History of Pre-1947 Citizenship by Fred Colburne

by Fred Colburne

The Naturalization Act 1914 was the 1914 British Nationality Act that was adopted by Canada under a different name. In 1948 the British Nationality was amended to define "British subject" status with retroactive effect as "Commonwealth citizen" status.

As Canada adopted a UK definition that was retroactive and applied to the entire Commonwealth, the usual presumption against retroactivity does not apply. [Canadian Citizenship Act 1946, consolidated 1952. S.23(2)]

In law, British subject status defines the status of a Canadian within the Commonwealth and is entirely separate from his status within Canada. In the same manner, Canadian nationality defines a Canadian's international status among the world's nations, Canadian citizenship defines a Canadian's status in terms of the right and duties of participate in the political affairs of Canada. These three statuses have been governed by International law, Imperial and Commonwealth law, and the municipal law of Canada.

In Canada, British subject status was a condition for Canadian nationality and Canadian citizenship, but did never exclude either Canadian national status nor Canadian citizen status.

The Canadian Nationals Act 1921 was the the first general statute that declared both Canadian nationality and Canadian citizenship status. As Minister of Justice Charles Dougherty explained in committee after the second reading of the Bill, the reference to the definition of "Canadian citizen" in the Nationals Act has the same legal effect as incorporating the words of the Immigration Act in their entirety into the Nationals Act.

We note that the Nationals Act was introduced by the Minister of Justice, because unlike the Immigration Act, the Nationals Act declared general law that applied to all Canadian nationals and citizens. The definition of "Canadian citizen" in the Nationals Act was not restricted by the words "In this Act ..." as was the definition of "Canadian citizen" in the Immigration Act.

As for the period before 1921, the definitions "Canadian nationality" and "Canadian citizenship" were declared by the Census of Canada to be synonymous. [Proclamation by Order-in-Council in 1901 under the Census Act.]. The Census has special status and authority because it is mandated by the Constitution.

All of this is consistent with the speech of Governor-General Viscount Monck when he opened Canada's first Parliament. On behalf of Queen Victoria, he welcomed Canadians as a "new nationality".

To state today that Canadians were from 1867 to 1947 merely British subjects is unhistorical. Further, it is inconsistent with the claim made by the Attorney-General of Canada before the Manitoba Queen's Bench in Manitoba M├ętis v Canada. Before that Court, the Attorney-General claimed that all non-Indian inhabitants of Manitoba became full citizens of Canada on accession to Confederation in 1870.

This British Constitution is clear on this matter. The House of Lords declared that a realm of the King with its own parliament and system of laws was a separate "nation" in allegiance with the Person of the King. The King wears separate Crowns. [Calvin's Case (1608) 7 Coke Report 1a, 77 ER 377].

The British North American Act 1867 created a new nation, the inhabitants of which possessed Canadian nationality and owed allegiance to Queen Victoria in her Person and by Her Right in Canada to bear a separate Crown. This is the meaning of the Preamble to our Constitution. As set out by two Associate Justices of the Supreme Court in the 1938 reference Re Alberta Statutes, Canadian citizenship originated with the Preamble of the Constitution Act of 1867, which states that Canada shall have the same democratic form of government as the UK, which presumes citizenship rights and duties.

The Government of Canada has claimed both in the Manitoba Courts and the Federal Supreme Court that Canadians were citizens from Confederation. This is historically sound. What is unhistorical is the claim that Canadians were merely British subjects until 1947. The claim by Mackenzie King that he was Canada's first citizen was a political stunt.