WAR BRIDES' STATUS IFFY
Ruling Casts Doubt On Citizenship of thousands of World War II Children
By PETER WORTHINGTON,
Tue, November 6, 2007
By overturning a lower court's ruling last Friday in Vancouver, the Federal Court of Appeal has delivered a blow to unknown thousands of World War II war brides and their children who thought they were Canadian … but now may not be.
By its unanimous ruling that Joe Taylor, the son of a Canadian D-Day soldier, is not a Canadian citizen casts doubts on the status of every war bride and child who was granted citizenship under a special wartime Order in Council in 1945, and who may have left Canada without signing a form to have citizenship re-affirmed.
The Citizenship Act of 1947 has robbed up to an estimated 200,000 Canadian-born people of the citizenship, but that's different from the dilemma Joe Taylor and other war bride families face.
The Appeal Court ruled that today's Constitution can't be applied retrospectively or retroactively to correct what a previous government has decided in Taylor's case, granting him and his mother citizenship in 1946, then revoking it later.
As a Canadian soldier, Taylor's father was refused permission to marry his pregnant fiance prior to D-Day. They were married in Britain when he returned unscathed from France at the war's end.
In Canada, Joe's parents subsequently divorced, and mother and child returned to Britain. Young Joe was told his father had died, but later learned he'd re-married. In the 1990s Joe learned he had seven half-brothers and sisters.
As a retired accountant with pension, Taylor came to Canada thinking he was still a Canadian, only to discover he wasn't. He bought property in B.C., and has spent a good part of the last decade living there, fighting to become Canadian. The government vigorously opposed his claim, arguing that he should have re-affirmed citizenship before his 24th birthday.
Taylor claimed not to know of this rule. The Appeal Court reminded him that “ignorance of the law is no excuse.”
Some (but not all) flaws and oversights in the first Citizenship Act of 1947 were corrected in the revamped 1977 Citizenship Act. Further protections came later in the Charter of Rights and Freedoms.
Last year, Federal Court Judge Luc Martineau ruled in Taylor's favour, and ordered that his citizenship be restored. The government appealed and, last Friday, won. Taylor now has the option of going to the Supreme Court of Canada, but the Appeal Court's unanimous decision, makes the likelihood of success doubtful.
Where Taylor's case (and others) gets complicated — and morally and ethically questionable — is that when the ship he and his mother were on reached Halifax in 1946, Prime Minister Mackenzie King and cabinet members were there to welcome the war brides. They praised their courage and their future in Canada was extolled.
A government pamphlet was issued, giving advice and help to the newcomers. Included was the categorical statement that immigration officials would come on board the ship before disembarkment: “These men will complete the formalities for your entry into Canada which automatically make you a Canadian citizen.” That was unconditional and reassuring.
Part of the reasoning for now denying Taylor's citizenship is that his parents weren't married at the time of his birth. While that wouldn't be a deterrent today, it was then, and the court feels it shouldn't impose today's values.
In his decision, supported by Justices Alice Desjardin and C. Michael Ryer, Justice Robert Decary, noted: “It seems to me it would be unfair to the Parliament and to the government of that day to judge moral values of a distant past in the light of today's values.
“It could also be an unbearable burden on today's government to demonstrate today that the measures taken then were justified in a free and democratic society. And since we would be moving in the realm of history, speculation and hypothesis, could we not contemplate the possibility that Parliament, in the circumstances prevailing in 1947, would have invoked the nothwithstanding clause?
“For if we were to apply the Charter to the past, should we not apply it with its checks and balances? All this is to suggest that the courts may not be the best instruments for rewriting history.”
That strikes me as an incredible observation.
Read it again. What the justices are saying we should not do — we do all the time as a country. We honour some decisions governments made in the past — treaties with Indians and their “rights,” while revoking other decisions.
Reparations and apologies were made to Japanese-Canadians wrongly interned by past government policy; the Chinese poll tax to build the railway was wrong, as was wartime unfairness to Ukrainians.
The Appeal Court seems to pardon the government for reneging on its wartime gratitude in making war brides and children of Canadian soldiers citizens of Canada.
If the court feels it shouldn't “rewrite history,” why wouldn't it uphold what the Canadian government promised in 1945?
Yes, the Appeal Court notes that “there is no basis in law for imposing a positive duty on government officials to forewarn persons that they might be impacted by pending legislation.” But isn't there a “moral” duty? In this case, Taylor was never informed that he should have reaffirmed citizenship by his 24th birthday, else lose it.
“No such right exists,” for a person to be notified of citizenship changes, the Appeal Court notes. Three readings in the Senate and House of Commons, plus Royal assent are “the only procedure due any citizen of Canada” that laws are being changed.
The Appeal Court says Taylor “may still apply for a grant of citizenship,” as suggested by the minister of citizenship and immigration.
That might satisfy Taylor but what about the estimated 40,000 World War II brides and 20,000 of their children who, by the Appeal Court's ruling, may now be without citizenship, without knowing it. And that seems wrong.
More on this subject is available at canadianwarbrides.com.