Décision

[1]           Section 3(1)(b) of the Citizenship Act[1] provides that a child born abroad is a Canadian citizen if, at the time of birth, one of his or her parents — other than an adoptive parent — was a Canadian citizen. It has been interpreted and applied by the Minister of Immigration, Refugees and Citizenship (“Minister”) as requiring a biological link between the child and his or her Canadian parent.

[2]           This requirement was key to the Minister’s refusal of the plaintiffs’ application for a certificate of Canadian citizenship for their son Benjamin, who was born in the Netherlands. Being a same-sex couple, the plaintiffs required assisted human reproduction (“AHR”) and Benjamin was carried by Ms. van der Ven, who is Dutch.[2] While Ms. Caron is a Canadian citizen, she has no biological link to Benjamin, whose only path to Canadian citizenship — besides the regular immigration process — is through an application for a discretionary grant under section 5(4) of the Citizenship Act. This situation contrasts sharply with that of the plaintiffs’ second child, Anna: because she was carried by Ms. Caron, Anna was recognized as a Canadian citizen by virtue of section 3(1)(b) of the Citizenship Act.[3]

[3]           The plaintiffs are asking the Court to declare that, on a proper interpretation of section 3(1)(b), no biological link is required between a child and his or her Canadian parent. They contend that the Minister’s reading of section 3(1)(b) has a disproportionately negative impact on same-sex families and families that are unable to have children without AHR or surrogacy arrangements, and that it conflicts with the right to equality guaranteed by section 15(1) of the Canadian Charter of Rights and Freedoms (“Charter”). The plaintiffs add that section 3(1)(b) can be fairly interpreted as not requiring a biological link between the child and his or her Canadian parent, and that this interpretation must prevail given the rule according to which a statutory provision ought to be construed, whenever possible, so as to ensure its conformity with relevant constitutional requirements.

[4]           In the alternative — that is, should the Court find that section 3(1)(b) can only be read as requiring a biological link between the child and his or her Canadian parent —, the plaintiffs’ position is that section 3(1)(b) conflicts with the Charter and ought to be read down so as to render this requirement inapplicable.

[5]           The plaintiffs are also seeking an order declaring that the Minister’s interpretation of section 3(1)(b) as requiring a biological link between Benjamin and Ms. Caron breached and continues to breach their — as well as Benjamin’s — Charter right to equality.

[6]           This case is somewhat unusual in that the Attorney General of Canada agrees with the plaintiffs that the Minister’s reading of section 3(1)(b) brings it in conflict with section 15(1) of Charter, and that the provision can and should rather be read as not requiring a biological link between a child and his or her Canadian parent. The Attorney General of Canada further agrees that the Court ought to issue a declaratory order clarifying the proper interpretation of section 3(1)(b).

[7]           One last introductory observation is warranted. It concerns this Court’s subject-matter jurisdiction, which was discussed during the July 3, 2020 hearing. The parties are right that the plaintiffs’ application is properly before this Court. While the plaintiffs have not commenced judicial review proceedings before the Federal Court of Canada, at no stage of the present proceedings have they sought an order quashing the Minister’s decision to deny a certificate of citizenship for Benjamin. From the outset, this case has fundamentally been about the constitutionality of section 3(1)(b) itself and/or the Minister’s interpretation thereof. Therefore, there is no basis to conclude that the plaintiffs should rather have proceeded before the Federal Court.[4]

I. Is section 3(1)(b) of the Citizenship Act ambiguous?

[8]           I begin by considering whether section 3(1)(b) of the Citizenship Act contains an ambiguity that triggers the rule according to which a statutory provision ought to be construed, whenever possible, so as to ensure its conformity with relevant constitutional requirements. While the parties concede that section 3(1)(b) can be reasonably interpreted as requiring a biological link between the Canadian parent and the child, they contend that it can also be fairly read as applying to all non-adoptive legal parents.

[9]           They are correct.

[10]        Section 3(1)(b) was carefully and thoroughly analyzed by the Federal Court of Appeal in its 2014 decision in Kandola.[5] That case involved a Canadian father and an Indian mother who, because they were both infertile, resorted to in vitro fertilization using sperm and eggs from two anonymous donors. After the birth of their daughter Nanakmeet, Mr. and Mrs. Kandola applied for a certificate of Canadian citizenship. Their application was dismissed on the ground that Nanakmeet had no biological link to her Canadian father.

[11]        Applying a standard of correctness, the Federal Court of Appeal — in a split decision — upheld that dismissal. Justice Marc Noël, writing for the majority, emphasized what he considered to be a significant discrepancy between the English and French versions of section 3(1)(b), which read as follows:

[Emphasis added]

[12]        According to the majority, the use of the terms “née […] d’un père ou d’une mère” entails that a biological link must exist between the child and the Canadian parent. While the English version does not require that the child be “born to” a Canadian parent, the majority held that “the French text by reason of its greater precision should be preferred to the English text.”[6]

[13]        The majority was mindful that the terms “née […] d’un père ou d’une mère” were enacted pursuant to the 1985 administrative revision of federal statutes. It was also mindful that no substantive legal changes were intended to be made pursuant to that revision.[7] However, it held that the terms “née […] d’un père ou d’une mère” merely made clearer a biological link requirement that already existed in the previous version of section 3(1)(b), dating back from 1977 and reading as follows:[8]

[Emphasis added]

For the majority, the use of the terms “le père ou la mère” in the 1977 text signaled Parliament’s intention to limit the scope of section 3(1)(b) to biological parents. In reaching that conclusion, it relied on dictionary definitions emphasizing a biological connection to the child:[9]

[T]he terms “père” and “mère”, in the prior text, already conveyed the idea that there had to be a genetic/gestational connection, as evidenced by the primary definition of the word “père” —“Homme qui a engendré, qui a donné naissance à un ou plusieurs enfants” and the word “mère” — “Femme qui a mis au monde un ou plusieurs enfants” (Le Petit Robert, 2006; to the same effect see Le Grand Robert, 1996; Le Petit Larousse, 1999; Multidictionnaire de la langue française, 2003).

[14]        The majority also found that interpreting section 3(1)(b) as requiring a biological link between the child and the Canadian parent was consistent with the provision’s purpose of conferring derivative citizenship in an automatic manner.[10] It added that interpreting section 3(1)(b) as applying to all non-adoptive legal parents would constitute a significant change from existing law that only Parliament could legitimately make.[11]

[15]        The dissenting judge — Justice Robert Mainville, now of the Québec Court of Appeal — disagreed that the 1985 revision of section 3(1)(b)’s French version merely clarified an already-existing requirement of a biological link between the child and his or her Canadian parent. To him, both versions of the provision enacted in 1977 not only read exactly the same, but also contained language indicating that Parliament had not intended to limit the provision’s scope to biological parents:[12]

[H]ad Parliament intended to use the term “parent” exclusively in its biological or genetic sense, it would not have been necessary to expressly exclude adoptive parents from the ambit of paragraph 3(1)(b). By specifically adding the words “other than a parent who adopted him” (“mais non un parent adoptif” in the French version of the 1977 Act), Parliament has clearly indicated that the notion of “parent” which it uses in that paragraph is intended to refer to a legally recognized parent. Indeed, an adoptive parent has no genetic or biological link with his or her adopted child, but is nevertheless a “parent” under the legal meaning of the term. Had only a biological or genetic link been intended, that exclusion would have not been required, or the words used would have been quite different.

[16]        Justice Mainville also pointed to one of section 3(1)(b)’s main purposes, which he considered to be “to expand derivative citizenship […] by eliminating the prior legal restrictions affecting illegitimate children.”[13] He added that he could not understand “how this provision [could] be interpreted so as to restrict derivative citizenship with respect to children born in wedlock to Canadian fathers with whom they have a legitimate and enforceable legal link, even though a genetic link may be absent.”[14] Elaborating on his purposive analysis, he then touched on section 3(1)(b)’s broader purpose:[15]

The clear purpose of all the above-mentioned amendments to the Citizenship Act is to treat all children of Canadian citizens substantially equally, irrespective of the circumstances of their birth. That purpose is consistent with treating the child of a Canadian citizen who is born as a result of a medical fertilization technique in substantially the same manner as a child born with a genetic link or an adopted link to a Canadian citizen.

[17]        While the majority’s decision in Kandola shows that the Minister’s reading of section 3(1)(b) of the Citizenship Act is a plausible one, it is clear from Justice Mainville’s forceful dissent that section 3(1)(b) can also be fairly read as not requiring a biological link between the child and his or her Canadian parent. The majority did not seem to take issue with this point, as nowhere in its reasons did it find nor suggest that section 3(1)(b) could only be read as requiring such a biological link.

[18]        It also bears noting that, as the majority pointed out,[16] no Charter issue was raised in Kandola. Consequently, the Court did not have to consider whether any ambiguity regarding section 3(1)(b)’s scope ought to be resolved so as to ensure its conformity with relevant constitutional requirements. Justice Mainville did mention, however, that the broader interpretation he favoured seemed more consistent with Canadian human rights legislation as well as with the Charter.[17]

II. Does the Minister’s interpretation of section 3(1)(b) of the
Citizenship Act bring it in conflict with section 15(1) of the Charter?

[19]        Having found that the Federal Court of Appeal’s split decision in Kandola clearly shows that section 3(1)(b) of the Citizenship Act is ambiguous, I now turn to the parties’ contention that interpreting its terms as requiring a biological link between the child and his or her Canadian parent brings it in conflict with section 15(1) of the Charter, which reads as follows:

[20]        In order to determine if the Minister’s interpretation of section 3(1)(b) is inconsistent with section 15(1), the analysis is in two parts. I must first consider whether that interpretation creates a distinction based on grounds that are expressly enumerated in section 15(1) or analogous thereto. If so, I must then consider whether the Minister’s interpretation imposes burdens or denies benefits in a manner that reinforces, perpetuates or exacerbates disadvantages faced by those who are treated differently on the basis of enumerated or analogous grounds.[18]

[21]        The Minister’s interpretation creates a distinction based on prohibited grounds. The Minister’s interpretation of section 3(1)(b) Citizenship Act has the effect of treating biological and non-biological parents differently: the former automatically pass on their Canadian citizenship to their foreign-born children, but the latter do not. If the Minister’s interpretation prevailed, section 3(1)(b) would, on its face, create a distinction based on the manner of conception, which has rightly been held to constitute an analogous ground of discrimination for the purposes of section 15(1) of the Charter.[19]

[22]        The Minister’s interpretation is also problematic in that it causes section 3(1)(b) of the Citizenship Act to have a disproportionately negative impact on same-sex families. Children of opposite-sex couples ordinarily have a biological link to both parents, which entails that a child born abroad to a Canadian mother and a non-Canadian father (or vice-versa) will generally be a Canadian citizen pursuant to section 3(1)(b). However, because most[20] children of same-sex couples do not have a biological link to both parents, section 3(1)(b) will only apply to children conceived pursuant to an AHR process that led to the creation of a biological link with their Canadian parent. Therefore, one consequence of requiring a biological link between the child and his or her Canadian parent is that comparatively fewer parents in same-sex relationships will automatically pass on their Canadian citizenship to their children than parents in opposite-sex relationships.

[23]        The inability to benefit from section 3(1)(b) of the Citizenship Act has significant practical consequences for same-sex families who are in a similar situation than the plaintiffs’. That is because their child’s paths to Canadian citizenship will generally be much more complex and uncertain. It is undoubtedly the case with respect to the regular immigration process, which — in any event — will only be an option for families who are willing to relocate to Canada. It is also true of the discretionary grant process provided for in section 5(4) of the Act,[21] a process which the plaintiffs were invited to consider after the Minister refused to revise its initial decision denying Benjamin Canadian citizenship under section 3(1)(b).[22] As noted by Professor Stefanie Carsley, whether many children in Benjamin’s situation would benefit from section 5(4) is far from clear given the Minister’s policy to limit discretionary grants of citizenships to “very exceptional cases.”[23]

[24]        Moreover, these alternative paths to Canadian citizenship will generally be much more time-consuming. As Professor Carsley further explains, “while a child who is eligible for derivative citizenship may obtain a citizenship certificate within 5 to 9 months, children lacking a genetic connection to their parents may need to wait over 7 years before they obtain Canadian citizenship.”[24]

[25]        As the Supreme Court explained in Withler, a distinction engaging section 15(1) of the Charter can result from a law that “has a disproportionately negative impact on a group or individual that can be identified by factors relating to enumerated or analogous grounds.”[25] The significant and disproportionately negative impact that the Minister’s interpretation of section 3(1)(b) of the Citizenship Act has on same-sex families amounts to such a distinction.

[26]        Furthermore, that distinction being related to sexual orientation, it is undeniably based on an analogous ground of discrimination within the meaning of section 15(1) jurisprudence.[26]

[27]        The Minister’s interpretation denies benefits in a manner that reinforces, perpetuates or exacerbates disadvantages faced by same-sex families. As was mentioned earlier, the second part of the section 15(1) analysis focuses on whether the provision at issue imposes burdens or denies benefits and, if so, whether it does so in a manner that reinforces, perpetuates or exacerbates disadvantages faced by those who are treated differently on the basis of enumerated or analogous grounds.[27]

[28]        Clearly, the Minister’s reading of section 3(1)(b) of the Citizenship Act has the effect of denying, to a disproportionate number of same-sex parents, a significant benefit — the ability to automatically pass on their Canadian citizenship to their foreign-born children — which is enjoyed by most opposite-sex parents.

[29]        The Minister’s interpretation also denies foreign-born children in Benjamin’s situation a significant benefit — Canadian citizenship itself —, and it is important to understand that it does so in a manner that engages their constitutional right to equality as well.

[30]        Of course, by its very nature, a distinction based on the manner of conception necessarily engages both the parents’ and the child’s interests.

[31]        But this is also true of the sexual orientation-based distinction that results from the Minister’s interpretation of section 3(1)(b). So much is clear from the Supreme Court’s decision in Benner,[28] which struck down provisions of the Citizenship Act pursuant to which a person born abroad before a certain date would be granted citizenship on application if born to a Canadian father, but would be required to undergo a security check and to swear an oath if born to a Canadian mother. The Court found that the provision constituted a denial of equal benefit of the law because it restricted “[a]ccess to the valuable privilege of Canadian citizenship […] in different degrees depending on the gender of an applicant’s Canadian parent.”[29] Moreover, the Court rejected an argument according to which any discrimination imposed by the provision only impacted an applicant’s mother and not the applicant him or herself. Noting that the “[t]he link between child and parent is of a particularly unique and intimate nature,”[30] the Court held that an applicant could personally invoke the protection of section 15(1) “where access to benefits such as citizenship is restricted on the basis of something so intimately connected to and so completely beyond the control of [that] applicant as the gender of his or her Canadian parent.”[31] The analysis must be the same where access to citizenship is restricted on the basis of the sexual orientation of a person’s parents.

[32]        While it is therefore clear that the Minister’s interpretation denies significant benefits, it is equally clear that it does so in a manner that perpetuates or exacerbates disadvantages faced by same-sex couples.

[33]        Courts are well aware of those disadvantages, which have historically been both numerous and significant. Twenty-five years ago, in Egan, the Supreme Court recognized that “homosexuals, whether as individuals or couples, form an identifiable minority who have suffered and continue to suffer serious social, political and economic disadvantage.”[32] A few years later, in Vriend, the Supreme Court found that members of the LGBTQ+ community continued to face “cruel and unfortunate” discrimination while underscoring the protection that they “so urgently need[ed].”[33] More recently, the Whatcott case highlighted the deplorable fact that LGBTQ+ people continue to be subjected to hateful speech.[34]

[34]        What is particularly relevant to the present case is the fact that those disadvantages entailed, among other things, that same-sex couples were denied equal opportunities to start families of their own. Until fairly recently, same-sex partners could not jointly apply for adoption.[35] And until even more recently, there were practically no circumstances under which they could carry out parental projects pursuant to which they would both be readily recognized as legal parents.[36] Underlying this denial of equal opportunities was the idea that the parental projects of same-sex partners were less worthy of recognition and promotion than those of opposite-sex partners.

[35]        Moreover, as the facts of the present case show, the Minister’s reading of section 3(1)(b) of the Citizenship Act not only perpetuates and exacerbates these disadvantages, but it does so in a manner that significantly compromises the dignity of same-sex parents who are denied the possibility of passing on their Canadian citizenship to their foreign-born children.[37]

[36]        Ms. Caron applied for a citizenship certificate for Benjamin shortly after his birth, and she did so because passing on her Canadian citizenship to her children is of fundamental importance to her.[38] It took nearly one year before the Canadian embassy in The Hague got back to her, enquiring about whether she was Benjamin’s birth mother.[39] Ms. Caron found this enquiry “intrusive, insulting and demeaning”[40] given that both she and Ms. van der Ven are Benjamin’s legal parents. She was devastated when, two months later, she learned that her application had been dismissed because she has no biological link to Benjamin.[41] As she poignantly explains in her sworn statement:[42]

[H]ere I was with a letter from my government, telling me I was not a “real” mother because I did not physically give birth to my son; that I was not worthy of dignity and respect, that I did not have the same rights as other Canadians to pass citizenship on to my child; that my son, Benjamin, was not worthy of dignity, and respect, and did not have the same rights as other children of Canadian parents.

It felt like an attack on same-sex families like mine, who will disproportionately be in the same position as we are. In order to have a family, we will need AHR, and only one of us can carry our child.

[37]        Conclusion on the section 15(1) issue. As the Supreme Court explained, “[t]he root of s. 15 is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed.”[43] Therefore, “[i]f the state conduct widens the gap between the historically disadvantaged group and the rest of society rather than narrowing it, then it is discriminatory.”[44] These observations are fully applicable here: the Minister’s interpretation of section 3(1)(b) of the Citizenship Act widens the gap between members of the LGBTQ+ community and the rest of society, and it thus brings that provision in conflict with section 15(1) of the Charter.

[38]        There is no need to push the analysis further by engaging in a section 1 analysis, because the Attorney General of Canada — who would bear the burden of justifying a violation of section 15(1)[45] — has conceded that reading section 3(1)(b) as requiring a biological link between the child and his or her Canadian parent would cause that provision to breach the Charter.

[39]        As the Supreme Court recently reiterated, “if the text of the legislation is capable of bearing a meaning that is constitutionally valid, then the courts will give it that meaning.”[46] This rule of interpretation dictates the answer to the question regarding section 3(1)(b)’s proper scope: it is to be read as not requiring a biological link between the child and his or her Canadian parent.

III. Remedies

[40]        I agree with the parties that it is undoubtedly in the interest of justice to clarify the proper interpretation of section 3(1)(b) of the Citizenship Act through a declaratory order.

[41]        The plaintiffs are also asking for an order declaring that the Minister’s interpretation of section 3(1)(b), as applied to Benjamin, breaches section 15(1) of the Charter. That particular request — on which the Attorney General of Canada took no position — is based on section 24(1) of the Charter, which provides that anyone whose rights and freedoms thereunder have been infringed or denied may obtain “such remedy as the court considers appropriate and just in the circumstances/la réparation que le tribunal estime convenable et juste eu égard aux circonstances.”

[42]        In Doucet-Boudreau, the Supreme Court made it clear that the “generous and expansive interpretive approach” that applies to Charter rights and freedoms “holds equally true for Charter remedies.”[47] The Court added that “remedies provisions must be interpreted in a way that provides ‘a full, effective and meaningful remedy for Charter violations’ since ‘a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach.’”[48]

[43]        The plaintiffs have an interest in obtaining from the Court an order confirming that section 3(1)(b) of the Citizenship Act was applied to them in a manner that breached their fundamental right to equality. They also have a continuing interest in Benjamin becoming a Canadian citizenship through the operation of section 3(1)(b), an interest that will be served by the order sought because it can be assumed that the government will comply promptly and fully with it.[49] Therefore, that order constitutes an effective and meaningful remedy to which the plaintiffs are entitled.

[44]        Lastly, no order as to costs is warranted given the collaborative approach adopted by the Attorney General of Canada throughout these proceedings.

WHEREFORE, THE COURT:

[45]        GRANTS the plaintiffs’ amended originating application;

[46]        DECLARES that the interpretation of s. 3(1)(b) of the Citizenship Act, RSC 1985, c. C-29 applied to Benjamin Caron, requiring a biological link to his mother Laurence Caron, breaches s. 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11;

[47]        DECLARES that, in order to comply with s. 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, s. 3(1)(b) of the Citizenship Act, RSC 1985, c. C-29 must be read and applied such that the word ‘‘parent’’ in the English text and the words ‘‘père et mère’’ in the French text refer to both biological and legal parentage;

[48]        WITHOUT LEGAL COSTS.