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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.