09 April 2014

New Decision from the Federal Court of Appeal: Citizenship is Genetic

The Federal Court of Appeal has just released its decision in Canada (Citizenship and Immigration) v Kandola, a case where the federal government appealed a judge's decision that a five year old girl is a Canadian citizen. The Court of Appeal overturned that decision, on the basis that a grant of citizenship to children born overseas to Canadian parents requires a genetic like to his or her parents.

In a nutshell, the child was born in India to a Canadian father and his wife, whom the father had sponsored to become a permanent resident of Canada. The parents, both of whom were infertile, decided to have the child by in vitro fertilization, using the sperm and ova from two anonymous donors and having the fertilized ova implanted in the mother, who carried the child to term and delivered her. 

Under s. 3(1)(b) of the federal Citizenship Act, a child born outside of Canada is a Canadian citizen if at least one of his or her parents was a Canadian citizen. Under s. 5.1(1), the minister may, but isn't required to, grant citizenship to children adopted by a Canadian citizen. 

Citizenship and Immigration discovered the child's status when it requested a DNA test of the child in processing the mother's sponsorship application. The child's application for citizenship was denied on the basis that there was no genetic link between her and her Canadian father, a decision that was overturned by the trial judge. The government appealed that decision to the Court of Appeal, which, as a citizen myself, strikes me as small-minded and churlish.

The analysis of the Court of Appeal turned on the definition of "parent:"
"[56] The question that remains is whether, leaving aside the definition of 'child' as an interpretative aid, the respondent’s legal guardian falls under the category of 'parent' pursuant to paragraph 3(1)(b) of the Act."
To clarify the issue, here's s. 3(1)(b):
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.
Simply put, if the father is a "parent" of the child, then the child is a citizen. So, who is a parent? 

Under s. 27 of the provincial Family Law Act, the mother in this case would, as the child's birth mother, be the child's parent. The father, as the spouse of the mother, would also be a parent. However, the federal government is bereft of such progressive legislation. Making things worse, the Citizenship Act does not define "parent." 

The majority of the Court of Appeal resolved the matter by looking at the French text of s. 3(1)(b) of the act, a common tool for statutory interpretation when the meaning of the English text is vague or cannot be precisely determined. Said the court:
"[58] According to the appellant [government], the words 'née d’un père' and 'née d’une mère' presuppose that the mother or father contributed to the child’s genes. The appellant adds that the fact that an adoption cannot be contemplated when a child is 'née d’un père' or 'née d’une mère' explains why the words 'other than a parent who adopted him'. ... 
"[59] I agree ... that the words 'née d’un père' presuppose that the father, in this case the respondent’s legal guardian, contributed to the child’s genes as there is no other way in which a child can conceivably be said to be 'née d’un père'. In the case of the father, the conclusion that there must be a genetic link seems inescapable."
The French phrases "née d’un père" and "née d’une mère," which translate as "born of a father" and "born of a mother," were employed, said the Court, to distinguish circumstances in which a person is a parent by adoption. This "made clear Parliament's ... reliance on a genetic/gestational connection to determine who can procure derivative citizenship." The trial judge's decision was thus set aside.

The dissenting judgment of Mr. Justice Mainville takes a more purposive and, dare I say, enlightened approach. After undertaking a different analysis of the text of s. 3(1)(b), the judge held that
"[100] First, applying a textual analysis, I note that had 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. 
"[101] In my view, this textual analysis is a complete answer to the issue before us. The words used in the paragraph are all precise and unambiguous, and the words themselves alone do, in this case, best indicate that the intention of Parliament was to refer to the legal notion of 'parent'. Thus, though a child/parent legal relationship may well result from a biological or genetic link, it also extends to other situations which are not necessarily exclusively based on biology."
This is not a full recounting of decisions of either the majority of the minority in this case, both of which should be read in full for a proper appreciation of the nuances of this case.

The upshot of all of this is two-fold. First, it is best that the child have a genetic link with at least one parent. If this is not possible, however, the child must either be born in Canada, thereby qualifying as a citizen under s. 3(1)(a), or should be adopted by the parent with Canadian citizenship.

Thanks to my friend and colleague Zara Suleman for bringing this case to my attention.

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