Order in Council P.C. 1945-858 and the Lost Canadians

A gateway to Canadian citizenship 

 R. H. Addington May 8, 2012

Order in Council P.C. 1945-858 and the Lost Canadians

Page 1 of
Order in Council 858
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On February 9th, 1945, the Cabinet made an Order in Council that is now all but forgotten but is of continuing importance to one group of remaining Lost Canadians: War Bride children who arrived in Canada before January 1st, 1947. Some of them, after a lifetime in Canada, are still excluded from citizenship because they were born out of wedlock, even if their parents later married. The purpose of this note is to show that this continuing denial of citizenship is both historically and legally indefensible.

Historically, Order in Council P.C. 1945-858 was just one of thousands of wartime Orders in Council made under the special powers of the War Measures Act. Its existence has always been known, but only recently has it been studied because it is not readily accessible to the general public. It was never published in the Canada Gazette and has not yet been digitized by the Library and Archives but is accessible there both in print and on microfilm (LAC References: Canadian War Orders and Regulations 1945, Volume 1, No 7 (printed booklet), AMICUS No 101204; Microfilm Reel No T-5174).

The purpose of P.C. 1945-858 was to facilitate the entry to Canada of the arriving military dependents; i.e., the women who had married Canadian soldiers overseas during the Second World War, and of their children. It did so in two ways. First, it allowed the military dependents to enter Canada without meeting the usual requirements of the Immigration Act, except for a medical examination. (Section 2 of the Order in Council allowed delayed entry of those who could not pass the medical examination). Second, it gave the military dependents immediate Canadian domicile, and Canadian citizenship as then defined under the Immigration Act.

Section 3 of the Order in Council reads as follows: 
Every dependent who is permitted to enter Canada pursuant to section two of this Order shall for the purpose of Canadian immigration law be deemed to be a Canadian citizen if the member of the forces upon whom he is dependent is a Canadian citizen and shall be deemed to have Canadian domicile if the said member has Canadian domicile.
Page 2 of
Order in Council 858
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 But what did the term ‘Canadian citizen’ mean in 1945? The answer is found in the Immigration Act , R.S.C. 1927, c. 93, at par.

2(b): ‘Canadian citizen’ means

(i) a person born in Canada who has not become an alien;

(ii) a British subject who has Canadian domicile; or

(iii) a person naturalized under the laws of Canada who has not subsequently become an alien or lost Canadian domicile.

The Order in Council did not make new law; it simply recognized the status of the arriving military dependents under existing law, treating them more as returning Canadians than as immigrants. The government of the day clearly regarded them as members of the Canadian family, as indeed they already were by blood or marriage.

From January 1st, 1947, citizenship status was determined solely by the Canadian Citizenship Act 1946. Two sections of the Act apply to persons born before 1947: section 4 and section 9. Section 4 deals with ‘natural-born Canadian citizens; section 9 with ‘Canadian citizens other than natural-born’. War Bride children born out of wedlock are excluded from citizenship under section 4, unless the mother was Canadian. Section 9, however, contains no restrictions based on the sex or marital status of the parents. It gives citizenship to all British subjects, other than natural-born citizens, who had Canadian domicile on January 1st, 1947. That would logically include War Bride children born out of wedlock. On statutory interpretation, they are indisputably ‘Canadian citizens other than natural-born’, by operation of law.

In Minister of Citizenship and Immigration v. Taylor (2007 FCA 349), the Federal Court of Appeal, reversing the earlier judgement of Martineau J. of the Federal Court (2006 FC 1053), held that P.C. 1945-858 could not, ‘in and of itself confer the status of “Canadian citizenship” (par. [52]). The Court did not, however, rule that rights acquired before January 1st, 1947 were somehow extinguished by the Canadian Citizenship Act 1946. On the contrary, those pre-existing rights were expressly saved by sub-section 46.(1) of the Act.  Anyone who on December 31st, 1946 was a British subject who had Canadian domicile was still a British subject with Canadian domicile on January 1st, 1947 and a citizen under the new Act. And the Court of Appeal noted (par. [53]) that the Minister had conceded before Martineau J. that Mr Taylor had indeed acquired Canadian domicile and the same status as his father on arrival in Canada, and would have become a citizen under the 1946 Act had he not left Canada with his mother before January 1st, 1947. The Court did not, however, accept the Minister’s argument that Mr Taylor had lost Canadian domicile when he left Canada.

The Minister had also conceded that:

[54] While P.C. 858 itself limited its reach "for the purpose of Canadian immigration law", the amendments to the [1910] Immigration Act, also coming into force on January 1, 1947 changed the definition of citizen to incorporate the definition found in the new [1947] Canadian Citizenship Act. Additionally, the combination of being granted domicile and being a British subject would have themselves met the requirements of the 1947 Canadian Citizenship Act [emphasis in original].

(Since Mr Taylor had claimed citizenship only under section 4 of the Canadian Citizenship Act 1946, the Court of Appeal did not rule on whether, in the alternative, he had acquired citizenship under section 9 which, as noted above, has no out-of-wedlock exclusion. In the end, the Court ruled that even if Mr Taylor became a citizen in 1947 he had lost Canadian citizenship by failing to meet the pre-1977 retention conditions at age 24.)

The transition from the old definition of citizenship under the Immigration Act to the new definition under the Canadian Citizenship Act 1946 was seamless. That is exactly what Parliament intended. The contrary interpretation, that Canadian citizenship was somehow created ex nihilo on January 1st, 1947, with no legal continuity with what went before, is both historically and legally untenable. This argument applies to any case involving an out-of-wedlock War Bride child.