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.
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.