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T-1401-81
Thomas Elliot Young (Plaintiff)
v.
Secretary of State (Defendant)
Trial Division, Cattanach J.—Toronto, March 30; Ottawa, April 7, 1982.
Citizenship — Claim for declaration that plaintiff a citizen of Canada — Plaintiff a Canadian, wished to practice medi cine in the United States — Practice restricted to American citizens — Plaintiff became American citizen upon own peti tion for naturalization and when under no disability — Court dubious of plaintiffs evidence that he had not intended to forego Canadian citizenship — Intention to be determined by acts consequences of which are presumed to be intended Presumption of knowledge of law — S. 15(1) of Canadian Citizenship Act provided that Canadian citizen not under disability who voluntarily acquired citizenship of another country ceased to be Canadian citizen — Canadian Bill of Rights provides that no law of Canada to be construed so as to effect exile of any person — Exile presupposes positive action by State to banish person from country — Plaintiff not "exiled" — Conditions precedent to operation of s. 15(1) of relevant legislation then in force being present, operation was automatic and since no adjudication was required audi alteram partem rule had no application — Declaratory relief denied — Canadian Citizenship Act, R.S.C. 1952, c. 33, s. 15(1) — Citizenship Act, S.C. 1974-75-76, c. 108, ss. 8, 11 Interpretation Act, R.S.C. 1970, c. 1-23, s. 35(b) — Canadian Bill of Rights, S.C. 1960, c. 44 (R.S.C. 1970, Appendix IIIJ, ss. 2(a),(e), 5(2).
ACTION. COUNSEL:
Brent Knazan for plaintiff. Brian Evernden for defendant.
SOLICITORS:
Knazan, Jackman & Goodman, Toronto, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
CATTANACH J.: By his statement of claim the plaintiff seeks a declaration that he is a citizen of Canada.
At the outset of the trial the parties agreed upon a statement of the relevant facts which I accepted.
That agreement reads:
AGREED STATEMENT OF FACTS
The parties hereto by their respective Solicitors hereby agree for the purposes of the trial of this action to the following facts without proof thereof:
1. The Plaintiff is a physician residing in Kensington, New Hampshire, one of the United States of America.
2. The Plaintiff was born in the City of Montreal, in the Province of Quebec, on January 11, 1923.
3. On or about the 18th day of March, 1950, the Plaintiff married Victoria Louise Tremblay, a citizen of the United States.
4. The Plaintiff became a resident of the United States on the 24th day of June, 1949.
5. The Plaintiff applied for naturalization as an American citizen by signing a Petition for Naturalization in 1952. The Petition for Naturalization was subsequently dismissed for want of prosecution.
6. By Petition for Naturalization dated February 27, 1957, the Plaintiff once again applied to become a naturalized citizen of the United States. On June 5, 1957, the Plaintiff signed an Application to File Declaration of Intention and a Declaration of Intention with respect to that Application for Naturaliza tion.
7. The Plaintiff took an oath of citizenship and became a citizen of the United States of American (sic) on or about the 9th day of April, 1958.
8. The Plaintiff acquired citizenship in the United States of American (sic) while he was resident there, and not under any disability.
9. The Defendant was not aware that the Plaintiff had become a citizen of the United States until the 6th day of January, 1981.
10. By letter dated January 21, 1981, the Plaintiff requested that the Defendant issue to him a Certificate of Citizenship.
11. By letter dated March 13, 1981, the Defendant refused to issue a Certificate of Citizenship to the Plaintiff, and stated that the Plaintiff is not a citizen of Canada and that he ceased to be a citizen on or about the 9th day of April, 1958.
This agreed statement of facts was supplement ed by oral testimony by the plaintiff.
He graduated from the faculty of medicine at McGill University and did internship at McGill University Hospital, internship and post-graduate studies at Johns Hopkins Hospital in Baltimore, Maryland, as an intern at the Lahey Clinic in
Boston, Massachusetts and as a resident at New England Deaconess Hospital, also in Boston.
He specialized in pathology which I understand to be that branch of medical science which treats of the causes and nature of diseases. The practice of this specialty is such that it can best be carried on in areas where there is a concentration of population.
This dictated that the plaintiff could most suc cessfully practice in his chosen field in the United States.
In some of the states of the United States it is a condition precedent that the practice of medicine is restricted to citizens of the United States (but not necessarily all states).
As recited in paragraph 5 of the agreed state ment of facts this prompted the plaintiff to apply for citizenship there.
It is my recollection of the plaintiff's testimony that he volunteered for service as a medical officer in the United Forces engaged in the Korean War for which reason he did not prosecute his applica tion for citizenship.
At the end of the Korean War and upon his discharge the plaintiff was desirous of resuming his practice in the State of New York where a licence to practice would be granted conditional upon an applicant undertaking to petition for natu ralization as a citizen of the United States.
As recited in paragraph 6 of the agreed state ment of facts on June 5, 1957 the plaintiff exe cuted a Declaration of Intention to become a citizen of the United States at Washington, D.C.
On February 27, 1957 he had filed a Petition for Naturalization in the U.S. District Court for the East District at Alexandria, Virginia and he took an oath of allegiance to the United States on April 9, 1958 and became a citizen of that State on that date.
There is no question that the plaintiff was under no disability in that he was under no incapacity in the eyes of the law or any incapacity created by law and that he took the steps that he did in
acquiring citizenship of his own free will and voluntarily with full knowledge of what he was doing.
In his testimony in chief he stated that it was not his intention to forego his Canadian citizen ship.
I look at that statement somewhat askance. At the time he made his petition for naturalization as a United States citizen I do not think he directed his mind to the consequences of his action upon his Canadian citizenship. Had he done so, or sought legal advice, he would have been made aware of the statutory provisions in force at that time that upon acquisition of nationality or citizenship in a foreign state he ceases to be a Canadian citizen. It may well have been that his decision would have remained the same.
In any event intention is a question of fact best determined by overt acts, the natural consequences of which are presumed to be intended rather than subsequent expressions of intention under different circumstances. Added to this is the further pre sumption that persons are presumed to know the law.
The relevant statutory provision at April 8, 1958 was subsection 15(1) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, which read:
15. (1) A Canadian citizen, who, when outside of Canada and not under a disability, by any voluntary and formal act other than marriage, acquires the nationality or citizenship of a country other than Canada, thereupon ceases to be a Canadian citizen.
The plaintiff fell precisely within the four cor ners of the conditions precedent of that subsection in every particular leading to the consequential result expressed, that is, that he "thereupon ceases to be a Canadian citizen".
The present Citizenship Act, S.C. 1974-75-76, c. 108, contains a substantially different scheme and provision in this respect. A Canadian citizen may, upon application, renounce his citizenship if he is the citizen of another country, is not under a disability and does not reside in Canada. If such
application is made and renunciation is approved the Minister shall issue a certificate of renuncia tion (see section 8).
Also under section 11 of the statute presently in force (supra) "the Minister shall issue a certificate of citizenship to any citizen who has made applica tion therefor".
The plaintiff applied to the Secretary of State for such a certificate.
The Secretary of State refused to issue the certificate applied for because the plaintiff was not a "citizen" of Canada as required by section 11 as a condition to the issuance of such certificate as was explained in a letter dated May 13, 1981 in response to a letter from the plaintiff's solicitors dated January 21, 1981.
I am in agreement with the recitation of the relevant statutory provisions in the Minister's letter and the chronology and effect thereof.
I am also in agreement with the submission by counsel for the plaintiff that had the present legis lation been in effect on April 9, 1958 when the plaintiff became a citizen of the United States he would not have lost his Canadian citizenship unless he applied for a certificate of renunciation.
But that was not the legislation in effect then.
Subsection 15(1) of the Canadian Citizenship Act, R.S.C. 1952, c. 33 was the law in effect at that time and by the provisions thereof the plain tiff ceased to be a Canadian citizen.
Because this section was replaced by a subse quent enactment, that repeal does not affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder (see paragraph 35(b) of the Interpretation Act, R.S.C. 1970, c. I-23).
In the intervening time however the Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C. 1970, Appendix III] was assented to on August 10, 1960.
There is no question, nor was there any question raised, that the Canadian Citizenship Act, R.S.C. 1952, c. 33, including subsection 15(1) thereof, was within the legislative competence of the Par liament of Canada to enact.
It is clear from subsection 5(2) of the Canadian Bill of Rights the Bill is to apply to all laws of Canada already in existence at the time it came into force as well as to laws enacted thereafter.
The law prior to the enactment of the Canadian Bill of Rights applicable in this instance is as set forth in subsection 15(1) of the Canadian Citizen ship Act.
The contention advanced by counsel for the plaintiff is that subsection 15(1) of the former Citizenship Act is rendered inoperative by para graphs 2(a) and (e) of the Canadian Bill of Rights.
Paragraph 2(a) reads:
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(a) authorize or effect the arbitrary detention, imprisonment or exile of any person;
The contention was that by reason of the denial of Canadian citizenship to the plaintiff he is being condemned to "exile" from Canada.
To exile a person from Canada presupposes a positive action by the State to compel a person to leave or to banish him from his country.
In this instance there was no such positive act of the Government of Canada to compel the plaintiff to leave Canada. He did so of his own volition and he voluntarily became a citizen of the United States. All acts were his.
It follows that the plaintiff was not "exiled" from Canada within the meaning of the word "exile" as used in paragraph 2(a) of the Bill of Rights.
Further the plaintiff is free to return to Canada even as a citizen of the United States so long as he complies with the applicable immigration legisla tion and regulations thereunder.
Paragraph (e) of section 2 of the Bill of Rights reads:
2. ... no law of Canada shall be construed or applied so as to
(e) deprive a person of the right to a fair hearing in accord ance with the principles of fundamental justice for the deter mination of his rights and obligations;
The contention on behalf of the plaintiff was that subsection 15 (1) is inoperative because there must be a hearing to declare that all conditions precedent to the operation of the subsection are present and that to deny that hearing is a violation of the audi alterarn partem rule since no such hearing was held and the plaintiff had no opportu nity to answer allegations detrimental to his cause.
A natural-born subject, as the plaintiff was, owes allegiance to his sovereign from birth in return for which he is entitled to protection.
At common law a natural-born subject cannot cast off the duty of allegiance at any time. Relief from that obligation was only given by recent statutes.
Subsection 15 (1) is such a statutory provision by which divestment results.
There is no question that subsection 15 (1) was the applicable law as at April 9, 1958. Neither is there any question that it dealt with the status of the plaintiff.
When all conditions precedent to the operation of subsection 15(1) were present then the opera tion was automatic. The plaintiff lost his status in 1958 by the automatic operation of law. No adjudication was required and no declaration to that end was contemplated or necessary to the due operation of the law from which it follows that no hearing is required. There is no judicial or quasi- judicial body and the rule of audi alteram partem has no application.
Accordingly paragraph 2(e) of the Bill of Rights does not arise.
For the foregoing reasons the plaintiff is not entitled to the declaratory relief sought in his statement of claim and the action is dismissed with costs to the defendant.
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