In re John Berry Schmitz (Appellant)
Citizenship Appeal Court, Collier J.—Quesnel,
B.C., October 20; Ottawa, October 27, 1972.
Civil rights—Citizenship—Residence requirements for wife
of Canadian citizen less stringent than for male applicant—
Whether discriminatory by reason of sex—Bill of Rights.
An application for Canadian citizenship was rejected by
the Citizenship Court because the applicant had not resided
in Canada for 5 of the last 8 years preceding his application
as required by section 10(1)(c)(i) of the Canadian Citizen
ship Act, R.S.C. 1970, c. C-19. The applicant, a male,
appealed on the ground that the residence requirement
discriminated by reason of sex since (section 10(1)(c)(iii))
there was a different residence requirement for the wife of
a Canadian citizen.
Held, dismissing the appeal, section 10 did not discrimi
nate by reason of sex but merely differentiated between
married and single women. Moreover, even if there was
discrimination in the enactment the Court could at most
declare the offensive part inoperative.
R. v. Drybones [1970] S.C.R. 282, referred to.
APPEAL from Citizenship Appeal Court.
Alex M. Shkuratoff amicus curiae.
COLLIER J.—The appellant, an American,
was admitted to Canada and granted landed
immigrant status on June 1, 1968. He studied
law and obtained his degree from the University
of British Columbia in 1971. In that same year
he married a Canadian citizen from Kamloops,
B.C. He is presently an articled law student at
Quesnel, B.C., where this appeal was heard. He
cannot be called to the bar of British Columbia
until he has become a Canadian citizen.
On December 7, 1971, he applied for Canadi-
an citizenship. The Citizenship Court, on May
31, 1972, recommended against the granting of
citizenship on the grounds the appellant had not
resided in Canada for five of the last eight years
preceding his application, in accordance with s.
10(1)(c)(i) of the Canadian Citizenship Act,
R.S.C. 1970, c. C-19. The relevant parts of s. 10
are as follows:
10. (1) The Minister may, in his discretion, grant a cer
tificate of citizenship to any person who is not a Canadian
citizen and who makes application for that purpose and
satisfies the Court that,
(a) he has attained the age of twenty-one years, or he is
the spouse of and resides in Canada with a Canadian
citizen;
(b) he has resided in Canada for at least twelve of the
eighteen months immediately preceding the date of his
application;
(c) the applicant has
(i) been lawfully admitted to Canada for permanent
residence and has, since such admission, resided in
Canada for at least five of the eight years immediately
preceding the date of application, but for the purpose
of this subparagraph, each full year of residence in
Canada by the applicant prior to his lawful admission to
Canada for permanent residence is deemed to be one-
half year of residence in Canada within the eight year
period referred to in this subparagraph,
(ii) served outside of Canada in the armed forces of
Canada in a war in which Canada was or is engaged or
in connection with any action taken by Canada under
the United Nations Charter, the North Atlantic Treaty
or other similar instrument for collective defence that
may be entered into by Canada,
(iii) been lawfully admitted to Canada for permanent
residence and is the wife of a Canadian citizen, or
(iv) had a place of domicile in Canada for at least
twenty years immediately before the 1st day of Janu-
ary, 1947, and was not, on that date, under order of
deportation;
There is no doubt the appellant's application
is premature if the five-year provision of s.
10(1)(c)(i) is operative. The appellant, however,
seeks to apply the provisions of the Canadian
Bill of Rights. He argues there is discrimination
by reason of sex, and points to s. 10(1)(c)(iii) of
the Canadian Citizenship Act. If one reads that
subparagraph with s. 10(1)(b), it seems to be
clear that an alien female who is or becomes the
wife of a Canadian citizen need only reside in
Canada for one year in order to apply for
citizenship.
I am not convinced that there is discrimina
tion by reason of sex which results in inequality
before the law. It seems to me in section 10 of
the Canadian Citizenship Act there is a dif
ferentiation or distinction made in respect to the
status of females. The foreign female who is or
becomes the wife of a Canadian citizen is given
a different status in respect to citizenship and
this seems to me to be the result of the histori-
cal process and concepts in which a wife may
be deemed to take the citizenship and domicile
of her husband. It accords with the theory,
historically at least, if not subscribed to by
females today, that the husband is the head of
the house.
There is nothing in the Bill of Rights which
forbids differentiation in respect to status as
between married and single women under the
Canadian Citizenship Act.
Even if there were discrimination by reason
of sex, as argued by the appellant, I am unable
to see what the Court can do in this case. It
seems clear from the majority judgment of the
Supreme Court in R. v. Drybones [1970] S.C.R.
282 that if there is discrimination in a law then
the offensive part must be declared to be inop
erative. It is not contended by the appellant
here that there should be no required period of
residence in Canada; he merely argues that the
period of residence for a male spouse should be
the same as that for a female spouse: one year.
To my mind, if I made such a declaration, the
Court would be at the least amending the legis
lation passed by Parliament and not merely
holding it to be inoperative.
There is, it seems to me, a further problem
(again assuming discrimination): which part of
section 10 is to be declared offensive, the
requirement of one year's residence on the part
of the female spouse or the 5-year residence
requirement on the part of most other persons?
To hold one way or the other would, to my
mind, be amendment of the legislation, which is
not contemplated by the Bill of Rights.
The appeal is dismissed.
As provided by Rule 917 of the Rules of the
Federal Court of Canada, no costs will be
awarded to anyone.
I am sympathetic to the appellant. He argued
his case in person and so far as I could see
qualifies in all respects, except the one of resi
dence, for citizenship. I feel he would make a
good citizen. He took this somewhat novel legal
point to the Citizenship Court but was unaware,
until after the decision of that Court, of section
14 of the Canadian Citizenship Act which pro
vides that when an application has been reject
ed by the Court, the applicant must wait for a
period of 2 years from the date of such rejec
tion before making a new application. I mention
this to emphasize that the appellant's point was
taken in good faith but unfortunately he has, in
fact, lengthened the time in which he will have
to reside in Canada before he can become a
citizen.
I express no opinion as to whether or not the
Minister has any discretion to abridge the time
limits set out in section 14.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.