edly discriminatory practice was clearly rectified
effective February 14, 1977. Furthermore, I would
distinguish the majority decision in Gamble on the
basis that the 1947 Citizenship Act was valid federal
legislation and that there is no "unlawfulness" evi-
dent in the pre-Charter history in these circum
stances.
This application should, therefore, be dismissed.
However, in the event that I am not correct on this
point, I will consider whether Charter rights have
been infringed in this instance.
2. Does the application process under paragraph
5(2)(b) of the Citizenship Act violate section 7 or par
agraph 11(d) of the Charter?
I accept the respondents' submission that, based on
the jurisprudence to date, section 7 of the Charter
does not include a guaranteed right to citizenship and
I accept that section 7 is not violated in this instance.
It is also my view that the delay imposed by section
22 in this non-criminal process does not infringe par
agraph 11(d) of the Charter. In In re Citizenship Act
and in re Noailles, [1985] 1 F.C. 852 (T.D.), Dubé J.
held that the dismissal of the appellant's application
for citizenship on the basis of subsection 20(2) on the
ground that he was convicted of an indictable offence
during the three-year period immediately preceding
the date of his application did not violate his para
graph 11(h) Charter right not to be punished again for
the same offence. He stated [at pages 854-855]:
The general purport of the Citizenship Act clearly indicates
that the proceeding by which an individual asks the State to
confer on him the privilege of becoming one of its citizens is a
civil proceeding. The statute does not regard such a person as
someone charged with an offence, does not try him again and
does not punish him again.
[T]he dismissal of his application for citizenship is not a sec
ond penalty imposed on him but a civil consequence of his
indictable offence.
After all, Canada has the right to protect itself by denying
the privilege of citizenship to someone who does not meet the
criteria legitimately established by an Act of Parliament. It is
quite just and reasonable that no one should be able to receive
citizenship if during the three-year period immediately preced
ing his application he has been convicted of any offence or of
an indictable offence under any Act of Parliament.
3. Does the application process under paragraph
5(2)(b) of the Citizenship Act violate subsection 15(1)
of the Charter?
The test to determine whether subsection 15(1) of
the Charter has been breached has been set out by
Mr. Justice McIntyre in Andrews v. Law Society of
British Columbia, [ 1989] 1 S.C.R. 143 and affirmed
by Madame Justice Wilson in R. v. Turpin, [1989] 1
S.C.R. 1296. A breach occurs when:
(a) the distinction created by the impugned provision results
in a violation of one of the equality rights; and,
(b) the violation of the right is discriminatory in its purpose or
effect.
(a) Does the distinction result in a violation of an
equality right?
In Turpin, Wilson J. discussed the nature of the
equality rights (at page 1329):
The guarantee of equality before the law is designed to
advance the value that all persons be subject to the equal
demands and burdens of the law and not suffer any greater dis
ability in the substance and application of the law than others.
On behalf of the Court, she found (at pages 1329-
1330) that section 430 of the Criminal Code, which
allows an accused charged with an indictable offence
in Alberta to be tried by a judge alone, denies
accused persons charged elsewhere than in Alberta
equal benefit of the law:
... I would conclude that the impugned provisions deny the
appellants equality before the law. The appellants wish to be
tried by a judge alone but they are precluded from receiving
such a trial by the combined force of ss. 427 and 429 of the
Criminal Code. Section 430 of the Criminal Code, on the other
hand, permits those charged with the same offence in Alberta
to be tried by a judge alone. The appellants are accordingly
denied an opportunity which is available to others, a denial
which ... could work to the disadvantage of the appellants.
In short, the impugned provisions of the Criminal Code treat
the appellants and those charged with the offences listed in s.
427 more harshly than those charged with the same offences in
the province of Alberta who, because of s. 430, have an oppor
tunity to be tried by a judge alone if they deem this to be to
their advantage. I would conclude, therefore, that the appel
lant's right to equality before the law has been violated.
However, she did not find that section 430 was "dis-
criminatory" in effect (at pages 1332-1333):
The appellants claim that because they are accused of one of
the indictable offences listed in s. 427 of the Criminal Code
but do not have an opportunity, as do persons charged with the
same offence in Alberta, to be tried by a judge alone, they are
victims of discrimination. I disagree. In my respectful view, it
would be stretching the imagination to characterize persons
accused of one of the crimes listed in s. 427 of the Criminal
Code in all the provinces except Alberta as members of a "dis-
crete and insular minority."
In R. v. S. (S.), [1990] 2 S.C.R. 254, a distinction
based on the situs of an offence was at issue. The
Court determined that the substantive distinction was
geographic in that it was based upon the province of
residence of a young offender. It was considered to
be a "legal disadvantage" and failed the first stage of
the subsection 15(1) test. Again, however, this dis
tinction was not found to be "discriminatory" under
the second stage of the subsection 15(1) test.
Here, unlike those individuals born outside Canada
to a Canadian parent after February 14, 1977 and
those born prior to February 14, 1977 with Canadian
fathers or unwed Canadian mothers who are consid
ered to be "natural-born Canadian citizens" if their
birth is registered within established time frames, the
applicant must make an application under paragraph
5(2)(b) to obtain Canadian citizenship. In so doing,
he is subject to taking the oath of citizenship and to
section 22 of the Citizenship Act. Here, as a conse
quence of criminal charges outstanding against him
and the application of section 22, the applicant's
application for citizenship is delayed. The preferen
tial treatment granted to aliens in the position of the
applicant, therefore, does not extend as far as the
preferential treatment accorded to other individuals
born outside Canada prior to February 14, 1977 to
Canadian fathers or unwed Canadian mothers and
individuals born after February 14, 1977 to a Cana-
dian parent. Based on the seemingly very low thresh
old in Turpin, I accept, for the purposes of this appli
cation, that the applicant is denied equal benefit of
the law.
(b) Is the denial of equal benefit of the law discrimi
natory in its purpose or effect?
A subsection 15(1) breach occurs when a distinc
tion created by the impugned legislation results in a
violation of one of the equality rights and it is dis
criminatory in its purpose or effect. McIntyre J. in
Andrews noted that section 15 "is not a general guar
antee of equality" and he stated [at pages 168-169]:
It is not every distinction or differentiation in treatment at
law which will transgress the equality guarantees of s.15 of the
Charter. It is, of course, obvious that legislatures may—and to
govern effectively—must treat different individuals and groups
in different ways. Indeed, such distinctions are one of the main
preoccupations of legislatures. The classifying of individuals
and groups, the making of different provisions respecting such
groups, the application of different rules, regulations, require
ments and qualifications to different persons is necessary for
the governance of modern society. [Emphasis added.]
He also recognized that the Charter was not intended
to eliminate all distinctions but only those that were
not acceptable under subsection 15(1) and he defined
"discrimination" (at pages 174-175) as follows:
I would say then that discrimination may be described as a dis
tinction, whether intentional or not but based on grounds relat
ing to personal characteristics of the individual or group,
which has the effect of imposing burdens, obligations, or dis
advantages on such individual or group not imposed upon
others, or which withholds or limits access to opportunities,
benefits, and advantages available to other members of society.
Distinctions based on personal characteristics attributed to an
individual solely on the basis of association with a group will
rarely escape the charge of discrimination, while those based
on an individual's merits and capacities will rarely be so
classed. [Emphasis added.]
An unacceptable distinction, therefore, must be
related to one of the personal characteristics enumer
ated in subsection 15(1) or one that is analogous to
the enumerated grounds before it will offend subsec
tion 15(1).
I note that paragraph 3(1)(b) of the 1977 Citizen
ship Act provides that everyone born outside Canada
after February 15, 1977 to a parent who at the time of
his birth was a citizen is a Canadian citizen and that
any potential conflict with subsection 15(1) of the
Charter has from the effective date of the Act been
resolved. Paragraph 5(2)(b) was also enacted at that
time to accord to individuals such as the applicant the
opportunity to obtain Canadian citizenship on a pref
erential basis. In Benner, Mahoney J.A. for the Court
observed that [at page 2511:
Parliament seems, by s. 5(2)(b) of the Citizenship Act, to
have anticipated and provided for the speedy and economical
resolution of precisely the problem the applicant wishes the
Court to deal with.
It is evident then that, with the passage of the 1977
Citizenship Act, Parliament chose to grant preferred
access to Canadian citizenship to all individuals born
to a Canadian parent from its effective date, February
14, 1977. This, of course, resulted in the establish
ment of different groups based on a temporal demar
cation. This type of "line drawing," however, is
clearly within the authority of Parliament and has
occurred on many occasions, notably with respect to
income tax, unemployment insurance and other bene
fits legislation. In the 1977 Citizenship Act Parlia
ment chose as well to extend a limited preferential
access to a group of persons previously denied such
treatment. This, too, is a decision that Parliament is
competent to make. In Orantes, Muldoon J. com
mented on the authority of Parliament to make dis
tinctions such as those found in paragraph 19(1)(b) of
the Immigration Act which allegedly discriminated
against the applicant on the basis of age contrary to
subsection 15(1) of the Charter. He stated [at page
188]:
This nation is a parliamentary democracy, which means that
the elected tribunes of the people are those who must lawfully
enact the legislation. It means that Parliament, by legislation
under the rule of law, may choose which foreigners, if any,
may be legally admitted for permanent residence in Canada. It
means that if parliamentary democracy is to survive in Canada,
Parliament must make those choices and not become helpless
in the face of asserted entries by aliens, no matter how sympa
thetic their cases, like the applicant's case. It takes a certain
degree of intellectual toughness to support the principles of
parliamentary democracy in face of various individuals who
seek migration into Canada against the will of the democrati-
cally elected representatives of the people (not to disparage the
Senate of Canada). If the Charter be interpreted in such a
manner as to obviate the will of Parliament in a manner such as
this, it is the sort of frustration which would ultimately destroy
national government by amputating the lawful means of gov
ernance.
It has been clearly recognized by the Supreme
Court of Canada that when considering equality con
siderations under the Charter, "[c]onsideration must
be given to the content of the law, to its purpose, and
its impact upon those to whom it applies, and also
upon those whom it excludes from its application":
McIntyre J. in Andrews [at page 168]. Similarly, Wil-
son J. in Turpin [at page 1331] stated that "[i]n deter
mining whether there is discrimination on grounds
relating to the personal characteristics of the individ
ual or group, it is important to look not only at the
impugned legislation which has created a distinction
that violates the right to equality but also to the larger
social, political and legal context."
When it amended the citizenship legislation, Par
liament clearly considered "the social and political
setting" and determined that an application proce
dure, subject to an oath requirement, would ade
quately protect the rights of the existing citizenry and
at the same time, extend preferential status to individ
uals like the applicant. Therefore, although a "dis-
tinction" exists between the group of individuals pre
viously entitled to preferential citizenship status
before February 14, 1977 and those who were con
ferred a more limited right to preferred citizenship if
born before the effective date of the new legislation,
this distinction is not based upon the personal charac
teristics of the individuals. Rather, it is based on their
merits and capacities and, in any event, it cannot be
said that it is based on irrelevant personal differences.
The distinction suffered by the applicant in this
instance is that his application for citizenship is
delayed. As in Turpin and S. (S.), it may be consid
ered to be a disadvantage but, again as in those cases,
it is not discriminatory. The applicant and all others
subject to paragraph 5(2)(b) are treated equally be
they male, female, married or unmarried. The only
distinction that they share is that they were born prior
to February 14, 1977 and that they were not granted a
preferred status under the previous citizenship legis
lation.
Accordingly, I conclude that the disadvantage suf
fered by the applicant is not discriminatory in its pur
pose or effect and that it does not violate subsection
15(1) of the Charter.
4. Is the distinction justified under section 1 of the
Charter?
In the light of my decision with respect to subsec
tion 15(1), section 7 and paragraph 11(d) I need not
consider any section 1 analysis. However, I include
the following comments of Mr. Justice McIntyre in
Andrews [at pages 185-1861 to further support my
position.
The s. 15(1) guarantee is the broadest of all guarantees. It
applies to and supports all other rights guaranteed by the Char
ter. However, it must be recognized that Parliament and the
legislatures have a right and a duty to make laws for the whole
community: in this process, they must make innumerable leg
islative distinctions and categorizations in the pursuit of the
role of government. When making distinctions between groups
and individuals to achieve desirable social goals, it will rarely
be possible to say of any legislative distinction that it is clearly
the right legislative choice or that it is clearly a wrong one. As
stated by the [then] Chief Justice in R. v. Edwards Books & Art
Ltd., at pp. 781-782:
A "reasonable limit" is one which, having regard to the prin
ciples enunciated in Oakes, it was reasonable for the legisla
ture to impose. The courts are not called upon to substitute
judicial opinions for legislative ones as to the place at which to
draw a precise line.
In dealing with the many problems that arise, legislatures must
not be held to the standard of perfection, for in such matters
perfection is unattainable. I would repeat the words of my col
league, La Forest J., in R. v. Edwards Books & Art Ltd., at p.
795:
By the foregoing, I do not mean to suggest that this court
should, as a general rule, defer to legislative judgments when
those judgments trench upon rights considered fundamental in
a free and democratic society. Quite the contrary, I would have
thought the Charter established the opposite regime. On the
other hand, having accepted the importance of the legislative
objective, one must in the present context recognize that if the
legislative goal is to be achieved, it will inevitably be achieved
to the detriment of some. Moreover, attempts to protect the
rights of one group will also inevitably impose burdens on the
rights of other groups. There is no perfect scenario in which
the rights of all can be equally protected.
In seeking to achieve a goal that is demonstrably justified in
a free and democratic society, therefore, a Legislature must be
given reasonable room to manoeuvre to meet these conflicting
pressures.
CONCLUSION:
The applicant's application is dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.