Taylor v. Canada (Minister of Citizenship and Immigration): Discrimination, Due Process, and the Origins of Citizenship in Canada
![handle is hein.journals/alblr45 and id is 525 raw text is: TAYLOR V. CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION) 521
TA YLOR V. CANADA (MINISTER OF CITIZENSHIP AND
IMMIGRATION): DISCRIMINATION, DUE PROCESS,
AND THE ORIGINS OF CITIZENSHIP IN CANADA
STACEY A. SAUFERT*
I. INTRODUCTION
The following is a case comment on the Federal Court of Canada's decision in Taylor v.
Canada (Minister of Citizenship and Immigration).' The significance of Martineau J.'s
decision in this case, which the Minister has appealed to the Federal Court of Appeal, is
threefold. First, this is the first time the Federal Court has made an attempt to clarify citizenship
as a concept and, more particularly, to clarify the origins ofCanadian citizenship. Although this
task was an extraordinary feat, Martineau J.'s analysis and final conclusions in this area were
flawed. He failed to distinguish the conceptual difference between citizenship for the
purposes of immigration law and citizenship under Canadian citizenship law. To be a
citizen under immigration law is to have the right to enter, remain, and leave Canada -
nothing more. Immigration law, although very complex, is simply about mobility rights and
is inherently exclusive. It distinguishes between two groups: citizens, who have an unfettered
right to enter a state's borders, and aliens, who have no right ofaccess except for those granted
by the state. Immigration law acts as a gatekeeper protecting a state's borders by controlling
who is admitted and the length oftime they are permitted to stay. Citizenship law, on the other
hand, confers much more than mobility rights. Not only does it incorporate the foundational
right to enter, remain, and leave Canada found in immigration law, but it also guarantees a
larger bundle of rights for individuals who are citizens by birth (jus soli), citizens by descent
(jus sanguinis), and those who have acquired citizenship after immigration (a process known
as naturalization). The legislative origins of this separate type of citizenship are found in the
Canadian CitizenshipAc? which entercd into force on 1 January 1947. Conversely, the notion
of Canadian citizenship for immigration purposes was formalized decades earlier with the
passing of the first piecc of Canadian immigration legislation in 1910.'
Justice Martineau's failure to appreciate this fundamental difference lead to the mistaken
conclusion that the Order in Council re entry into Canada of dependents of members of the
Canadian Armed Forces4 - a piece of legislation that pre-dated the Citizenship A ct, 1947-
actually conferred citizenship status upon Mr. Taylor for all purposes. In coming to this
conclusion, Martineau J. blurred the lines between immigration law and citizenship law and
granted Taylor more status than Parliament ever intended him to have. Thus, it is questionable
whether Martineau J.'s decision in Taylor has clarified our understanding of the origins of
Canadian citizenship, or whether it has confused the issue even more.
B.A. Honours (2002), LL.B. (2007), University of Saskatchewan. This case comment was published
just as the Federal Court of Appeal's decision on this matter was rendered. An additional comment will
be forthcoming with respect to the decisions of the Federal Court ofAppeal and potentially the Supreme
Court of Canada.
2006 FC 1053, 56 lmm. L.R. (3d) 220, leave to appeal to F.C.A. granted [Taylor].
2 S.C. 1946, c. 15 [Citizenship Act, 1947].
3 Immigration Act, S.C. 1910, c. 27, as am. by R.S.C. 1927, c. 93 [Immigration Act, 1910].
4 P.C. 858 (entered into force 9 February 1945) [Order in Council, 1945].](ViewImageLocal?handle=hein.journals/alblr45&div=31&collection=&method=preview&ext=.png&size=3)
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