Canada (Citizenship and Immigration) v. Taylor

Canada (Citizenship and Immigration) v. Taylor
Court (s) Database
Federal Court of Appeal Decisions
Date
2007-11-02
Neutral citation
2007 FCA 349
File numbers
A-417-06
Notes
Reported Decision
Decision Content
Date: 20071102
Docket: A-417-06
Citation: 2007 FCA 349
CORAM: DESJARDINS J.A.
DÉCARY J.A.
RYER J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
JOSEPH TAYLOR
Respondent
Heard at Vancouver, British Columbia, on September 18, 2007.
Judgment delivered at Ottawa, Ontario, on November 2, 2007.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: DESJARDINS J.A.
RYER J.A.
Date: 20071102
Docket: A-417-06
Citation: 2007 FCA 349
CORAM: DESJARDINS J.A.
DÉCARY J.A.
RYER J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
JOSEPH TAYLOR
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] It is common ground that under paragraph 4(b) of the Canadian Citizenship Act of 1947 (S.C. 1946, c. 15, (the 1947 Canadian Citizenship Act or the 1947 Act)), a person born outside Canada before the date of January 1, 1947, had a claim to Canadian citizenship if born in wedlock to a Canadian-born father and, if out of wedlock, only through the mother, provided that the latter was born in Canada or, was at the time of the birth, a British subject who had Canadian domicile.
[2] Mr. Joseph Taylor (or the respondent) was born in England in 1944 out of wedlock. His mother was born in England and did not have, at the time of the birth, Canadian domicile. When Mr. Taylor applied, in 2003, for a Canadian citizenship certificate, he was informed that he did not qualify. Hence the proceedings at issue in this appeal.
[3] In a remarkably documented set of reasons, Martineau J., a judge of the Federal Court, came to the conclusion that the respondent is a Canadian citizen. He directed the Minister of Citizenship and Immigration (the Minister) to issue a certificate of citizenship to the respondent. The reasons of the Judge were given September 1, 2006 (2006 FC 1053). They extend over 284 paragraphs and include in addition 28 notes published in an appendix.
[4] The issues dealt with in this appeal are all questions of law that attract the application by this Court of the standard of correctness.
The Facts
[5] A short summary of the facts is warranted at the outset. They are taken directly from the findings of the Judge and the affidavit of Mr. Taylor.
[6] Mr. Taylor, who is presently a citizen of the United Kingdom, was born in England on December 8, 1944. His mother, Jenny Rose Harvey, was born in England. His father, Joseph Taylor Sr., was born in Canada. Joseph Taylor Sr. joined the Canadian Armed Forces and he arrived in England in 1942, at the age of 18. He began a relationship with the respondent’s mother sometime between 1943 and early 1944. The couple had decided to marry in the spring of 1944, but due to the requirements of the war and to various restrictions placed on the status of Canadian Armed Forces personnel, the couple was not given permission to marry at that time. Joseph Taylor Sr. was deployed to France on D-Day, June 6, 1944. The respondent’s mother was then pregnant. The respondent was born on December 8, 1944 while his father was still stationed in France. Joseph Taylor Sr. was not permitted to return to England until February of 1945. He was then granted permission to marry the respondent’s mother.
[7] They were married on May 5, 1945 and remained in England. In February of 1946, the respondent’s father was discharged from the Canadian Armed Forces and repatriated to Canada. He returned to Cumberland, British Columbia, where he prepared for the arrival of his wife and child who eventually landed at Halifax, Nova Scotia on July 4, 1946. After a few months, the marriage broke up. Since the respondent’s mother had no immediate family and nowhere else to go in Canada, she was left with little choice but to return to England with her young child, which she did in the fall of 1946. She travelled via New York, where on October 11, 1946, she was issued a Canadian passport.
[8] When he “was 26 years old” (A.B. vol. 2, p. 178), already married with two children of his own, Mr. Taylor approached Canada House in London, England, about the possibility of establishing himself in Canada. He explained that he was the son of a repatriated Canadian Armed Forces soldier from World War II and had lived in Canada. He states in his affidavit that the people he talked to at Canada House did not then inform him that he had to make an application to retain his citizenship before his 24th birthday. He was sent standard application forms for immigration which required a “sponsor” in Canada. He completed the forms and sent them to his father at his last known address. He never got any response and continued with his life in England without pursuing the matter further. (A.B. vol. 2, p. 176).
[9] For the next 30 years, Mr. Taylor did not make any attempt to come to Canada or assert a claim to Canadian citizenship. In 1999, he made a trip to British Columbia. Upon his return to England, he went to Canada House in London to enquire into the possibility of moving to Canada. He was told that he had lost his Canadian citizenship on his 24th birthday, i.e. on December 8, 1968.
[10] He purchased a house in Victoria, British Columbia, in 2000 and during the years 2000 to 2004, he spent respectively 8, 11, 14, 18 and 20 weeks in Canada. In November 2000, he had discovered that his father had died in 1996 and that he had seven half-brothers and half-sisters, all of whom lived on Vancouver Island.
[11] In February 2003, he made an application in London to obtain a certificate of citizenship, but was told that his application would not be forwarded for further processing because he had lost his citizenship the day he turned 24.
[12] In November 2003, he presented a new application for a citizenship certificate from outside Canada (also called “Application for Proof of Citizenship”). By letter dated April 5, 2005 from Citizenship Officer Hefferon, he was informed that his application was dismissed on the ground that having been born out of wedlock he had never acquired citizenship status. The suggestion was made to him that he “may wish to consider taking up permanent residence in Canada and formalizing [his] strong family connection with Canada by means of the Naturalization process” (A.B. vol. 2, p. 279).
[13] On June 10, 2005, Mr. Taylor filed a Notice of Application for judicial review of the April 5, 2005 decision, arguing essentially that an Order in Council dated February 9, 1945 (P.C. 858) gave him the status of a “Canadian citizen”, that the loss provisions in the 1947 Canadian Citizenship Act violated his right to due process under the Bill of Rights and the Canadian Charter of Rights and Freedoms (the Charter) because he was not given proper notice of those provisions and that the refusal of his citizenship application on the basis of his parents’ marital status at the time of his birth and on the basis of his age violated his rights under section 15 of the Charter. These arguments were all accepted by Martineau J.
[14] In his Notice of Constitutional Question filed September 6, 2007, the respondent attacks “the following sections of statutes:
(a) Citizenship Act RSC 1947, section 4(b);
(b) Citizenship Act RSC 1951, section 4(b)(ii);
(c) Citizenship Act RSC 1953, section 4(b) and section 6;
(d) Citizenship Act RSC 1970, section 4(1) and 4(2);
(e) Citizenship Act RSC 1977, section 3(1); and,
(f) Citizenship Act RSC 1985, section 3(1)(d) and section 3(1)(e).”
Analysis
[15] The 1947 Canadian Citizenship Act came into force on January 1, 1947. In order to determine whether the respondent was a “Canadian citizen” under the 1947 Act, his status both prior to and after January 1, 1947 must be examined.
I Status of Mr. Taylor
A) Prior to January 1, 1947
[16] In order to determine the status of Mr. Taylor prior to January 1, 1947, one has to examine legislation that pertains to Canadians in general (i.e. the Immigration Act of 1910, the Naturalization Act of 1914 and the Canadian Nationals Act of 1921) and orders in council that apply to dependents of members of the Canadian Armed Forces (i.e., in particular, Order in Council P.C. 858, dated February 9, 1945).
a) Canadians in General
[17] Prior to January 1, 1947, the “political status” of Canadians was determined through the interrelationship of three statutes: the Immigration Act, S.C. 1910, c. 27, as revised R.S.C. 1927, c. 93 (the 1910 Immigration Act); the Naturalization Act, S.C. 1914, c. 44, as revised R.S.C. 1927, c. 138 (the 1914 Naturalization Act); and the Canadian Nationals Act, S.C. 1921, c. 4, as revised R.S.C. 1927, c. 21 (the Canadian Nationals Act).
[18] For all practical purposes, as we shall see, Canadians could be “British subjects” or “aliens”, and/or “Canadian Nationals” or “Naturalized”, and/or for the purpose of Canadian immigration law, “Canadian citizens”.
i) the 1910 Immigration Act
[19] The concept of “Canadian citizenship” first appears in the 1910 Immigration Act. Paragraph 2(b) of that Act provides that in the Act and in all orders in council, proclamations and regulations made thereunder:
2. (b) “Canadian citizen” means
(i) a person born in Canada who has not become an alien;
(ii) a British subject who has Canadian domicile; or
(iii) a person naturalized under the laws of Canada who has not subsequently become an alien or lost Canadian domicile;
Provided that for the purpose of this Act a woman who has not been landed in Canada shall not be held to have acquired Canadian citizenship by virtue of her husband being a Canadian citizen; neither shall a child who has not been landed in Canada be held to have acquired Canadian citizenship through its father or mother being a Canadian citizen;
…
2. c) “citoyen canadien” ou “citoyen du Canada” signifie
(i) quiconque est né au Canada et n’est pas devenu un étranger;
(ii) un sujet britannique qui a un domicile au Canada; ou
(iii) quiconque a été naturalisé sous le régime des lois du Canada et n’est pas, depuis, devenu un étranger ou n’a pas cessé d’avoir son domicile au Canada;
Mais pour les objets de la présente loi, une femme qui n’a pas été débarquée au Canada n’est pas réputée avoir acquis la qualité de citoyenne du Canada du fait que son mari est un citoyen du Canada; aucun enfant qui n’a pas été débarqué au Canada n’est réputé avoir acquis la qualité de citoyen canadien du fait que son père ou sa mère sont des citoyens canadiens;
(…)
[20] The Act also provides a definition of Canadian domicile at subparagraph 2(e)(i):
2. (e) “domicile” means the place in which a person has his home, or in which he resides, or to which he returns as his place of permanent abode, and does not mean the place where he resides for a mere special or temporary purpose;
(i) Canadian domicile can only be acquired, for the purposes of this Act, by a person having his domicile for at least five years in Canada after having been landed therein within the meaning of this Act:
…
2. (f) « domicile » signifie l’endroit où une personne a sa demeure, ou dans lequel elle réside, ou auquel elle retourne comme au lieu de son habitation permanente, et ne signifie pas l’endroit où elle réside pour un objet particulier ou temporaire;
(i) Le domicile au Canada ne peut s’acquérir, pour les fins de la présente loi, que par un séjour d’au moins cinq ans au Canada par une personne qui y est débarquée aux termes de la présente loi.
(…)
[21] Under the Act, no person, “unless he is a Canadian citizen, or has Canadian domicile, shall be permitted to enter or land in Canada, or in case of having landed in or entered Canada shall be permitted to remain therein” if he belongs to any of a long list of prohibited classes (s. 3). Every person “seeking to enter or land in Canada shall first appear before and make application to an immigration officer at a port of entry for permission to enter or land in Canada” (s. 33). The expression “landed”, “as applied to passengers or immigrants, means their lawful admission into Canada by an officer under this Act…” (paragraph 2(l)). (My emphasis)
[22] When persons are coming to Canada on board a vessel, they have to comply with specific health requirements. Pursuant to section 28, medical officers have to “make a physical and mental examination of all… passengers …, except in the case of Canadian citizens and persons who have Canadian domicile”. (My emphasis).
[23] Pursuant to section 29, the immigration officer in charge, “after satisfying himself that the requirements of this Act, and of any Order in Council… made hereunder, have been carried out, shall grant written permission to the master of the vessel to allow the passengers to leave the vessel”. (My emphasis).
[24] Canadian citizens and persons who have Canadian domicile are exempted, upon landing, of regulations imposing monetary requirements (paragraph 37(a)) and, after landing, cannot be deported (s. 40). (My emphasis)
ii) the 1914 Naturalization Act
[25] In 1914, an Act to be cited as the Naturalization Act (1914, c. 44) comes into force.
[26] Part I deems to be natural-born British subjects any person born within His Majesty’s dominions and any person born out of His Majesty’s dominions whose father was, at the time of the birth, a British subject and who fulfilled certain conditions (s. 3).
[27] Part II gives the Secretary of State for Canada the power to grant a certificate of naturalization to an alien who, inter alia, has resided in His Majesty’s dominions for no less than five years (s. 4). A naturalized person is entitled “to all political and other rights, powers and privileges” and is “subject to all obligations, duties and liabilities, to which a natural-born British subject is entitled or subject, and as from the date of his naturalization has to all intents and purposes the status of a natural-born British subject” (s. 5) (My emphasis). Should the naturalized person so wish, the certificate may include the name of any minor child (s. 7).
[28] Part III deals with various topics, including the status of aliens. Under section 20ff., aliens may apply to the Court to be declared qualified to be naturalized. If the Court decides that the alien is qualified, the Minister may in his absolute discretion issue a certificate of naturalization.
iii) the Canadian Nationals Act
[29] In 1921, the Canadian Nationals Act (1921, c. 4) comes into force. As is discussed in paragraph [40] below, this Act was enacted to meet the needs of Canadian participation in the international community. Section 2 defines the following persons as being Canadian Nationals:
2. The following persons are Canadian Nationals, viz: —
(a) Any British subject who is a Canadian citizen within the meaning of the Immigration Act;
(b) The wife of any such citizen;
(c) Any person born out of Canada, whose father was a Canadian National at the time of that person’s birth, or with regard to persons born before the third day of May, one thousand nine hundred and twenty-one, any person whose father at the time of such birth, possessed all the qualifications of a Canadian National, as defined in this Act. 1921, c. 4, s. 1.
2. Est ressortissant du Canada :
a) Tout sujet britannique qui est citoyen canadien au sens de la Loi de l’immigration;
b) L’épouse de ce citoyen;
c) Toute personne née en dehors du Canada, dont le père était ressortissant du Canada à l’époque de la naissance de cette personne, ou, à l’égard des personnes nées avant le troisième jour de mai mil neuf cent vingt et un, toute personne dont le père possédait, à l’époque de cette naissance, toutes les qualités d’un ressortissant du Canada, tel que défini en la présente loi. 1921, c. 4, art. 1.
[30] When debating the second reading on March 8, 1921 of Bill no. 17 which became the Canadian Nationals Act, the Minister of Justice, the Hon. C.J. Doherty, stated:
Mr. DOHERTY: We have already a definition of a Canadian citizen in the Immigration Act, but that definition is expressly limited to the Act itself, and we have no definition of a Canadian citizen which can be of general application.
House of Commons Debates, (8 March 1921) at 645.
[31] It flows from the above-quoted legislation that prior to January 1, 1947, the legal concept of “Canadian citizenship” existed only for the purpose of Canadian immigration law, i.e. to allow a person to come in and out of Canada and to remain therein. However, a “Canadian citizen within the meaning of the Immigration Act”, if he was a British subject, was a Canadian National, and, if a male, so was any child of his born out of Canada.
[32] Based on the foregoing, prior to January 1, 1947, a person could have simultaneously the status of a natural-born British subject, a Canadian National and, for the purpose of Canadian immigration law, a Canadian citizen with Canadian domicile. At the time he was serving in England, Mr. Taylor Sr. was a natural-born British subject, a Canadian National and, for the purpose of Canadian immigration law, a Canadian citizen with Canadian domicile.
b) Dependents of Members of Canadian Armed Forces
[33] Dependents of members of the Canadian Armed Forces were given special and preferential treatment in order to facilitate their entry into Canada under Canadian immigration law. Such treatment was accorded through the making by the Governor General in Council of orders in council (hereinafter referred to as “P.C.”) pursuant to powers granted by the War Measures Act, R.S.C. 1927, c. 206 and by the National Emergency Transitional Powers Act, 1945, S.C. 1945, c. 25. These orders in council have force of law while in effect. They were continued in effect until May 15, 1947 (P.C. 7414, December 28, 1945; P.C. 1112, March 25, 1947).
[34] On September 21, 1944, P.C. 7318 is adopted. It is replaced on February 9, 1945 by P.C. 858. In view of the importance given to P.C. 858 by counsel and in the judgment below, it is worth reproducing it in its totality:
Whereas the Minister of Mines and Resources, with the concurrence of the Secretary of State for External Affairs, and with the approval of the Cabinet War Committee, reports that it is desirable to facilitate entry into Canada of dependents of members of the Canadian Armed Forces and, where the said members are Canadian citizens or have Canadian domicile, to provide such dependents with the same status; and
That the medical examination overseas of dependents of members of the Canadian Armed Forces establishes, in some instances, that the person examined is not admissible to Canada under the provisions of the immigration laws of Canada.
Now, therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Mines and Resources, with the concurrence and approval aforesaid, and under the authority of the War Measures Act, Chapter 206 of the Revised Statutes of Canada, 1927, and notwithstanding any other law of Canada relating to immigration, is pleased to make and doth hereby make the following Order:
1. In this Order, unless the context otherwise requires:
(a) “dependent” means the wife, the widow or child under eighteen years of age of a member or former member of the Canadian Armed Forces who is serving or who has served outside of Canada in the present war;
(b) “approved medical practitioner” means a doctor of medicine approved by the Immigration Medical Service of the Department of National Health and Welfare.
2. Every dependent applying for admission to Canada shall be permitted to enter Canada and upon such admission shall be deemed to have landed within the meaning of Canadian immigration law.
3. Every dependent who is permitted to enter Canada pursuant to section two of this Order shall for the purpose of Canadian immigration law be deemed to be a Canadian citizen if the member of the forces upon whom he is dependent is a Canadian citizen and shall be deemed to have Canadian domicile if the said member has Canadian domicile.
4. Before proceeding to Canada the dependent shall be examined by a medical officer in the service of the Government of Canada or an approved medical practitioner and on request the Chief Officer of the Medical Immigration Service shall be furnished with full particulars of the medical examination of the dependent and such particulars may be transmitted to the Public Health Service of the Province to which the dependent is destined, with a view to securing necessary treatment and as a protection to public health.
5. In any case in which medical examination discloses that a dependent is suffering from an infectious or contagious disease, or a disease which may become dangerous to the public health, or that travel would be dangerous to the dependent in his present condition, the admission to Canada of such dependent may be deferred until the production of a medical certificate from an approved medical practitioner establishing that the condition of the person concerned is not infectious or contagious and that he may travel with reasonable safety.
6. In any case in which a medical certificate is furnished by an approved medical practitioner who is not in the service of the Government of Canada, the cost shall be paid at the approved rate by the Immigration Branch, Department of Mines and Resources, out of the War Appropriation.
7. Order in Council P.C. 7318 of the twenty-first day of September, 1944, is hereby revoked.
(My emphasis)
[35] On October 11, 1946, P.C. 858 is amended by P.C. 4216. The second paragraph of the preamble, of P.C. 4216 states:
And whereas the Acting Minister of Mines and Resources represents that it is necessary to limit the provisions of P.C. 858 dated the 9th day of February, 1945, which relates to the immigration status and the granting of free medical examination to dependents to conform with the said Order in Council P.C. 4044 ;
(My emphasis)
[36] P.C. 4216 adds the following paragraph to P.C. 858:
(8) The provisions of this Order in Council shall only apply to dependents on whose behalf application for free transportation to Canada has been filed on or before October 15, 1946, and who embark for Canada on or before June 30, 1947, in accordance with the provisions of P.C. 4044 of the 26th day of September, 1946.
[37] The terms used in P.C. 858 and P.C. 4216 clearly indicate that they were made for the sole purpose of facilitating the entry into Canada of dependents of members of the Canadian Armed Forces, within the meaning of the 1910 Immigration Act. The specific requirements prescribed by the 1910 Immigration Act were either waived through deeming provisions (landing, citizenship and domicile), alleviated (medical certificate) or eliminated (monetary requirements).
[38] The fact is, however, that once properly admitted into Canada in accordance with immigration laws, these dependents became subject to Canadian laws and entitled to their benefit. As a result, upon being landed in July, 1946, Mr. Taylor was, as was his father, a natural-born British subject, a Canadian National and, for the purpose of Canadian immigration law, a Canadian citizen with Canadian domicile.
B) After January 1, 1947
[39] To understand the dramatic effect in Canadian law of the adoption of the 1947 Canadian Citizenship Act, it is useful to quote from the speech of the Hon. Paul Martin (Sr.), Secretary of State, when he moved for the second reading, on April 2, 1946, of the Bill respecting Citizenship, Nationality, Naturalization and Status of Aliens, which became the 1947 Canadian Citizenship Act:
In moving second reading of this bill may I state at the outset I believe this measure parallels the development of Canada as a nation.
…
As I shall endeavour to show, it seeks to avoid many complexities and confusions which arise from existing legislation. For some time now, indeed for many years, it has been felt in the country and in the house that the time has arrived when ambiguities arising out of the Naturalization Act – both the act before 1914, and the one of 1914 – the Canadian Nationals Act, and the Immigration Act, should be treated in such a way as to provide an unambiguous definition of the status of Canadian citizenship.
…
Under this bill we are seeking to establish clearly a basic and definite Canadian citizenship which will be the fundamental status upon which the rights and privileges of Canadians will depend. We hope at the same time to remove a great many anomalies and difficulties which exist under present legislation, as I have noted, and which have not only been irksome and troublesome to the country and its people, but occasioned real hardship to persons who have had the misfortune to be caught in them.
…
There are few countries in the world who define their citizenship within the clause of an immigration act. Even the definition within the Immigration Act is a limited one. It is a definition of citizenship only for the purposes of that act, namely for the purposes of immigration.
…
My colleague, the Minister of Mines and Resources (Mr. Glen), authorizes me to say that when this measure becomes law it will be followed by an amendment to the Immigration Act which will remove from section 2 of that act the only real definition, although for a limited purpose, of Canadian citizenship that is to be found.
…
Part I of the bill deals with natural-born Canadian citizens. The first section of this part attempts to set forth that persons now in being are immediately to have the status of Canadian citizens as of right of birth. The people who will be natural-born Canadian citizens are of two classes, those who are born in Canada or on a Canadian ship, and those who were born to Canadian parents outside Canada before the passing of the act, …
…
I believe the bill, complicated and necessarily so in regard to some of its provisions, does meet as far as may be humanly possible the hundreds of different situations that arise out of the status of citizenship; out of the acquisition of nationality by birth, by blood relationship or by any one of the many combinations which may create, in one form or another, the legal status of nationality, here as well as in other countries.
…
With this bill we are linking our past with our future. We are saying to history and to our posterity: Here is the definition of Canadianism. Here is the common status in Canada, a common stake in the welfare of the country, a common Canadian citizenship.
…
House of Commons Debates, (2 April 1946) at 502 to 510. (My emphasis)
[40] Of interest, also, are the following remarks by the Hon. James Hugh Faulkner, Secretary of State, when he moved on May 21, 1975, for the second reading of the Bill that was to become the 1977 Citizenship Act:
In Canada, the citizenship or nationality laws were determined by three statutes: the Canadian Immigration Act of 1910, designed to meet the needs of immigration and deportation; the Naturalization Act of 1914, adopted in order to meet the needs of imperial nationality; and the Canadian Nationals Act of 1921, enacted to meet the needs of participation in the international community, the League of Nations particularly.
It is interesting to note that not everyone who was a Canadian national under the Canadian Nationals Act was a Canadian under the Canadian Immigration Act and nowhere was provision made for Canadian citizenship. In 1930, these anomalies were brought forward and a report on nationality problems in Canada was presented to the secretary of state. A bill to revise and consolidate the laws of naturalization and citizenship was introduced in 1931 but was withdrawn before third reading.
Finally, in 1946, the secretary of state, the Hon. Paul Martin, introduced a new bill to revise and consolidate naturalization and citizenship laws and to introduce Canadian citizenship instead of British subject status or Canadian nationality.
House of Commons Debates, (21 May 1975) at 5983 and 5984. (My emphasis)
[41] Parliament’s intent was clearly carried into the wording of the 1947 Canadian Citizenship Act.
[42] Thus, on January 1, 1947, The Canadian Citizenship Act, which had been assented to on June 27, 1946 and whose official title is “An Act respecting Citizenship, Nationality, Naturalization and Status of Aliens”, comes into force. The official title in itself confirms the avowed purpose of consolidating previous legislation and status. The 1947 Act is a complete code for Canadian citizenship. It deals with persons born before January 1, 1947, as well as with those born thereafter. It deals with persons born in Canada as well as with those born outside Canada. It determines which of these persons are Canadian citizens as of right and, with respect to those persons who are not Canadian citizens as of right, it determines which may apply for a grant of Canadian citizenship, and how, and subject to what requirements. The 1947 Act also determines when or how Canadian citizens lose their citizenship.
[43] To ensure that there would be in the future only one statute defining Canadian citizenship, the Naturalization Act of 1914 and the Canadian Nationals Act of 1921 are repealed by section 45 of the 1947 Canadian Citizenship Act. In addition the 1910 Immigration Act, which hitherto contained a definition of “Canadian citizen” for the purpose of immigration law, is amended as of January 1, 1947 by An Act to amend the Immigration Act (10 Geo. VI, c. 54). Under the latter amendment, a “Canadian citizen”, for the purpose of the Immigration Act, means “a person who is a Canadian citizen under the [1947] Canadian Citizenship Act”.
[44] The relevant provisions of the 1947 Canadian Citizenship Act at this stage are the following:
PART I.
Natural-Born Canadian Citizens.
4. A person, born before the commencement of this Act, is a natural-born Canadian citizen: -
…
b) if he was born outside of Canada elsewhere than on a Canadian ship and his father, or in the case of a person born out of wedlock, his mother
(i) was born in Canada or on a Canadian ship and had not become an alien at the time of that person’s birth, or
(ii) was, at the time of that person's birth, a British subject who had Canadian domicile,
if, at the commencement of this Act, that person has not become an alien, and has either been lawfully admitted to Canada for permanent residence or is a minor.
PART II.
Canadian Citizens Other Than Natural-Born.
9. (1) A person other than a natural-born Canadian citizen, is a Canadian citizen, if he
(a) was granted, or his name was included in a certificate of naturalization and he has not become an alien at the commencement of this Act; or
(b) immediately before the commencement of this Act was a British subject who had Canadian domicile;
…
PART IV.
STATUS OF CANADIAN CITIZENS AND RECOGNITION OF BRITISH SUBJECTS
26. A Canadian citizen is a British subject.
27. A Canadian citizen other than a natural-born Canadian citizen shall, subject to the provisions of this Act, be entitled to all rights, powers and privileges and be subject to all obligations, duties and liabilities to which a natural-born Canadian citizen is entitled or subject and, on and after becoming a Canadian citizen, shall, subject to the provisions of this Act, have a like status to that of a natural-born Canadian citizen.
28. A person, who has acquired the status of British subject by birth or naturalization under the laws of any country of the British Commonwealth other than Canada to which he was subject at the time of his birth or naturalization, shall be recognized in Canada as a British subject.
PART VII.
GENERAL.
…
45. (1) The Naturalization Act, chapter one hundred and thirty-eight of the Revised Statutes of Canada, 1927 and the Canadian Nationals Act, chapter twenty-one of the Revised Statutes of Canada, 1927 are repealed.
(2) Where, in any Act of the Parliament of Canada or any order or regulation made thereunder, any provision is made applicable in respect of
(a) a “natural-born British subject” it shall apply in respect of a “natural-born Canadian citizen” ; or
(b) a “naturalized British subject” it shall apply in respect of a “Canadian citizen other than a natural-born Canadian citizen”; or
(c) a “Canadian national” it shall apply in respect of a “Canadian citizen” ;
under this Act, and where in any Act, order or regulation aforesaid any provision is made in respect of the status of any such person as a Canadian national or British subject it shall apply in respect of his status as a Canadian citizen or British subject under this Act.
46. (1) Notwithstanding the repeal of the Naturalization Act and the Canadian Nationals Act, this Act is not to be construed or interpreted as depriving any person who is a Canadian national, a British subject or an alien as defined in the said Acts or in any other law in force in Canada of the national status he possesses at the time of the coming into force of this Act.
(2) This Act is to be construed and interpreted as affording facilities for any person mentioned in the last preceding subsection if he should so desire to become a Canadian citizen if he is not a natural-born Canadian citizen as defined in this Act, and if he possesses the qualifications for Canadian citizenship as defined in this Act.
PARTIE I.
Citoyens Canadiens de Naissance.
4. Une personne, née avant l’entrée en vigueur de la présente loi, est citoyen canadien de naissance
(…)
b) Lorsqu’elle est née hors du Canada ailleurs que sur un navire canadien et que son père ou, dans le cas d’une personne née hors du mariage, sa mère
(i) est né (ou née) au Canada ou sur un navire canadien et n’était pas devenu étranger (ou devenue étrangère) lors de la naissance de ladite personne, ou
(ii) était, à la naissance de ladite personne, un sujet britannique possédant un domicile canadien,
si, à l’entrée en vigueur de la présente loi, ladite personne n’est pas devenue étrangère, et a été licitement admise au Canada en vue d’une résidence permanente ou est mineure.
PARTIE II.
CITOYENS CANADIENS AUTREMENT QUE PAR LE FAIT DE LA NAISSSANCE.
9. (1) Une personne, autre qu’un citoyen canadien de naissance, est citoyen canadien
a) si elle a obtenu un certificat de naturalisation, ou si son nom était inclus dans un tel certificat, et qu’elle ne soit pas devenue étrangère lors de l’entrée en vigueur de la présente loi; ou
b) si, immédiatement avant la mise en vigueur de cette loi, elle était un sujet britannique possédant un domicile canadien;
(…)
PARTIE IV.
STATUT DES CITOYENS CANADIENS ET RECONNAISSANCE DES SUJETS BRITANNIQUES.
26. Un citoyen canadien est sujet britannique.
27. Un citoyen canadien, autre que celui qui l’est de naissance, jouit, subordonnément à la présente loi, de tous les droits, pouvoirs et privilèges et est assujetti à tous les devoirs, obligations et responsabilités, auxquels un citoyen canadien de naissance est admis ou assujetti. À compter du moment où il devient citoyen canadien, il possède, sous réserve des dispositions de la présente loi, un statut semblable à celui d’un citoyen canadien de naissance.
28. Quiconque a acquis le statut de sujet britannique par le fait de la naissance ou de la naturalisation, sous le régime des lois de quelque pays de la Communauté des nations britanniques autre que le Canada, auxquelles il était assujetti lors de sa naissance ou de sa naturalisation, est reconnu au Canada sujet britannique.
PARTIE VII.
GÉNÉRALITÉS.
(…)
45. (1) Sont abrogées la Loi de naturalisation, chapitre cent trente-huit des Statuts revisés du Canada, 1927, et la Loi des ressortissants du Canada, chapitre vingt et un des Statuts revisés du Canada, 1927.
(2) Si, dans une loi du Parlement du Canada ou un arrêté ou règlement établi sous son régime, quelque disposition vise
a) un « sujet britannique de naissance », elle s’applique à l’égard d’un « citoyen canadien de naissance », ou
b) un « sujet britannique naturalisé », elle s’applique à l’égard d’un « citoyen canadien autre qu’un citoyen canadien de naissance », ou
c) un « ressortissant du Canada », elle s’applique à l’égard d’un « citoyen canadien »;
sous le régime de la présente loi et lorsque, dans quelque loi, arrêté ou règlement susdit, une disposition est établie sur le statut d’une telle personne comme ressortissant du Canada ou sujet britannique, elle s’applique à l’égard de son statut de citoyen canadien ou sujet britannique aux termes de la présente loi.
46. (1) Nonobstant l’abrogation de la Loi de naturalisation et de la Loi des ressortissants du Canada, la présente ne doit pas s’interpréter comme privant quiconque est ressortissant canadien, sujet britannique ou étranger selon la définition contenue dans lesdites lois ou une autre loi en vigueur au Canada, du statut national qu’il possède lors de l’entrée en vigueur de la présente loi.
(2) La présente loi doit s’interpréter comme accordant des facilités à toute personne mentionnée dans le paragraphe précédent, si elle le désire, pour devenir citoyen canadien lorsqu’elle n’est pas citoyen canadien de naissance défini dans la présente loi et qu’elle possède les qualités requises pour la citoyenneté canadienne définie dans cette même loi.
[45] Under paragraph 2(a) of the 1947 Canadian Citizenship Act, a “Canadian citizen” is defined as “a person who is a Canadian citizen under this Act”. A person can only be a Canadian citizen if he meets the requirements set out in the 1947 Canadian Citizenship Act. That can happen in three ways, two as of right and one upon request. (I exclude the discretionary grant of citizenship by the Minister, which is not at issue here).
[46] Persons born before January 1, 1947 are Canadian citizens as of right if they are either a natural-born Canadian within the meaning of section 4 in Part I of the Act; or a person other than a natural-born Canadian within the meaning of section 9 in Part II of the Act. Pursuant to section 46, persons who are not natural-born Canadian citizens as defined in the Act and who, before January 1, 1947, enjoyed a “national status” as a “Canadian national”, a “British subject” or an “alien”, can apply to the Minister under section 10 of the Act to become Canadian citizens if they possess the qualifications for Canadian citizenship as defined in the Act. There could be no clearer signal that the possession by a non natural-born Canadian citizen of a national status prior to January 1, 1947 does not automatically confer the status of Canadian citizen from January 1, 1947 onwards.
[47] As I read the 1947 Canadian Citizenship Act and to use the words of Secretary of State Faulkner in 1975, the Act “introduced Canadian citizenship instead of British subject status or Canadian nationality”. Whatever status existed under whatever prior statute or order in council, including P.C. 858, was, as of January 1, 1947, replaced by a new status, that of Canadian citizen as defined in the new Act.
[48] This interpretation of the pre-January 1, 1947 statutes and orders in council is, in my opinion, in line with the decision rendered by the Supreme Court of Canada in Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358 (Benner).
[49] In Benner, which dealt with the status of a person born after January 1, 1947 and with the constitutionality of certain provisions of the 1977 Citizenship Act that were applicable and in force at the time of the ruling, Iacobucci J., for the Court, expressed the view, at paragraph 30, that
“Before 1947, there was no concept of Canadian citizenship.”
In the course of his reasons, he stated that:
“Under the old 1947 Act, individuals in the appellant's position had no special claim to citizenship whatsoever -- no provision was made for them in the 1947 legislation.” (at paragraph 58).
[50] Our Court, in Solis v. Canada (Minister of Citizenship and Immigration) (2000), 186 D.C.R. (4th) 512 (F.C.A.), leave to appeal to Supreme Court of Canada denied [2002] S.C.C.A. No. 249 (Q.L.), has held that Canadian citizenship is a creature of