Judgments

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David P. Ulin (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Noël A.C.J.—Montreal, March 13; Ottawa, April 3, 1973.
Citizenship—Extent of regulatory power conferred on Gov ernor in Council—No power to require applicant for citizen ship to renounce previous nationality—Canadian Citizenship Act, R.S.C. 1970, c. C-19, s. 35(1).
The regulatory authority conferred on the Governor in Council by section 35(1) of the Canadian Citizenship Act does not include the power to require an applicant for citizenship to renounce his previous nationality.
Held, therefore, section 19(1) of the Canadian Citizenship Regulations, which so prescribes, is ultra vires.
ACTION for declaration. COUNSEL:
Richard McConomy for plaintiff. Alain Nadon for defendant.
SOLICITORS:
Boisvert and Pickel, Montreal, for plaintiff.
Deputy Attorney General of Canada for defendant.
NOËL A.C.J.—By these proceedings, the plaintiff, a landed immigrant, requests this Court to declare that regulation 19(1)(b) of the Canadian Citizenship Regulations whereby an immigrant who wishes to obtain a Canadian citizenship certificate is required "to make a declaration, in prescribed form, of renunciation of his previous nationality or citizenship" is ultra vires and that he is entitled to a certificate of Canadian citizenship without renouncing his previous nationality.
The plaintiff, an American citizen, was admit ted to Canada as a landed immigrant on Septem- ber 18, 1966. He filed an application for the grant of a certificate of Canadian citizenship on October 15, 1971 which was heard by the Court of Canadian Citizenship, sitting at Montreal,
P.Q., on January 18, 1972. The Honourable Secretary of State of Canada determined that the plaintiff be granted a certificate of Canadian citizenship. Plaintiff was notified to appear before the Court of Canadian Citizenship, at Montreal, P.Q., on November 9, 1972, for the presentation of a certificate of Canadian citizen ship. He appeared personally before the Court of Canadian Citizenship at Montreal, P.Q., on the said date and declared himself ready to take the oath of allegiance and, in fact, swore to the oath of allegiance in the form presented to him. He says that having duly complied with the provisions of the Canadian Citizenship Act, he requested his certificate of Canadian citizenship but his request was denied. The refusal was based on regulation 19(1)(b) which requires the making of a declaration in prescribed form of renunciation of previous nationality or citizen ship. This regulation is produced hereunder:
Oaths of Allegiance and Affidavits
19. (1) Where a person is required under section 31 of the Act to take the oath of allegiance, unless otherwise directed by the Minister, a certificate of citizenship shall be forwarded by the Registrar to the Clerk of the Court who shall notify that person of the time and place at which he is to appear before the Court
(a) to take the oath of allegiance;
(b) to make a declaration, in prescribed form, of renuncia tion of his previous nationality or citizenship; and
(c) to receive his certificate of citizenship. [Italics added.]
The defendant, on the other hand, says that section 19(1) of the Regulations prescribing a declaration of renunciation was validly enacted by the Governor in Council under section 35(1) of the Canadian Citizenship Act [R.S.C. 1970 c. C-19) which, according to its counsel, gives to the Governor in Council the authority to make regulations generally for carrying into effect the purposes and provisions of the Act. The defend ant, therefore, prays that its plea be maintained and that plaintiff's statement of claim be dis missed with costs.
Section 35(1) reads as follows:
35. (1) The Governor in Council may make regulations generally for carrying into effect the purposes and provi-
sions of this Act, and in particular with respect to the following matters:
(a) the forms of and manner of registration of declara tions, certificates or other documents required to be used under this Act or deemed necessary for carrying out its purposes;
(b) the time within which the oath of allegiance is to be taken before or after the grant of a certificate of citizenship;
(c) the persons before whom the oath of allegiance may be taken and the persons before whom any declarations under this Act may be made;
(d) the form in which the taking of oaths of allegiance is to be attested and the registration thereof;
(e) the persons by whom certified copies of oaths of allegiance may be given and the proof in any legal pro ceeding of any such oaths;
(j) the fixing and payment of fees in respect of
(i) the filing or making of any application, petition or declaration,
(ii) the issue or delivery of any copy whether certified or not, and
(iii) the administration or registration of any oath,
filed, made, issued, delivered, administered or registered pursuant to this Act and the disposition of any such fee;
(g) the procedure to be followed in the conduct of pro ceedings before the court;
(h) the manner of proof of any qualification required for the grant or issue of a certificate of citizenship under this Act;
(i) the manner of proof of Canadian citizenship and the issuing of certificates for such purpose;
(j) the registration of births of persons born outside of Canada;
(k) the surrender and cancellation of certificates of citi zenship or certificates of naturalization where the holder thereof has ceased to be a Canadian citizen or British subject by reason of revocation or otherwise under this Act or under an Act that was in force in Canada at any time before the 1st day of January 1947 as the case may be; and
(I) for the delivery up and retention of certificates of citizenship, certificates of naturalization or any other cer tificates issued pursuant to this Act or the regulations for the purpose of determining whether the holder thereof is entitled thereto or has violated any provision of this Act, and where it is determined that such person is not entitled thereto, for the cancellation or other disposition of such certificate.
Subsection (2) of section 35 deals also with the powers of the Governor in Council but as the subjects mentioned therein do not relate to the issuance of Canadian citizenship certifi cates, they are not relevant to the present prob lem and have not been reproduced here.
The position taken by the Crown is that the principal objects of the Canadian Citizenship Act is to regulate the manner of acquiring or of losing Canadian citizenship and the status in Canada of Canadian citizens and foreigners. Counsel for the defendant says that one of the related objects of the present Act is to reduce as much as possible cases of double citizenship or double allegiance and queries as to whether it is possible to sincerely swear faithfulness and alle giance to two countries. The possibility of wars between two countries to whom faithfulness and allegiance are sworn indicates, he says, the conflicting position in which would be placed a person who had sworn double allegiance.
He claims that one of the objects of the Act is to reduce to a minimum cases of double alle giance in order to avoid conflicts. He points out that section 15(1) of the Act states that a Canadian citizen who acquires voluntarily the citizenship of another country loses his Canadi- an citizenship. This section reads as follows:
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.
He also referred to section 18(1)(b)(î) and (ii) reproduced hereunder:
18. (1) The Governor in Council may, in his discretion, order that any person shall cease to be a Canadian citizen if, upon a report from the Minister, he is satisfied that such person has
(b) when not under a disability
(i) while in Canada and at any time after the 1st day of January 1947, acquired the nationality or citizenship of a foreign country by any voluntary and formal act other than marriage,
(ii) taken or made an oath, affirmation or other declara tion of allegiance to a foreign country, ..
The above sections, however, cover cases which deal with a foreign citizenship or nation ality acquired by one holding a Canadian citi zenship but contemplate the possibility of a Canadian citizen not losing his or her Canadian citizenship if he or she acquires the nationality or citizenship of another country by marriage. We may, therefore, take it that although the
acquiring by a Canadian citizen of double citi zenship is not to be encouraged, it is possible, in some circumstances to adhere to the nationality or citizenship of another country and still retain a Canadian citizenship.
On the other hand, the Canadian Citizenship Act contains no requirement for a renunciation of previous nationality or citizenship.
As a matter of fact, section 10(1)0 of the Act says that
10. (1) The Minister may, in his discretion, grant a certifi cate of citizenship to any person who is not a Canadian citizen and who makes application for that purpose and satisfies the Court that
() he has an adequate knowledge of the responsibilities and privileges of Canadian citizenship and intends to comply with the oath of allegiance set forth in Schedule II;
This oath of allegiance reads as follows:
I, A.B., swear that I will be faithful and bear true alle giance to Her Majesty Queen Elizabeth the Second, her Heirs and Successors, according to law, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.
So help me God.
Section 32 of the Act says that
32. When a court decides that an applicant for a certifi cate of citizenship is a fit and proper person to be granted such a certificate, or the Citizenship Appeal Court reverses the decision of a court in respect of an application, a certificate of citizenship may, in the discretion of the Minis ter, be granted to the applicant and the certificate shall be delivered to the applicant and the oath of allegiance taken by him as prescribed by regulation.
Section 35 of the Act, as we have seen, gives the Governor in Council the right to make regu lations for carrying into effect the purposes of the Act with respect to a number of matters. The list of such matters comprises the forms and manner of registration of declarations, cer tificates or other documents required to be used under the Act, the time of the taking of the oath of allegiance, the persons before whom the oath of allegiance may be taken, the form and attes tation and registration of the oath of allegiance, the persons by whom certified copies of oaths of allegiance may be given, the fees to be charged for the oath of allegiance and a number of other matters which in no way deal with the
question of obliging a person to renounce his previous nationality or citizenship.
The requirement for renunciation of prior for eign citizenship or nationality is, indeed, not found anywhere in the Act and is found only in Regulation 19 (1)(b).
It appears clear to me that the mention of the oath of allegiance, the list of matters that can be dealt with by regulation, the procedure set down in section 35 with respect to such oath, indicate that the legislator intended to require an oath of allegiance only as a qualification for the issu ance of a certificate of citizenship.
It is indeed my view that by creating by regulation a new requirement, i.e., renunciation of prior citizenship or nationality on the same footing as the oath of allegiance, the Governor in Council has created without authority a new substantive requirement for the obtention of Canadian citizenship. This, in my opinion, clear ly goes beyond the powers conferred by the Act. There is, indeed, no question that on a plain reading of the Act the taking of the oath of allegiance is the only requirement after a satis factory decision has been rendered by a Canadi- an citizenship court granting citizenship to a foreigner and the inclusion of the specific word ing of the oath of allegiance in the Act indicates clearly the intention that this oath, as contained in the schedule, shall be the only requirement in so far as an indication of allegiance to Canada is concerned.
The Canadian Citizenship Act, as we have seen, contemplates the possibility that a Canadi- an citizen may, in some cases, retain or obtain a dual citizenship (cf. sections 15 and 17 of the Act) and such a situation may at times create some difficulties, particularly when both coun tries are at war and a Canadian citizen serves in the armed forces of a foreign country. The Act, however, in section 17 has provided that when such a situation develops, such a Canadian citi zen ceases to be a Canadian citizen.
If the legislator intended to require more than an oath of allegiance in order to obtain Canadi- an citizenship, it would have been a simple matter to so enact such other requirements as are considered necessarily and substantially required for the protection of the quality of Canadian citizenship. Parliament, however, has not done so and the Governor in Council is not empowered, under the guise of carrying into effect the purposes and provisions of the Act to enact such a substantive requirement as a decla ration of renunciation merely by regulation.
In result, section 19(1)(b) of the Regulations is hereby declared to be ultra vires of the powers of the Governor in Council given by the Act and the plaintiff is entitled to receive a certificate of Canadian citizenship.
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