A-269-95
Shirley (Starrs) McKenna (Appellant)
v.
Attorney General of Canada and Canadian Human Rights Commission (Respondents)
and
Adoption Council of Canada (Intervener)
Indexed as: Canada (Attorney General)v. McKenna (C.A.)
Court of Appeal, Strayer, Linden and Robertson JJ.A. "Toronto, May 19, 20; Ottawa, October 19, 1998.
Citizenship and Immigration — Status in Canada — Citizens — Citizenship of foreign-born children adopted abroad by Canadian citizens resident in foreign country — Added requirements for citizenship pursuant to Citizenship Act, ss. 3(1)(e), 5(2)(a) discrimination prohibited by Canadian Human Rights Act (CHRA), ss. 3, 5 — Prima facie discrimination — Appellant qualifying as victim under CHRA — Tribunal erred in ruling on whether permanent residency requirements justified by CHRA, s. 15(g) — Breach of natural justice as Minister not on notice Citizenship Act, s. 5(2)(a) at issue until end of argument in reply — In dissenting opinion, Linden J.A. considering issue whether necessary to discriminate against foreign-born adopted children to achieve policy objective of legislation: prevent abuse of immigration system by phony adoptions.
Human rights — Citizenship — Adoption — Requirements for citizenship imposed on foreign-born children adopted abroad by Canadian citizens resident in foreign country pursuant to Citizenship Act, ss. 3(1)(e), 5(2)(a) discrimination prohibited by CHRA, ss. 3, 5 — Prima facie discrimination — Adoptive mother qualifying as victim under CHRA — Breach of natural justice as issues not adequately identified or defined — Tribunal's conclusion granting of citizenship service customarily available to general public within CHRA disagreed with — Such conclusion not supported by F.C.A. decision in Druken.
The appellant had three sons who were born in Canada and who received Canadian citizenship as of right when she and her husband, Canadian citizens and permanent residents of Ireland, adopted two daughters in accordance with the laws of that country. Both children were born in Ireland in 1974 and 1975 and were citizens thereof. Whereas children born abroad to Canadian citizens obtain "automatic" citizenship, the appellant's adopted daughters must gain admission to Canada as permanent residents, as mandated by paragraph 5(2)(a ) of the Citizenship Act, which incorporates by reference the requirements imposed by the Immigration Act pertaining to permanent resident status. Because of the differential treatment accorded birth and adopted children born abroad, and the refusal of the Canadian government to issue passports to her two adopted children, the appellant lodged a complaint with the Canadian Human Rights Commission, alleging discrimination on the basis of family status contrary to sections 3 and 5 of the Canadian Human Rights Act (CHRA).
The Human Rights Tribunal took jurisdiction on the ground that the granting of citizenship constitutes a "service" customarily available to the "general public" within the meaning of section 5 of the CHRA. The Tribunal also concluded that the appellant qualified as a "victim" under paragraph 40(5)(c ) of the CHRA, enabling relief to be extended to her two adopted children, who lacked standing to lodge a complaint with the Commission. In addition, the Tribunal held that the differential treatment accorded adopted and birth children born abroad constituted prima facie discrimination. Holding that the requirements were not reasonably justified, the Tribunal ordered that the appellant's two children be granted citizenship, and that the Minister cease the discriminatory practice of requiring compliance with paragraph 5(2)(a) of the Citizenship Act.
Upon judicial review, the Motions Judge allowed that application and set aside the Tribunal's decision on the ground that the appellant had failed to establish a prima facie case of discrimination. With respect to the justification issue, the Motions Judge held that there was a breach of natural justice because, the issues raised in the complaint not having been adequately defined, the Attorney General had no notice that she was required to justify all of the requirements pertaining to the immigration process for obtaining status as a permanent resident as contemplated in the Citizenship Act. The Motions Judge also concluded that the Tribunal lacked jurisdiction to make an order in favour of the appellant's two adopted children because they lacked the requisite standing as "victims" as defined in the CHRA and, therefore, were not entitled to a remedy.
Held (Linden J.A. dissenting), the appeal should be dismissed.
Per Robertson J.A.: The Motions Judge erred in concluding that the appellant had failed to establish a prima facie case of discrimination. Furthermore, the appellant qualified as a "victim" under the CHRA in that the discrimination suffered by the two children was "unjustly visited" upon their adoptive mother.
The Tribunal did not err in recognizing the relevance of paragraph 5(2)(a) of the Citizenship Act. The word "adopted", as used in paragraph 3(1)(b ) of the Citizenship Act, cannot be deemed to imply "legitimate" adoptions thereby rendering paragraph 5(2)(a ) inapplicable and by necessity the provisions of the Immigration Act. Furthermore, it was not paragraph 3(1)(b) of the Citizenship Act which was relevant herein, but rather paragraph 3(1)(e) together with paragraph 5(2)(a). It erred in ruling on whether the requirements relating to permanent residency imposed by that provision were justified by paragraph 15(g) of the CHRA. The Minister was given no notice that paragraph 5(2)(a) was in issue and that he would be required to adduce evidence to justify each of its requirements. The Tribunal's conclusion, that the granting of citizenship constitutes a service customarily available to the general public within the meaning of the CHRA and, therefore, that the Tribunal has jurisdiction to negotiate with the responsible Minister the manner in which the provisions of the Citizenship Act are to be applied in the future could not be agreed with.
The Court's decision in Canada (Attorney General) v. Druken, [1989] 2 F.C. 24 (C.A.) did not stand for the proposition that the denial of unemployment insurance (or citizenship herein) constituted a denial of service within the meaning of the CHRA, but only that the Attorney General therein conceded as much. The Court was not thereby estopped from considering the issue in subsequent cases.
Paragraph 3(1)(e) of the new Act provided that children born outside Canada prior to the new Act coming into force (February 15, 1977) (which included the appellant's two adopted children) were entitled to automatic citizenship, if they came within paragraph 5(1)(b) of the old Act, that is, if they could establish that their biological father was a Canadian citizen or that their mother was a Canadian citizen if they were born out of wedlock. Thus, the only way the appellant's adopted children could attain Canadian citizenship was through paragraph 5(2)(a) of the new Act, which incorporates by reference the permanent residency requirement under the Immigration Act. Discrimination arose under paragraph 3(1)(e) because it denied the appellant's adopted children the right to automatic citizenship, which is accorded birth children born abroad to Canadian citizens. Discrimination arose under paragraph 5(2)(a) because it imposed on adopted children the burden of gaining admission to Canada as permanent residents, in accordance with all the relevant criteria set out in the Immigration Act. It was not the provisions of the Immigration Act which were discriminatory; it was the fact that paragraph 5(2)(a) of the Citizenship Act incorporated by reference the requirements pertaining to permanent residency imposed under the Immigration Act.
Once the appellant established a prima facie case of discrimination, the onus was on the Minister to establish a bona fide justification for the discriminatory practice pursuant to paragraph 15(g) of the Canadian Human Rights Act. Specifically, the Minister was under an obligation to establish that each of the requirements was "reasonably necessary" in that no reasonable alternatives were available which were less burdensome on adopted children born abroad and which would permit the Minister to achieve Parliament's objectives. Unfortunately, the Minister did not do so because both parties focused on whether the differential treatment giving rise to the discriminatory practice was justified in terms of the need to curtail adoptions of convenience. However, it was not until the end of argument in reply that the Commission suggested, for the first time, that paragraph 5(2)(a ) of the Citizenship Act was in issue. It was then too late to pursue this line of attack without reopening the hearing.
The Motions Judge did not err in fact in concluding that there was a breach of natural justice in this case.
Per Strayer J.A.: Robertson J.A. should be concurred with as to the disposition of the appeal. This was not a Charter case and the application of the Act was a matter for the expert Tribunal. This was not a case such as Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358, relied on by the appellant and by Linden J.A, where the basis for distinction (between children of male Canadians and those of female Canadians) could patently not be justified under section 1 of the Charter. If this were ordinary litigation, the issue of paragraph 5(2)(a) not having been pleaded, the appeal could be dismissed, putting an end to the matter. But, in the interests of justice, the matter should be remitted to the Tribunal for reconsideration so that the parties will be afforded natural justice.
Per Linden J.A. (dissenting): the appeal should be allowed.
The main issue was whether children adopted abroad by Canadian citizens were being discriminated against in that they were denied the same "automatic" citizenship that was granted to children born abroad to Canadian citizens. The Minister's argument would require the Court to accept that because there was a problem with fraudulent adoptions, therefore the provisions of paragraph 5(2)(a ) were appropriate measures to deal with that problem, and therefore it was the practice of applying the provisions of that paragraph to adopted children that was the discriminatory practice in question. The discriminatory practice was the diverting of adopted children away from section 3, where they would be granted automatic citizenship. The comparison group was "children whose parents are Canadian citizens".
The main issue, then, was whether section 3 of the Citizenship Act discriminated against adopted children and their parents and, if so, whether a bona fide justification for that discrimination existed in accordance with paragraph 15(g) of the CHRA.
In the past, adopted children and their parents have met with great difficulty in the effort to obtain the same rights available to non-adopted children. Nowadays, as soon as the law recognizes that a person has been legally adopted, there can thereafter be no distinction between that person and one who was not adopted.
Section 3 of the Citizenship Act is expressly discriminatory because children adopted by Canadian citizens do not automatically acquire Canadian citizenship. The differentiation is not based solely on birth place. The differentiation is founded on different status"adopted children as compared with birth children.
There was no bona fide justification for not granting automatic citizenship to adopted children. The policy objective of the legislation in this case was the prevention of the potential abuse that would occur when people improperly attempt to bypass the immigration system by using adoption as a means of gaining admission of persons to Canada without their qualifying as immigrants. However, the need to keep the Canadian immigration system honest could be accomplished without discriminating against adopted children. Once it is established that the adoption has been performed according to local law and has created a true parent-child relationship, no more was necessary. For an adoption to be a real adoption, it must by necessity be in accordance with the law and done in good faith; it is no adoption if it is a phony adoption done merely for the purpose of circumventing the law. The verification process undertaken for adopted children as well as children born to citizens of Canada would allow the Minister, who has the power to inquire into the bona fides of an adoption, to weed out adoptions of convenience. It is also open to the Governor in Council to nullify a fraudulent scheme to gain citizenship.
As long as citizenship is granted as of right to children of citizens, in the belief that their status as children of citizens gives them sufficient connection to Canada, then that right must be granted without discriminating between adopted children and non-adopted children.
Both the respondents and the Motions Judge laboured under the mistaken impression that section 3 of the Citizenship Act was not discriminatory, as it treated all foreign-born nationals in a similar fashion. But, it was the very fact that section 3 specifically excluded the appellant's daughters that constituted the discrimination in this case. Paragraph 5(2)(a) of the Act was irrelevant to the resolution of the issues raised in this case. It was section 3 of the Citizenship Act, which deals with citizenship as of right, that was on trial. The appellant had no interest in the provisions relating to the naturalization process in paragraph 5(2)(a), as she had no intention of having her daughters naturalized in the regular way. Therefore, it could not be said that there had been a denial of natural justice in the way this case was presented and dealt with.
The Tribunal was correct in coming to the conclusion that the effect of the discriminatory provisions of the Citizenship Act upon Mrs. McKenna's daughters was sufficiently direct to qualify appellant herself as a victim under the CHRA and to order that the Minister grant citizenship to the two daughters forthwith.
The other remedial orders, that the Minister to cease applying the law in a discriminatory fashion, and that the Minister consult the Human Rights Commission with respect to the measures ordered, were in conformity with Canada (Attorney General) v. Druken. However, the order that the Minister cease applying paragraph 5(2)(a) in a discriminatory fashion could not be endorsed as it was not in issue in this proceeding and no finding could be made with respect to it.
This was not a constitutional decision declaring any law to be invalid. It was merely an individual case of discrimination in the unfair application of one particular provision against two legally adopted children and their parents. There was nothing in this case that would prevent the government from trying to establish bona fide justifications in any future cases.
statutes and regulations judicially considered
Adoption Act, R.S.B.C. 1936, c. 6, s. 10(1).
Adoption Act, R.S.B.C. 1996, c. 5, ss. 37, 47.
Adoption Act, R.S.N.B. 1952, c. 3, s. 30(2).
Adoption Act, R.S.N.B. 1973, c. A-3, ss. 30, 35.
Adoption Act, R.S.P.E.I. 1988, c. A-4, ss. 18(1), 26.
Adoption Act, 1976, Acts of the Oireachtas, Vol. II, No. 29, s. 7.
Adoption of Children Act, R.S.N. 1990, c. A-3, ss. 20, 24.
British Nationality Act 1981 (U.K.), 1981, c. 61, s. 3(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], ss. 1, 15.
Canadian Citizenship Act, R.S.C. 1970, c. C-19, s. 5(1)(b).
Canadian Human Rights Act, R.S.C., 1995, c. H-6, ss. 3, 5, 15(g), 40(5), 53(2)(a).
Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 5.
Child and Family Services Act, R.S.O. 1990, c. C.11, s. 158(2).
Child and Family Services Act (The), S.M. 1985-86, c. 8, ss. 57, 61(1).
Child Welfare Act, S.A. 1984, c. C-8.1, ss. 65, 70.
Child Welfare Act (The), R.S.A. 1955, c. 39, ss. 83, 84(1).
Children's Services Act, R.S.N.S. 1989, c. 68, ss. 23, 29.
Citizenship Act, R.S.C, 1985, c. C-29, ss. 3(1)(b),(e), 5(2)(a), 10.
Citizenship Act, S.C. 1974-75-76, c. 108.
Civil Code of Québec, S.Q. 1991, c. 64, Arts. 569, 574.
Criminal Code, R.S.C., 1985, c. C-46, s. 155 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 21).
Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, The Hague, May 29, 1993.
Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3, Art. 21.
Family Services Act (The), R.S.S. 1978, c. F-7, ss. 60(2)(b), 66.
Immigration and Nationality Act, 8 U.S.C. " 1433 (1994).
Immigration Act, R.S.C., 1985, c. I-2, ss. 19 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3; S.C. 1992, c. 47, s. 77; c. 49, s. 11; 1995, c. 15, s. 2; 1996, c. 19, s. 83), 24 (as am. by S.C. 1995, c. 15, s. 4), 27 (as am. by R.S.C., 1985, (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 47, s. 78; c. 49, s. 16; 1995, c. 15, s. 5).
Immigration Regulations, 1978, SOR/78-172, s. 2(1) "adopted" (as am. by SOR/93-44, s. 1).
Ontario Human Rights Code, R.S.O. 1980, c. 340.
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 3(2)(c), 4(3)(d) (as am. by S.C. 1974-75-76, c. 80, s. 2).
cases judicially considered
applied:
Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; (1992), 9 O.R. (3d) 224; 93 D.L.R. (4th) 346; 138 N.R. 1; 55 O.A.C. 81; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; (1988), 53 D.L.R. (4th) 609; 10 C.H.R.R. D/5515; 88 CLLC 17,031.
considered:
Canada (Attorney General) v. Druken, [1989] 2 F.C. 24; (1988), 53 D.L.R. (4th) 29; 23 C.C.E.L. 15; 9 C.H.R.R. D/5359; 88 CLLC 17,024; 88 N.R. 150 (C.A.).
referred to:
Gill (B.S.) v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 251; 36 Imm. L.R. (2d) 67 (F.C.T.D.); affd (1998), 229 N.R. 267 (F.C.A.); Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; (1997), 143 D.L.R. (4th) 577; 42 C.R.R. (2d) 1; 37 Imm. L.R. (2d) 195; 208 N.R. 81; Clement Estate, Re, [1962] S.C.R. 235; Schafer v. Canada (Attorney General) (1996), 29 O.R. (3d) 496; 135 D.L.R. (4th) 707; 24 C.C.E.L. (2d) 1; 39 C.C.L.I. (2d) 33; 4 O.T.C. 20 (Gen. Div.); revd (1997), 35 O.R. (3d) 1; 149 D.L.R. (4th) 705; 102 O.A.C. 321; 33 O.T.C. 240 (C.A.); Schachter v. Canada, [1992] 2 S.C.R. 679; (1992), 93 D.L.R. (4th) 1; 92 CLLC 14,036; 10 C.R.R. (2d) 1; 139 N.R. 1; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; (1987), 40 D.L.R. (4th) 193; 27 Admin. L.R. 172; 87 CLLC 17,022; 76 N.R. 161; Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985), 52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R. 89; 9 C.C.E.L. 185; 7 C.H.R.R. D/3102; 64 N.R. 161; 12 O.A.C. 241; Dickason v. University of Alberta, [1992] 2 S.C.R. 1103; (1992), 127 A.R. 241; 95 D.L.R. (4th) 439; [1992] 6 W.W.R. 385; 4 Alta. L.R. (3d) 193; 17 C.H.R.R. D/387; 92 CLLC 17,033; 11 C.R.R. (2d) 1; 141 N.R. 1; 20 W.A.C. 241; 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; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; Bell v. Canada (Minister of Employment & Immigration) (1996), 136 D.L.R. (4th) 286; 33 Imm. L.R. (2d) 305; 197 N.R. 315 (F.C.A.); Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391; (1990), 34 C.C.E.L. 179; 91 CLLC 17,011 (C.A.); Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202; (1982), 132 D.L.R. (3d) 14; 82 CLLC 17,005; 40 N.R. 159; Pabo v. Canada (Minister of Citizenship & Immigration) (1996), 34 Imm. L.R. (2d) 53 (I.R.B. (App. Div.)); Singh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 37; (1990), 11 Imm. L.R. (2d) 1 (C.A.); Glynos v. Canada, [1992] 3 F.C. 691; (1992), 96 D.L.R. (4th) 95; 148 N.R. 66 (C.A.); Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314; (1993), 19 Imm. L.R. (2d) 81 (C.A.); Singh (Re), [1989] 1 F.C. 430; (1988), 51 D.L.R. (4th) 673; 86 N.R. 69 (C.A.).
APPEAL from a Trial Division decision (Canada (Attorney General) v. McKenna, [1995] 1 F.C. 694; (1994), 88 F.T.R. 202 (T.D.)) allowing an application for judicial review of a Human Rights Tribunal decision (McKenna v. Canada (Department of Secretary of State), [1993] C.H.R.D. No. 18 (QL)) holding that the differential treatment accorded adopted and birth children born abroad constituted prima facie discrimination. Appeal dismissed.
appearances:
Mary Eberts and Margaret Manktelow for appellant.
Brian Saunders for respondent Attorney General of Canada.
Margaret R. Jamieson for respondent Canadian Human Rights Commission.
Willa Marcus and John A. Myers for intervener Adoption Council of Canada.
solicitors of record:
Eberts Symes Street & Corbett, Toronto, for appellant.
Deputy Attorney General of Canada for respondent Attorney General of Canada.
Canadian Human Rights Commission, Ottawa, for respondent Canadian Human Rights Commission.
Willa Marcus, Toronto, and Taylor, McCaffrey, Winnipeg, for intervener Adoption Council of Canada.
The following are the reasons for judgment rendered in English by
Strayer J.A.: I have read the separate reasons of my colleagues and I have concluded that I must concur with Robertson J.A. as to the disposition of this appeal.
I agree with both my colleagues that the Motions Judge [[1995] 1 F.C. 694] erred in not finding that subsection 3(1) of the Citizenship Act [R.S.C., 1985, c. C-29] prima facie discriminates against children born abroad and adopted by Canadian citizens in comparison to children born abroad of Canadian citizens. I am prepared to accept that this is a form of discrimination prohibited by section 5 of the Canadian Human Rights Act [R.S.C., 1985, c. H-6] as discrimination in the provision of service, although I share the concerns of Robertson J.A. as to whether the grant of citizenship to a foreign born person can properly be regarded as a "service . . . customarily available to the general public". However, this issue was not argued before us.
I also concur with my colleagues that the appellant Shirley McKenna, as the adoptive mother of two Irish-born females, can be considered to be a "victim", within the meaning of the Canadian Human Rights Act .
I concur with Robertson J.A. in confirming the alternative finding of the Motions Judge that there had been a denial of natural justice by the Tribunal [McKenna v. Canada (Department of Secretary of State), [1993] C.H.R.D. No. 18 (QL)]. This denial arose by the Tribunal finding unjustifiable the requirements of paragraph 5(2)(a) of the Citizenship Act, which provides a means for all foreign children born abroad and adopted by Canadian citizens to become Canadian citizens: namely, by meeting the requirements for permanent residence in Canada imposed on all other non-Canadian entrants. I agree that the record shows that this matter was not properly before the Tribunal. As a result of being advised by officials that section 3 of the Citizenship Act would not entitle her adopted daughters to Canadian citizenship, the appellant filed a complaint with the Commission that she had been discriminated against because her daughters were "not entitled to automatic Canadian citizenship". Her complaint did not suggest, in the alternative, that if the automatic grant of citizenship was not required by the Canadian Human Rights Act then other means available under the Citizenship Act for obtaining citizenship were nevertheless unacceptable as involving unjustified conditions. In dealing with this complaint, the Tribunal itself held that a grant as of right of citizenship to adopted children would "create an avenue for the circumvention of the Canadian immigration process" and therefore it was reasonable to impose further conditions beyond those of section 3. But it then proceeded gratuitously to decide whether the conditions imposed in section 5 were reasonable, a matter which, it is clear from the record, was not previously before it in the evidence.
In concluding that this matter must go back to the Tribunal as suggested by Robertson J.A. I have in mind two fundamental considerations.
First, this is a matter of judicial review and the reviewing Court, and this Court on appeal from the reviewing Court, cannot simply substitute its views of the facts and the law for those of the Tribunal and render what it considers the right conclusion. We must proceed on the record as we have it, confining ourselves to the criteria for judicial review, and remembering at all times that a denial of natural justice cannot readily be cured on such review. While we must ensure that the Tribunal conducts itself in a lawful way, it is for the Tribunal to render a decision on the facts once those facts are properly litigated before it. On the facts as actually litigated before it the Tribunal found that it was "reasonable and justifiable" to require more than the "automatic" grant of citizenship under section 3 of the Citizenship Act . I am not persuaded that we should now in effect direct that as a matter of law the Tribunal should have interpreted section 3 to apply to adopted children, whenever and wherever born, and then to limit the meaning of "adoption" as proposed by Linden J.A. This would among other things ignore the fact that the Citizenship Act elsewhere makes provision for the grant of citizenship to adopted children. Yet only in this way could we direct a finding by the Tribunal that would not involve section 5 but have the effect of requiring the grant of citizenship to the persons in question.
Secondly, this is not a Charter case [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]] and the application of the Act, when performed in a lawful manner, is initially a matter for the expert Tribunal howsoever reviewable its findings of law may ultimately be. This is not a case such as Benner v. Canada (Secretary of State),1 relied on by the appellant and by Linden J.A., where the basis for distinction"that between children of male Canadians and those of female Canadians"could patently not be justified under section 1 of the Charter. I believe that in the present case the Tribunal, having decided that an automatic grant of citizenship under section 3 was not required, should, on fair notice to the respondent, have considered on the basis of evidence produced with respect to paragraph 5(2)(a ) of the Citizenship Act whether the requirements imposed by that paragraph are reasonably justified within the meaning of the Canadian Human Rights Act. While, if this were ordinary litigation, it might strictly speaking be open to us simply to dismiss the appeal and put an end to the matter because the issue of paragraph 5(2)(a) was never pleaded, it appears to me to be in the interests of justice for the Tribunal to have the opportunity, if the appellant so wishes, to reconsider the case taking into account all relevant matters while affording the parties natural justice. One must avoid importing all the strictness of civil procedure into such hearings, provided the requirements of fairness are met.
I would therefore dispose of the appeal on the basis indicated by Robertson J.A.
* * *
The following are the reasons for judgment rendered in English by
Linden J.A. (dissenting): The main issue in this case is whether children adopted abroad by Canadian citizens are being discriminated against in that they are denied the same "automatic" citizenship that is granted to children born abroad to Canadian citizens. Looking at the issue another way, are Canadian parents being discriminated against because they cannot transmit their citizenship to their children adopted abroad as they can to children that are theirs by birth?
The Facts
Mrs. McKenna, the appellant, is a Canadian citizen who lives in Ireland. She has three sons who were born in Canada and who received Canadian citizenship as of right. She and her husband also adopted two daughters in Ireland, Mary Caragh and Siobhan Maria. The daughters were both born in Ireland and adopted according to Irish law. Mary Caragh was born on May 24, 1974 and adopted on May 20, 1975. Siobhan Maria was born on January 21, 1975 and adopted on February 19, 1976. Mrs. McKenna has been struggling for nearly 20 years to obtain for her two adopted daughters the citizenship that was so easily granted to their sons.
In 1979, Mrs. McKenna, the family having decided to visit Canada, applied to the Canadian Embassy in Dublin, Ireland to obtain Canadian passports for her daughters. That application was not granted because, she was advised, the daughters, having been born in Ireland to biological Irish parents, were not Canadian by birth, and because she was unable to pass on her citizenship to them. Embassy officials confirmed that, had her daughters been her biological children born in Ireland, they would have received Canadian citizenship as of right. In April of 1986, after the coming into force of the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms, she wrote to the Department of Justice in Ottawa advising them of the 1979 advice of the Canadian Embassy in Dublin and inquiring as to whether the policy had changed. The Department of Justice responded by letter dated May 12, 1986 in which Catherine Lane, Registrar of Citizenship, explained that derivative nationality could be acquired in two basic ways: by jus soli (derived from the soil) or by jus sanguinis (derived from blood). Ms. Lane noted that, "[a]t no time in Canadian nationality legislation has the law viewed the natural and adopted child in the same way."2 She added that the adopted children could, if they wished, apply for citizenship by way of naturalization.
To speak of "automatic" citizenship by jus soli or jus sanguinis, is a short-handed way to describe the rather easy way that children born abroad to Canadian parents may obtain Canadian citizenship. Actually, it is not truly "automatic", but the conditions are very easy to meet"essentially they are merely the requirements of verification, i.e., proving that the parent was a citizen and that the child was born to that parent abroad. For children adopted abroad, a more onerous set of requirements are demanded. This is so because of paragraph 3(l)(b ) of the Citizenship Act, which specifically excludes adopted children from the definition of those who automatically acquire Canadian citizenship:
3. (1) Subject to this Act, a person is a citizen if
. . .
(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. [Underlining added.]
To fall within the category of paragraph 3(1)(b) it suffices to show that the person was born outside Canada and that one parent was a citizen at the time of the birth. However, in the case of an adopted child the requirements of subsection 5(2) of the Act become relevant:
5. . . .
(2) The Minister shall grant citizenship to any person who
(a) has been lawfully admitted to Canada for permanent residence, has not ceased since that admission to be a permanent resident pursuant to section 24 of the Immigration Act, and is the minor child of a citizen if an application for citizenship is made to the Minister by a person authorized by regulation to make the application on behalf of the minor child; . . . .
This subsection requires of the adopted child, along with all other foreign nationals, to fulfil the requirements of admission for permanent residency pursuant to the Immigration Act. This means that, over and above simply establishing that the adopted child was properly adopted by a Canadian citizen, an adopted child must also establish a permanent residence in Canada and an intention to permanently reside in Canada, as well as submitting to health, security and criminality checks.3 Consequently, a distinction is made between biological children and children who have been adopted. The former are automatically citizens while the latter must qualify as immigrants, become permanent residents and undergo naturalization, a considerably more onerous process.
Following the response from Ms. Lane in 1986, Mrs. McKenna filed a complaint on her own behalf, dated March 30, 1987, with the respondent Canadian Human Rights Commission against the Department of the Secretary of State of Canada.4 The basis of the complaint was discrimination on the ground of family status contrary to the Canadian Human Rights Act,5 as her daughters were not granted Canadian citizenship because the McKennas were not their biological parents. The relevant sections of the Canadian Human Rights Act state:
3. (1) For all purposes of this Act, race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted are prohibited grounds of discrimination.
. . .
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
. . .
15. It is not discriminatory practice if
. . .
(g) in the circumstances described in section 5 or 6, an individual is denied any goods, services, facilities or accommodation or access thereto or occupancy of any commercial premises or residential accommodation or is a victim of any adverse differentiation and there is bona fide justification for that denial or differentiation.
The Human Rights Tribunal, in a decision dated October 8, 1993, found that there had been discrimination and that there was no bona fide justification for imposing the burden of the naturalization process on adopted children. The only requirements that could be justified, according to the Tribunal, were those of ensuring that the adoption was properly completed according to local laws and that the adoption created a true parent-child relationship. According to Ms. Mactavish of the Tribunal, there was no evidence led to support the naturalization requirements of paragraph 5(2)(a) of the Act as a bona fide justification for discriminating between adopted children and natural born children. As she put it, "no evidence was adduced by the Respondent to explain or justify why adopted children should be subjected for screening for citizenship purposes on the basis of health, criminality, or security, whereas biological children need not."6 The Tribunal found that Mrs. McKenna herself was sufficiently affected by the practice to qualify as a "victim" under the legislation and granted citizenship to her daughters as a remedy for that discrimination. As well, it was ordered that the respondent cease the discriminatory practice of applying the sections of the Act, including paragraph 5(2)(a ) thereof, so as to discriminate against children adopted by Canadian citizens. Finally, the respondent was ordered to consult with the Human Rights Commission with respect to the measures ordered.
In an application for judicial review to the Federal Court Trial Division, the decision of the Tribunal was overturned. The Motions Judge, in a decision dated December 8, 1994, found, inter alia, that there was no discrimination because all children born outside Canada to non-citizens were treated identically. She also found, in obiter, that there was a breach of natural justice in that the respondent did not have sufficient notice that the requirements of paragraph 5(2)(a) of the Citizenship Act were to come under the scrutiny of the Tribunal. The Motions Judge stated:
I have determined that there was a failure of natural justice which appears to have occurred because the issues were never adequately identified or defined. The complainant did not refer to a section of the Citizenship Act in her complaint. The text of the complaint focuses on automatic citizenship and the daughters' ineligibility for citizenship as of right.7
Finally, the Motions Judge found that the Tribunal had erred in granting a remedy in favour of the daughters, as they did not qualify as victims under paragraph 40(5)(c) of the Canadian Human Rights Act.
In my view the appeal must be allowed. I agree with the result reached by the Tribunal, however, I am not in accord with certain reasons offered by Ms. Mactavish. There was much confusion before the Tribunal as to what section of the Act was under consideration. Section 3 of the Act separates adopted children from natural born children and has the effect of forcing them into the naturalization stream in order to obtain citizenship. Paragraph 5(2)(a) of the Act then imposes the extra requirements on those children in the way of qualification for permanent residency under the Immigration Act. Ms. Mactavish made findings that the requirements of paragraph 5(2)(a) lacked a bona fide justification save for the condition of proving the legitimacy of the adoption. However, it is not paragraph 5(2)(a) that is really in issue here. The complaint made by Mrs. McKenna was that section 3 discriminated against her because it had the effect of differentiating between her adopted children and her natural children. It was an error on the part of the Tribunal to make any finding with respect to paragraph 5(2)(a), and indeed if that section were relevant to this proceeding it might be necessary to send it back to the Tribunal for a redetermination. This is because the Minister was not given notice that that section was on trial. The confusion on this matter seems to arise in great part through the somewhat confused manner in which the case was presented, both before the Tribunal and in the Trial Division, but not in this Court. For that we are indebted to the fine submissions of counsel for all parties as well as the intervener, the Adoption Council of Canada.
As will be seen, the Minister's argument requires us to accept that because there is a problem with fraudulent adoptions, therefore the provisions of paragraph 5(2)(a) are appropriate measures to deal with that problem, and therefore it is the practice of applying the provisions of paragraph 5(2)(a) to adopted children that is the "discriminatory practice" in question. However, the discriminatory practice in question is not in applying the provisions of paragraph 5(2)(a ), but in diverting the adopted children away from section 3, where they would be granted automatic citizenship.
This confusion stems in part from an ambiguity in determining the comparison groups in this case. The Minister is assuming for the sake of his argument that the comparison group is "children born to non-citizens". The McKennas assume that the comparison group is "children whose parents are Canadian citizens". The difference is crucial. In the first case paragraph 5(2)(a ) applies to all those children born to non-citizens, and therefore there is no discrimination. In the second case one group of children is subjected to a more onerous process, and therefore there is discrimination. If the Minister's position were correct then no justification would need to be given, for there would be nothing which constituted a discriminatory practice. Therefore, even in that case the provisions of paragraph 5(2)(a) would not be in issue. However, if the relevant comparison group is that suggested by the McKennas"a position I agree with"then there is a discriminatory practice which must be justified to be allowed to stand. In that case again, the provisions of paragraph 5(2)(a ) are not relevant, because the question is not "why are these children subject to naturalization" but rather "why are these children not automatically citizens?" This reasoning mirrors that of Iacobucci J. in Benner v. Canada (Secretary of State)8 where, in the context of a section 1 constitutional argument, he wrote:
The respondent submitted that requiring an oath and a security check are perfectly rational ways of ensuring that those who become citizens share our commitment to Canada and that they do not pose a threat to national security. Linden J.A. accepted this argument in the Federal Court of Appeal. With respect, I must disagree. The relevant question is whether the discrimination is rationally connected to the legislative objectives. We must therefore ask not whether it is reasonable to demand that prospective citizens swear an oath and undergo a security check before being granted citizenship, but whether it is reasonable to make these demands only of children of Canadian mothers, as opposed to those of Canadian fathers. There is clearly no inherent connection between this distinction and the desired legislative objectives: children of Canadian mothers are not in and of themselves less committed or more dangerous than those of Canadian fathers.9
The main issue, then, is whether section 3 of the Citizenship Act discriminates against adopted children and their parents and, if so, whether a bona fide justification for that discrimination exists in accordance with paragraph 15(g) of the Canadian Human Rights Act. In my opinion there is clearly discrimination and there is no bona fide justification for that discrimination. It will be seen that, once this main issue is decided, the other issues can be resolved without difficulty.10
Adoption in Context
In the past, adopted children and their parents have met with great difficulty in the effort to obtain the same rights available to non-adopted children. In many areas it has taken the law, and society, a long time to realize that adopted children are as legitimate as natural born children. In many contexts adopted children have often been stigmatized as not being "real" children, either explicitly or by the denial of rights that accrue naturally to those who are not adopted.
These problems are clearly seen in the law of succession and estates. The right of a person to inherit the property of their relatives is fundamental in our culture. Originally, despite legislation which promised that adopted children were to be for all legal purposes the same as children born naturally to their parents, adopted children were barred from intestate succession from all adoptive kin other than their parents. Parents automatically passed on to their biological children inheritance rights which did not pass on automatically to their adopted children. For example, The Child Welfare Act, R.S.A. 1955, c. 39, section 83 provided that an adopted child was "for all intents and purposes the child of the adopter", but subsection 84(1) restricted the right of inheritance upon intestacy to the adoptive parent only and to no other kin. This provision was typical of the adoption legislation of the time.11
Typical of the earlier prejudiced view against adopted children was also Clement Estate, Re.12 In that case the provisions of a will directed that the estate be left to the "issue" of the testator's sister upon the death of the sister, though contingent on a number of conditions. The plaintiffs were the children of the testator's sister's adopted child. The adopted child died in 1936, at a time when the law in Ontario only allowed adopted children to take under the will of their adoptive parent. Judson J., for the majority, found that the law in effect on January 1, 1960 (the date of the life tenant's death (the sister)) could not have the effect of giving the sister's adopted child rights under her brother's will. Locke J. (concurring), was more direct. He found that the will spoke of "issue" of the sister. Therefore:
There were no such children. The adopted daughter, Margaret Jukes Gordon, was not born of the body of Edith Maud Gordon and, accordingly, she, if living, could have no claim and her children have none.13
The law at that time unfairly viewed the adopted child as somehow different from children who had been born to their parents.
Similarly, other areas of the law have been slow to acknowledge the equal stature of adopted children as full and real children of their adoptive parents. Likewise, the law has been slow to see the adoptive parent as a full and real parent to the child. For example, section 155 of the Criminal Code14 deals with the crime of incest, an element of which is that the victim must be related by blood. This is so despite the fact that what repulses us about the act is not so much the consanguinity of the relationship (indeed, it is not an offence if the blood relationship is unknown), but the violation of the trust position that a parent has in relation to the child. Thus, it may surprise one to learn that, by the terms of section 155, it is not incest to engage in a sexual relationship with an adopted child.
This same legal blindness has existed until recently in the area of labour law. For many years after provincial labour law standards accommodated biological mothers with leave from work during pregnancy and childbirth, adoptive mothers received no leave on account of an adoptive placement. In Schafer v. Canada (Attorney General)15 Cameron J. at trial discussed the history of labour standards:
Prior to 1984 only two jurisdictions provided adoptive parents with parental leave and job protection under employment standards legislation. In 1984 the Canada Labour Code was amended to give both non-adoptive and adoptive parents 24 weeks of unpaid leave. Biological mothers always received 17 weeks of maternity leave. By 1986 most Canadian jurisdictions still lacked parental leave for adoptive parents in their labour standards legislation. Ontario did not grant parental leave to adoptive parents until 1990.16
This situation persisted even though provincial authorities often demanded that new parents remain home for at least six months after a placement.
The general tenor of this history is that in the past adopted children have been regarded as "second best", and adoptive parents have not been seen as "real" parents. But in recent years there has been a great deal of momentum toward a more sensitive and humane attitude. In many areas, the law has begun to treat adoptive parents and children with much the same respect accorded to their non-adoptive peers. In the area of labour law, many of the benefits that were once available only to birth parents are now given to adoptive parents as well.17 We now treat adopted children, it will be seen, in much the same way as birth children. Any social stigma that still exists is a carryover from older days and older attitudes.
The Canadian treatment of adopted children in the context of citizenship is one of these carryovers. It is interesting to note that in other jurisdictions, the rights of adopted children have taken a similar step forward. American and British law both provide citizen parents residing abroad with an expedited way to seek citizenship for their foreign-born adopted children. None of these regimes requires the adopted child to be established as a qualified immigrant and go through the full process of naturalization. British law permits citizen parents to register their foreign-born minor adopted children as citizens without a medical or residency requirement.18 Where the British provisions are discretionary, in the United States citizenship must be granted to the adopted child where the parent or grandparent meet the residency requirement.19 Each country has its limitations, but each is less strict than Canadian law. Canada insists that a child adopted by a citizen abroad submit to the same stringent requirements as other foreign nationals.
International treaties also recognize the rights of adopted children and make provisions for their equal treatment. For example, Article 21 of the Convention on the Rights of the Child [November 20, 1989, [1992] Can. T.S. No. 3] provides:
Article 21
States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;
(b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;
(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
(d) Take all appropriate measure to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;
(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.20
The attention paid to the problems encountered by the adopted child underscores the advances made in recent years towards creating a world where the adopted child is treated equally to the non-adopted child.
Adoption Law Today
Nowadays, reflective of the developments around the world, as soon as the law recognizes that a person has been legally adopted, there can thereafter be no distinction between that person and one who was not adopted. Where a child has lawfully become the child of another person through adoption, the rights of that child are indistinguishable from the rights of any other child. As well, a person who has adopted a child, now has rights and obligations vis-à-vis that child that are indistinguishable from the rights and obligations of any other parent. The legal relationship between the adoptive parent and the adopted child is identical to that which exists between a parent and a biological child.
Today, and at the time that Mrs. McKenna applied for citizenship for her daughters, both Irish and Canadian provincial laws required that adopted children be treated as though they were the biological children of their parents. For example, the Ontario Child and Family Services Act,21 states:
158. . . .
(2) For all purposes of law, as of the date of the making of an adoption order,
(a) the adopted child becomes the child of the adoptive parent and the adoptive parent becomes the parent of the adopted child; and
(b) the adopted child ceases to be the child of the person who was his or her parent before the adoption order was made and that person ceases to be the parent of the adopted child, except where the person is the spouse of the adoptive parent,
as if the adopted child had been born to the adoptive parent.
Some of the provincial legislative provisions proclaim even more strongly that the adopted child is in every way identical to a child born naturally to his or her parents. In Saskatchewan, for example, The Family Services Act,22 provides for the effect of the adoption order:
60. . . .
(2) Except as provided in clause (a) of subsection (3), the order shall:
. . .
(b) make the child for all purposes the child of the adopting parent as though the child were a child born to the adopting parent in lawful wedlock.
For all purposes, therefore, an adopted child is legally identical to a child born to his or her parents. The law in each of the other provinces is equally unequivocal.23 An adoption creates the legal fiction that a child was born to his or her adoptive parents.
This language is unmistakeable and perfectly logical. If the rights of the adopted child are not identical to those of the biological child then a legal vacuum would be created. What legal regime would govern the rights of the adopted child? What would the relationship between the parent and the child consist of in legal terms? These questions would require legislative answers, as adoption is unknown to the common law. The simple and logical legislative answer is that there can be no legal differentiation between the two groups. The law in all the provinces and territories of Canada is very simple, straightforward and humane: adopted children are identical to birth children in the eyes of the law.
As well, Irish law provides that a reference to a child under any Act of the Oireachtas includes an adopted child.24 I also note that most provincial legislation provides that where a child has been adopted in another jurisdiction (whether it be another province or another country) that child is deemed to have been adopted according to the laws of the province so long as the adoption has taken place according to local laws.25 The only exceptions are Manitoba, British Columbia and Quebec, each of which require that the extra-jurisdictional adoption has taken place according to laws that are substantially the same as their own provincial law.26 If we are to give effect to the language and the philosophy of the legislation of every province of Canada, then any distinctions between adopted children and non-adopted children have to be recognized as unnaceptable.
The Approach to Human Rights Legislation
In the past, as we have seen, adopted children have been treated as some sort of legal anomaly, with their rights given less respect than the rights of biological children, but all that has now changed by provincial laws which recognize their equal status. Human rights legislation must have an impact on the treatment of adopted children. In the same way, the spirit of the Canadian Charter of Rights and Freedoms, though it is not being invoked in this case, cannot be ignored. We should allow its light to illuminate our thinking in this as well as all other areas of the law.
In determining whether discrimination has occurred in this case, one must begin with the words of Chief Justice Dickson in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission [hereinafter] Action Travail des Femmes:27
Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact. Although it may seem commonplace, it may be wise to remind ourselves of the statutory guidance given by the federal Interpretation Act which asserts that the statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained.28
This attitude is consistent with the words of McIntyre J. in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd. et al.29 where he discussed human rights legislation in general and the Ontario Human Rights Code [R.S.O. 1980, c. 340] in particular:
Legislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary"and it is for the courts to seek out its purpose and give it effect.30
Similarly in Dickason v. University of Alberta,31 L'Heureux-Dubé J. commented that "Once in place, laws which seek to protect individuals from discrimination acquire a quasi-constitutional status, which gives them preeminence over ordinary legislation".32 These dicta urge us to approach the application of the Canadian Human Rights Act with its purpose in mind. The quasi-constitutional nature of this type of legislation implies that it has a sort of supervisory role which should not be eclipsed without good reason.
Discrimination
The classic definition of discrimination comes from the decision of McIntyre J. in Andrews v. Law Society of British Columbia,33 the first case decided under section 15 of the Charter. McIntyre J. defined discrimination in these words:
I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages 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.34
A preliminary question is what part of the Citizenship Act discriminates against the appellants. It is argued by the Crown that the Canadian Citizenship Act, R.S.C. 1970, c. C-19 (the old Citizenship Act) is not relevant to the appellant's case because it was replaced in 1977 with the coming into force of the current Citizenship Act, R.S.C., 1985, c. C-29 (the new Citizenship Act). Only the new Citizenship Act is relevant to the appellant's claim, it is said, and this Act only provides automatic citizenship to children born abroad to Canadian parents after February 14, 1977. As both children were born before that date, they go on to argue, they cannot possibly obtain citizenship by resorting to that provision. Therefore, they conclude that it is impossible to say that paragraph 3(1)(b) of the new Citizenship Act discriminates against them on the ground of family status, as it would not even grant them citizenship had they been born naturally to the McKennas. In my view this argument is not persuasive.35
The relevant point is that it is section 3 of the new Citizenship Act which is expressly discriminatory. It is discriminatory because children adopted by Canadian citizens do not automatically acquire Canadian citizenship. This is so because adopted persons are explicitly excluded from the provisions of paragraph 3(1)(b). They are implicitly excluded through paragraph 3(1)(e) of the new Citizenship Act, which states that a person is automatically a citizen if that person "was entitled, immediately before February 15, 1977 [the coming into force of this Act], to become a citizen under paragraph 5(1)(b ) of the former Act". That paragraph in the old Citizenship Act, which has been incorporated into the new Citizenship Act , reads:
5. (1) A person born after the 31st day of December 1946 is a natural-born Canadian citizen,
. . .
(b) if he is born outside of Canada . . . and
(i) his father, or in the case of a child born out of wedlock, his mother, at the time of that person's birth, is a Canadian citizen . . . .
Both Acts, therefore, treat adopted children differently than children born to Canadian parents. Under both Acts, a person who is adopted by a Canadian parent is not automatically a Canadian citizen. It is, therefore, section 3 of the new Citizenship Act which discriminates, either by the explicit provisions of paragraph 3(1)(b) or by the implicit incorporation of the old Citizenship Act by virtue of paragraph 3(1)(e).
The Trial Judge decided that the "differentiation" between the appellant's sons and daughters in the McKenna family stemmed "from their respective birth places", their adoptions being "beside the point".36 I respectfully disagree. The differentiation between the appellant's sons and daughters is not based only on their birth place; had the sons been born in Ireland they nevertheless would still be Canadian citizens. The differentiation is founded on their different status"birth children as compared with adopted children. As among themselves, this is the only real difference in their situation. The Tribunal correctly identified and resolved the main issue in these words:
. . . children adopted abroad by Canadians are required to go through the naturalization process in order to acquire Canadian citizenship whereas the biological children of Canadians who are born abroad acquire Canadian citizenship as of right. The differential treatment is based solely upon the child's family status as an adopted child.37
In Benner38 the Supreme Court of Canada dealt with the former provisions of the Citizenship Act [S.C. 1974-75-76, c. 108] which allowed a married Canadian father to pass on his citizenship to a child born abroad but did not allow a Canadian mother that same right. Iacobucci J. discussed that status of being the birth child of a Canadian mother:
This is no less a "status" than being of a particular skin colour or ethnic or religious background: it is an ongoing state of affairs. People in the appellant's condition continue to this day to be denied the automatic right to citizenship granted to children of Canadian fathers.39
This statement could just as easily refer to adopted children as birth children. Let us assume, as Mr. Justice Iacobucci does, that it was black children, born to Canadian parents abroad, not adopted children, who were denied the same rights as other children under the Citizenship Act. Would the Court deny them equal rights? If it were female children or illegitimate children born abroad being treated differently, would any Court tell them that they were denied equivalent rights as other children? Clearly not. It is, therefore, only a prejudiced view against adopted children, that they are somehow different or inferior, that leads anyone to treat them differently than children born to their parents. This case provides an opportunity for this Court to rectify this intolerable situation in the area of Canadian citizenship law.
I realize that by saying that adopted children are identical to natural-born children I may be overlooking some obvious factual differences. An adopted child was not born to his or her parents. An adopted child has been deliberately selected by his or her parents. Adopted children might be distinguishable from natural children when looked at in a sociological, psychological, or a demographic context. These things might be fact or myth or both, but I believe that they are precisely those things which the law requires us to overlook. By deeming adopted children to be identical to natural-born children the law is saying that whatever distinguishes the adopted child from the natural-born child is henceforth irrelevant. Only in this way can equality between the two groups be achieved.
In my view, the effect of section 3 of the Act is discrimination and it is, therefore, prohibited by the Canadian Human Rights Act on the ground of family status. By expressly excluding adopted children from accessing the same rights and privileges as non-adopted children, that section echoes the old laws and the old cases. The law across Canada, however, now mandates that adopted children be treated identically to non-adopted children. Because under section 3 they are not, it is discrimination, pure and simple.
I understand that there is a strong inclination to restrict automatic citizenship to those who were born in this country or to those born naturally to Canadian citizens. In both those circumstances there is indeed a powerful intuitive connection between the person and this country, that is not so obvious with respect to adopted children. Similarly, we do not grant citizenship automatically to those people who marry Canadian citizens. They must undergo the naturalization process like other foreign-born nationals. In those cases too, there is a concern with respect to fraud and also other characteristics of the spouse that might mitigate against granting citizenship. However, I do not think that our treatment of marriage is a proper model to judge our treatment of adopted persons. There is a difference between the two groups. The connection one has with this country by virtue of marriage is wholly different than the one that is characteristic of a parent and child relationship. Where a child is born to a Canadian or adopted by a Canadian there is equally a sense that that person's heritage is Canadian, that there is an ancestral link to this country. This is not a sense that is engendered through marriage.
The differential treatment in this case fits quite squarely within the words of McIntyre J. in Andrews, supra. Adopted children are treated differently than non-adopted children "based on personal characteristics attributed to an individual solely on the basis of association with a group". It is differential treatment based solely on the fact that a person is a member of that group of people who have been adopted or who have adopted children. The practice of requiring adopted children to be naturalized where their non-adopted counterparts receive citizenship automatically is not due to any difference in the merits or qualities of the two groups, but exclusively on their status as adopted children.
Bona Fide Justification
The Minister's argument that there is no discrimination because the adopted child is treated the same as all other foreign-born nationals and can simply avail him or herself of the provisions of paragraph 5(2)(a) of the Citizenship Act is misguided. It merely begs the question of what is the justification for the discrimination in the first place. The question is not whether the naturalization provisions are justified with respect to all foreign nationals, including adopted children of Canadian citizens. The question is whether there is any bona fide justification for differentiating between adopted children of Canadian citizens and non-adopted children of Canadian citizens with respect to obtaining Canadian citizenship.
The Tribunal found that there was a bona fide justification for not granting automatic citizenship to adopted chidren, and the problem of fraudulent adoptions was rightly addressed by the provisions of the Immigration Regulations, 1978 incorporated in paragraph 5(2)(a) of the Act. But the Tribunal found that only the provisions with respect to the legitimacy of the adoptions could be upheld. This is somewhat of an incoherent approach to the problem. If "adopted" as it appears in section 3 of the Act implies a legitimate adoption, as I think it does, then paragraph 5(2)(a ) of the Act has no application here. As will be seen, this reading of the term "adopted" is consistent with the law of Canada, and therefore renders the finding of the Tribunal, in relation to paragraph 5(2)(a ), unnecessary.
The test for determining whether there is a bona fide justification has been set out by this Court in Canada (Attorney General) v. Rosin.40 It has been established that the criteria for it are equivalent and coextensive with the test for bona fide occupational requirement set out in section 15 of the Canadian Human Rights Act. In Rosin the Court stated:
Similarly, it might be concluded that the two phrases" "bona fide occupational requirement" (as in paragraph 15(a )) and "bona fide justification" (as in paragraph 15(g )) convey the same meaning, except that the former is applicable to employment situations, whereas the latter is used in other contexts. The choice of these different words used to justify prima facie discrimination, therefore, are matters of style rather than of substance.41
Once a prima facie case of discrimination is made out the onus remains throughout upon the party which is attempting to establish a bona fide justification. The test that must be satisfied is that the discriminatory practice must have been implemented in good faith and it must have been reasonably necessary to accomplish the objective of the policy in question.42
The policy objective of the legislation in this case is the prevention of the potential abuse that would occur when people improperly attempt to bypass the immigration system by using adoption as a means of gaining admission to Canada without qualifying as an immigrant. The problem of adoptions of convenience came to prominence in the 1970s, and in response to this the Immigration Act was amended. Visa officers were given the power to determine whether or not an adoption is bona fide. Immigration Regulations, 1978, subsection 2(1) [as am. by SOR/93-44, s. 1] defines "adopted" as:
"adopted" means a person who is adopted in accordance with the laws of a province or of a country other than Canada or any political subdivision thereof, where the adoption creates a genuine relationship of parent and child, but does not include a person who is adopted for the purpose of gaining admission to Canada or gaining the admission to Canada of any of the person's relatives.
These regulations have been effectively used to prevent abuse. For example, in Pabo v. Canada (Minister of Citizenship & Immigration),43 a woman adopted her nephew and niece in the Philippines. She sought to sponsor them for admission to Canada as her dependents, but visas were denied on the ground that the adoption had not created a true parent-child relationship. This was certainly understandable in the context of those facts.
As well, the application of the provisions of the Immigration Regulations, 1978 is a matter of domestic law. It is concerned with whether those adopted according to the laws of other jurisdictions are "adopted" as that term is understood in this country. In Singh v. Canada (Minister of Employment and Immigration)44 Hugessen J.A. made the following comment with regard to adoptions in other jurisdictions:
The question thus, for the visa officer and the Immigration Appeal Board in each of these cases, was not to know whether the persons sought to be sponsored by the respective appellants had the status in India of being their adopted sons, a question to which the presumption created by section 16 of The Hindu Adoptions and Maintenance Act, 1956 would be relevant if it were applicable. Rather, the question in each case was to know whether there had been, prior to the child's thirteenth birthday, an adoption "in accordance with the laws of" India which created a relationship of parent and child so as to make the adoptee the sponsor's "son". This is an issue of Canadian law.45
The important point is not whether the adoption was legal in the foreign jurisdiction, but whether the effect of that legal adoption was such that it created a parent-child relationship in the eyes of Canadian law.
It is argued that this power to control the problem of adoptions of convenience would be short-circuited if an adoption automatically endowed an adopted child with citizenship. Therefore, it is said that it is reasonable for those who are adopted to go through the naturalization process, which incorporates the provisions of the Immigration Regulations, 1978 and gives the Minister the power to inquire into the bona fides of the adoption. This, the Minister submits, is a reasonable and bona fide justification for the discrimination.
All parties agree that there is a need to keep the Canadian immigration system honest, but this can be accomplished without discriminating against adopted children. This can also be achieved without going beyond what is necessary in order to ensure that the citizenship rules are not being used to circumvent the immigration process. Once it is established that the adoption has been performed according to local law and has created a true parent-child relationship no more is necessary. If the policy we are trying to further is the prevention of adoptions of convenience for immigration purposes, there is no natural connection between that objective and the requirements of the Immigration Act and Regulations. All that matters for section 3 is the quality of the adoption. The concept of "adoption" does not need the help of the Immigration Act for its amplification. For an adoption to be a real adoption, it must by necessity be in accordance with the law and done in good faith; it is no adoption if it is a phony adoption done merely for the purpose of circumventing the law. And it is agreed by all parties that the McKenna adoptions are completely proper.
As noted earlier, the "automatic" citizenship that we speak of in relation to children born to a Canadian parent is not in reality automatic. There is still a verification process that must be undertaken. It must be established, for example, that the person was truly born to a citizen of Canada. This is not an onerous burden, but it exists nonetheless. In the same way, a verification process with respect to adopted children is necessary. This would be equal treatment for both adopted and non-adopted children, both groups having to verify their situation to get citizenship. If someone is adopted in a way that has meaning in our society and according to our laws, this normally establishes that a true parent-child relationship has been established. If a true parent-child relationship has been created, as will be the case in the majority of adoptions, those children should then be treated as identical in every respect, including citizenship rights, to children who were born to their parents. It is, of course, always open to the Minister, in the appropriate case, to challenge a claim for citizenship on the ground that a true adoption has not been effected, that what is said to be a true adoption is merely an adoption of convenience.
It is also open to the Governor in Council to nullify a fraudulent scheme to gain citizenship. Section 10 of the Citizenship Act grants that power explicitly:
10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be deemed to have had no effect,
as of such date as may be fixed by order of the Governor in Council with respect thereto.
Where a person has entered into a fake adoption for the purpose of fraudulently gaining citizenship for him or herself or a relative, therefore, it is open to the Minister to set it aside.
The power given to the Minister includes the ability to inquire into the bona fides of an adoption. This is so because the word "adopted", as it appears in paragraph 3(1)(b ) of the Citizenship Act, must connote the creation of a genuine parent-child relationship. The word itself is not defined by the Citizenship Act and so we must go beyond the Act to give it meaning. That meaning must be in harmony with society's conception of the relationship created by an adoption. That conception certainly does not include an unreal adoption that is done merely for the purpose of gaining Canadian citizenship.
The law of Canada, as it is now expressed in provincial statutes, is that adopted children are just as truly the children of their adoptive parents as children born to their parents. The creation of this legal relationship entails the creation of a true parent-child relationship. The normal sense which we give to the word "adoption" does not entail a limited purpose adoption where such a relationship is not meant to be created. It requires that a person has gone through an often demanding process governed by a legal regime, whereby the family status of a person is completely altered. This process creates a legal fiction"that a person born to one person is the child of another, as if born to that other person.
The fundamental ingredient in acquiring citizenship by right is a connection to Canada. This connection is represented by blood or by soil. In either case, the connection is as much a legal fiction as is the relationship created by adoption. A child who is born to a Canadian citizen abroad has no more connection to Canada than someone who is adopted by a Canadian citizen abroad. A child who is born in Canada to a foreign national and then subsequently moves to another country is no more, and probably less, connected to Canada than is someone who is adopted by a Canadian citizen. In each case we are in the world of fictions, where citizenship is defined as something natural that is imprinted at birth. But the reality is that there is nothing natural about citizenship, and in fact an argument might conceivably be made that no person should automatically become a citizen of a country, regardless of parentage or place of birth. It might be possible for a nation to require from each potential citizen, at some point in their lives, evidence of a strong connection to the land or a willingness to declare that he or she will uphold the obligations of citizenship. But as long as we grant it as of right to children of citizens, in the belief that their status as children of citizens gives them a sufficient connection to Canada, then that right must be granted without discriminating between adopted children and non-adopted children. For the connection with Canada created by the birth of a child to a Canadian should be no different than the one created by the adoption of that child by a Canadian. Any further requirements imposed by the Citizenship Act cannot, in my view, be justified.
The only evidence before the Tribunal was that fraudulent adoptions were a problem, and both parties agree that this is a serious issue. But it is only with respect to fraud that any discrimination has been justified. The onus was upon the Minister to show why adopted children should not be granted automatic citizenship, as are other children of Canadian citizens. The evidence for that differentiation in this case pertained to fraudulent adoptions. But given my view of the status created by adoption, and that only legitimate non-fraudulent adoptions are included in that term, no justification was made out for the differentiation in question.
Natural Justice
The respondent argued, and it was accepted in obiter dicta by the Trial Judge, that there was a denial of natural justice in that there was no notice given to the respondent that the provisions of paragraph 5(2)(a) of the Citizenship Act were to come under the scrutiny of the Tribunal. Given the manner in which I have approached the main issue on this appeal, the respondent's argument must fail. Both the respondents and the Motions Judge laboured under the mistaken impression that section 3 of the Citizenship Act was not discriminatory, as it treated all foreign-born nationals in a similar fashion. Thus it was perfectly logical for them to say that it would not apply to the appellant's daughters. However, it is the very fact that section 3 specifically excludes the appellant's daughters that constitutes the discrimination in this case. As I see it, paragraph 5(2)(a) of the Act is irrelevant to the resolution of the issues raised in this case. Although it was referred to by both parties at different points in the hearings, it was not the real issue in the case. Had it been a key element in the case as it was argued, the natural justice argument may well have succeeded.
The decision of the Motions Judge shows clearly that this conclusion must be so. She stated:
The text of the complaint focuses on automatic citizenship and the daughters' ineligibility for citizenship as of right.46
Given this statement, it is clear that the respondent had notice that section 3 of the Citizenship Act, which deals with citizenship as of right, was on trial. The Motions Judge also recognized that Mrs. McKenna had no interest in the provisions relating to the naturalization process in paragraph 5(2)(a), as they had no intention of having their daughters naturalized in the regular way. Their position, which is the correct position, is that their daughters are entitled to citizenship pursuant to section 3 in the same way as any other children of Canadian citizens"as of right. No matter how much evidence the respondent might have produced to justify the provisions relating to naturalization, it would not have advanced their case at all with respect to the discrimination incorporated into section 3. Therefore, in my view, it cannot be said that there has been a denial of natural justice in the way this case was presented and dealt with.
Remedy for "Victim" of Discrimination
The Canadian Human Rights Act provides the Tribunal with a wide power to grant remedies. That power is contained in subparagraph 53(2)(a):
53. . . .
(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, it may, subject to subsection (4) and section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in that order any of the following terms that it considers appropriate:
(a) that the person cease the discriminatory practice and, in order to prevent the same or a similar practice from occurring in the future, take measures, including
(i) adoption of a special program, plan or arrangement referred to in subsection 16(1), or
(ii) the making of an application for approval and the implementing of a plan pursuant to section 17,
in consultation with the Commission on the general purposes of those measures;
(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, such rights, opportunities or privileges as, in the opinion of the Tribunal, are being or were denied the victim as a result of the practice;
(c) that the person compensate the victim, as the Tribunal may consider proper, for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; and
(d) that the person compensate the victim, as the Tribunal may consider proper, for any or all additional cost of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice.
The statute grants the Tribunal the power to grant a remedy only to the "victim of the discrimination". Counsel for the Crown suggests that the remedy of the grant of citizenship to the daughters is not permitted because they are not victims. In this case, it is argued that the adoptive mother is complaining that she cannot transmit her citizenship to her adopted children in the same way that she can to her other children. It is no different, however, to say that the adopted daughters are denied the equal right to inherit citizenship from their mother as their brothers can. Family status discrimination often affects not only individuals but also other members of the family. The mother and the children are all being harmed in this case. Here, the same action amounts to discrimination against both the mother and the daughters. By the terms of subection 40(5) of the Canadian Human Rights Act , however, the daughters cannot qualify as "victims" as the discrimination took place outside Canada and they were not Canadian citizens at that time.47 Hence, though mother and children are equally harmed by the practice, it is only the mother who is a "victim" under the legislation. Hence, she is entitled to a remedy under the Act, not the children. Mr. Justice Iacobucci, in Benner ,48 quoted this Court to the effect that "the discrimination against the mother is unfairly visited upon the child;" here it can be said that "the discrimination against the children was unfairly visited upon the mother". Similarly, it was said in Glynos v. Canada ,49 a case in which a woman's child was denied citizenship, that the woman "has an interest as a Canadian woman and mother in knowing whether her son can be declared a citizen by birth and in being part of a proceeding seeking a declaration to that effect." The obverse is undoubtedly also true.
This is consistent with this Court's decision in Cheung v. Canada (Minister of Employment and Immigration).50 In that case a refugee claimant from China was the victim of that country's persecutory sterilization policy. The Court had to determine not only whether she was a refugee (which she was) but also whether her daughter, whom she bore in violation of the one-child policy, was also a refugee. It was determined that the persecution of the mother also amounted to persecution of the daughter. The obverse is also the case. In all of these cases, what is apparent to every parent and every child is taken note of by the Court. To harm one is to harm the other.
The right to citizenship is fundamental to full participation in this society and to be a citizen by birth is, in the words of my colleague Mr. Justice Décary, "a most cherished privilege".51 Citizens have an unconditional right to remain in Canada and cannot be deported. As well, citizens obtain certain rights protected under the Charter. If a person wants to participate in this society through any means, whether it be in politics, in business, or by living here and raising their children as Canadians, it is only as citizens can, that they can do so fully and unconditionally. Without the rock-bed of certainty which citizenship brings with it, full participation in Canadian life can never be achieved. The words of Chief Justice Dickson in Action Travail des Femmes are again apposite:
Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact. Although it may seem commonplace, it may be wise to remind ourselves of the statutory guidance given by the federal Interpretation Act which assert that the statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained.52
The question of who is the victim must be determined with this remedial approach in mind. In Singh (Re)53 this Court stated:
The question as to who is the "victim" of an alleged discriminatory practice is almost wholly one of fact. Human rights legislation does not look so much to the intent of discriminatory practices as to their effect. That effect is by no means limited to the alleged "target" of the discrimination and it is entirely conceivable that a discriminatory practice may have consequences that are sufficiently direct and immediate to justify qualifying as a "victim" thereof persons who where never within the contemplation or intent of its author.54
I am of the view that the Tribunal was correct to come to the conclusion that the effect of the discriminatory provisions of the Citizenship Act upon Mrs. McKenna's daughters was sufficiently direct to qualify Mrs. McKenna herself as a victim under the Canadian Human Rights Act. It is agreed by both parties that the adoptions in this case created a true parent-child relationship, so that no problems of verification have been raised. The only remedy that can achieve the full effect of the spirit of the human rights legislation for the victim is for her daughters to be granted the citizenship that their mother is entitled to pass on to them. The order of the Tribunal that the Minister grant citizenship to Siobhan and Caragh McKenna forthwith was proper.
Other Remedies
The Tribunal made two other remedial orders. First, following the decision of this Court in Canada (Attorney General) v. Druken,55 the Tribunal ordered that the respondent cease the discriminatory practice of applying the provisions of the Citizenship Act so as to discriminate against children adopted by Canadian citizens beyond the extent which the Tribunal found justified. The Druken case outlines quite clearly the power of the Tribunal to make this type of order. Mr. Justice Mahoney felt that a limitation preventing such an order would be inconsistent with the legislation. He stated:
In my view, such a limitation on a tribunal's power to make an order is inconsistent with paragraph 41(2)(a) of the Human Rights Act which expressly authorizes the tribunal to order that measures be taken "in order to prevent the same or a similar practice from occurring in the future". That is not intended only to prevent repetition of the discriminatory practice vis à vis the particular complainant; it is intended to prevent its repetition at all by the person found to have engaged in it. Thus the order that the CEIC cease applying paragraphs 3(2)(c) and 4(3)(d) of the U.I. Act and 14(a) of the U.I. Regulations appears entirely apt.56
The Tribunal's power to do this was not challenged by the counsel for the Crown.57 I should mention that this case does not recognize any power in the Tribunal to order that section 3 be struck down or rewritten as a judge making a determination under the Canadian Charter of Rights and Freedoms may do. In my view, the Tribunal merely has the power to order the Minister to cease applying the law in a discriminatory fashion, but that is a different thing than saying that it has the power to order the Minister to cease applying the law. In this case, the Minister has simply failed to discharge the onus upon him under the Canadian Human Rights Act to justify the discriminatory practice. Therefore, the Minister cannot apply section 3 against these children, for to do so would be unjustified discrimination. If in a future case he can discharge that onus, then a discriminatory practice may be justified.
Second, the only caveat placed upon this type of action by Justice Mahoney was that, if such an order were made, it was incumbent on the Tribunal to also order, pursuant to its mandate, consultations between the person responsible for the discriminatory practice and the Canadian Human Rights Commission. The Tribunal made this further order pursuant to paragraph 53(2)(a) of the Canadian Human Rights Act as well as suspending that order for a six-month period to allow for that consultation process. I find these remedial orders of the Tribunal to be appropriate, in the circumstances of this case, and would restore them.
The Tribunal included in its order that the Minister cease applying paragraph 5(2)(a) in a discriminatory fashion. I cannot endorse this in so far as paragraph 5(2)(a) was not in issue in this proceeding and no finding could be made with respect to it.
Conclusion
It must be noted that this decision is not a constitutional decision declaring any law to be invalid. It is merely an individual case of discrimination in the unfair application of one particular provision against two legally adopted children and their parents. The adoptions in this case were both bona fide and in conformity with Irish law. The Tribunal stated [at page 64]:
The Tribunal is satisfied, and indeed the Respondent has conceded that the adoption of Caragh and Siobhan McKenna was bona fide, and was not carried out for immigration purposes. The Tribunal is also satisfied that the adoptions created a genuine parent/child relationship. The Complainant testified as to the process she went through in the course of adopting the children. The Respondent has not disputed that the adoptions were carried out in accordance with Irish law.
There is nothing in this case that would prevent the government from trying to establish bona fide justifications in any future cases. Nothing in this case will enable Canadians to pretend to adopt children abroad, thereby granting them automatic citizenship, in circumvention of the regular channels. It merely rectifies an instance of unjust discrimination against legally adopted children who must now be viewed as equal in citizenship matters, as in all other respects, to children born to their parents.
I would allow the appeal, set aside the decision of the Motions Judge and restore the order of the Tribunal, except in so far as it purported to apply to paragraph 5(2)(a).
* * *
The following are the reasons for judgment rendered in English by
Robertson J.A.:
The Issue
The appellant and her husband are Canadian citizens and permanent residents of Ireland who adopted two children in accordance with the laws of that country. Both children were born in Ireland and are citizens thereof. Under Canadian law the appellant's adopted children do not obtain "automatic" citizenship as is true of children born abroad to Canadian citizens. Rather her adopted children must gain admission to Canada as permanent residents. This condition precedent to Canadian citizenship is mandated by paragraph 5(2)(a ) of the Citizenship Act, which incorporates by reference the requirements imposed by the Immigration Act pertaining to permanent resident status. Because of the differential treatment accorded birth and adopted children born abroad, and the refusal of the Canadian government to issue passports to her two adopted children, the appellant lodged a complaint with the Canadian Human Rights Commission alleging discrimination on the basis of family status contrary to sections 3 and 5 of the Canadian Human Rights Act.
Decisions Below
The Human Rights Tribunal, established to hear the complaint, took jurisdiction on the ground that the granting of citizenship constitutes a "service" customarily available to the "general public" within the meaning of section 5 of the Canadian Human Rights Act . The Tribunal also concluded that the appellant qualified as a "victim" under paragraph 40(5)(c ) of the Canadian Human Rights Act, enabling relief to be extended to her two adopted children, who lacked standing to lodge a complaint with the Commission. In addition to these jurisdictional issues, the Tribunal held that the differential treatment accorded adopted and birth children born abroad constituted prima facie discrimination.
With respect to whether the Minister established a bona fide justification for the discriminatory practice, as required pursuant to paragraph 15(g) of the Canadian Human Rights Act, the Tribunal held that the following requirements imposed by paragraph 5(2)(a) of the Citizenship Act, in conjunction with the Immigration Act, were not reasonably justified: (1) the need to establish an intent to reside in Canada; (2) the need to satisfy certain health, security and criminality requirements; (3) the need to obtain a letter of no objection from the child welfare agency in a province; and (4) the need to be adopted prior to age 19 (age 13 prior to February 1993). The Tribunal did, however, uphold the requirements that the adoption be carried out in accordance with the laws of the foreign country and that it create a genuine parent/child relationship, as opposed to one entered into for the purpose of circumventing Canada's immigration laws (the so-called "adoption of convenience"). The extent to which immigration authorities could block admission on the latter ground was in a state of flux until the Immigration Act was amended in 1992 to expressly provide that the adoption not be for the purpose of gaining admission to Canada: see the definition of "adopted" in subsection 2(1) of the Immigration Regulations, 1978 and Gill (B.S.) v. Canada (Minister of Citizenship and Immigration) (1998), 229 N.R. 267 (F.C.A.).
Pursuant to its findings, the Tribunal ordered that the appellant's two children be granted citizenship, and that the Minister cease the discriminatory practice of requiring compliance with paragraph 5(2)(a) of the Citizenship Act, subject to the two exceptions noted above. Finally, the Tribunal suspended its order for six months to allow for consultation between the Commission and the Minister with respect to the measures ordered because of the "admitted concern for the potential abuse of the immigration process." The Attorney General then sought judicial review of the Tribunal's decision.
The Motions Judge allowed the application and set aside the decision of the Tribunal on the ground that the appellant had failed to establish a case of prima facie discrimination. With respect to the bona fide justification issue, the Motions Judge held that there was a breach of natural justice because the issues raised in the complaint had not been adequately defined. As a result, the Attorney General had no notice that she was required to justify all of the requirements pertaining to the immigration process for obtaining status as a permanent resident as contemplated by paragraph 5(2)(a) of the Citizenship Act. Finally, the Motions Judge concluded that the Tribunal lacked jurisdiction to make an order in favour of the appellant's two adopted children because they lacked the requisite standing as "victims" as defined in the Canadian Human Rights Act and, therefore, were not entitled to a remedy.
Analysis
The three issues identified above and decided by the Motions Judge were pursued on this appeal. My colleague, Justice Linden has circulated reasons which are comprehensive and, in my respectful opinion, persuasive as they pertain to two of those issues. I agree that the Motions Judge erred in concluding that the appellant failed to establish a case of prima facie discrimination and I adopt Justice Linden's reasons on this issue in their entirety. I am also persuaded that, in the circumstances of this case, the appellant qualifies as a "victim" under the Canadian Human Rights Act in that the discrimination suffered by the two adopted children was "unjustly visited" upon their adoptive mother, the appellant. Once again, I need only turn to the reasons of Justice Linden in support of that conclusion. Where I disagree with my colleague is with respect to the alleged breach of natural justice and his conclusion that paragraph 5(2)(a ) of the Citizenship Act is not in issue. Specifically, I cannot accept that the word "adopted", as it is used in paragraph 3(1)(b ) of the Citizenship Act, should be deemed to imply "legitimate" adoptions thereby rendering paragraph 5(2)(a ) inapplicable and by necessity the provisions of the Immigration Act. In my respectful view, it is inappropriate to imply such a term when the Citizenship Act expressly incorporates by reference the provisions of the Immigration Act which already deal with the issue of legitimate adoptions; that is to say adoptions of convenience. Moreover, I am not aware of any jurisprudence which supports the view that such adoptions can be blocked under an implied term of the Citizenship Act. Finally, and as will be explained below, paragraph 3(1)(b) of the Citizenship Act is not relevant to the case under appeal. Rather it is paragraph 3(1)(e) that requires our consideration together with paragraph 5(2)(a).
In my respectful opinion, the Tribunal did not err in recognizing the relevance of paragraph 5(2)(a) of the Citizenship Act. It erred in ruling on whether the requirements relating to permanent residency imposed by that section were justified by paragraph 15(g) of the Canadian Human Rights Act. The Minister was given no notice that paragraph 5(2)(a) was in issue and that he would be required to adduce evidence to justify each of its requirements. While focusing on this particular issue, I do not wish to leave the impression that I agree with the Tribunal's conclusion that the granting of citizenship constitutes a service customarily available to the general public within the meaning of the Canadian Human Rights Act and, therefore, that the Tribunal has the jurisdiction to negotiate with the responsible Minister the manner in which the provisions of the Citizenship Act are to be applied in future. As this particular issue was not pursued before either the Motions Judge or this Court, I do not propose to deal with it other than to lay to rest the mistaken view that this Court's decision in Canada (Attorney General) v. Druken, [1989] 2 F.C. 24 (C.A.) somehow supports the proposition that the denial of citizenship constitutes the denial of a service.
a) Druken
In Druken, a number of unemployment insurance claimants were denied benefits because they had been employed by their husbands as proscribed by paragraphs 3(2)(c) and 4(3)(d) [as am. by S.C. 1974-75-76, c. 80, s. 2] of the Unemployment Insurance Act, 1971 [S.C. 1970-71-72, c. 48]. A complaint was lodged with the Commission and the tribunal appointed to hear it held that the relevant provisions of that Act were discriminatory because they resulted in the denial of a service customarily available to the general public on the prohibited ground of marital status. The tribunal ordered the Unemployment Insurance Commission to cease enforcing the relevant provisions and to pay the complainants the benefits that they had been denied. In addition, it awarded $1000 to each of the claimants for "hurt feelings". While this Court refused to set aside the tribunal's decision, it did not endorse the understanding that the availability of unemployment insurance benefits constitutes a "service" within the meaning of section 5 of the Canadian Human Rights Act [S.C. 1976-77, c. 33]. Justice Mahoney, writing for the Court, specifically noted that the Attorney General had raised in his factum the arguments that such benefits do not qualify as a "service" and that the denial of unemployment benefits did not constitute discrimination on the ground of marital status. Justice Mahoney further noted that both issues were abandoned at the hearing of the judicial review application. At page 28, he stated:
While they were raised in the Attorney General's factum, arguments that the provision of unemployment insurance benefits is not a service customarily available to the general public and that its denial, by virtue of paragraphs 3(2)(c) of the U.I. Act and 14(a) of the U.I. Regulations, is based on marital and/or family status, were not pursued. The latter proposition seems so self-evident as not to call for comment. As to the former, the applicant appears to have found persuasive the dictum express in Singh (Re), [1989] 1 F.C. 430 (C.A.) . . . .
. . .
In any event, the tribunal's basic finding of fact that the respondents were victims of a proscribed discriminatory practice was not questioned.
In my opinion, Druken does not stand for the proposition that denial of unemployment insurance benefits constitutes denial of a service within the meaning of the Canadian Human Rights Act, but only that the Attorney General conceded as much. Of course, that concession does not mean that the Attorney General or this Court is estopped from considering the issue in subsequent cases. As this case is to be remitted to the Tribunal for reconsideration, I refrain from further comment and return to my analysis.
b) The Legal Framework
This case is somewhat complicated by the fact that the appellant's two adopted children were born and adopted when the Canadian Citizenship Act, 1970 was in force. That legislation was amended by the Citizenship Act, which came into force on February 15, 1977. For ease of explanation, I will refer to these two pieces of legislation as the "old Act" and "new Act", respectively. The appellant's request for Canadian passports for her adopted children was denied when the new Act was in force, in 1979. The complaint was lodged with the Commission in 1987.
Under the old Act, children adopted abroad by Canadian citizens did not acquire automatic citizenship on the date of their adoption. Citizenship had to be obtained through the process followed by all foreign nationals, commencing with the admission procedures under the Immigration Act. Automatic citizenship was only available to children born abroad whose biological fathers were Canadian citizens pursuant to paragraph 5(1)(b) of the old Act. Birth children did not automatically obtain the citizenship of their biological mothers, unless they were born out of "wedlock". (Paragraph 5(2)(b ) of the new Act corrected the previous inability of Canadian mothers to pass on their citizenship to their birth children born abroad. As to the invalidity of the old provision, see Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358.)
The new Act anticipated the problem of retroactivity by distinguishing between children born outside Canada prior to the new Act coming into force and those born afterwards. The distinction is found in paragraph 3(1)(b), which applies to children born after February 14, 1977, and paragraph 3(1)(e), which applies to children born prior to that date. Those sections read as follows:
3. (1) Subject to this Act, a person is a citizen if
. . .
(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;
. . .
(e) the person was entitled, immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the former Act.
As is clearly stated in paragraph 3(1)(e), children born outside Canada prior to the new Act coming into force (which includes the appellant's two adopted children) are entitled to automatic citizenship, if they come within paragraph 5(1)(b) of the old Act. But, as discussed above, that provision only extended automatic citizenship to those children who could either establish that their biological father was a Canadian citizen or that their biological mother was a Canadian citizen if they were born out of "wedlock". Thus, the only way the appellant's two adopted children can attain Canadian citizenship is through paragraph 5(2)(a ) of the new Act, which incorporates by reference the permanent residency requirement under the Immigration Act. That provision reads:
5. . . .
(2) The Minister shall grant citizenship to any person who
(a) has been lawfully admitted to Canada for permanent residence, has not ceased since that admission to be a permanent resident pursuant to section 24 of the Immigration Act, and is the minor child of a citizen if an application for citizenship is made to the Minister by a person authorized by regulation to make the application on behalf of the minor child;
With respect to children born outside Canada after the new Act came into force, paragraph 3(1)(b) states that such children are entitled to automatic citizenship if he or she qualifies as birth children of a Canadian citizen. If they fail to so qualify, then paragraph 5(2)(a) of the new Act applies in the same manner as it does to children born abroad prior to that date. In summary, children born abroad and adopted by Canadian citizens are not entitled to automatic citizenship under either the old or the new Act. They must satisfy the requirements stipulated by the Immigration Act in force at the relevant date.
c) The Error
Against this background, it is apparent that the prima facie discrimination which the appellant and her two adopted children have suffered arises from the application of paragraphs 3(1)(e) and 5(2)(a) of the new Act. Discrimination arises under paragraph 3(1)(e) because it denies the appellant's adopted children the right to automatic citizenship, which is accorded birth children who are born abroad to Canadian citizens. Discrimination arises under paragraph 5(2)(a) because it imposes on adopted children the burden of gaining admission to Canada as permanent residents, in accordance with all of the relevant criteria set out in the Immigration Act. Paragraph 3(1)(b) is also a source of discrimination but it has no application here because it only applies to children born after February 14, 1977. As noted at the outset, the appellant's two adopted children were born prior to this date. I think it is important to recognize that it is not the provisions of the Immigration Act which are discriminatory; it is the fact that paragraph 5(2)(a) of the Citizenship Act incorporates by reference the requirements pertaining to permanent residency imposed under the Immigration Act.
Once the appellant established a prima facie case of discrimination, the onus was on the Minister to establish a bona fide justification for the discriminatory practice pursuant to paragraph 15(g) of the Canadian Human Rights Act. In my view, in order to meet that obligation, the Minister needed to address each criterion imposed under the Immigration Act relating to admission as a permanent resident. Specifically, the Minister was under an obligation to establish that each of the requirements was "reasonably necessary" in that no reasonable alternatives were available which were less burdensome on adopted children born abroad and which would permit the Minister to achieve Parliament's objectives: see Zurich Insurance Co. v. Ontario (Human Rights Commission) , [1992] 2 S.C.R. 321; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279. Unfortunately, the Minister did not do so for the reasons which follow.
The appellant's initial complaint to the Commission did not isolate any particular section of the new Act (hereinafter the "Citizenship Act"), nor did it specifically refer to that Act. The transcript of the closing arguments advanced before the Tribunal reveals that, from the outset, the Commission had argued that the discriminatory practice flowed from the application of paragraph 3(1)(b ) of the Citizenship Act. Understandably, the Minister took the position that this section was inapplicable in view of the fact that it applied only to persons born after February 14, 1977, and that the appellant's two adopted children were born prior to that date. It is also evident that the Commission took the position that the appellant's two adopted children were entitled to automatic citizenship. Both parties focused on whether the differential treatment giving rise to the discriminatory practice was justified in terms of the need to curtail adoptions of convenience. The position of the Commission before the Tribunal was that there was insufficient evidence to support the proposition that such a problem existed, or that it existed with respect to adoptions carried out in Ireland. Each of the three witnesses who testified on behalf of the Minister directed their evidence to this issue alone. It was not until the end of argument in reply that the Commission suggested, for the first time, that paragraph 5(2)(a) of the Citizenship Act was in issue. But, in my view, it was too late to pursue this line of attack without reopening the hearing. Strictly speaking, the Tribunal could have dismissed the complaint once it concluded that "to allow adopted children Canadian citizenship as of right would be to create an avenue for the circumvention of the Canadian immigration process" (Tribunal's reasons, at page 36). In my respectful view, the Motions Judge did not err in fact in concluding that there was a breach of natural justice in this case. Specifically, I can find no error in the following two passages from her reasons for order [at pages 702-703]:
I have determined that there was a failure of natural justice which appears to have occurred because the issues were never adequately identified or defined. The complainant did not refer to a section of the Citizenship Act in her complaint. The text of the complaint focuses on automatic citizenship and the daughters' ineligibility for citizenship as of right. No mention is made of the naturalization process and this makes sense in context. Since the McKenna family had no intention of residing in Canada, the complainant never thought to use the naturalization process to apply for citizenship for her daughters. During the hearing, counsel for the Commission cross-examined at length on the question of permanent residence which, he argues, was relevant only because paragraph 5(2)(a) was at issue. The Commission's position appears to be that the Attorney General should be expected to discover the fundamental nature of the case from opposing counsel's cross-examination. This argument cannot succeed especially because paragraph 5(2)(a) was never mentioned by the Commission in final argument"not even in its reply. What the Commission did say in its main argument was that it sought a remedy under section 3 of the Citizenship Act . This is the section which conferred automatic citizenship on the sons.
Much later, at the end of argument in reply, Commission counsel suggested for the first time "It is 5(2)(b ) which is most directly applicable to Mrs. McKenna's case . . . I think 5(2)(b) can cover Mrs. McKenna's situation." In response, the Tribunal inquired "Where does that leave you with your request for a remedy then? Your remedy request was directed to section 3." A discussion followed in which the Tribunal asked counsel for direction about whether she had jurisdiction to "deal with another section that wasn't involved in this case." In my view, she did not receive a helpful response. Thereafter, counsel for the respondent closed the hearing by objecting to the Commission's tactic of raising paragraph 5(2)(b ) for the first time in reply. In summary, it is clear that paragraph 5(2)(a) was never discussed. I am therefore satisfied that there was a failure of natural justice in that counsel for the respondent had no notice that he was required to defend and justify paragraph 5(2)(a).
Disposition
I would dismiss the appeal without costs, and affirm the Motions Judge's order allowing the judicial review application and setting aside the Tribunal's decision. However, I would vary that order to the extent that the matter be remitted to the Tribunal for reconsideration and disposition in accordance with these reasons.
1 [1997] 1 S.C.R. 358.
2 Letter dated May 12, 1986, Appeal Book, Vol. II, at p. 232.
3 See Immigration Act, R.S.C., 1985, c. I-2, ss. 19 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3; S.C. 1992, c. 47, s. 77; c. 49, s. 11; 1995, c. 15, s. 2; 1996, c. 19, s. 83], 24 [as am. by S.C. 1995, c. 15, s. 4], 27 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 47, s. 78; c. 49, s. 16; 1995, c. 15, s. 5]; Immigration Regulations, 1978, [SOR/78-172], s. 2.
4 Mrs. McKenna made another try at obtaining citizenship for her daughters under s. 5(4) of the Citizenship Act on January 31, 199l by writing the Minister then responsible for citizenship, but this effort was not successful either.
5 R.S.C., 1985, c. H-6.
6 [1993] C.H.R.D. No. 18 (QL), at p. 38.
7 [1995] 1 F.C. 694 (T.D.), at p. 702.
8 Supra, note 1.
9 Ibid., at pp. 404-405.
10 It was determined before the Tribunal that the granting of citizenship was a "service" within the meaning of that word as it appears in s. 3 of the Canadian Human Rights Act . No argument was made with regard to this point before the Trial Division or in this Court and so I will not comment upon it.
11 See, e.g., Adoption Act, R.S.B.C. 1936, c. 6, s. 10(1); Adoption Act, R.S.N.B. 1952, c. 3, s. 30(2).
12 [1962] S.C.R. 235.
13 Ibid., at p. 240.
14 R.S.C., 1985, c. C-46 [s. 155 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 21)].
15 (1996), 29 O.R. (3d) 496 (Gen. Div.), revd (1997), 35 O.R. (3d) l (C.A.).
16 Ibid., at p. 513.
17 But see Schachter v. Canada, [1992] 2 S.C.R. 679 and Schafer v. Canada (Attorney General) (1997), 35 O.R. (3d) 1 (C.A.); rev. (1996), 29 O.R. (3d) 496 (Gen. Div.).
18 See British Nationality Act 1981 (U.K.), 1981, c. 61, s. 3(1).
19 Immigration and Nationality Act, 8 U.S.C. " 1433 (1994).
20 See also, Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption, The Hague, May 29, 1993.
21 R.S.O. 1990, c. C.11, s.158(2) first enacted as An Act to revise The Child Welfare Act, S.O. 1978, c. 85, s. 86.
22 R.S.S. 1978, c. F-7, s. 60(2)(b).
23 See Child Welfare Act, S.A. 1984, c. C-8.1, s. 65; Adoption Act, R.S.B.C. 1996, c. 5, s. 37; The Child and Family Services Act, S.M. 1985-86, c. 8, s. 61(1); Adoption Act, R.S.N.B. 1973, c. A-3, s. 30; Adoption of Children Act, R.S.N. 1990, c. A-3, s. 20; Children's Services Act, R.S.N.S. 1989, c. 68, s. 23; Adoption Act, R.S.P.E.I. 1988, c. A-4, s. 18(1); Civil Code of Québec, S.Q. 1991, c. 64, art. 569.
24 Adoption Act, 1976, Acts of the Oireachtas, Vol. II, No. 29, s. 7.
25 See Child Welfare Act, S.A. 1984, c. C-8.1, s. 70; Adoption Act, R.S.N.B. 1973, c. A-3, s. 35; Adoption of Children Act, R.S.N. 1990, c. A-3, s. 24; Children's Services Act, R.S.N.S. 1989, c. 68, s. 29; Adoption Act, R.S.P.E.I. 1988, c. A-4, s. 26; The Family Services Act, R.S.S. 1978, c. F-7, s. 66.
26 See Adoption Act, R.S.B.C. 1996, c. 5, s. 47; The Child and Family Services Act, S.M. 1985-86, c. 8, s. 57; and Civil Code of Québec, S.Q. 1991, c. 64, Art. 574.
27 [1987] 1 S.C.R. 1114.
28 Ibid., at p. 1134.
29 [1985] 2 S.C.R. 536.
30 Ibid., at p. 547.
31 [1992] 2 S.C.R. 1103.
32 Ibid., at p. 1154, in dissent.
33 [1989] 1 S.C.R. 143.
34 Ibid., at pp. 174-175.
35 No issue of retrospectivity was raised in this case in the light of the decision of the Supreme Court of Canada in Benner v. Canada (Secretary of State), [1997] l S.C.R. 358, as a result of which the decision of this Court in Bell v. Canada (Minister of Employment & Immigration) (1996), 136 D.L.R. (4th) 286 (F.C.A.) would likely be decided differently today.
36 Supra, note 7, at p. 700.
37 Supra, note 6, at p. 26.
38 Supra, note 1.
39 Ibid., at p. 386.
40 [1991] 1 F.C. 391 (C.A.).
41 Ibid., at pp. 408-409.
42 See Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202.
43 (1996), 34 Imm. L.R. (2d) 53 (I.R.B. (App. Div.)).
44 [1990] 3 F.C. 37 (C.A.); see also Gill v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 251 (F.C.T.D.); affd (1998), 229 N.R. 267 (F.C.A.), where Marceau J.A. stated, at p. 271:
It is logical that we be concerned, not only with proof of the legality of the foreign adoption, but also with proof of the creation of a genuine parent-child relationship without which the adopted individual could not be seen as an authentic family member.
45 Ibid., at p. 43.
46 Supra, note 7, at p. 702.
47 This is somewhat paradoxical, as, by the terms of these reasons, the daughters should have been treated as citizens from the time of their adoption.
48 Supra, note 1, at p. 401.
49 [1992] 3 F.C. 69l (C.A.), at p. 701.
50 [1993] 2 F.C. 314 (C.A.).
51 Glynos, supra, note 49, at p. 701.
52 Action Travail des Femmes, supra, note 27, at p. 1134.
53 [1989] 1 F.C. 430 (C.A.).
54 Ibid., at p. 442.
55 [1989] 2 F.C. 24 (C.A.).
56 Ibid., at p. 35.
57 I therefore think that it would be wise not to comment on this issue.