Canadian Soldiers of the World Wars were not Canadian Citizens?!

[McG]

:facepalm:

'Lost Canadian' court action looks to overhaul citizenship laws
Kim Nursall
Ottawa Citizen
06 August 2013

VANCOUVER - Canadian citizenship laws may need to be overhauled if a so-called "lost Canadian" wins her legal battle.

Jackie Scott, 68, was refused citizenship even though she came to Canada with her British mother and Canadian father at the age of two. A judicial review of that refusal was scheduled for July, but Scott put it on hold so she and her lawyers could broaden the court action.

Documents filed Friday in Federal Court in Vancouver show Scott is petitioning for "declarations" from the court that could have serious ramifications for Canadian citizenship, including whether Parliament has total control over who is considered Canadian.

Scott said even though she would have loved to settle her own citizenship dispute back in July, her fight has become about much more than herself.

"It would be very selfish of me just to say it's about me, because it's not," she said in an interview on Monday. "If we're successful we can finally resolve the issue for many people."

Scott was born in England in 1945 to a Canadian serviceman and a British woman and later migrated to Canada.

The government claims Scott's father was legally considered a British subject at the time because Canada's first citizenship act did not come into effect until 1947. The government argued in previous court documents related to Scott's case that "Canadian citizenship is a creation of federal statute. In order to become a Canadian citizen, a person must satisfy the applicable statutory requirements."

However, Scott and her lawyers argue that citizenship has existed outside of statutory law since long before 1947. They are willing to take the case all the way to the Supreme Court of Canada to prove their claim. In July, they debated pursuing a class action, but decided the application they filed last week was more appropriate.

"The declaratory order will have the same force and effect legally," James Straith, one of Scott's lawyers, said via email.

It will "bind the federal government and resolve most, if not all, of these lost Canadian cases."

The application asks for Scott's judicial review to be "converted to an action" that would allow the court to make declarations regarding six main questions, including whether Scott's father was a Canadian citizen and whether citizenship exists as a legal concept and/or right independent of the 1947 Citizenship Act.

"Enough of this nonsense. We want to set precedent," said Don Chapman, the founder of the Lost Canadians. Chapman said too many people are being forced to pursue a lengthy court process because gaps in citizenship law have not been properly addressed by Parliament.

Chapman estimates there may be thousands of people like Scott, but adds no one knows for sure.

"The entire area of citizenship is a disaster that has now evolved into a catastrophe," said Straith, referring to statements made in May by the Chief Justice of the Federal Court.

Chief Justice Paul S. Crampton wrote in a court judgement involving a woman from China that "this case is yet another example of why something needs to be done to address the unacceptable state of affairs concerning the test for citizenship in this country."

Although the case did not involve the status of Canadian citizenship pre-1947 or the passage of citizenship from parent to child, Straith said the comments "apply to the entire spectrum of problems in this area" and the government's continued failure to address them.

One reason Scott and her lawyers decided to put her judicial review on hold was because the narrow nature of such a proceeding prohibited them from introducing evidence related to broader citizenship issues.

Specifically, a document they brought before the court in July – a 1943 pamphlet issued to Canadian soldiers – deals "with the historic rights of Canadians as they were going overseas," Straith said.

It states that the soldiers "were fighting as citizens of Canada, not as merely British subjects," he said, noting the presiding judge ruled it could not be considered.

Scott and her lawyers said the pamphlet is just one of many documents that prove their case. In fact, one of the questions in their application is whether the Canadian government is forced to grant citizenship to people like Scott's father because of previous Crown actions, such as issuing the pamphlet.

"There is a concept in Canadian/Commonwealth law called the doctrine of the 'Honour of the Crown,' which primarily has been used in land claims cases where the Crown has basically tried to void earlier agreement made with First Nations," said Straith.

"Just as this government has been restrained by the courts from breaking the Crown's legal word to First Nations, we believe that under this 'Honour of the Crown' principle the Harper government will again be restrained from breaking its word to veterans and their families," he said.

If they lose, Chapman said "we might as well go over to Europe and scratch the maple leaf off (the) gravestones" of Canada's war dead.

For Scott, such a denial would be much more personal.

"When I had that last denial, and I saw them say that my father wasn't a Canadian citizen and he'd fought for his country, as a Canadian citizen, then it made me very angry," she said. "I've asked many people who have ancestors who have gone off, fathers or grandfathers that have gone off, and fought for Canada, 'Did they fight as a Canadian citizen?' They say 'Yes!', and they're appalled when they hear that they're not."

But Scott said she cannot even hope to describe how happy she would be if they won.

"It's hard to put into the words the emotion that you feel when you can finally say that you're part of the family, and also to be able to give the people that should have their citizenship confirmed just that," she said.

The government has until August 30 to file a response. Scott's new application will likely be heard in court in September.

 

[pbi]

IIRC, there was no requirement to be a Canadian citizen or even a landed immigrant to enrol during WWI, and probably not during WWII either. I know that people joined my Militia unit in the early 1970's who were "commonwealth Citizens", not Canadian citizens: most of them were from the Caribbean.

One of our WWI PPCLI recruiting posters clearly states that recruits were to be "British Citizens", which is what many Canadians considered themselves to be, even after WWII. Remember the resistance to having a uniquely "Canadian" national flag?

I think that these advocates, as noble as their cause is, are searching retroactively after something that the people in question would not really have sought, or even worried much about, at the time. I'm not aware that we have ever had an Act in Canada that confers citizenship through military service (although I stand to be corrected on that...)

 

[McG]

The government seems to be arguing that all Canadian service members were British subjects and not Canadian citizens.

 

[The Bread Guy]

.... I think that these advocates, as noble as their cause is, are searching retroactively after something that the people in question would not really have sought, or even worried much about, at the time ....

That said, I'd also guess that if they moved back to Canada (even with a U.K.-born wife) and lived in Canada, raising kids in Canada, that said kids wouldn't be anything other than Canadians.

The government seems to be arguing that all Canadian service members were British subjects and not Canadian citizens.

Technically, they could be arguing that anyone born before the 1947 Citizenship Act wasn't really a Canadian, especially if they had kids overseas. 

Call me cynical, but there must be more to this than we're seeing here.  Is there something here that would cost the government extra money if we allowed citizenship in such cases that we're not reading/hearing about here? ???

 

[dapaterson]

I believe the issue is tied to some children "being born on the wrong side of the blanket".  Thus, at the time of birth, they had no father; no father means they cannot inherit their father's citizenship.

The case in question has further wrinkles; she took out US citizenship in 2005 after 33 years of residency in the US.

http://www.canadianwarbrides.com/scott-jackie.asp

 

[The Bread Guy]

I believe the issue is tied to some children "being born on the wrong side of the blanket".  Thus, at the time of birth, they had no father; no father means they cannot inherit their father's citizenship.

The case in question has further wrinkles; she took out US citizenship in 2005 after 33 years of residency in the US.

http://www.canadianwarbrides.com/scott-jackie.asp

Thanks for a bit more of the REST of the story, at least even in this one case.

 

[George Wallace]

The government seems to be arguing that all Canadian service members were British subjects and not Canadian citizens.

.....But the Government is changing Army ranks back to Pips and Crowns.  How can we do that if we had no Canadian citizens serving; them all being British subjects?  On the one hand they are returning us to a "historical" point in time, and then on the other hand denying that those serving were Canadian citizens, thus not part of our Canadian military heritage.  A little bit of hypocrisy don't you think?

>

 

[Navy_Pete]

Here's a pretty good history on Canadian citizenship laws; http://en.wikipedia.org/wiki/History_of_Canadian_nationality_law

My understanding on this is fuzzy at best as it's a bit of a legal minefield, but it's interesting that it's becoming an issue now that children of war brides are retiring and applying for CPP.  On the surface, seems like a government in once again, looking at this as a dollars and cents issue vice what is morally right.

 

[X Royal]

but it's interesting that it's becoming an issue now that children of war brides are retiring and applying for CPP.  On the surface, seems like a government in once again, looking at this as a dollars and cents issue vice what is morally right.

What does CPP have to do with this thread about citizenship?
No need to be a citizen to collect CPP.
Just be legally entitled to work in Canada and contributed to the fund.

 

[DBA]

From a House of Commons report: "RECLAIMING citizenship for canadians — a Report on the loss of canadian citizenship"

She was outside the country on her 21st birthday and presumably 24th as well so unlike others in similar situations wrt out of wedlock births did not get citizenship by residing in Canada.

A second problematic provision of the 1947 Canadian Citizenship Act[16] required those who acquired Canadian citizenship by descent to assert their Canadian citizenship by registering a declaration of retention between their 21st and 22nd birthdays. Failure to do so resulted in the person ceasing to be a Canadian citizen. Later, this requirement was amended to provide that such a person could retain their Canadian citizenship either (a) by registering the declaration between their 21st and 24th birthdays, or (b) by living in Canada on their 24th birthday. With the passage of the current Citizenship Act in 1977, the requirement was repealed altogether. People who otherwise would have been subject to the requirement but had not yet turned 24 when the Act came into force, were relieved from complying.[17] However, those born earlier who had failed to retain, and did not reside in the country on their 24th birthday, lost their Canadian citizenship.

 

[je suis prest]

The crux of this issue isn't reall about this individual plaintiff, or the money involved in recogniznig the "lost Canadians". The government has taken steps in recent years to grant citizenship to most of those who had fallen through the cracks due to earlier versions of the Citizenship Act.  There would be relatively few remaining ones, such as this woman with her complicated history, who had not been addressed by those reforms.

The government's real concern is with the argument raised by the plaintiff that citizenship is something that can be acquired outside of the terms of the Citizenship Act. The plaintiff argues that regardless of the stature there is a means of acquiring citizenship by, in effect, common law.  The government concern is that such  ruling would mean a loss of control by the Crown over who is or is not a citizen, with the wider implications that may have for immigration issues.  Hence the historical debates over when and how citizenship may have been acquired in earlier days.

 

[Rocky Mountains]

The method of not setting precedent would have been for the minister to sign off on this at an early date.  They chose instead to roll the judicial dice.  Another matter, voluntary dual citizenship irks me.  Either you're with us or agin us.