The Vancouver Sun
Wednesday, May 31, 2006
Judge asked to rule on status of war brides, kids
Second World War soldier’s son came to Canada as baby, but denied passport
By Gerry Bellett email@example.com
A federal judge warned Tuesday that the citizenship status of all war-brides and their children from the Second World War could be placed in limbo if he’s forced to make a decision on the citizenship status of a Canadian soldier’s son.
"This is not a street fight; the outcome of this goes beyond the interests of Mr. [Joseph] Taylor. It has huge consequences," Justice Luc Martineau warned Crown lawyer Peter Bell, who was representing the immigration minister.
Martineau said if he accepted the government’s argument that the son has no Canadian citizenship status, the same would apply to all those like Taylor and his mother, who came to Canada as spouses and dependents of Canadian servicemen who served overseas in the Second World War.
Joseph Taylor came to Canada in 1946 as a baby with his mother who married his father – also called Joseph – after he was born. The marriage failed and both returned to England later that year.
However, because an order in council existed in 1946 that the wives and children of Canadian servicemen who came to Canada were deemed to have the same status as the servicemen, Taylor’s son was automatically granted Canadian citizenship and residence in Canada when he arrived.
This right didn’t apply to wives and dependents if they stayed overseas.
When the pair returned to England, they travelled on Canadian passports.
Taylor grew up believing he was a Canadian, but when he tried to get a new passport in 2005, it was refused on the grounds that he was born illegitimate and that his citizenship was British, based on his mother’s nationality. That denial sparked Tuesday’s judicial review.
Bell said it was wrong to deny Taylor a passport on that basis, but that there were other reasons why he had lost his citizenship.
The government is now claiming Taylor lost citizenship because legislative changes made after he left Canada meant he had to assert his rights to citizenship before he was 24 years old in order to retain his rights – something he didn’t do.
Martineau asked both Bell and Taylor’s lawyer Rory Morahan whether the parties wanted a judicial decision or a way could be found for the parties to agree on a settlement.
Morahan asked the judge to make a ruling that the immigration officer erred in finding that Taylor’s illegitimacy affected his status, to find that he had not lost any of his citizenship rights when he left Canada in 1946, and to order the matter sent back to the minister so another application could be made.
But Bell rejected this. When Martineau later warned him of the consequences of forcing a judicial ruling, he said he would have to seek advice from Ottawa.
What concerned Martineau most was how the Canadian government dealt with war brides and soldiers’ dependents who had entered Canada – and were granted automatic citizenship – when the new Citizenship Act was adopted in 1947.
Martineau said he could find no distinction between them and Taylor, and asked Bell repeatedly if these people were grandfathered in as Canadian citizens in 1947 or whether they had to apply for citizenship.
But Bell could not answer the question.
Morahan then produced a letter from former Liberal immigration minister Joe Volpe saying that in fact war brides were granted citizenship in 1947 pursuant to the Citizenship Act.
Bell said using the letter would "not be correct in law" as it was not a statute.
"No, but it answers my question,’ said Martineau.
If you want this court to say all these persons are in limbo because the minister got it wrong – this is what will flow if you are right.
If there was a gap in statutes it would take an act of Parliament to correct the situation and deem them to be Canadians (sic) citizens for the purpose of the Citizenship Act," he said
Martineau decided to give both sides 10 days to produce documents concerning what happened to the citizenship status of war brides and dependent children after the 1947 Citizenship Act was proclaimed."