UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

Canadian citizenship laws : two facets 1972

You don't seem to have a PDF reader installed, try download the pdf

Item Metadata

Download

Media
UBC_1972_A6_4 T74.pdf
UBC_1972_A6_4 T74.pdf [ 10.6MB ]
Metadata
JSON: 1.0077747.json
JSON-LD: 1.0077747+ld.json
RDF/XML (Pretty): 1.0077747.xml
RDF/JSON: 1.0077747+rdf.json
Turtle: 1.0077747+rdf-turtle.txt
N-Triples: 1.0077747+rdf-ntriples.txt
Citation
1.0077747.ris

Full Text

c l CANADIAN CITIZENSHIP LAWS: TWO FACETS BY GUY TREMBLAY B.A., Universite Laval, 1967 Licencie en d r o i t , Universite Laval, 1970. A thesis submitted i n p a r t i a l f u l f i l m e n t of the requirements f o r the degree of 4 MASTER OF LAWS i n the Faculty of LAW We Accept t h i s Thesis as conforming to the required standard* The University of B r i t i s h Columbia May, 1972 In presenting t h i s thesis i n p a r t i a l fulfilment of the requirements for an advanced degree at the University of B r i t i s h Columbia, I agree that the Library s h a l l make i t freely available for reference and study. I further agree that permission for extensive copying of t h i s thesis for scholarly purposes may be granted by the Head of my Department or by h i s representatives. I t i s understood that copying or publication of t h i s thesis for f i n a n c i a l gain s h a l l not be allowed without my written permission. Department of The University of B r i t i s h Columbia Vancouver 8, Canada ABSTRACT This thesis purports to consider two related problems i n Canadian c i t i z e n s h i p laws. In the f i r s t chapter, a comparison i s made between the American state c i t i z e n s h i p and what could be c a l l e d a p r o v i n c i a l c i t i z e n - ship i n Canada. In conclusion, i t i s asserted that there are more factors i n the United States tending to standardiz the content of the c i t i z e n s h i p status between the states than between the provinces i n Canada. Consequently, insofar as t h i s content i s determined by the states or the provinces, i t can be said that Canadian provinces have been recognized by the laws of the constitu t i o n much more leeway than the American states to grant to the people they consider as t h e i r c i t i z e n s a p a r t i c u l a r status which i s d i s t i n c t from the one possessed by c i t i z e n s of other provinces. Moreover, the f i r s t chapter demonstrates that, both i n Canada and i n the United States, the purposes for which a formal c i t i z e n s h i p has been created are mostly irre l e v a n t for the determination of the classes of persons who are e n t i t l e d to share i n the rights and pr i v i l e g e s granted on a t e r r i t o r i a l basis. This should normally 11 lead to a recognition that aliens lawfully landed on the t e r r i t o r y w i l l he e n t i t l e d to these rights p r i v i l e g e s for i n t e r n a l purposes, and that c l a s s i f i c a t i o n s against aliens i n t h i s respect should be declared i n v a l i d i n the United States and inoperative i n Canada by virtue of the equality before the law provision of the B i l l of Rights. A study, i n the second chapter, of the j u d i c i a l attitudes of Canadian judges concerning the int e r p r e t a t i o n of section 91 (25) of the B.N.A. Act has revealed that, even today, the jud i c i a r y i s not l i k e l y to use the B i l l of Rights as an ef f e c t i v e t o o l to bring about a complete recognition of the rights aliens should have to share i n the general c i t i z e n s h i p status. The solution proposed i s to reform the Supreme Court of Canada so as to give to th i s organ the representativeness and legitimacy i t needs to f e e l free to depart from a l e g a l i s t i c application of the law; thus, the reliance on the B i l l of Rights to render inoperative federal enactments could be supplemented by the a v a i l a b i l i t y of some "implied b i l l of r i g h t s " approach capable of e f f e c t i n g the same re s u l t as against p r o v i n c i a l discrimination. Then, the d i s t r i b u t i o n of persons (aliens and Indians) i n the B.N.A. Act would become useless, and i t could be removed, either j u d i c i a l l y or by a formal con- s t i t u t i o n a l amendment. T A B L E O F C O N T E N T S Page Abstract.... i Introduction 1 Chapter 1. 5 1. The General Citizenship Status 7 2. The P o l i t i c a l C i tizenship Status.... 61 3. The Formal Citizenship Status 81 Conclusion. 104 Chapter 2 107 1. Negative Types of J u d i c i a l Reaction to the P o s s i b i l i t y of Entrenching Some Fundamental Rights by a Reliance on Section 91 (25) of the B.N.A. Act 109 2. Negative Types of J u d i c i a l Reaction of Giving Content to the Funda- mental Freedoms Declared i n the Canadian B i l l of Rights 124 Oonclusion. 136 General Conclusion 147 Footnotes 15^ Literature Cited 194 INTRODUCTION There have been numerous incoherences, i f not absurdities, i n the n a t i o n a l i t y laws of Canada u n t i l 19^7 when the Canadian Citizenship A c t 1 was supposed to bring f o r t h r a t i o n a l i t y i n the whole matter. Since the middle of the 17th century, the various colonies, despite t h e i r lack of e x t r a - t e r r i t o r i a l powers, purported to pass statutes conferring en masse B r i t i s h n a t i o n a l i t y 2 to aliens on t h e i r sole taking of an oath of allegiance. These c o l o n i a l n a t u r a l i z a t i o n Acts were r e t r o a c t i v e l y validated i n 1847 by the Imperial Parliament-^; at the same time, provision was made that, on the one hand, the f i r s t general Act i n Great B r i t a i n dealing with naturaliza- 4 t i o n did not extend to colonies and, on the other hand, the c o l o n i a l statutes operated only within the borders of each colony. This, admittedly, created a very odd s i t u a t i o n which lasted u n t i l 1914. A B r i t i s h subject naturalized i n B r i t a i n was an a l i e n when i n the colonies and vice versa. Everywhere i n the Empire, there was a power competent to confer the B r i t i s h n a t i o n a l i t y , but no such n a t i o n a l i t y could be v a l i d throughout the Empire.'^ - 2 - Only native-born B r i t i s h subjects acquired a universal status^. The problem of lack of uniformity was studied at the Imperial Conferences of 1903t 1907 and 1911. In the l a t t e r case, the following p r i n c i p l e s were agreed to: each Dominion w i l l be free to grant the Imperial n a t i o n a l i t y upon such terms as i t s l e g i s l a t u r e thinks f i t , but a minimum of f i v e years of residence within the Empire s h a l l be required, and the status conferred w i l l be recognized i n every part of the Commonwealth. '. P a r t i c u l a r Acts designed to implement t h i s "common code" were passed by Great B r i t a i n , Canada, and most of the Q Dominions, i n 191^. This uniformity within the Commonwealth did not, however, bring the same within Canada i t s e l f . Canadians, obviously, were then B r i t i s h subjects f i r s t . But for immigration and deportation purposes, they had to be "Canadian c i t i z e n s " under the Immigration Act of o 1910 . Moreover, the need to distinguish the population represented by Canada at the League of Nations and through i t s p a r t i c i p a t i o n i n the International Court of Justice" 1"^ has compelled the adoption of the Canadian Nationals Act of 1 9 2 1 1 1 . Hence, there were three d i f f e r e n t formal d e f i n i t i o n s of the membership i n the Canadian community which clashed with each other and were used f o r s p e c i f i c 12 unrelated purposes. - 3 - The Canadian Citizenship Act was designed to standardize the law i n t h i s respect- I t repealed and replaced a l l the previous d e f i n i t i o n s of nationality. It also established a unique and basic notion of Canadian c i t i z e n s h i p , declared that Canadian c i t i z e n s become at the same time B r i t i s h subjects, and recognized as such the c i t i z e n s of the other Commonwealth countries: a l l these p r i n c i p l e s were soon agreed to at the Imperial Conference of 19^7 and implemented by most members of the Commonwealth, Therefore, the status of B r i t i s h subject which was, pr i o r to 19^7, an independent one, became a derived status which could only be acquired after a p a r t i c u l a r c i t i z e n s h i p . B r i t i s h n a t i o n a l i t y no longer carried with i t any kind of substantive content, a l l the rights and p r i v i l e g e s of B r i t i s h subjects 13 varying from j u r i s d i c t i o n to j u r i s d i c t i o n , J Accordingly, uniformity had been brought into Canadian c i t i z e n s h i p laws at the price of d i v e r s i t y , i f not anarchy, within Commonwealth and B r i t i s h n a t i o n a l i t y laws, but th i s i s obviously a normal consequence of the accession of the Dominions to independence and sovereignty. However, despite the apparent s i m p l i c i t y of the legal set-up i n Canada with respect to c i t i z e n s h i p , i t may appear that the p a r t i c u l a r nature of the State i t s e l f , federalism, is incompatible with a perfect standardization. One can wonder why there i s s t i l l no recognition of the existence of a p r o v i n c i a l c i t i z e n s h i p i n Canada while the concept of state c i t i z e n s h i p i n the United States has always been acknowledged. Of course, the power of the federal Parliament to adopt the Canadian Citizenship 14 Act cannot be questioned, even though there is.no bestowment on i t by the B,N,A, Act, for reasons that are obvious, of a competence over c i t i z e n s h i p as such. But that does not mean that the competence of the pro- v i n c i a l l e g i s l a t u r e s with respect to the same subject- matter i s questionable. Secondly, federalism, again, has led to some inconsistencies i n the a l l o c a t i o n and exercise of powers over the status i t s e l f of the people l i v i n g i n Canada; since the Canadian j u d i c i a r y has t r a d i t i o n a l l y overcome t h i s d i f f i c u l t y i n the easy way and has refrained from using the d i v i s i o n of powers to entrench some fundamental rights and freedoms as part of the c i t i z e n s h i p s'tatus, i t may be proper to analyze whether the same kind of reaction i s l i k e l y to arise with respect to the Canadian B i l l of Rights. These are two of the incoherences brought i n Canadian c i t i z e n - ship laws by the federal nature of the State that have not been and could not have been eliminated by the adoption of the Canadian Citizenship Act: I intend to consider them i n the following pages, - 5 - CHAPTER 1 The Case for a Prov i n c i a l Citizenship i n Canada A hare affirmation that there actually exists i n Canada a p r o v i n c i a l c i t i z e n s h i p can be made by anyone without fear of being contradicted. Indeed, the terms " c i t i z e n s " and 'bitizenship" can carry very d i f f e r e n t meanings, even i n the statute books and the j u d i c i a l pronouncementss they may as well be assimilated to the Criminal Code's "every one", or to "the people" generally. By analogy, the word "State" has also been used to designate the Canadian provinces on many occasions and, except by some purists, 1-' i t s accuracy has not been questioned. Nevertheless, i t i s necessary to ascertain i n t h i s chapter the actual senses i n which these terms w i l l be used. To write on a "provincial c i t i z e n s h i p i n Canada" implies not only that the word ci t i z e n s h i p has been given an accepted legal connotation, but also that the nature of federalism, and i n p a r t i c u l a r of the Canadian federation as a State, has been c l a r i f i e d . Accordingly, I w i l l analyse the three types of acceptation that the terms " c i t i z e n s " and " c i t i z e n s h i p " can bear, and whether each one of these types can l e g a l l y - 6 - be used f o r p r o v i n c i a l purposes i n Canada. Great resort w i l l be had to the laws of the United States, as a comparison, i n order to throw l i g h t on the Canadian scene. The general, p o l i t i c a l , and s t r i c t l y formal natures of a c i t i z e n s h i p w i l l be considered: i n the f i r s t two cases, i t w i l l be submitted that the Canadian con s t i t u t i o n a l law has conferred to the provinces the ri g h t to claim that they have t h e i r own c i t i z e n s and to establish a p a r t i c u l a r c i t i z e n s h i p status within the State. - 7 - I 1. The General Citizenship Status. Generally speaking, there i s no need to c i t e any authority to affirm that c i t i z e n s h i p i s the quality of being a member of a national community: i t i s a j u d i c i a l l i n k between the in d i v i d u a l and the State, and such t i e provides the j u s t i f i c a t i o n f o r the regula- tory power of the State. The only status implied i n such a notion i s a very vague one: the c i t i z e n has the obligation of allegiance and i n counterpart he possesses the right to be protected. No further content can a p r i o r i be given to the status of a c i t i z e n because, apart from the allegiance-protection generalization, the laws and the constitution of every State d i f f e r to such an extent that i t i s impossible to enumerate the righ t s , p r i v i l e g e s and obligations of the c i t i z e n s of a p a r t i c u l a r State without studying the whole set of i t s laws. Indeed, the legal obligations of the c i t i z e n s are to abide by the laws of i t s State, whilst his rights and pr i v i l e g e s are those conferred by such laws and no more. When asked to define the notion of c i t i z e n s h i p i n the United States, Lincoln's Attorney-General, i n - 8 - ) 1862, drew attention to the fact that a persistent abuse of language has l e f t the meaning of the word very obscure and that this situation came from the wrong belief that the term citizenship should be defined by reference to some rights or privileges supposedly inherent in i t . He specified that, in his view, "...the Constitution uses the word citizen only to express the p o l i t i c a l quality of the individual in his re- lations to the nation; to declare that he is a member of the body po l i t i c , and bound to i t by the reciprocal obligation of allegiance on the one side and protection on the other. And I have no knowledge of any other kind of p o l i t i c a l citizen- ship, higher or lower, statal or national, or of any other sense in which the word has been used in the Constitution, or can be used properly in the laws of the United States. The phrase, "a citizen of the United States", without addition or q u a l i f i - cation, means neither more nor less than a member of the nation," 17 This is the kind of meaning that I want to discuss here. It is the most general approach since i t does not provide any precise criterion for ascertaining who are exactly these "citizens", and since their rights and duties cannot be enumerated at the f i r s t , save as for saying that they are bound by the law of the land. - 9 - } Contrary to the notion of c i t i z e n i s the concept of a l i e n that we have inherited from antiquity. But any attemnt nowadays to emphasize t h i s dichotomy between the c i t i z e n s and the aliens does not conform to the present state of the law because, as fa r as most democratic countries are concerned, there are very few obligations of the c i t i z e n s that an a l i e n must not assume and almost as few rights and pr i v i l e g e s from which he i s excluded. F i r s t of a l l , and long since, the common law made i t clear that an a l i e n owes to the Crown the same kind of allegiance as does the c i t i z e n or subject: but t h i s allegiance i s l o c a l and temporary i n the sense that i t i s due only when the a l i e n i s within the realm and under the protection of the Crown. This ancient p r i n c i p l e has been applied i n Canada and i n the United 1 9 States, 7 Only a person who owes allegiance to a State 20 can commit treason against i t . Accordingly, section ^6 (2) of our Criminal Code l i m i t s i t s p r o h i b i t i o n to Canadian c i t i z e n s when the overt act i s done outside Canada? but on the other hand, i f treason i s committed within the t e r r i t o r y , even an a l i e n can be found g u i l t y of i t , presumably because the l e g i s l a t u r e assumed that - 1 0 - he owes allegiance while i n Canada. The criminal law i n t h i s respect i n Great B r i t a i n leads to the same rule. 22 Moreover, i n Joyce v Director of Public Prosecutions , the House of Lords confirmed a conviction of treason against an a l i e n even though the accused acted abroad; i t was held that since that a l i e n had obtained by fraud a B r i t i s h passport and since he was thus e n t i t l e d to the protection of the Crown, he owed at the material times an equivalent allegiance. Such a p r i n c i p l e can be of great import as regards the crime of espionage which i s dealt with i n Canada according to the same p r i n c i p l e 23 as treason, but there i s i n the O f f i c i a l Secrets Act J a supplementary provision: i t s section 13 confers to Canadian courts the j u r i s d i c t i o n to convict of such a crime committed abroad not only a Canadian c i t i z e n but generally any person who then owed allegiance to Her Majesty .* The above examples show that, when i n Canada, the a l i e n i s on the same footing as the c i t i z e n , even with respect to the general implied status of c i t i z e n - ship, to wit: the right to protection versus the obliga- t i o n of allegiance. Then, i t i s needless to say that i n almost every other respect not necessarily implied i n - 11 - such status, the a l i e n i s l i k e l y to remain on the same l e v e l as well. Like a formal c i t i z e n , he has the obli g a t i o n to respect the laws of the country where he happens to be, because, generally speaking, he can enjoy the oh same righ t s . As has been put by Justice Rand, a f t e r he had elaborated on the status of the Canadian c i t i z e n : "..In a l i k e p o sition i s a subject of a f r i e n d l y foreign country5 f o r prac- t i c a l purposes he enjoys a l l the rights of the c i t i z e n . " 25 The learned judge was obviously r e f e r r i n g to the c i v i l r i g h t s as opposed to the p o l i t i c a l rights which I w i l l discuss l a t e r . Among the c i v i l r ights that can be enjoyed i n Canada, those which relate to property are the most important. Section Zh (1) of the Canadian Citizenship Act makes i t clear that aliens have no d i s a b i l i t y on t h i s account; i t provides that " r e a l and personal property of every description may be taken, acquired, held and disposed of by an a l i e n i n the same manner i n a l l respects as by a natural-born Canadian c i t i z e n " One cannobviously raise the question of the constitu- t i o n a l i t y of such an enactment by the federal Parliament^ but nobody can contest the substance of the rule since - 12 - i t has been embodied both i n the Canadian law and i n 28 the c i v i l law of Quebec i n the nineteenth century. These property rights may be asserted even by a l i e n corporations, and for t h e i r enforcement, access to 29 courts have been recognized accordingly. 7 To put i t i n a more general way, the aliens can be said to enjoy i n Canada the same protection of the laws as Canadian c i t i z e n s . I t i s not my purpose here to ascertain whether there i s i n Canadian c o n s t i t u t i o n a l law a c e r t a i n content to the status of the c i t i z e n which i s so fundamental that i t i s s p e c i a l l y entrenched as against any kind of i n t r u s i o n by either l e v e l of governments but i f such a status exists, i t must be remem- bered that i t applies equally to aliens themselves. As soon as Justice Rand developed his celebrated approach to the status of the Canadian c i t i z e n s , he made i t very c l e a r that those p r i n c i p l e s he cherished were not to be preserved only f o r the benefit of Canadian c i t i z e n s inaa formal and r e s t r i c t e d sense, but f o r a l l those who happen 30 to be within the realm. J S i m i l a r l y , i n the United States the status of the c i t i z e n as flowing from the c o n s t i t u t i o n a l provisions has been, i n the main, applied to aliens. Justice Murphy of the United States Supreme Court has put i t i n t h i s way: - 13 - "..once an a l i e n lawfully enters and resides i n t h i s country he becomes invested with the rights guaranteed by the Constitution to a l l people within our borders." Accordingly, the aliens enjoy the freedoms of r e l i g i o n , speech, press and assembly of the F i r s t Amendment.^1 Also, the ri g h t not to be deprived of l i f e , l i b e r t y or property without due process of law conferred by the F i f t h Amendment coupled with the protection of the Sixth Amendment have been secured i n t h e i r favour-^; t h e i r 33 property cannot be taken without just compensation . The several states could not deny to aliens the ri g h t to earn a living, t h e i r r i g h t to work and, more generally, t h e i r economic ri g h t s , because the Fourteenth Amendment 34 has been held applicable to them. J Consequently, aliens can claim to pass from state to state even though such a ri g h t has been termed to be in c i d e n t a l to the "national c i t i z e n s h i p " r Justice F i e l d of the Supreme Court dissented i n a case where the ri g h t of the federal govern- ment to deport f r i e n d l y aliens was upheld because he f e l t that "as men having our common humanity, (aliens) are protected by a l l the guarantees of the Constitution" except as for p o l i t i c a l r i g h t s . ^ A l l t h i s does not mean that no c l a s s i f i c a t i o n can be made i n Canada or i n the United States which could be detrimental to aliens. In Canada, besides the - I m - p o s s i b i l i t y that a ce r t a i n "implied B i l l of Rights" may impair the sovereignty of the l e g i s l a t i v e bodies, i t remains that the major part of the "whole area of s e l f - government" can c e r t a i n l y be dealt with i n any manner by either l e v e l of government according to the doctrine of supremacy of parliament. In fa c t , one must not deduce from the provisions? of the Canadian Citizenship Act conferring property rights to aliens that those persons there received a guarantee against any curtailment of the i r c i v i l rights by federal or prov i n c i a l enactments. The Canadian Ci t i z e n s h i p Act did not purport to specify the status to be enjoyed by c i t i z e n s and aliens. Quite the contrary, i t s section 24 (2) (c) indicates that an a l i e n i s not automatically admitted "to any ri g h t or pr i v i l e g e as a Canadian c i t i z e n except such rights and priv i l e g e s i n respect of property as are hereby expressly given to him". Therefore, nothing can preclude the fact that c e r t a i n rights and pri v i l e g e s might be withheld to aliens by some pa r t i c u l a r federal or p r o v i n c i a l enactments, according 37 to the scope of t h e i r respective competence. ' As we w i l l see i n the second chapter, nobody can t e l l with precision to what extent the Canadian provinces can incorporate i n t h e i r laws some c l a s s i f i c a t i o n s that are detrimental to a liens. But one thing i s sure: i n t h e i r f i e l d of l e g i s l a t i v e competence, they can discriminate to a very large extent and i n the few cases where a normally v a l i d discrimination has been struck down, the judges had to use a l l their available tools to effect such a result. In the United States, the situation is somewhat analogous. The Supreme Court has laid down the principle that a discriminatory classification against aliens must be plainly irrational i f i t is to be invalidated.-^ Accordingly, many state enactments, chiefly Californianv were upheld even though they were obviously directed to exclude Japanese and other aliens ineligible for citizen- ship from the state in that while treaty rights were preserved, the rights of purchase, ownership and lease of real property were almost completely withdrawn: the Supreme Court found that the classification was a rational one because aliens non eligible for citizen- ship cannot be assumed to have a great interest in the 4 l welfare of the people. Even though the states cannot deny to aliens the right to earn a l i v i n g and a sub- stantial equality of economic opportunities, they can regulate a particular business i f there is in i t a special public interest: in this vein have been upheld, for instanced, prohibitions against aliens from employment on a public work project and even from conduct of pool- Zip rooms and b i l l i a r d rooms. Hence, i f one tries to deal with the substantial content of the citizenship status in a particular country - 16 - beyond the generalities concerning allegiance and protection, he may find i t easier to ascertain what are the rights and duties that are part of this status than to determine whoaare entitled to share in i t . That is because the legal status of the individual flows uniformly from the law of the land, but the particular rights and obligations are not conferred uniformly to a unique class of persons. Therefore, some individuals may share in the citizen- ship status for one purpose, but not for another. This appears clearly when one takes a look at the various constructions of the word "citizens* that have been adopted by the courts. In reality, i t is not necessary that those to whom a particular law applies be actually called citizens, since they are such anyway, in a general sense, to the extent that they can share in the citizenship status. But, mostly in the United States, the term "citizen" has been used in statutes of every kind to designate conveniently the scope of their applicability. It is interesting to note rapidly who such a word has been held to cover. The American courts have construed the word "citizen" in different ways depending on the purpose and the subject-matter of the Act under consideration. Indeed, i t was made clear that a person may be a citizen for commercial purposes and not for - 17 - p o l i t i c a l purposes Ji i t i s needless to say that a " c i t i z e n for commercial or business purposes" does not necessarily possess a c e r t i f i c a t e of c i t i z e n s h i p . Hence, a s t r i c t d e f i n i t i o n of the term has been given up when the law under consideration was designed for purposes other than p o l i t i c a l : i n these cases, " c i t i z e n " could as well be synonymous with "resident", "inhabitant" or "person domiciled i n . . . " For example, i t has been held that under a statute providing that no person s h a l l be e n t i t l e d to a divorce unless he s h a l l have been a bona fide resident and " c i t i z e n " of the state for one year before the commencement of the action, an a l i e n who i n good f a i t h has made the state his home for more than a year, and has no residence elsewhere, can obtain such divorce as well. J Even the corporations are covered 46 by the term when used f o r some p a r t i c u l a r purposes. Since aliens are guaranteed the equal protection of the Fourteenth Amendment, i t has been held by the Court of Appeal of C a l i f o r n i a that the phrases " a l l c i t i z e n s within the state e n t i t l e d to the f u l l and equal p r i v i l e g e s of theaters* and "any c i t i z e n " i n sections $1 and 52 of the C i v i l Code were not r e s t r i c t e d to c i t i z e n s of the United States or of any of the states, but included unnaturalized residents of foreign b i r t h , white or - 1 8 - 47 black. ' On the other hand, the Supreme Court has construed the term " c i t i z e n " i n a s t r i c t sense when used i n a federal statute i n f l i c t i n g a punishment on those who conspire to injure, oppress, threaten, or intimidate any c i t i z e n i n the free exercise or enjoyment of any ri g h t or p r i v i l e g e 4 8 secured to him by the Constitution or laws of the country. The r e s u l t could e a s i l y have been d i f f e r e n t since the status of the American c i t i z e n which flows from many provisions of the Constitution extends to aliens. In Canada, the words " c i t i z e n s " and " c i t i z e n s h i p " i n t h e i r general sense have not been so frequently used because of the nature of our c o n s t i t u t i o n a l history. But t h e i r equivalent, "subjects of the Crown", must also designate d i f f e r e n t classes of persons depending on the pa r t i c u l a r rule of law dealt with. It w i l l cover the case of aliens for example i f used for a l l those matters where they have the same rights and obligations as the formal c i t i z e n s , such as i n the matter of se d i t i o n and seditious intent where i t has been held that: "..the expression "His Majesty's subjects", as used by the text writers under consid- eration, includes a l l the persons subject to the laws whether included i n the term B r i t i s h subject i n i t s narrower accepta- t i o n or not." 4 9 - 19 - Anyhow, there i s no need to search f o r a l l the possible coverages of such terms since i t may s u f f i c e here to point to the fact that a c i t i z e n generally and l e g a l l y i s not necessarily a formal c i t i z e n ; and i t would indeed be very surprising to f i n d a case where the requirement of the Medical Act of B r i t i s h Columbia that a doctor must be a "good character as a c i t i z e n " - ^ would be con- strued as meaning that he has to be Canadian citizen.' Therefore, the American c i t i z e n s h i p i n i t s general sense, as t h i s status flows from the Constitution and laws of the United States, has been held by the Supreme Court i t s e l f to convey uniformly "the idea of membership of (the) nation, and nothing more"-'1. In another occasion, the same court gave the following d e f i n i t i o n . "Citizens are the members of the p o l i t i c a l community to which they belong. They are the people who compose the community, and who, i n t h e i r associated capacity, have established or submitted them- selves to the dominion of a government for the promotion of t h e i r general wel- fare and the protection of t h e i r i n d i v i - dual as well as t h e i r c o l l e c t i v e r i g h t s . " 5 2 The same has been said for the Canadian c i t i z e n s h i p status which, according to Justice Rand, simply connotes the idea of "membership i n the class of those of the public to whom (...) a p r i v i l e g e could be extended," $3 - 20 - I The conclusions that I am brought to adopt from the above observations may be stated as follows. The c i t i z e n s h i p status within a State flows from the whole of i t s l e g a l system, but the r i g h t s , p r i v i l e g e s and obligations incidental to t h i s status are not conferred uniformly to a p a r t i c u l a r class of formally defined c i t i z e n s . This i s true, f i r s t , because i n most of the areas of l e g i s l a t i o n t h i s status may embrace aliens as well, whether they are resident or not, and the corporations the same, and second, because even though a State has the power to discriminate against aliens i n favour of i t s formal c i t i z e n s , i t appears that neither i n Canada nor i n the United States are these kinds of c l a s s i f i c a t i o n so i n vogue as to reinvest the general a p p l i c a b i l i t y of the c i t i z e n s h i p status into the hands of formal c i t i z e n s alone. As w i l l be seen i n the further developments, a s t r i c t l y l e g a l d e f i n i t i o n of c i t i z e n s cannot practically be r e l i e d on as a c r i t e r i o n for d i f f e r e n t i a t i o n because i t i s irrelevant a c l a s s i f i c a t i o n f o r most in t e r n a l purposes. Legislatures w i l l usually discriminate against a c e r t a i n class of aliens, against non-residents, or a p a r t i c u l a r race and so on, and even though they sometimes adopt t h e i r own formal c i t i z e n s h i p as a basic t r a i t , supplementary requirements concerning age, sex or whatever q u a l i f i c a t i o n s w i l l be embodied at the - 21 - same time, so that i n f i n a l the scope of the l e g i s l a t i o n w i l l never correspond anyhow to the class of " c i t i z e n s " as formally determined i n c i t i z e n s h i p and n a t u r a l i z a t i o n laws. It thus appears c l e a r l y that the " c i t i z e n s " as used i n a general l e g a l sense can designate d i f f e r e n t types of persons within the State depending on the coverage of each p a r t i c u l a r law under consideration, i t s purpose and subject-matter. Anyone who i s within the t e r r i t o r y and whose status depends on i t s laws and constitution-^ becomes a c i t i z e n , though neither native nor naturalized. It i s not necessary that a person be i n actual enjoyment of a l l the c i v i l r i g h t s and p r i v i l e g e s at the same time since he i s made a c i t i z e n of the State f o r the purpose of a l l the enactments conferring on him c e r t a i n r i g h t s and duties. One can conclude that i n i t s general and l e g a l sense, the c i t i z e n s are the members of the society, the "people", and more precisely those to whom the law applies. They are these persons who can invoke the righ t s and must assume the obligations flowing from the law of the land: they constitute what has been ca l l e d the "passive c i t i z e n s " - J J of the country, those who are - 22 - submitted to i t s rules, i n opposition to the "active c i t i z e n s " , that i s to say those who are also e n t i t l e d to p o l i t i c a l r i g h t s . The term, i n law, i s thus sus- ceptible to cover more or less individuals depending on the scope of a p p l i c a b i l i t y of every p a r t i c u l a r enactment. It w i l l be submitted hereafter that the Canadian provinces can l e g a l l y claim to have t h e i r own c i t i z e n s for two reasons. F i r s t , the nature of the Canadian state and the laws of the c o n s t i t u t i o n confer to the provinces such a status as to enable them to incorporate i n t h e i r enactments c l a s s i f i c a t i o n s that are designed to l i m i t a t e t h e i r scope of a p p l i c a b i l i t y to c e r t a i n individuals more t i g h t l y linked with the p r o v i n c i a l state, and to create i n t h i s way s p e c i a l classes of persons to whom pr o v i n c i a l laws apply. And second, a j u d i c i a l l i n k between members of the p r o v i n c i a l community and the province i t s e l f has been recognized by the courts i n that, on the one hand, the provinces have been held to be competent to exercise e x t r a - t e r r i t o r i a l l y some powers over t h e i r own c i t i z e n s at the same time these provinces were not supposed to possess any kind of e x t r a - t e r r i t o r i a l powers, and on - 23 - the other hand, the basic rules i n the f i e l d of the c o n f l i c t of laws expressly confirm the existence of such a l i n k . Nobody can deny that federalism i s of the essence of the regime established by the B r i t i s h North America Act, 186?. Some authors have preferred to q u a l i f y t h i s regime as being "quasi-federal", or federal i n law but unitary i n practice. We must remember, however, that there i s no absolute model of federalism, and as long as the major functions of the State can be f r e e l y exercised by two l e v e l s of govern- ment, such a State must be q u a l i f i e d as a federal one. The sovereignty of the p r o v i n c i a l parliaments have been recognized by many oelebrated cases i n Canada, and so f o r the sovereignty of the federal Parliament and the sovereignty of Canada as a whole.^ In the Labour Conventions Case-^, i t has been said, e s s e n t i a l l y , that the " i n t e r - p r o v i n c i a l compact to which the B r i t i s h North America Act gives e f f e c t " was designed to confer autonomy to the provinces i n t h e i r f i e l d s of competence and to prevent the central government from i n t e r f e r i n g with t h e i r powers. In whatever way theoreticians of the co n s t i t u t i o n may designate the Canadian State, i t remains uncontroverted that neither the power of reservation and disallowance, nor the j u d i c i a l construction of the - 2k - "peace, order and good government" clause, nor any- kind of trend towards c e n t r a l i z a t i o n during some periods of the c o n s t i t u t i o n a l history of Canada, have succeeded i n placing the provinces i n the rank of mere municipalities and are l i k e l y to ef f e c t such a r e s u l t i n a foreseeable future. In other words, the la b e l that can be stuck to the Canadian regime i s irrelevant for my purpose since, anyway, the "whole area of self-government" i n Canada has been divided and bestowed to two l e v e l s of supreme authority, each of which does not act under the guidance and according to the whim of the other. Therefore, the " c i t i z e n s " of such a federal State, i n the sense i n which I have used the terms, cannot be defined only by one of the sovereign l e v e l s of government. Those to whom the law applies i n Canada are those who are regulated by both federal and provin- c i a l laws. The c l a s s i f i c a t i o n s deemed proper i n federal statutes may not seem advisable for p r o v i n c i a l purposes. By virtue of the very nature of our constitution, no p a r t i c u l a r adoption of l e g i s l a t i v e t r a i t s can be imposed on the provinces by the federal government. In short, the general c i t i z e n s h i p status admits of two facets because there exist two sovereign lev e l s of government and because the scope of a p p l i c a b i l i t y of t h e i r laws determines t h e i r respective classes of c i t i z e n s f o r each relevant purpose. A simple i l l u s t r a t i o n of the role of - 25 - the Canadian provinces i n the d e f i n i t i o n of a p a r t i c u l a r status of c i t i z e n s h i p can be found i n the reasons for 59 judgment of Justice Rand i n Roncarelli v Duplessis. There, the learned judge stated, i n t e r a l i a , that the c i t i z e n s h i p status contained an unchallengeable r i g h t to enjoy a p r o v i n c i a l p r i v i l e g e without injurious influence by third persons on the public body selected to grant such a p r i v i l e g e . He based his reasons upon the con- si d e r a t i o n of the nature or purpose of the p r o v i n c i a l statute whose language ought not to be distorted and of the "fundamental postulates of our p r o v i n c i a l as well as dominion government" as an aid to the construction of t h i s statute. His approach tends only to demonstrate that the content of the c i t i z e n s h i p status that has to be protected does.not only flow from basic p r i n c i p l e s of the c o n s t i t u t i o n such as the freedom of speech and of r e l i g i o n , nor only from federal l e g i s l a t i o n : a mere pr o v i n c i a l Act regulating the sale of alcoholic liquors can confer a " p r i v i l e g e " that becomes part of such status and, i n t h i s sense, worthy of j u d i c i a l protection as against undue interference. Such i s also the case i n the United States, but to a much more limited extent. Indeed, almost each provision of the American Constitution can be said to lay down some kind of inherent right or p r i v i l e g e i n the status of American c i t i z e n s because i t i s beyond the reach of both the national and the state governments. - 26 - Besides that, the Fourteenth Amendment provides that "No State s h a l l make or enforce any law which s h a l l abridge the p r i v i l e g e s or immunities of c i t i z e n s of the United States..." This clause can be invoked only to protect the pr i v i l e g e s and immunities" which owe t h e i r existence to the Federal government, i t s national character, i t s Constitution, or i t s laws", or i n other words, only those "which would not have existed but f o r the presence of the federal government" . I t remains that the combined e f f e c t of t h i s clause and of the r i g i d Constitution as a whole has been to withdraw a set of national p r i v i l e g e s and immunities from the competence of state l e g i s l a t u r e s . In t h i s sense, the poweis of the state to build up a peculiar substantive content to the status of t h e i r own c i t i z e n s as compared with the national status as such are somewhat more limited than i n Canada. It may be conceded that there exists here also a status so fundamental that i t could not be impaired by either l e v e l of government, but t h i s has not been and can c e r t a i n l y not be used i n Canada to invalidate as many kinds of l e g i s l a t i o n as i n the United States. Apart from the existence of such an "implied B i l l of Rights," the general status of the c i t i z e n i n Canada i s determined by the provinces i n a manner as o r i g i n a l and paramount as by the central Parliament. - 27 - Both leve l s of government confer protection to the people who are on t h e i r t e r r i t o r y and these people owe allegiance to the Crown both i n ri g h t of Canada and i n r i g h t of a p a r t i c u l a r province. Both t h e i r laws grant rig h t s and pr i v i l e g e s on those they want to grant them, and impose obligations i n the same way. Moreover, Canadian c o n s t i t u t i o n a l law permits many kinds of d i f f e r e n t i a t i o n between the c i t i z e n s of each province and provide the basis for an elaboration of not only two but eleven d i f f e r e n t facets of the c i t i z e n s h i p status, while the s i t u a t i o n i s not the same i n the United States. The American Constitution provides no leeway to grant to one or some states a p a r t i c u l a r status, unless a formal amendment be achieved. On the other hand, the Privy Council has recognized that there was no such thing as a uniform model of province i n Canada, and t h i s has been agreed to twice by the Supreme C o u r t . ^ Thus, by vi r t u e of i t s power to create new provinces out of non- pr o v i n c i a l t e r r i t o r i e s , the federal Parliament could t h e o r e t i c a l l y confer to such a province powers that the actual provinces do not possess or deny i t some competence that the others have: i t has i n f a c t done so, to a very limited extent, when the provinces of Alberta and Saskat- chewan were c r e a t e d . ^ Obviously, the federal Parliament - 28 - cannot a l t e r any more the p r o v i n c i a l c o n s t i t u t i o n thus created inasmuch as the new province becomes exclusively competent to amend i t s own con s t i t u t i o n under section 92 (1) of the B.N.A. Act. But this tends to demonstrate that a p a r t i c u l a r status i s not repugnant at a l l to the con- s t i t u t i o n a l law of Canada and that i t has been conferred and implemented to a c e r t a i n extent i n the past. Indeed, the councils of the Northwest T e r r i t o r i e s and of the Yukon have been granted a status of t h i s nature since, on the one hand, they possess almost the same l e g i s l a t i v e powers and the same pr i v i l e g e s as the pr o v i n c i a l l e g i s l a t u r e s whilst, on the other hand, these t e r r i t o r i e s have not been recognized as provinces and remain under the ultimate authority of the central Parliament.^ A much more important factor l i k e l y to lead to great differences i n p r o v i n c i a l c i t i z e n s h i p status i n Canada resides i n the doctrine of sovereignty of par- liament i t s e l f . A comparison with the s i t u a t i o n that i s pr e v a i l i n g i n the United States may be accurate herei A r t i c l e IV, section 2 of the American Constitution provides that "The Citizens of each State s h a l l be e n t i t l e d to a l l Privileges and Immunities of Citize n s i n the several states." Justice F i e l d of the Supreme Court said that "no provision i n the Constitution has tended so strongly to constitute the c i t i z e n s of the - 29 - United States one people as t h i s " ^ : we could respond that i n Canada the absence of such a clause binding on the provinces leaves them with free hands to es t a b l i s h t h e i r own c i t i z e n s h i p as d i s t i n c t s u b s t a n t i a l l y from those of t h e i r s i s t e r provinces. Indeed, the American clause has been used to invalidate state l e g i s l a t i o n that, i n Canada, could have been adopted without the s l i g h t e s t shadow of doubt by the provinces. I t has been held to secure and protect, among other r i g h t s , the followings "...the rights of a c i t i z e n of one State to pass into any other State of the Union for the purpose of engaging i n lawful commerce, trade, or business without molestation? to acquire personal property? to take and hold r e a l estate? to maintain actions i n the courts of the State ? and to be exempt from any higher taxes or excises than are imposed by the State upon i t s own c i t i z e n s " 67. One could argue that some of these r i g h t s are not either within the range of competence of the Canadian provinces, as did Professor Laskin (as he then was) for the ri g h t to t r a v e l i n Canada, passing from a province to another 68 and s e t t i n g i n the place of one's choice . But c e r t a i n l y are applicable here a l l those cases where a license fee provision imposing higher rates on those who were not c i t i z e n s of the state (permanent residents) has been invalidated, and so for statutes discriminating against non c i t i z e n s of the state i n taxation or i n receivership 69 proceedings. 7 - 30 - The clause, however, does not prohibit any- kind of differentiation between citizens of the states. It has been recognized that state enactments based upon rational considerations, upon terms which in themselves are reasonable and adequate, "even though they may not be technically and precisely the same in extent as those 70 accorded to resident citizens", were valid. f But in Canada, nobody could suggest that the discrimination between citizens of different provinces must remain within the bounds of technicalities. A Canadian citizen may be treated in very diverse ways by the different provinces in which he may settle, depending on whether or not the province in question considers that he is also one of its citizens. There is no way to attack the numerous provincial enactments that impose a certain period of residence within the province in order to qualify for the exercise of professions or for the receipt of welfare benefits, as has been made in the United 71 States. As far as c i v i l rights in general are con- cerned, the classifications laid down by the provinces can favour local particularism to a very great extent and then lead to a disparity of status between those the legislature considers as i t s citizens, through the use of c r i t e r i a like residence and domicile, and the citizens of other provinces. - 31 - To recapitulate what has been noted above, i t may s u f f i c e to say that the determination of a c i t i z e n s h i p status i n a general sense i s made i n Canada, f i r s t , by two le v e l s of government and second, not necessarily i n a uniform way by each l e g i s l a t u r e of the p r o v i n c i a l l e v e l . This i s true to a much larger extent i n Canada than i n the United States where, on the one hand, the Constitution and i t s Fourteenth Amendment tend to equalize the content of the state c i t i z e n s h i p with that of a nation- wide one, and on the other hand, the Constitution again with i t s fourth a r t i c l e generalize as between the diverse states the p a r t i c u l a r status of the c i t i z e n s , i f not for mere t e c h n i c a l i t i e s . In Canada, the sovereignty of the p r o v i n c i a l parliaments i s supposed to preclude any kind of such l i m i t a t i o n . Except, to a c e r t a i n extent, as regards aliens and Indians, the B.N.A. Act did not pretend to confer the competence over special classes of people i n Canada to only one l e v e l of government, and i n t h i s sense, the l e g i s l a t i v e competence over the c i t i z e n s and t h e i r status i s as much divided as the competence over the subject-matters there enumerated and as the sovereignty i t s e l f . This does not mean, however, that the non-provincial courts w i l l not tend to equalize the di f f e r e n t status of c i t i z e n s h i p i n Canada by using the relevant rules of statutory interpretation. For instance, i t has been argued that a person was not e n t i t l e d to receive compensation under the B.C. Workmen's Compensa- t i o n Act, not because she was an a l i e n , but because she 72 was not a resident of the Province. : i t was contended that the p r o v i n c i a l Act was supposed to be presumed to constitute a b e n e f i c i a l scheme i n favour of the actual members of the community alone. In other words, the lack of p r o v i n c i a l c i t i z e n s h i p instead of the lack of Canadian c i t i z e n s h i p was r e l i e d upon. The lower court refused to grant compensation because the statute should not be presumed to apply e x t r a - t e r r i t o r i a l l y . The Privy Council rejected t h i s argument and applied the express words of the statute that made no l i m i t a t i o n as to residence within the Province i n order to be e n t i t l e d to compensation. But obviously, had the statute been e x p l i c i t to the contrary, the non-resident widow of the workman would have had no leg a l claim nor any substantive ground to invoke the i n v a l i d i t y of the Act. The p r o v i n c i a l c i t i z e n s h i p status flowing from p r o v i n c i a l enactments has not only been recognized i n an implied way, such as by the approach of Justice Rand to the problem, nor only i n a negative sense, that i s to say i n the sense that p r o v i n c i a l c l a s s i f i c a t i o n s favour- ing t h e i r own residents have never been impaired: i t has been acknowledged d i r e c t l y i n that the courts have - 33 - upheld the exercise of e x t r a - t e r r i t o r i a l powers by the provinces provided that these powers were directed towards t h e i r own c i t i z e n s . In other words, while the provinces have never been competent to deal with the rights of the c i t i z e n s of other provinces or States outside t h e i r own t e r r i t o r y , they have been permitted to do so when the persons affected were linked with them by what has been called here a status of p r o v i n c i a l c i t i z e n s h i p . Indeed, i t i s common knowledge that the B.N,A. Act has confined the provinces to an exercise 73 of t h e i r powers "within the Pro v i n c e " . , J Accordingly, p r o v i n c i a l l e g i s l a t u r e s cannot destroy c i v i l r ights outside the province or give another kind of extra- 74 t e r r i t o r i a l operation to t h e i r enactments. On the other hand, the Canadian provinces have been permitted to eff e c t e x t r a - t e r r i t o r i a l r e s u l t s with t h e i r i n t r a - t e r r i t o r i a l exercise of powers where they could r e l y on th e i r " c i t i z e n s " as a point of contact. For instance, they can enact and enforce a re c i p r o c a l l e g i s l a t i o n with another State because i n such a case the action taken abroad may be considered as being only a preliminary steo to adduce evidence for i t s enforcement within the province, or i n the converse s i t u a t i o n , the - 3 k - enforcement abroad w i l l be made by the reciprocating government; the majority of the Supreme Court of Canada pointed out that " i t would be an extraordinary commentary on what has frequently been referred to as a quasi-sovereign l e g i s l a t i v e power that a province should be unable within i t s own boundaries to aid one of i t s c i t i z e n s to have such a duty enforced elsewhere."^^ The provinces also have the power to tax assets situated outside t h e i r t e r r i t o r y under c e r t a i n conditions. In 1882, Blackwood v R. was a case involving the Succession Duty Act of the Legislature of V i c t o r i a (AustisLia) which can obviously be assimilated f o r t h i s purpose with the Canadian provinces by reason of the a p p l i c a b i l i t y of the Colonial Laws V a l i d i t y Act of I865 p r o h i b i t i n g the exercise of e x t r a - t e r r i t o r i a l powers. There, the Privy Council made i t c l e a r that the V i c t o r i a n Legislature could tax i t s c i t i z e n s with respect to property situated outside the t e r r i t o r y but held that i n the statute under considera- t i o n the words "personal property" had not been intended to bear such a meaning and were accordingly limited to property situated i n V i c t o r i a . The following dictum of the Board i s s i g n i f i c a n t . > - 35 - "I t i s said that the expression 'real estate* ca r r i e s i t s own l i m i t a t i o n with i t , because i t i s something inconceivable - almost a v i o l a t i o n of the law of nations - that a State should tax i t s subjects on the basis of t h e i r foreign r e a l estate. But i n fact personalty i n England i s as f a r beyond the d i r e c t power of the V i c t o r i a n Legislature as r e a l t y i n England. Suppose that a testator domiciled i n V i c t o r i a has property of both kinds i n England, that he gives his English r e a l t y and his V i c t o r i a n personalty to a domi- c i l e d V i c t o r i a n , and that for his English personalty he appoints an English executor, and gives i t to a domiciled Englishman. In such a case the V i c t o r i a n Government has no point of contact with the jbinglish personalty; but as regards the English r e a l t y the owner of i t i s the supject of that Government, and so much the r i c h e r and more able to pay taxes by reason of his ownership. There i s nothing i n the law of nations which prevents a Government from taxing his own subjects on the basis of t h e i r foreign possessions. I t may be con- venient xo do so. The reasons against doing so may/apply more strongly to r e a l than personal estate. But the question i s one of d i s c r e t i o n , and i t i s to be answered by the statutes.."77 There are two kinds of e x t r a - t e r r i t o r i a l powers that can be exercised by a f u l l y sovereign State: f i r s t , powers without point of contact that may or may not constitute an "usurpation" of competence v i s - a-vis another State and that can be exercised only by the federal Parliament since the Statute of Westminster, - 36 - 1931? and second, powers with a point of contact, a l i n k with the State which can only he a personal one, to wit, c i t i z e n s h i p . The courts have never recognized expressly that the Canadian provinces could exercise an e x t r a - t e r r i t o r i a l power because they have used other terms to q u a l i f y such a powers since there i s a personal t i e between the i n d i v i d u a l affected and the province and since t h i s l i n k can only be created by a residence or a domicile within t h i s province, the courts did not need to q u a l i f y the power as e x t r a - t e r r i t o r i a l . I t remains, nevertheless, that t h e i r rulings on the matter implemented both the facts that these provinces could exercise e x t r a - t e r r i t o r i a l powers with a point of contact and that they could revendicate t h e i r own c i t i z e n s , or "subjects" (as the term has been used i n our c o n s t i t u t i o n a l h i s t o r y ) . 78 I t i s i n 1922, i n Burland v R., that the Privy Council made e x p l i c i t the p r o v i n c i a l powers i n respect of taxation, upholding the Quebec Succession Duty Act that imposed a duty on a l l "transmissions within the Province, owing to the death of a person domiciled therein, of movable property 3 l o c a l l y situate outside the Province at the time of such death". The r a t i o - 37 - l a i d down by the Board on the point under consideration touches both elements already stated, but q u a l i f i e s the power as i n t r a - t e r r i t o r i a l . "The conditions there stated upon which taxation attaches to property outside the Province are two* (1) that the transmission must be within the Province; and (2) That i t must be due to the death of a person domiciled within the Province. The f i r s t of these conditions can, i n th e i r Lordships* opinion, only be s a t i s f i e d i f the person to whom the property i s transmitted i s as the universal legatee i n t h i s case was either domiciled or o r d i n a r i l y resident within the Province; for i n the connection i n which the words are found no other meaning can be attached to the words "within the Province" which modify and l i m i t the word "transmission". So regarded the taxation i s c l e a r l y within the powers of the Province. I t i s , however, pointed out that a r t . 1387g refers to "every person" to whom?} movable property outside the Province i s transmitted as l i a b l e for the duty, but t h i s must r e f e r to every person on whom the duties are imposed, and those persons are, as has already been shown, persons within the Province"79 I t w i l l be contended l a t e r that, e f f e c t i v e l y , what has been c a l l e d above the " c i t i z e n s of the province" are those who are, i n the terms of the Privy Council, "domiciled or o r d i n a r i l y resident" i n that province. - 38 - Other kinds of p r o v i n c i a l enactments could be found that are p r i m a r i l y designed to regulate the c i t i z e n s of the province but have an i n c i d e n t a l operation 80 outside the t e r r i t o r y . But such cases are not im- pressive as long as the i n d i v i d u a l c o n s t i t u t i n g the l i n k or point of contact i s regulated while he i s s t i l l within the p r o v i n c i a l realm. A recognition of p r o v i n c i a l c i t i z e n s h i p would be much clearer i f i t were made i n cases where the c i t i z e n s whom the law purports to a f f e c t are outside the t e r r i t o r y of t h e i r province. This i s a delicate problem because the c h a r a c t e r i s t i c of such c i t i z e n s h i p remaining the domicile or residence within the province, i t i s extinguished as soon as a person goes to l i v e elsewhere. But admittedly, the succession duty case cited above would have covered the case of a person who was outside the province, temporarily, when he became e n t i t l e d to the assets of the deceased, and then, the p r o v i n c i a l tax would not only be imposed on assets situated outside the province but also on a person who was and may s t i l l be outside too. A recogni- t i o n of t h i s kind of l i n k between an i n d i v i d u a l and his province has been effected notably i n Workmen's Compensa- t i o n Board v Canadian P a c i f i c Railway Co. 81 The Canadian P a c i f i c Railway Company owned a steamship which sank with a l l hands aboard i n waters - 39 - outside B r i t i s h t e r r i t o r y and sought from the Court a declaration that the Workmen's Compensation Act of B r i t i s h Columbia was u l t r a v i r e s i n so f a r as i t pur- ported to warrant the payment of compensation by the Board to the dependants of c e r t a i n members of the crew. In t h i s p a r t i c u l a r case, the e x t r a - t e r r i t o r i a l elements outnumbered the i n t r a - t e r r i t o r i a l ones: the railway company operated vessels between ports i n B r i t i s h Columbia and ports i n the United States and i t s c i v i l r i g h t s were then both determined and created within and without the Province, the accident happened outside Canada, the workmen were required to perform t h e i r work or service both within and without the Province, t h e i r dependants could not be excluded from compensation because they were non-resident alie n s . The only element that was undoubtedly i n t r a - t e r r i t o r i a l i s the fact that the contracts of employment had been passed i n B r i t i s h Columbia; also, a l l the members of the crew resided i n the Province but t h e i r r i g h t to compensation arose while they were outside the t e r r i t o r y . The Privy Council held that the p r o v i n c i a l Act was i n t r a v i r e s even i n so f a r as i t s section 8 purported to cover the case of an accident happening on a steamship to a resident who performed his duties both within and without the Province. They based t h e i r judgment on the facts that the contracts of employment were passed i n the Province (the rights thus created being c i v i l rights within t h i s Province) and that the workmen i n question were and remained c i t i z e n s of the Province even though they were tempor- a r i l y but r e g u l a r l y outside i t s boundaries. The r a t i o has been l a i d down i n these terms: "The r i g h t conferred arises under S. 8 , and i s the r e s u l t of a statutory condition of the contract of employ- ment made with a workman resident i n the province, for his personal benefit and f o r that of members of his family dependent on him. Where the services which he i s engaged to perform are of such nature that they have to be rendered both within and without the Province, he i s given a r i g h t which enures f o r the benefit of himself and the members of his family dependent on him, not the less that the l a t t e r may happen to be non-resident aliens. This r i g h t arises, not out of t o r t , - 41 - but out of the workman's statutory- contract, and t h e i r Lordships think that i t i s a legitimate p r o v i n c i a l object to secure that every workman resident within the Province who so contracts should possess i t as a benefit conferred on himself as a subject of the Province." 82 Then, the Privy Council found no d i f f i c u l t y i n holding that such a p r o v i n c i a l scheme fo r compensation was not affected by the mere fac t that the accident insured against happened i n foreign waters. This, i t i s submitted, i s an e x p l i c i t recognition that the supremacy of provin- c i a l parliaments, by e n t i t l i n g them to specify a p a r t i - cular scope of a p p l i c a b i l i t y i n t h e i r enactments, confers at the same time the power to create a class of "subjects" or c i t i z e n s of the province, the l e g a l l i n k thus defined being strong enough to constitute a source of r i g h t s and duties even when these persons are outside the t e r r i t o r y . Since t h i s l i n k cannot be a t e r r i t o r i a l one, the provinces not being competent e x t r a - t e r r i t o r i a l l y , i t can only be a personal bound, to wit, the fact that the parties there interested are members of the pro- v i n c i a l community and subject to the j u r i s d i c t i o n thereof. A j u d i c i a l t i e of t h i s nature has also been recognized expressly i n the f i e l d of the c o n f l i c t of laws. "The c o n f l i c t of laws i s that part of the private law of a country which deals with cases having a foreign - 42 - element".^ The connecting factors that are r e l i e d on to solve these kinds of cases are not necessarily designed to relate the interested parties to a p a r t i c u l a r country, such as the lex l o c i contractus, the lex l o c i d e l i c t i , or the lex s i t u s . But there are two of these connecting factors which are used to determine what i s the country whose l e g a l system w i l l regulate a c e r t a i n number of l e g a l situations concerning a given individuals those are domicile and n a t i o n a l i t y , both c r i t e r i a serving to determine the personal law and thus to relate a person to a p a r t i c u l a r country. The law of the domicile i s the personal law i n the whole Commonwealth and i n the United States, while i n most continental European countries i t QL i s the law of the n a t i o n a l i t y . It i s relevant to .indicate here what i s the meaning of "country"in the f i e l d of the c o n f l i c t of laws: "Public international law deals mainly with relations between d i f f e r e n t States, while the c o n f l i c t of laws i s concerned with differences between the l e g a l systems of d i f f e r e n t countries. A State i n the sense of public international law may or may not coincide with a country (or "law - 43 - d i s t r i c t " as i t i s sometimes called) i n the sense of the c o n f l i c t of laws. Unitary States l i k e France, I t a l y and New Zealand, where the law i s the same throughout the State, are "countries" i n t h i s sense. But public international law knows nothing of England or Scotland, New York or C a l i f o r n i a , f o r they are merely com- ponent parts of the United Kingdom and the United States. Yet each of them i s a country i n the sense of c o n f l i c t of laws, because i t has a separate system of law. Since the matter i s of fundamental import, i t i s necessary to be c l e a r exactly what constitutes a country for the purposes of the c o n f l i c t of laws. England, Scotland, Northern Ireland, the Republic of Ireland, the Channel Islands and the Isle of Man i s each a separate country; so i s each of the American and Australian states and each of the Canadian provinces, and each colony of the United Kingdom". 85 In t h i s respect and f o r my purpose, only two things need to be noted. F i r s t , the two personal connecting factors already indicated could p e r f e c t l y be i n t e r - changeable because they bear absolutely no r e l a t i o n s h i p with a State- as a sovereign power i n public international law. Nationality may be a sound criterion to adopt i n the case of a unitary State, but i t is l i k e l y to be i r r e l e v a n t i n a federal State or even i n the United Kingdom where there i s more than one "country" f o r the c o n f l i c t of law purposes. I t i s true that the non- sovereign states that are considered as countries i n such a f i e l d could adopt a p a r t i c u l a r n a t i o n a l i t y i n - 44 - order to determine the connection of c e r t a i n i n d i v i d u a l s with them, but i t i s not necessary since the domicile criterion can as well do the task. And even when the federal Parliament l e g i s l a t e s i n i t s own f i e l d of competence, i t w i l l r e l y on domicile as a c r i t e r i o n although Canada as a whole i s a completely sovereign 86 e n t i t y . Second, the Canadian provinces and the American states are countries f o r the purpose of the c o n f l i c t of laws simply because they can es t a b l i s h a separate l e g a l 8? system i n t h e i r f i e l d of competence. I t i s the domicile of the individ u a l s that w i l l be r e l i e d on to determine t h e i r submission to one of these l e g a l systems, since nobody can have f o r the same purpose more than one 88 domicile , nor have more than one country. The l e g a l bound i n the f i e l d of the c o n f l i c t of laws between individ u a l s and Canadian provinces i s a manifestation of t h e i r being c i t i z e n s thereof for the purposes that are within the range of p r o v i n c i a l competence. As has been put by Lord Westbury, "domicil i s the condition i n virtue whereof i s ascribed to an i n d i v i d u a l character of a c i t i z e n of some p a r t i c u l a r country...on the basis (of which) the personal r i g h t s of the party, that i s to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy must 89 depend." - 45 - There remains only one further question to consider i n t h i s section: who are i n fact these "pro- v i n c i a l c i t i z e n s " ? An exact answer to such a question i s incompatible with the very d e f i n i t i o n that has been given above and with the fact that i t i s up to each province to determine exactly the scope of a p p l i c a b i l i t y of i t s own laws depending on the p a r t i c u l a r f i e l d regulated and the sp e c i a l interests of the people. In t h i s sense, a comprehensive survey of the p r o v i n c i a l enactments would be useless because i t could not lead to a uniform f i n d i n g as between the provinces and even not as between the d i f f e r e n t types of l e g i s l a t i o n of the same province. In the cases where the concept of "subjects of the province" has been used, i t appeared that these persons were either domiciled or permanent residents of a pro- vince. But i t i s clear that had the enactments been couched i n other terms, the relevant c r i t e r i a could have been d i f f e r e n t . In the f i e l d of welfare laws for example, one province may want to grant assistance to si x months residents while another w i l l do the same only for two years domiciled* people. In other f i e l d s , c r i t e r i a l i k e B r i t i s h subjects, voters, and so on, may be used and then, the c i t i z e n s as f a r as those matters are concerned w i l l be these persons only. - 46 - In t h i s respect, i t may be ind i c a t i v e of the p o s s i b i l i t i e s of d i f f e r e n t i a t i o n s to analyse b r i e f l y c e r t a i n types of l e g i s l a t i o n i n B r i t i s h Columbia and i n Quebec. F i r s t of a l l , a very general consideration can be made without h e s i t a t i o n : the c i t i z e n s or the scope of a p p l i c a b i l i t y of the laws i n these two provinces are sub s t a n t i a l l y d i f f e r e n t i n that the l a t t e r never r e l i e s 90 on B r i t i s h subjects fo r whatever purpose whereas t h i s kind of c l a s s i f i c a t i o n i s very frequent i n B r i t i s h Columbia. This leads obviously to a p a r t i c u l a r status of the B r i t i s h subjects i n ce r t a i n parts of Canada and not i n others. The B r i t i s h subject t r a i t has been used i n B r i t i s h Columbia quite uniformly i n the matter of p o l i t i c a l r i g h t s , as w i l l be seen i n the next section; but i t has also been r e l i e d on as a requirement, or as an advantage, 91 for the exercise of many professions and c a l l i n g s , and even for other purposes where the fact of being a B r i t i s h subject may seem t o t a l l y i r r e l e v a n t , such as under the 92 93 Mothers' Allowances Act , the Change of Name Act , and 94 the Railway Act , On the other hand, i n the l a s t few years, the p o l i c y has been changed and many provisions i n the statutes of B r i t i s h Columbia requiring to be 95 B r i t i s h subject have eithe r been repealed or substituted 96 by a si m i l a r provision requiring to be Canadian c i t i z e n . - 4? - It remains, however, that the fundamental c r i t e r i o n used by the provinces to determine the coverage of t h e i r enactments, and hence who are t h e i r c i t i z e n s , i s always the residence or domicile within the province. Other t r a i t s may be used at the same time, but whatever they be (whether B r i t i s h subjects, Canadian c i t i z e n s , such or such age, q u a l i f i e d voters, and so on), they remain merely i n c i d e n t a l and supplementary q u a l i f i c a t i o n s of the basic p r o v i n c i a l c i t i z e n s h i p constituted by the 97 domicile or residence within the province. This appears c l e a r l y when one considers the whole bulk of enactments of a p a r t i c u l a r province, since the requirements concerning the residence or the domicile within the province are by f a r the most frequently used and since t h i s sort of t r a i t i s the f i r s t one to be imposed and the l a s t to be 98 withdrawn a f t e r a change i n the l e g i s l a t i v e p o l i c y . In many cases, only residence within the province i s required, 99 d i r e c t l y or i n d i r e c t l y , without any p a r t i c u l a r period 100 of time s p e c i f i e d by the statute , but the scheme may as well ensure that residence i s equivalent with domicile so that no one can have his residence i n two 101 provinces at the same time. In other instances, the length of such residence or domicile i s s p e c i f i e d , and t h i s length w i l l vary considerably depending on the importance that i s attached by the l e g i s l a t u r e to the matter regulated and on whether or not the public - 48 - 102 purse or property i s put to contribution . The longer the period of residence w i l l be, the more i t as l i k e l y to amount to a domicile requirement as well. Apart from these cases, most of the statutes, at both pro- v i n c i a l and federal l e v e l s , do not set down any c r i t e r i o n to determine t h e i r coverage because they apply at large on a t e r r i t o r i a l basis, that i s to say, to a l l those who happen to be on the t e r r i t o r y . On the whole, i t appears that, besides the express or implied requirement of residence or domicile within the province, there i s no necessary uniformity or rationale between the scopes of a p p l i c a b i l i t y of the diverse statutes of the same province. I t i s the task of each l e g i s l a t u r e to r a t i o n a l i z e the law i n t h i s respect so that the clashes be avoided as f a r as possible. In Quebec, there i s a c e r t a i n standardization that has been made, at l e a s t with respect to the q u a l i f i c a t i o n s for the exercise of most of the professions; the new 103 section 4 of the Professional Matriculation Act provides as follows: "No corporation mentioned i n the schedule s h a l l refuse to admit a person as a member of the corpora- t i o n or to admit a person to the study or the practice of the pro- fession governed by such corporation f o r the sole reason that such person _ Uc, _ i s not a Canadian c i t i z e n , i f such person has been lawfully admitted to Canada to remain there per- manently, undertakes to apply f o r Canadian c i t i z e n s h i p as soon as he may do so under the Canadian Citizenship Act (Statutes of Canada) and i s domiciled i n the province of Quebec". Nineteen professional corporations are covered by the enactment, and the Lieutenant-Governor i n Council has the power to make the section applicable to other corporations. Uniformity, however, seems to be s t i l l more needed as between the laws of the d i f f e r e n t provinces. Many techniques have been advocated i n the past to 104 achieve such a r e s u l t , but only voluntary endeavours on the part of the provinces could lead to some success, since they remain free to adopt whatever l e g i s l a t i o n they want. In t h i s sense, the work done by the Conference of Commissioners on Uniformity of L e g i s l a t i o n i n Canada since 1918 proved to be very p o s i t i v e , and many uniform statutes have been adopted throughout Canada, except 1 0 5 Quebec. The l a t t e r Province did not pa r t i c i p a t e at a l l relevant times i n the Conference, despite the f a c t that a clear p o l i c y had been adopted not to " i n t e r f e r e with the C i v i l Code of Quebec or to impose upon that Province a system of law founded upon t r a d i t i o n s and - 50 - 106 and p r i n c i p l e s foreign to the wishes of i t s people" P a r t i c i p a t i o n of Quebec resumed i n 19^2, but i t does not appear that i t adopted as many proposed uniform l e g i s l a - t i o n as the other provinces. I t remains that, i n my view and as has been indicated above, no trend towards uniformity can bring any province to disregard the p a r t i - cular r e l a t i o n s h i p entertained by certa i n i n d i v i d u a l s with i t s e l f , at least i n those matters where the benefits and p r i v i l e g e s that are conferred may reasonably be thought to pertai n only to those who are members of the p r o v i n c i a l community. The only kind of uniformity that can be achieved i n t h i s respect does not consist i n the elimination of every residence or other requirements, but i n the standardization as between the provinces of the requirements themselves. Nevertheless, i n the major part of the f i e l d of welfare laws, the provinces have been i n fac t obliged to r e f r a i n t h e i r natural propensity towards the creation of a p a r t i c u l a r t r a i t designed to l i m i t the benefits to those only that the l e g i s l a t u r e considers to have s u f f i c i e n t t i e s with the province to warrant a spe c i a l status. The p r o v i n c i a l powers to determine i n a d i s - cretionary manner the scope of a p p l i c a b i l i t y of i t s welfare l e g i s l a t i o n has been successfully constricted - 51 - by the federal government through i t s p o l i c y of conditional grants to the provinces. Indeed, there i s not a single piece of federal l e g i s l a t i o n that confers on the Governor i n Council the authority to make agreements with the provinces and provides f o r the payment to these provinces of c e r t a i n amounts fo r welfare purposes without imposing at the same time, either d i r e c t l y or i n d i r e c t l y , that the provinces s h a l l not make a period of residence within i t s borders a condition f o r being e n t i t l e d to some allowance or assistance. The key Act i n t h i s respect i s 107 the Canada Assistance Plan whose coverage i s general and which i s designed to es t a b l i s h a system whereby the federal w i l l share any kind of f i n a n c i a l aid or other assistance provided by a province to i t s residents who are i n need. The provinces that agree to t h i s federal scheme need not adopt any other p a r t i c u l a r agreement since i t covers every kind of assistance. But one of the conditions that have to be accepted by the province, i s , according to section 6 (2)(d), that t h i s province " w i l l not require a period of residence i n the province as a condition of e l i g i b i l i t y f o r assistance or f o r the receipt or continued receipt thereof". Such a d i r e c t way of provoking uniformity throughout the country has also been embodied i n more s p e c i f i c federal Acts dealing 108 with analogous matters. - 52 - The provisions of other p a r t i c u l a r statutes i n t h i s f i e l d are not so e x p l i c i t , hut t h e i r ultimate r e s u l t i s the same. The Blind Persons Act, the Old Age Assistance Act and the Disabled Persons Act are quasi- 109 i d e n t i c a l l e g i s l a t i o n . Their respective section 3 (1) confers to the federal government the power to make an agreement with any province to provide f o r the payment to t h i s province of a c e r t a i n contribution i n respect of allowances paid to the persons i n question by the province i n pursuance to i t s own l e g i s l a t i o n . Then, t h e i r section 3 (2) enumerates the q u a l i f i c a t i o n s that are to be met by the prospective r e c i p i e n t of the allowance or assistance, among which i t i s provided that t h i s person must have "resided i n Canada fo r the ten years immediately preceding (the date of the proposed commencement of pay- ments to him), or i f he has not so resided, has been present i n Canada p r i o r to those ten years f o r an aggregate period equal to twice the aggregate period of 110 absences from Canada during those ten years". With respect to the residence within a province, the conditions of the agreement are absolutely incompatible with any requirement of a c e r t a i n period of such residence. I t i s provided, i n t e r a l i a , that a c e r t a i n reimbursement w i l l be made by a province to the province which has - 53 - to pay the allowance or assistance when the re c i p i e n t has resided i n the former f o r a longer time during the 111 period preceding his being q u a l i f i e d f or the benefits. And the province must also agree upon the following: " ( i i i ) that the province w i l l , where a r e c i p i e n t who has been granted an allowance transfers his residence to such province from another province, pay the allowance; ( i v ) that where a r e c i p i e n t , to whom the province has granted an allowance, transfers his residence to another province with which no agreement i s i n force, the province w i l l continue to pay the allowance to such r e c i p i e n t ; (v) that where a r e c i p i e n t , who has been granted an allowance, transfers his residence to some place out of Canada, the province w i l l discontinue payment of the allowance and not resume payment thereof u n t i l such r e c i p i e n t has again become resident i n Canada" (...) 112. It thus appears that no leeway i s l e f t f o r the provinces to specify any kind of residence or domicile c r i t e r i a of t h e i r own i f they want to receive the federal contribution. On the other hand, the ten years' period of residence i n Canada i s manifestly adopted to make sure that the 114 recipie n t s are members of the community, there being no need, i n the federal p o l i c y , to further provide that they also are c i t i z e n s of the province that w i l l have to share i n the b i l l . - 5 ^ - Such a voluntary c o n s t r i c t i o n by the provinces i s accepted with some reluctance since they would prefer to grant t h e i r p r i v i l e g e s and t h e i r money only to those they n a t u r a l l y tend to consider as t h e i r c i t i z e n s . 1 1 - ' Accordingly, the provinces tend to require a l i t t l e more than a mere residence within the province, as long as the conditions of the agreement permit them to do so. On the one hand, they may define the term "resident" as meaning a person domiciled or whose home i s i n the province, requiring by t h i s an intention from the reci p i e n t to remain i n the province or to return therein a f t e r temporary absences and excluding at the same time the mere v i s i t o r s and t o u r i s t s . On the other hand, the provinces have also created a "waiting period" during which the resident has to remain i n the province before being e l i g i b l e to the benefits of the l e g i s l a t i o n . 1 1 " ^ Both these reasonable expedients have been agreed to by the federal which has embodied them i n the recent provisions of i t s Medical Care Act where resident of a province "means a person lawfully e n t i t l e d to be or to remain i n Canada, who makes his home and i s o r d i n a r i l y present i n the province, but does not include a t o u r i s t , transient or v i s i t o r to the province," and where one of the requirements that have to be met by the provinces i s that the p r o v i n c i a l - 55 - plan must "not impose any minimum period of residence i n the province or any waiting period i n excess of three months before persons who are or become residents of the province are e l i g i b l e for or e n t i t l e d to insured services*;^ The same section also imposes on the provinces the duty to pay the cost of insured services to t h e i r residents while temporarily absent or during the time they are i n the waiting period of a p a r t i c i p a t i n g province. Indeed, i t seems to me that i t i s as legitimate, i f not more, f o r the provinces to seek some protection by minimum c i t i z e n s h i p requirements that i t i s f o r the federal i t s e l f . Obviously, there are many laws, federal or p r o v i n c i a l , where no such c r i t e r i o n need be adopted since the benefits they provide f o r are u n l i k e l y to a t t r a c t within the relevant t e r r i t o r y persons who w i l l become a burden on the public purse; even i n the welfare f i e l d , a l l those insurance schemes whereby the beneficiary or his l e g a l representatives have to contribute to the fund do not generally embody any s p e c i a l length as to the period of r e s i d e n c e . B u t i n the matters which may i n c i t e foreigners to come to Canada or i n a province fo r the only purpose of gaining personal benefits at the public expense, i t i s submitted that the provinces have a more legitimate claim to r e s t r i c t the coverage of t h e i r - 56 - enactments than the federal because the l a t t e r can always p r o h i b i t the entry on i t s t e r r i t o r y by paupers through i t s immigration powers, which the provinces cannot do.l^O Despite i t s powers i n immigration, the central government has used i n many cases some period of residence i n i t s own l e g i s l a t i o n as a p r i o r q u a l i f i c a t i o n for benefits under them. A period of ten years' residence i n Canada embodied i n some of i t s enactments, as we have seen,-^l appears somewhat unconscionable since the government could e a s i l y refuse as immigrants those bl i n d or disabled persons or senior c i t i z e n s whom i t does not want to supports i t i s submitted that as soon as i t accepts them within the Canadian community, they should be e n t i t l e d to the benefits provided to any other Canadian, at l e a s t within a reasonable period of time. 122- In any case, e f f e c t i v e l y , the sole passage by an a l i e n through the procedure of immigration makes almost sure that what he acquired the very f i r s t day of his being accepted as a landed immigrant i s not a mere residence i n Canada but a domicile therein, because otherwise he would have been refused had he not had the intention to s e t t l e h e r e . 1 2 ^ - 57 - But as fa r as the provinces are concerned, the main way to avoid having to support persons from outside the t e r r i t o r y who do not r e a l l y intend to s e t t l e per- manently and to constitute an asset for the community i s to r e s t r i c t the scope of a p p l i c a b i l i t y of t h e i r own l e g i s l a t i o n , and that i s what they have been precluded from doing by the conditional grants agreements imposed by the federal government. I t i s f a i r to say that there was a need i n the f i e l d of welfare laws for uniformity i n the provisions throughout Canada and f o r an assurance that a c i t i z e n w i l l not be penalized for the sole reason that he happened to change the province of his abode. But either the same schemes are adopted by every province and then the hardship imposed on a p a r t i c u l a r province which has to pay allowances to persons just coming on to t h e i r t e r r i t o r y i s compensated by i t s discharge v i s - a-vis those who have just l e f t ; or else, where the provinces do not sign the same agreements, some of them may acquire a supplementary burden and have to f u l f i l l obligations with respect to persons who should have been 124 indemnified by another province. Even i n a l l the other f i e l d s where they remained completely free to grant t h e i r p r i v i l e g e s to whom they want, the provinces have nonetheless f e l t the necessity of conferring powers to negotiate and make agreements - 58 - with other provinces i n order to uniformize the application of the diverse statutes i n p a r i materia and a l l e v i a t e the loss of benefits suffered by those who moved from a province to another. 1 2-' I t i s not my purpose here to analyse what are the agreements that have been implemented as between the provinces, but the d i v e r s i t y i n the de- f i n i t i o n s of residence i n the statutes of the same province may indicate how many clashes could be found by comparing the enactments of a l l the provinces. Agreements may be necessary i n order to avoid a complete anarchy i n the f i e l d s where the federal government has not the bargaining power that i t has i n welfare matters through i t s spending power. Another way to force the co-operation of the other provinces i s to deny to t h e i r c i t i z e n s c e r t a i n r i g h t s or p r i v i l e g e s unless they adopt a simiar l e g i s l a t i o n and grant the same benefits. The Motor Vehicle Act of B r i t i s h Columbia, f o r example, provides that any person who obtained judgment from a court of the Province or i s otherwise entitled, to compensation, may apply to the Fund therein constituted, but goes ons "The amount paid by the Fund to an applicant who o r d i n a r i l y resides out- side the Province s h a l l not exceed the amount limited by t h i s section or the amount that a resident of the Province could recover under the same circumstances from a l i k e fund i n the j u r i s d i c t i o n i n which the applicant o r d i n a r i l y resides, whichever i s l e s s . " - 59 - Thus, the non-resident i s either penalized or not, depending on the laws of the province whence he comes: i n other words, the c i t i z e n who travels throughout Canada and becomes subjected to d i f f e r e n t p r o v i n c i a l j u r i s - d i c t i o n s may be dealt with as i f he were t i g h t l y linked with a p a r t i c u l a r province, and his rights and obligations w i l l vary according to the correspondence or d i s p a r i t y between the laws of his "state" and those of the one where he happens to be. Our c o n s t i t u t i o n a l system that permits such a d i s p a r i t y by the same time i t creates a need fo r a machinery towards uniformity has led i n t h i s way to a firm recognition of the appurtenance of the i n d i v i d u a l not only to a national community but also to a p r o v i n c i a l one. That i s what I have ca l l e d here a p r o v i n c i a l c i t i z e n s h i p i n the general sense of the term, and t h i s i s the price that must be paid, to a c e r t a i n extent, f o r f e d e r a l i s m . 1 2 ? It i s true that the standardization compelled i n the United States by the Constitution has found i t s Canadian counterpart i n the spending power of the federal government and i t s p o l i c y i n the f i e l d of welfare l e g i s l a - t i o n through conditional grants. Nevertheless, the provinces have retained an overwhelming power to define who are t h e i r c i t i z e n s i n a l l other f i e l d s l e f t untouched by the federal intrusion, such as the q u a l i f i c a t i o n s for - 60 - the exercise of professions within the province, for sharing i n the enjoyment of public property and c a l l i n g s , and so on. In t h i s sense, the p o s s i b i l i t i e s f o r d i f f e r - entiations remain much more actual i n Canada than i n the United States, but they are only p o s s i b i l i t i e s since, as the point has been made, the vast majority of the laws i n Canada apply to a l l those who are i n the t e r r i t o r y , whether federal or p r o v i n c i a l t t h i s i s true i n the major parts of the c i v i l and property r i g h t s . In special matters however, where the federal or the p r o v i n c i a l authority consider that a r i g h t i s almost a p r i v i l e g e , the range of " c i t i z e n s " may be su b s t a n t i a l l y narrowed by some reliance upon c r i t e r i a that are very diverse but, mainly and fundamentally, the residence or domicile within the realm. - 61 - 2 . The P o l i t i c a l Citizenship Status In the preceding section, I r e l i e d on the fac t that aliens were e n t i t l e d to most of the right s that were supposedly those of the " c i t i z e n s " to show that the l a t t e r term when used i n a general sense had no relevant correspondence with the class of persons formally defined i n the Canadian Citizenship Act. Here, however, alie n s are almost never e n t i t l e d to par t i c i p a t e i n the p o l i t i c a l l i f e of the country where they have the p r i v i l e g e to remain. 1 2^ Since, i n Canada and i n the United States generally, i t can be said that aliens " d i f f e r only from c i t i z e n s i n that they cannot vote or hold any public office"-'- 2^, i t has often been accepted as a c o r o l l a r y that the actual possession of p o l i t i c a l rights was the relevant c r i t e r i o n to determine who are l e g a l l y the c i t i z e n s of the State. Such a conclusion i s not accurate because a l e g a l system i s not necessarily developed along the l i n e s of p o l i t i c a l s c i e n t i s t s ' r a t i o c i n a t i o n s , and because a s t r i c t l e g a l d e f i n i t i o n of c i t i z e n s flows from a c i t i z e n s h i p or n a t u r a l i z a t i o n Act which has no d i r e c t c o r r e l a t i o n with the possession or not of p o l i t i c a l r i g h t s . - 62 - The confusion i n t h i s domain comes from a jumble of philosophical concepts and l e g a l rules and originates with A r i s t o t l e ' s d e f i n i t i o n of c i t i z e n s h i p which I w i l l consider b r i e f l y . F i r s t of a l l , A r i s t o t l e did not purport to deal with c i t i z e n s h i p i n a l e g a l sense since he l e f t out of his consideration "those who enjoy the name and t i t l e of c i t i z e n i n some other than the s t r i c t sense - for example, naturalized c i t i z e n s " 1 - ^ 0 . He equally dismissed "children who are s t i l l too young to be entered on the r o l l of c i t i z e n s , or men who are old enough to have been excused from c i v i c duties..." He then excluded from the comprehension of the nature of c i t i z e n - ship those " c i v i c r i g h t s " which also belong to a l i e n s . Such an approach w i l l obviously lead to a very s t r i c t d e f i n i t i o n of the c i t i z e n , that i s "a man who shares i n the administration of justice and i n the holding of o f f i c e . A r i s t o t l e , true, was only concerned with an analysis of the r e l a t i o n s h i p between the c i t i z e n and his State and not with any rela t i o n s h i p between the people and the rig h t s and duties conferred generally by law or between t h i s people and the people of another State. The nature of c i t i z e n s h i p i n the sense he wanted to discuss i t i s a p o l i t i c a l one and i t i s not s u r p r i s i n g to - 63 - f i n d that the r e s u l t i n g d e f i n i t i o n sets the p a r t i c i p a t i o n i n the operation of the State as the leading feature of the nature of c i t i z e n s h i p . A r i s t o t l e admitted, however, that t h i s test could only be met i n a democracy. In order to give i t a universal connotation, he amended his d e f i n i t i o n so as to include c i t i z e n s of non-democratic States: "(1) he who enjoys the r i g h t of sharing i n deliberative or j u d i c i a l o f f i c e ( f o r any period, fixed or unfixed) attains thereby the status of a c i t i z e n of his state, and (2) a state, i n i t s simplest terms, i s a body of such persons adequate i n number for achieving a s e l f - s u f f i c i e n t existence." 132 I t i s i n t e r e s t i n g to note that modern democracies only respect t h i s second definition and constitute some sort of by-product of a d i r e c t democracy, since most of t h e i r c i t i z e n s share remotely i n public functions through the sole exercise of t h e i r r i g h t to vote. In any case, what i s worthy of notice i s that A r i s t o t l e ' s d e f i n i t i o n of c i t i z e n - ship refers to the p o l i t i c a l r i g h t s as i t s primary and e s s e n t i a l c h a r a c t e r i s t i c s the c i t i z e n s are only those who are e n t i t l e d by the c o n s t i t u t i o n of a country to enjoy such p o l i t i c a l r i g h t s . - 64 - Despite the soundness of th i s kind of reasoning, a l e g a l system may also provide that c e r t a i n persons need not be conferred with p o l i t i c a l r i g h t s to be e n t i t l e d to the status of c i t i z e n s . In other words, one should not use Aristotlefe' c r i t e r i o n as the sole possible one for a l l l e g a l purposes and conclude that the c i t i z e n s must be those who have "the power to pa r t i c i p a t e d i r e c t l y or i n d i r e c t l y i n the establishment or management of government", t h i s p a r t i c i p a t i o n working mainly through the channels of voting and holding o f f i c e : indeed, American courts have often adopted such a d e f i n i t i o n , adding that " p o l i t i c a l r i g h t s are fixed by the constitution(and) every c i t i z e n has the r i g h t of voting f o r public o f f i c e r s , and of being elected; these are the p o l i t i c a l r i g h t s which the humblest c i t i z e n possesses", contrary to the c i v i l r i g h t s which broadly comprehend a l l r i g h t s accorded to every member of a nation or d i s t r i c t . " ^ 3 j^- ^ s there assumed that those who only enjoy c i v i l r i g h t s are not c i t i z e n s because even the humblest c i t i z e n possesses p o l i t i c a l r i g h t s . Moreover such a d e f i n i t i o n lacks so much rigour that i t equates c i t i z e n s with the "people", as the term i s used i n the U.S. Constitution to designate the basis of the p o l i t i c a l s o v e r e i g n t y . C h i e f Justice Taney of the Supreme Court of the United States put i t i n t h i s way: - 65 - "The words "people of the United States" and " c i t i z e n s " are synonymous terms, and mean the same thing. They both describe the p o l i t i c a l body, who, according to our republican i n s t i t u - t i o n s , form the sovereignty, and who hold the power and conduct the govern- ment through t h e i r representatives. They are what we f a m i l i a r l y c a l l the "sovereign people", and every c i t i z e n i s one of t h i s people, and a constitu- ent member of t h i s sovereignty." 135 This sort of phraseology i s very unfortunate because i t i s not based on the law but on a p o l i t i c a l concept which i s so broad and vague that i t leads and has always led to confusion. There i s no use to place such an emphasis on the fact that every person must possess these p o l i t i c a l r i g h t s to be a c i t i z e n at a l l . Obviously, t h i s can hardly be contradicted because i t i s too vague an assertion. But for the very same reason, i t must be c r i t i c i z e d . In r e a l i t y , the term "people" has absolutely no l e g a l connotation and, even i n the popular language, i t means sometimes the electorate and sometimes a l l the inhabitants t " I t has been remarked, with great authority, that "the 'people" i s so indeterminate an expression that i t s use, l e t alone i t s abuse, obscures almost a l l p o l i t i c a l discussions." - 66 - An even more absolute indictment i s that of D i s r a e l i , who once said that, as a p o l i t i c a l expression, "the people" i s "sheer nonsense". He re- garded i t as belonging rather to the realm of natural hi s t o r y than to that of p o l i t i c s . It was, however, only a few years a f t e r making these observations that D i s r a e l i introduced a B i l l into the House of Commons "to amend the representation of the people", without perhaps considering whether the term "people" i n the t i t l e of the B i l l referred to the electorate or the whole population." 136 This term can thus cover both the "active c i t i z e n s " who enjoy p o l i t i c a l rights and the "passive c i t i z e n s " who are subjected to the laws of the realm, as has been d i s - cussed formerly. But the danger of the doctrinaire approach described above i s to transfer i t on l e g a l ground, as i n the following statements "Does i t (the term "people") i n any given country cover, or ought to cover, the whole population or only those who are l e g a l l y c i t i z e n s , i . e . e n t i t l e d to share i n the government by expressing t h e i r mind and w i l l on public questions?" 137 From what can one i n f e r that the p o l i t i c a l meaning of " c i t i z e n s " i s the only l e g a l one i f he does not r e l y on the c o n s t i t u t i o n and laws of the country? - 6? - A rapid survey of the provisions conferring p o l i t i c a l r i g h t s i n Canada and i n the United States demon- strates, f i r s t , that these rights have not necessarily been exercised only by those who are formally c i t i z e n s of the country and, second, that a l l these c i t i z e n s have never been admitted to exercise them. As f o r the f i r s t point, i t has been remarked that i n the United States? "... during the nineteenth century the laws and constitutions of at l e a s t twenty-two states and t e r r i t o r i e s granted aliens or declarant aliens the r i g h t to vote. I t was not u n t i l 1928 that a national e l e c t i o n was held i n which no a l i e n i n any state had the r i g h t to cast a vote f o r a candidate for o f f i c e . " 138 Even today, i t i s common knowledge that B r i t i s h subjects are e n t i t l e d to the franchise i n c e r t a i n Canadian provinces and w i l l keep t h i s p r i v i l e g e at the federal l e v e l u n t i l 1975. Accordingly, there i s no c o r r e l a t i o n between the possession of a formal c i t i z e n s h i p and the exercise or enjoyment of p o l i t i c a l r i g h t s . There i s a sense i n which " c i t i z e n s " may designate those who are e n t i t l e d to p o l i t i c a l r i g h t s , but t h i s sense i s not the only l e g a l one and i t does not correspond at a l l to the meaning given to the term i n c i t i z e n s h i p and n a t u r a l i z a t i o n laws. - 68 - Moreover, i t has been noted with great accuracy that: "..no person i n the United States did ever exercise the r i g h t of suffrage i n virtue of the naked, unassisted f a c t of c i t i z e n s h i p . In every instance the ri g h t depends upon some addit i o n a l f a c t and cumulative q u a l i f i c a t i o n , which may as p e r f e c t l y e x i s t without as with c i t i z e n s h i p (...) And, as to voting and holding o f f i c e , as that p r i v i l e g e i s not es s e n t i a l to c i t i z e n - ship, so the deprivation of i t by law i s not a deprivation of c i t i z e n s h i p . " 139 The fact that the possession of p o l i t i c a l r i g h t s i s not es s e n t i a l to formal c i t i z e n s h i p has been recognized judicially, 1^° and, i n any case, i t i s a necessary inference from a mere look i n the statute books. The Privy Council has put i t i n t h i s way: "The term " p o l i t i c a l r i g h t s " used i n the Canadian Naturalization Act i s , as Walkem, J. very j u s t l y says, a very wide phrase, and t h e i r Lordships concur i n h is observation that, whatever i t means, i t cannot be held to give necessar- i l y a r i g h t to the suffrage i n a l l or any of the provinces. In the history of th i s country the r i g h t to the franchise has been granted and withheld on a great number of grounds, conspicuously upon grounds of r e l i g i o u s f a i t h , yet no one has ever suggested that a person excluded from the franchise was not under allegiance to the Sovereign." 141 - 69 - But the confusion i n the terms i s so deeply rooted i n our p o l i t i c a l t r a d i t i o n s that those who desire to perpetuate i t have t r i e d to fi n d some j u s t i f i c a t i o n s f o r the fac t that c e r t a i n c i t i z e n s were deprived of t h e i r p o l i t i c a l r i g h t s : f o r instance, i t has been said that childre n of c i t i z e n s were c i t i z e n s a l i k e because they partake of the q u a l i t y of t h e i r parents who are exercising p o l i t i c a l r i g h t s . This kind of reasoning i s obviously designed to provide an a p o s t e r i o r i j u s t i f i c a t i o n f o r an inconsistent premise. And i f we were to remain with the absurd b e l i e f that i t i s the rights and p r i v i l e g e s which one i s e n t i t l e d to enjoy that make him a c i t i z e n , we could be caught to j u s t i f y i n the same way why formal c i t i z e n s cannot exercise t h e i r p o l i t i c a l r i g h t s when, for instance, they have been convicted of a crime, they have not re- sided i n the constituency for enough time, or because they are Japanese. The truth i s that the c i t i z e n s of a country are not defined by laws conferring p o l i t i c a l r i g h t s but by the c i t i z e n s h i p and na t u r a l i z a t i o n statutes of t h i s country. On the other hand, the enactments granting p o l i t i c a l r i g h t s serve to bestow on a p a r t i c u l a r class of " c i t i z e n s " ( i n a p o l i t i c a l sense) the r i g h t to p a r t i - cipate d i r e c t l y or i n d i r e c t l y i n the establishment or - 70 - management of the organs of the State. Such provisions may well use as a basic q u a l i f y i n g t r a i t the fact of being formally c i t i z e n , although, as we have seen, i t i s f a r from being always the case and, even i f i t i s , the mere possession of c i t i z e n s h i p i s never s u f f i c i e n t by i t s e l f to e n t i t l e someone to pa r t i c i p a t e i n the conduct of government. For the very same reasons that have been stated i n the f i r s t section, the nature of the State i n Canada and i n the United States makes i t necessary that there should be two sets of p o l i t i c a l c i t i z e n s h i p since there are two l e v e l s of independent government that need to be established and operated. But here again, the Canadian provinces have been allowed much more leeway to define at t h e i r own d i s c r e t i o n who should be e n t i t l e d to p o l i t i c a l r i g h t s than the American states. In other words, Canadian c o n s t i t u t i o n a l law provides the basis for large d i f f e r e n t i a t i o n s between the p o l i t i c a l c i t i z e n s h i p of the d i f f e r e n t provinces while^the American Constitution has tended to uniformize the l e g i s l a t i v e t r a i t s i n th i s respect. In the United States, the Constitution lays down some basic rules as regards p o l i t i c a l r i g h t s , such as the requirements that candidates f o r e l e c t i o n to the - 71 - House of Representatives and the Senate must have been formally c i t i z e n s of the United States for at least 7 and 9 years respectively and c i t i z e n s of the State i n which they are chosen, and that a candidate for the presidency must be a natural-born American c i t i z e n and 14 years' resident i n the country. 1^ 2 But as f o r the r e s t , each state has been entrusted with the power to determine what are the q u a l i f i c a t i o n s required for the franchise and the e l i g i b i l i t y to both federal and state l e v e l s , to the extent that Congress has not l e g i s l a t e d i t s e l f i n the matter of federal e l e c t i o n s . ^ 3 As has been seen, a l l states require formal c i t i z e n s h i p as a condition f o r voting since 1928, and most of them, i f not a l l , add one year residence within the state as a cumulative requirement. 1^ The same are generally required as conditions of e l i g i b i l i t y , except that the period of residence within the state and of possession of c i t i z e n s h i p may be extended very sub- s t a n t i a l l y , ̂ 5 Residence i n these kinds of provisions can be designed to mean " l e g a l residence" and to imply the intention of making the state one's home, which cannot be l o s t by a temporary absence therefrom nor u n t i l another 146 one i s gained. The states can deny the r i g h t to vote and the opportunity to hold public o f f i c e to non-residents or non-citizens of the state because the clause of the Constitution p r o h i b i t i n g discrimination against c i t i z e n s of other states does not apply i n the matter of p o l i t i c a l r i g h t s . 1 ^ 7 - 72 - But t h i s state competence to define most of the q u a l i f i c a t i o n s f o r the exercise of p o l i t i c a l rights does not mean that they have been empowered to "grant" such righ t s to the c i t i z e n s . Quite the contrary, i t has been held by the Supreme Court that the r i g h t to vote i n federal elections had been conferred by the Constitution, and the only power possessed by the several states i s to specify reasonable supplementary requirements. The same tes t of reasonableness applies f o r the r i g h t to vote i n state elections, and the Supreme Court decided that "once the franchise i s granted to the electorate, l i n e s may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment",1^ nor, obviously, with the provisions forbidding a state to deny or abridge, i n state or federal elections, the r i g h t of anyone to vote, on account of race, color, previous condition of servitude, or s e x . 1 ^ 0 Accordingly, "In r u l i n g on the v a l i d i t y of state- imposed r e s t r i c t i o n s on t h i s fundamental r i g h t the United States Supreme Court has i n e f f e c t tended to apply the p r i n c i - ple that the state must show i t has a compelling i n t e r e s t i n abridging the r i g h t , and that i n any event such res- t r i c t i o n s must be drawn with narrow s p e c i f i c i t y . For example, race, creed, color and wealth are impermissible bases for r e s t r i c t i n g the r i g h t to vote; they are "not germane to one's a b i l i t y to p a r t i c i p a t e i n t e l l i g e n t l y i n the e l e c t o r a l process. (...) And - 73 - t h i s court has recently adopted a s i m i l a r approach i n considering a county charter provision p r o h i b i t i n g c i v i l servants from p a r t i c i p a t i n g i n a p o l i t i c a l campaign or e l e c t i o n " . 151 Moreover, the Supreme Court now requires a f a i r appor- tionment of the voting power of the populations "The Court states that an individual's r i g h t to vote f o r state l e g i s l a t o r s i s unconstitutionally impaired when i t s weight i s i n a substantial fashion d i - luted when compared with the votes of c i t i z e n s l i v i n g i n other parts of the state. The states must make an honest and good f a i t h e f f o r t to construct d i s t r i c t s , i n both houses of the l e g i s l a t u r e , as nearly of equal popula- t i o n as i s pra c t i c a b l e . " 152 These kinds of l i m i t s on the power of l e g i s l a - tures to determine those who w i l l be e n t i t l e d to exercise p o l i t i c a l r i g h t s do not obtain with respect to Canadian provinces. Indeed, by virtue of the interim provision i n section 41 of the B.N.A. Act, members of the House of Commons were elected pursuant to each p r o v i n c i a l elections Act ever since the 1920's where the federal Parliament passed i t s own e l e c t o r a l law;-^53 henceforth, the provinces could no more l e g i s l a t e i n r e l a t i o n to federal parliamentary e l e c t i o n s , c o n t r a r y to what happened i n the United States. But i n t h e i r exercise of power i n r e l a t i o n to p r o v i n c i a l p o l i t i c a l r i g h t s , the provinces can pass any - 74 - kind of statutes, none of which has ever been i n - validated: the Privy Council even upheld the v a l i d i t y of a statute withdrawing the franchise from B r i t i s h subjects, that i s to say from what were then the formal c i t i z e n s of the country, on the basis of t h e i r Japanese race.1-'-' It remains to be considered who are i n fact those upon whom the provinces confer p o l i t i c a l r i g h t s . I f I r e t a i n the d e f i n i t i o n already adopted, the p o l i t i c a l r i g h t s that can be granted by the provinces cover a very wide range of matters which can be summarized i n t h i s ways the r i g h t to p a r t i c i p a t e i n the establishment and operation of the l e g i s l a t i v e , j u d i c i a l and executive functions of the p r o v i n c i a l state. Accordingly, where the judges, f o r example, are denied the r i g h t to vote, i t cannot be said that they are denied p o l i t i c a l r i g h t s because they a c t u a l l y p a r t i c i p a t e i n a s i g n i f i c a n t way i n one of the major branches of the State's government: i t may just well be that some means of p a r t i c i p a t i o n are considered to be incompatible with other kinds because of the nature of our c o n s t i t u t i o n a l system. The Canadian Citizenship Act, section 24 (2) (a) and ( c ) , enacts that the rights there conferred to ali e n s i n respect to property do not operate so as to - 75 - q u a l i f y them "for any o f f i c e or f o r any municipal, parliamentary or other franchise", nor so as to e n t i t l e them to any other r i g h t or p r i v i l e g e as a Canadian c i t i z e n . Hence, aliens are not thereby disbarred from the enjoyment of p o l i t i c a l r i g h t s i n Canada since t h i s provision only purports to make clear that the possession of such p r i v i l e g e s depend on the relevant federal and p r o v i n c i a l statutes. At both l e v e l s , i t can be said that residence or domicile within the realm remains the basic c r i t e r i o n r e l i e d on to confer p o l i t i c a l r i g h t s . But the major difference with the l e g i s l a t i v e t r a i t s that I have analysed i n the f i r s t section i s that the supplementary requirement concerning formal n a t i o n a l i t y no longer appears as a n e g l i g i b l e and marginal factor. Quite the contrary, for a l l kinds of p o l i t i c a l functions, posts or o f f i c e s , the p r o v i n c i a l l e g i s l a t u r e has made sure that not only the postulant was resident or domiciled within the province, but also that he was f a i t h f u l to the form of democratic government i n which he was call e d to p a r t i c i p a t e either d i r e c t l y or i n d i r e c t l y . However, there are two ways of reaching such a moral certitude and that i s , f i r s t , to require that the o f f i c i a l be a B r i t i s h subject or Canadian c i t i z e n and than that he owes allegiance to the Crown, or second, simply to require that he takes an oath or affirmation of allegiance before f i l l i n g the p o s t . 1 ^ Usually, both - 76 - these conditions w i l l he imposed at the same time, but the sole fact that i n many important cases the oath of allegiance only i s required i s s u f f i c i e n t to i n f e r that the B r i t i s h subject or Canadian c i t i z e n t r a i t i s not an indispensable one as f a r as the p a r t i c i p a t i o n i n the p r o v i n c i a l government i s concerned.157 The r i g h t to vote at p r o v i n c i a l elections i s li m i t e d to those who have resided within the province for a c e r t a i n period of time, or have been domiciled therein, and are either B r i t i s h subjects or Canadian c i t i z e n s . At l e a s t the same requirements are used as f o r e l i g i b i l i t y since one must be an e l e c t o r to be candidate, coupled with the taking of an oath of allegiance once elected. 159 Not s a t i s f i e d with the safeguards, the Constitution Act of B r i t i s h Columbia provides that the e l e c t i o n of a member of the L e g i s l a t i v e Assembly w i l l become void and his seat vacated i f he "takes any oath or makes any declaration or acknowledgement of allegiance, obedience, or adherence to any foreign State or Power, or does, concurs;in, or adopts any act whereby he may become the subject or x6 0 c i t i z e n of any foreign State or Power..." I t i s to be noted that by so acting, an i n d i v i d u a l does not necessarily loose his Canadian c i t i z e n s h i p . Because of - 77 - the existence of a parliamentary system of government i n the Canadian provinces, i t i s obvious that these residence and allegiance requirements w i l l serve at the same time to determine the q u a l i f i c a t i o n s of ministers and prime minister. At the j u d i c i a l l e v e l , a l l the judges w i l l either be Canadian c i t i z e n s or B r i t i s h subjects as long as they are chosen among the members of the bar of a p r o v i n c e . 1 ^ 1 In f a c t , such q u a l i f i c a t i o n s have always been imposed on those who seek to become lawyers i n Canada because th i s profession i s considered to be t i g h t l y connected with the administration of justice and i n t h i s sense i s an o f f i c e of public i n t e r e s t . Even i n Quebec, the new enactment extending to aliens the r i g h t to admission to the study and practice of most of the professions u n t i l they become e l i g i b l e f o r c i t i z e n s h i p does not cover the case of the le g a l profession where i t i s s t i l l necessary to be Canadian c i t i z e n at a l l relevant t i m e s . l ^ 2 The same requirement i s now p r e v a i l i n g for s o l i c i t o r s and b a r r i s t e r s i n B r i t i s h Columbia, except for vested r i g h t s of B r i t i s h subjects. The holding of other functions c l o s e l y linked with the administration of j u s t i c e , such as the function of juror and notary public, has also been r e s t r i c t e d to B r i t i s h - 78 - subjects i n B r i t i s h Columbia and to Canadian c i t i z e n s i n Quebec ;164 residence within the province i s always implied or s p e c i f i c a l l y imposed as to i t s length. At any rate, a l l the o f f i c e r s of courts i n B r i t i s h Columbia who are appointed under the C i v i l Service Act must necessarily be B r i t i s h subjects and take the oath of allegiance, and t h i s applies to r e g i s t r a r s , probation o f f i c e r s , s h e r i f f s and so on. 1 6 5 At the executive l e v e l of government, except as for ministers, there i s a very wide range of functions that can be said to bear a public i n t e r e s t . I t i s f a i r to say that a post w i l l be considered of public i n t e r e s t i f i t meets at l e a s t one of the following c r i t e r i a : i t i s a departmental p o s i t i o n , i t i s a function of public t r u s t , or i t involves the expenditure or receipt of . , . 1 6 6 public money. With respect to departmental functions at the federal l e v e l , the Public Service Commission must not discriminate unjustly by reason of sex, race, national o r i g i n , color or r e l i g i o n , and hence, anyone i s e l i g i b l e at the f i r s t ; however, the Commission w i l l have to admit, i n order, persons i n receipt of a pension by reason of - 79 - war service, veterans, Canadian c i t i z e n s , and other people. At any rate, every public servant must take an oath of a l l e g i a n c e . 1 ^ In B r i t i s h Columbia, the C i v i l Service Act enacts that "no person i s e l i g i b l e f o r appointment to any pos i t i o n unless he i s a B r i t i s h subject", and provides for the taking of the oath of allegiance by every permanent 1 employee. It also states that preference s h a l l be given to persons who have served i n the Armed Forces and, among them, to those who were formerly domiciled i n B r i t i s h 169 Columbia. 7 In the matter of p o l i t i c a l r i g h t s , such provisions are probably the most important of a l l because there e x i s t innumerable statutes i n the Province which enact that appointments must be made pursuant to the C i v i l Service Act: from members of the s t a f f of the l i b r a r y of the L e g i s l a t i v e Assembly to commissioners and inspectors 170 of a l l kinds, a l l w i l l have to meet these requirements. ' In Quebec, there i s no express provision respecting the na t i o n a l i t y of c i v i l servants, but as a matter of policy, the Commission w i l l accept only Canadian c i t i z e n s , and 171 an oath of allegiance i s always required. F i n a l l y , there are many other public o f f i c e s of great import which are r e s t r i c t e d i n the same way: members of the police force must be B r i t i s h subjects or Canadian c i t i z e n s and subscribe to an oath of allegiance, - 80 - 17 and so f o r a l l members of the council of a municipality. Besides that, the r i g h t to vote on a l l kinds of public issues within the province w i l l normally depend on the q u a l i f i c a t i o n s as an elector either at the p r o v i n c i a l or the municipal l e v e l , and then the same n a t i o n a l i t y w i l l be required along with a c e r t a i n period of residence within 174 the province or the municipality. In B r i t i s h Columbia, the B r i t i s h subject t r a i t , as a c r i t e r i o n f o r conferring p o l i t i c a l r i g h t s , i s so generalized that i t could be said to determine a c t u a l l y the r e a l scope of a p p l i c a b i l i t y of the statutes i n t h i s respect, while, i n Quebec, the Canadian c i t i z e n s h i p require- ment plays the same r o l e . However, the r e a l basis of pro- v i n c i a l c i t i z e n s h i p i n a p o l i t i c a l sense remains the residence or domicile within the provinces t h i s c h a r a c t e r i s t i c i s necessarily implied i n every provision that has been analysed above and where the p r i v i l e g e conferred i s a more important one, the length of such residence or domicile increases at the same time. On the other hand, the formal n a t i o n a l i t y requirement has been dispensed with i n some instances which are a l l s i g n i f i c a n t s 1 7 - ' i n these cases, the only l i n k between the person who holds the public o f f i c e and participates i n the exercise of the p r o v i n c i a l government remains exclusively a r e s i d e n t i a l one. 1 7^ - 81 - 3. The Formal Cit i z e n s h i p Status The Canadian Cit i z e n s h i p Act adopted i n 19 k 6 and e f f e c t i v e on January 1st, 19 k7» purported to define who were Canadian c i t i z e n s at that time and who w i l l be e n t i t l e d to such a formal status i n the future. It enacted t r a n s i t i o n a l l y that two classes of persons became c i t i z e n s by the sole e f f e c t of i t s provisions: c i t i z e n s by b i r t h and c i t i z e n s naturalized automatically by t h i s A c t . 1 ^ It also provided how i n the future the Canadian c i t i z e n s h i p can be acquired, that i s i n two possible ways: by b i r t h or by n a t u r a l i z a t i o n . 1 " ^ These provisions constitute the only manner by which a formal c i t i z e n s h i p can be obtained i n Canada, and t h i s c i t i z e n s h i p i s a national one; there i s no statute, imperial, federal or p r o v i n c i a l , that declares the existence of any other kind of formal c i t i z e n s h i p i n Canada, except that the Canadian Citizenship Act states that every Canadian c i t i z e n i s at the same time a B r i t i s h 179 subject. Accordingly, the use of an expression l i k e " p r o v i n c i a l c i t i z e n " may be considered improper and not i n accordance with a s t r i c t l y l e g a l u t i l i z a t i o n of terms. Contrary to that, i t i s common knowledge that there exists i n the United States two formal d e f i n i t i o n s of c i t i z e n s h i p a national and a s t a t a l one. I must now analyse what i s the nature of American law i n t h i s respect i n order to be able to seize the r e a l difference, i f any, that obtains as compared with Canadian law. - 82 - Before the adoption of the Fourteenth Amendment, the law with respect to c i t i z e n s h i p i n the United States has been expounded by the Supreme Court i n the famous case Scott v S a n d f o r d . 1 8 0 There, the Court held that even i f Negroes had been conferred a state c i t i z e n s h i p i t did not follow that they acquired i n t h i s way the national c i t i z e n - ship. Its conclusion proceeded from an analysis of the nature of the state c i t i z e n s h i p , which was "confined to the boundaries of the State, and gave (...) no r i g h t s or p r i v i l e g e s i n other States beyond those secured (...) by 1 81 the laws of nations and the comity of States". It must be noted that t h i s kind of t e r r i t o r i a l l i m i t a t i o n of a c i t i z e n s h i p status i s not only the c h a r a c t e r i s t i c of a c i t i z e n s h i p conferred by non-sovereign states or provinces within a federal union: i t i s inherent i n any kind of c i t i z e n s h i p law of any sovereign country, as the point has been made very long ago. How, indeed, could the status of an American c i t i z e n , a Russian or anyone else, be recognized abroad otherwise than by v i r t u e of the law of nations and the comitas gentium? It i s obvious that the mere coexistence of sovereign States i s absolutely i n - compatible with the p o s s i b i l i t y for a ; p a r t i c u l a r State to enact a c i t i z e n s h i p law that w i l l , proprio motu, be e f f e c t i v e throughout the world independently of i t s recognition by other countries. - 83 - In t h i s respect, the nature of the state c i t i z e n - ship conferred p r i o r to the adoption of the Fourteenth Amendment i s not d i f f e r e n t at a l l from the national c i t i z e n - ship of the United States, nor from any other c i t i z e n s h i p , nor even from the status of B r i t i s h subject that the North American colonies were empowered to confer ever since the middle of the seventeenth century.^3 B u^. ^ e r e a ] _ difference between the powers of these colonies and those of the American states may be said to reside i n the fact that the several states have not surrendered the power of conferring t h e i r p a r t i c u l a r c i t i z e n s h i p by adopting the Constitution 184 of the United States, while the B r i t i s h colonies that became part of Canada i n 1867 have done so. This, however, i s completely wrong and there i s absolutely no difference i n the evolution of the two systems on that account. F i r s t of a l l , the competence i n the matter of n a t u r a l i z a t i o n i n Canada and i n the United States has been vested i n the central government, and i n both these countries such power i s admittedly exclusive. Then, what i s th i s kind of power that continued to be exercised by the American states with respect to t h e i r own c i t i z e n s h i p long a f t e r the exclusive power of natu r a l i z a t i o n had been vested i n Congress? The answer from the Supreme Court i s very clear: - 84 - "Each State may s t i l l confer (the rights and p r i v i l e g e s of t h e i r own c i t i z e n s h i p ) upon an a l i e n , or any one i t thinks proper, or upon any class or description of persons; yet he would not be a c i t i z e n i n the sense i n which that word i s used i n the Constitution of the United States, nor e n t i t l e d to sue as such i n one of i t s courts, nor to the p r i v i l e g e s and immunities of a c i t i z e n i n the other States. The rig h t s which he would acquire would be r e s t r i c t e d to the State which gave them. The Constitution has conferred on Congress the r i g h t to e s t a b l i s h an uniform rule of natural- i z a t i o n , and t h i s r i g h t i s evidently exclusive, and has always been held by t h i s court to be so. Consequently, no State, since the adoption of the Constitution, can, by n a t u r a l i z i n g an a l i e n , invest him with the r i g h t s and p r i v i l e g e s secured to a c i t i z e n of a State under the federal government, although, so far as the State alone was concerned, he would undoubtedly be e n t i t l e d to the r i g h t s of a c i t i z e n , and clothed with a l l the r i g h t s and immunities which the Constitution and laws of the State attached to that character." 186 This power of the American states i s so obviously inherent i n the very nature of federalism that there i s no need, to argue f o r long as to i t s a p p l i c a b i l i t y to Canadian provinces. I t i s s u b s t a n t i a l l y the right to confer a general status of c i t i z e n s h i p on the persons who are submitted to the j u r i s - d i c t i o n of the state as far as i t s l e g i s l a t i v e competence can go: t h i s can also be exercised by the Canadian provinces, - 85 - as has been seen i n the f i r s t section. So far , no difference can be found between the American state c i t i z e n s h i p and the pr o v i n c i a l c i t i z e n s h i p i n Canada, except as f o r the practise of the states to endow the rights and pr i v i l e g e s they conferred by the exercise of t h e i r powers under the Constitution with a formal appellation of c i t i z e n s h i p , whereas i n Canada the provinces could attach to t h e i r residents (or to any class of persons they think proper) s t i l l mor;e rights and immunities, but did not use to clothe the r e s u l t i n g status with any p a r t i c u l a r term or appella- t i o n . After the Scott case, the Fourteenth Amendment was passed for the purpose, inter a l i a , of conferring American c i t i z e n s h i p on Negroes, and t h i s had the ef f e c t of changing the nature of the state c i t i z e n s h i p as well. This Amendment declares that " a l l persons born or naturalized i n the United States, and subject to the j u r i s d i c t i o n thereof, are c i t i z e n s of the United States and the state wherein they reside" There we fin d the actual state of the law i n the United States. The national c i t i z e n s h i p can be acquired i n two ways only: by b i r t h within the r e a l m 1 ^ or by nat u r a l i z a t i o n under the provisions of congressional 1 8 8 enactments. This national c i t i z e n s h i p i s completely independent from any state c i t i z e n s h i p while, conversely, - 86 - the l a t t e r r e s u l t s from the c i t i z e n s h i p of the United States. The Supreme Court had t h i s to say about the two d e f i n i t i o n s of c i t i z e n s h i p contained i n the Amendments "Not only may a man be a c i t i z e n of the United States without being a c i t i z e n of a state, but an important element i s necessary to convert the former into the l a t t e r . He must reside within the state to make him a c i t i z e n of i t , but i t i s only necessary that he should be born or naturalized i n the United States to be a c i t i z e n of the Union. - I t i s quite c l e a r , then, that there i s a c i t i z e n s h i p of the United States and a c i t i z e n s h i p of a state, which are d i s - t i n c t from each other and which depend upon d i f f e r e n t c h a r a c t e r i s t i c s or c i r - cumstances i n the i n d i v i d u a l . " 189 The American state c i t i z e n s h i p i s merely a combination of the formal national c i t i z e n s h i p with "residence" i n the state. Residence, here, must obviously be taken i n the sense of domicile or ordinary residence, because other- wise a person could be c i t i z e n of more than one state at the same times t h i s i s what has been held i n the cases 190 where the formal state c i t i z e n s h i p has been analysed. But every such ordinary resident i s not necessarily c i t i z e n of the state, because he must previously be c i t i z e n of the United States. Nevertheless, the Supreme Court did not hesitate to declare n u l l and void state enactments d i s - criminating against c i t i z e n s of other states contrary to - 87 - A r t i c l e IV, Section 2, of the Constitution, even though 191 these statutes were couched i n terms of residence. On the other hand, the same Court admitted that by so holding, i t did not take f o r granted that the terms 192 "resident" and " c i t i z e n of the state" are synonymous, 7 hut the fa c t of discriminating against non-residents has necessarily the e f f e c t of including some c i t i z e n s of other states i n the discrimination and t h i s i s s u f f i c i e n t to invalidate the whole provision. Were i t not f o r aliens, there would be a complete i d e n t i t y of meaning f o r both expressions, because a l l c i t i z e n s of the United States are expressly declared to become c i t i z e n s of the state wherein they o r d i n a r i l y reside. It i s then easy to find that the several American states have absolutely no control over t h e i r own c i t i z e n s h i p because they cannot determine who are going to become a c i t i z e n of the United States, and because they cannot pro- h i b i t them from s e t t l i n g within t h e i r t e r r i t o r y since the Supreme Court held that: " . . . i t i s a p r i v i l e g e of c i t i z e n s h i p of the United States, protected from state abridgment, to enter any state of the Union, either f o r temporary sojourn or for the establishment of permanent re- sidence therein and f o r gaining resultant c i t i z e n s h i p thereof." 193 - 88 - Neither have they any control over the matters where t h e i r formal c i t i z e n s h i p w i l l constitute the basis of a sub- s t a n t i a l rule of law as f a r as these matters are provided for by the Constitution. Accordingly, t h i s formal c i t i z e n - ship i s completely outside the reach of the several states, as much as f o r i t s o r i g i n a l d e f i n i t i o n and i t s concession than as for the substantial status r e s u l t i n g therefrom. Only i n some interstate matters specified i n the American Constitution w i l l t h i s formal state c i t i z e n - ship, per se. be of d i r e c t relevance. It i s the case for the provision p r o h i b i t i n g discrimination against c i t i z e n s of other states, which has already been discussed. Also, i t i s the case where j u r i s d i c t i o n has been conferred to federal courts over controversies "between a State and Citizen s of another State; - between Citizens of d i f f e r e n t States; - between Citizens of the same State claiming Lands under Grants of d i f f e r e n t States, and between a State, or the Cit i z e n s thereof, and foreign States, Citizens or 194 Subjects." But the d e f i n i t i o n of the Fourteenth Amend- ment w i l l bear no p r a c t i c a l import as for the determination of the in t e r n a l status of the people l i v i n g i n the American states. F i r s t , i n a l l the matters where aliens are on the same footing as c i t i z e n s , such a d e f i n i t i o n w i l l not corres pond to the scope of a p p l i c a b i l i t y of state l e g i s l a t i o n . - 89 - And second, some rights and p r i v i l e g e s may depend upon a longer or shorter period of residence within the state according to the importance of the matter, and then, those formal c i t i z e n s who have not been domiciled therein f o r long enough w i l l be excluded. It i s needless to make here a survey of the state l e g i s l a t i o n to prove that the c i t i z e n - ship defined i n the Amendment does not correspond at a l l to the actual t r a i t s flowing from p a r t i c u l a r enactments. It may s u f f i c e to r e f e r to the cases analysed i n the f i r s t 19 "5 d i v i s i o n y j and to the provisions requiring more or less years of residence within the state i n order to be e n t i t l e d 196 to exercise most of the p o l i t i c a l r i g h t s . 7 The d i s t i n c t i o n between interstate purposes and i n t e r n a l purposes, coupled with the evidence that formal c i t i z e n s h i p i s i r r e l e v a n t f o r the l a t t e r , has been magisteri- a l l y pointed out by the Court of Appeals of Maryland i n the recent case Crosse v Board of Supervisors of E l e c t i o n s . 1 ^ 7 There, the appellant sought to compel the Board to accept and c e r t i f y his candidacy f o r the post of S h e r i f f of Baltimore City, even though he had become naturalized c i t i z e n of the United States only one month pr i o r to his app l i c a t i o n while the State Constitution required the can- didate to have been, in t e r a l i a , "at least f i v e years - 9 0 - preceding his el e c t i o n , a c i t i z e n of the State". The court i n f i r s t instance had upheld the re f u s a l of the Board because, according to the Fourteenth Amendment, i t i s a necessary prerequisite to be c i t i z e n of the United States i n order to become formally a c i t i z e n of a state and, hence, a mere priod of over f i v e -;years of residence could not s u f f i c e . The Court of Appeal reversed t h i s decision, d i s - tinguishing, f i r s t , the formal c i t i z e n s h i p from the 198 possession of p o l i t i c a l rights 7 and, second, the formal c i t i z e n s h i p from the general c i t i z e n s h i p , i n these terms: "Citizenship of the United States i s defined by the Fourteenth Amendment and federal statutes, but the requirements for c i t i z e n s h i p of a state generally depend not upon d e f i n i t i o n but the con s t i t u t i o n a l or statutory context i n which the term i s used." 1 9 9 It then proceeded to dis t i n g u i s h the case C i t y of Minneapolis v. Reum 2 0 0 where i t had been held that a state could not confer i t s c i t i z e n s h i p on an a l i e n i n order to deprive the federal courts of t h e i r j u r i s d i c t i o n i n cases of d i v e r s i t y of c i t i z e n s h i p . Said the Court: "Reum dealt only with the question of j u r i s d i c t i o n of federal courts under the d i v e r s i t y of c i t i z e n s h i p clause of the federal Constitution. That a state cannot aff e c t that j u r i s d i c t i o n by granting state c i t i z e n s h i p to an unnaturalized a l i e n does not mean i t - 9 1 - cannot make an a l i e n a state c i t i z e n f o r other purposes. Under the Four- teenth Amendment a l l persons born or naturalized i n the United States are c i t i z e n s of the United States and of the State i n which they reside, but we f i n d nothing i n Reurn or any other case which requires that a c i t i z e n of a state must also be a c i t i z e n of the United States, i f no question of federal rights or j u r i s d i c t i o n i s involved." 2 0 1 Thus, except for some interstate purposes which are embodied i n the Constitution, the formal c i t i z e n s h i p of the American states i s a completely useless and ir r e l e v a n t c r i t e r i o n which has no bearing on the status they can confer. 2 0 2 In Secretary of State v McGucken, the same Court i n the same year had to construe a provision of the Maryland Con- s t i t u t i o n requiring that "a person to be e l i g i b l e to the o f f i c e of Governor, must have attained the age of t h i r t y years, and must have been for ten years a c i t i z e n of the State of Maryland, and for f i v e years next preceding his ele c t i o n , a resident of the State, and, at the time of his ele c t i o n , a q u a l i f i e d voter therein". I t held that such a person must have been a c i t i z e n of the United States f o r ten years, because i f the words " c i t i z e n of the State" were not given such a formal sense, they would by synonymous with "resident" and the whole provision would become absurd. Then, l i k e any other formal c r i t e r i o n , state c i t i z e n s h i p may be thought convenient to be adopted, sometimes, as a - 9 2 - cumulative requirement f o r in t e r n a l purposes. But, such a marginal t r a i t w i l l be equivalent to the national c i t i z e n - ship as a requirement, because i t i s i t s main c h a r a c t e r i s t i c . It remains that there i s absolutely no need to be a c i t i z e n of the United States to be a c i t i z e n of a state, both 20k before and afte r the Fourteenth Amendment, : for most purposes, the formal d e f i n i t i o n i n t h i s Amendment w i l l not be of fundamental use because the states have neither i n t e r n a t i o n a l , nor e x t r a - t e r r i t o r i a l , nor immigration powers. In f a c t , the nature of a p a r t i c u l a r c i t i z e n s h i p from an in t e r n a l point of view, as i t has been discussed i n the two former d i v i s i o n s , must be distinguished from the concept of n a t i o n a l i t y used i n international law by reference to the formal d e f i n i t i o n of c i t i z e n s h i p of the several countries. Both the notions of n a t i o n a l i t y and formal c i t i z e n s h i p have been created for only one reason: the need to d i f f e r e n t i a t e the nationals of a p a r t i c u l a r State from the nationals of another State. "Nationality, i n the sense of membership of a State, the "belonging" of an i n d i v i d u a l to a State, presupposes the co-existence of States, Nationality i s , therefore a concept not only of municipal law but also of international law." 2 0 5 - 93 - But i t i s a concept of municipal law only because, f i r s t , the law of nations has delegated almost completely to each State the power to determine who are i t s c i t i z e n s and because, second, each country i s interested i n the adoption of rules designed to regulate i t s r e l a t i o n s with other States and t h e i r c i t i z e n s , such as i n the f i e l d s of immigration and c o n f l i c t of laws. It must be noted that such a formal determination of c i t i z e n s h i p being warranted by the sole coexistence of States, i t w i l l be l i k e l y to constitute a useful c l a s s i f i c a t i o n only f o r purposes re- lated to international matters. To put i t i n another way, no State would ever need to determine formally who are i t s c i t i z e n s i f nobody was e n t i t l e d to cross the border or to deal with persons outside the border. Then, since a sovereign State has necessarily the competence to regulate everyone and every- thing that i s within i t s realm, i t could exercise t h i s t e r r i t o r i a l competence over them without there being any need f o r a d i s t i n c t i o n as to whether the persons affected are domiciled there, aliens or whatever else. As long as people remain within the realm and do not deal with people outside or with other States, they are submitted to the t e r r i t o r i a l sovereignty of the State. Thus, there are only two hypotheses where a formal c i t i z e n s h i p , proprio motu, w i l l have a d i r e c t implication on the matters f i r s t , when _ ah _ a State purports to exercise an e x t r a - t e r r i t o r i a l competence, and second, when i t deals with matters a f f e c t i n g other States or c i t i z e n s of other States beyond the t e r r i t o r y , even though the power exercised i s i n t r a - t e r r i t o r i a l . The f i r s t type of matters which require the use of a formal d e f i n i t i o n of c i t i z e n s h i p are those related to the exercise by a State of a personal competence, that i s to say, of a competence over t h e i r c i t i z e n s wherever they a r e . 2 ^ 7 Most of the time the c i t i z e n s w i l l be within the borders of t h e i r States, and such personal competence w i l l be confounded with and absorbed by i t s t e r r i t o r i a l com- petences the State w i l l not have to r e l y upon any personal l i n k j u s t i f y i n g i t to regulate them. Indeed, the t e r r i t o r y of a State, as a j u s t i f i c a t i o n for the exercise of power over any matter and person, constitutes a much better t i t l e than mere citi z e n s h i p : t h a t i s because the t e r r i t o r y i s a r e a l i t y much more constant and more unive r s a l l y recognized as being exclusive to a p a r t i c u l a r State than the n a t i o n a l i t y of an i n d i v i d u a l , which can be claimed by d i f f e r e n t States at the same time and i s less evident a r e l a t i o n s h i p j u s t i f y i n g a regulatory intervention. It i s only when the State purports to exercise an e x t r a - t e r r i t o r i a l competence that i t needs to ascertain who are i t s c i t i z e n s because i n such a case c i t i z e n s h i p remains the sole l i n k between an i n d i v i d u a l - 95 - who i s a b r o a d and h i s own c o u n t r y and t h u s t h e s o l e c r i t e r i o n p e r m i t t i n g a S t a t e t o c o n t i n u e t o r e g u l a t e h i m . The f o r m a l d e f i n i t i o n o f c i t i z e n s h i p i s t h e n u s e d t o c o n f e r u p o n a S t a t e t h e r i g h t t o e x e r c i s e a p e r s o n a l c o m p e t e n c e o u t s i d e 209 i t s own t e r r i t o r y o v e r t h o s e who a r e i t s c i t i z e n s . 7 B e c a u s e i n t e r n a t i o n a l l a w l e t s e a c h S t a t e d e t e r m i n e i t s own c i t i z e n s h i p , i t r e c o g n i z e s i m p l i c i t l y t h a t a S t a t e c a n a t d i s c r e t i o n e s t a b l i s h what w i l l be t h e s c o p e o f i t s p e r s o n a l c o m p e t e n c e and t h e e x t e n t o f i t s e x t r a - t e r r i t o r i a l p o w e r s i n t h i s r e s p e c t . The d i p l o m a t i c p r o t e c t i o n o f c i t i z e n s a b r o a d a f f o r d s a good e x a m p l e o f s u c h e x t r a - t e r r i t o r i a l power. On t h e one h a n d , i t i s t h e n a t i o n a l i t y , as a r e c o g n i z e d p e r s o n a l r e l a t i o n s h i p b e t w e e n i n d i v i d u a l s and t h e i r S t a t e , w h i c h j u s t i f i e s , v i s - a - v i s o t h e r S t a t e s , t h e i n t e r v e n t i o n b y a g o v e r n m e n t t o p r o t e c t t h e p r o p e r t y and p e r s o n o f i t s 210 c i t i z e n s . On t h e o t h e r h a n d , mere p o s s e s s i o n o f c i t i z e n - s h i p i s a s u f f i c i e n t q u a l i f i c a t i o n t o be e n t i t l e d t o s u c h 211 p r o t e c t i o n . The r u l e e m b o d i e d i n i n t e r n a t i o n a l l a w and a g r e e d t o by a l l n a t i o n s i s t h a t t h e i n j u r e d p a r t y must h a v e b e e n , a t a l l r e l e v a n t t i m e s , a c i t i z e n o r a n a t i o n a l 212 c o r p o r a t i o n o f t h e c l a i m a n t S t a t e . T h i s now a p p l i e s t o C a n a d a as a f u l l y s o v e r e i g n S t a t e . S i n c e t h e end o f t h e S e c o n d W o r l d War, C a n a d a h a s e x e r c i s e d i t s e l f t h e d i p l o m a t i c - 96 - protection of i t s c i t i z e n s abroad, and i t s practice has never deviated from the ru l e : the Canadian government has accepted to intervene only on behalf of those who were formally c i t i z e n s both at the time of the occurrence of 213 damage and of the settlement. J Secondly, a State may exercise some powers that are undoubtedly i n t r a - t e r r i t o r i a l but which carry with them e x t r a - t e r r i t o r i a l effects or consequences. Then, the re- lationships between States or between a State and c i t i z e n s of other States are affected, and t h i s i s the case i n the f i e l d of immigration. There, the formal d e f i n i t i o n of c i t i z e n s h i p has, per se, a basic role to play. Public international law requires that each State accepts within i t s t e r r i t o r y i t s own c i t i z e n s and nationals. A r t i c l e 13 (2) of the Universal Declaration of Human Rights enacts that "everyone has the ri g h t to leave any country, including his 215 own, and to return to his country". J It i s an obl i g a t i o n r e s u l t i n g from a duty towards other countries and that cannot be dispensed with except by an agreement or a treaty with 216 another State. And t h i s rule has many c o r o l l a r i e s : the State must not deport i t s own c i t i z e n s , nor denaturalize them a r b i t r a r i l y i n order to achieve such a r e s u l t , nor impose a r b i t r a r i l y i t s own n a t i o n a l i t y on aliens so as 217 to prevent them from regaining t h e i r country, and so on. ' - 97 - Of course, i t cannot be contested that, by virt u e of the supremacy of i t s Parliament, Canada could refuse to Canadian c i t i z e n s or B r i t i s h subjects access to i t s t e r r i t o r y , "nor i s there any doubt about federal power to exclude or deport either aliens or naturalized persons (usually upon revocation of t h e i r n a t u r a l i z a t i o n under stipulated c i r - cumstances), or even natural-born persons, although t h i s raises question of international law r e l a t i v e to the re- ception of such persons abroad." 2 1-^ However, long ago Canada has embodied i n i t s l e g i s l a t i o n the rules of international law i n t h i s respect and Canadian c i t i z e n s have always had the guarantee that they w i l l be e n t i t l e d 219 to return to t h e i r country after having been abroad. 7 Unless there are express words to the contrary, courts w i l l presume that Parliament did not intend to depart from such 220 a p r i n c i p l e . In the case of immigration and deportation, i t i s s u f f i c i e n t to r e l y upon the sole possession of a formal c i t i z e n s h i p : a new-born Canadian c i t i z e n cannot be deported, nor can a c i t i z e n of any race, nor could have been deported those who accepted i n the F a l l of 1970 a voluntary e x i l e to Cuba. 2 2 1 International law recognizes at the same time that the admission of aliens upon i t s t e r r i t o r y remains at the entire d i s c r e t i o n of a State: t h i s i s a l o g i c a l inference from the concept of sovereignty or independence and may be compelled by the imperatives for security. - 98 - "I t i s an accepted maxim of international law, that every sovereign nation has the power as inherent i n sovereignty, and e s s e n t i a l to self-preservation, to forbid the entrance of foreigners within i t s dominions, or to admit them only i n such cases and upon such conditions as i t may see f i t to prescribe." 222 Accordingly, the inherent r i g h t of formal c i t i z e n s to enter or remain i n Canada or i n the United States has i t s counter- part i n the uniformly adopted rule that, i n the case of an a l i e n , t h i s can only be a p r i v i l e g e , a matter of permission 223 and tolerance. That such a j u d i c i a l l y developed concept has been brought about by reason of the connection of the matter with international r e l a t i o n s or by reason of the co-existence of States i s a mystery to no one. The American Supreme Court has j u s t i f i e d i t s r u l i n g i n saying that i t was a "weapon of defense and r e p r i s a l confirmed by international law" and sp e c i f i e d i t s views i n t h i s ways "It i s pertinent to observe that any p o l i c y towards aliens i s v i t a l l y and i n t r i c a l l y interwoven with contempora- neous p o l i c i e s i n regard to the conduct of foreign r e l a t i o n s , the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the p o l i t i c a l branches of government as to be lar g e l y immune from j u d i c i a l inquiry or i n t e r - ference." 224 But t h i s does not mean that only Canadian w i l l have the guarantee to be re-admitted i n Canada. c i t i z e n s What - 99 - was formerly a p r i v i l e g e conferred on c e r t a i n aliens has become a r i g h t since section 3 (2) and (3) of the Immigration Act permits those who have a Canadian domicile to enter Canada, except i f such domicile has been l o s t or i f the person assisted the enemy. J This c l e a r l y establishes that formal n a t i o n a l i t y i s not the only c r i t e r i o n that may be thought proper for the purpose of connecting an i n d i v i d u a l with a State, even i n cases involving more than one State or c i t i z e n s of more than one State. We have already seen that i n the f i e l d of the c o n f l i c t of laws, the connecting factor that had been deemed proper i n English and American law was domicile instead of nation- a l i t y . For sure, n a t i o n a l i t y constitutes the main l i n k between individuals and the international society, and a formal d e f i n i t i o n of c i t i z e n s h i p has a d i r e c t relevance, per se, only i n matters related to the international scene where there i s a need to d i f f e r e n t i a t e nationals of diverse States; but i t i s not the sole c r i t e r i o n that can be r e l i e d on i n these matters and for such purpose. The six "benefits" for which the Canadian Citizenship Act has been adopted i n 19^6 were enumerated by the then Secretary of State i n moving second reading of the b i l l i n the House of Commons. - 100 - "When the b i l l i s passed i t w i l l mean that a Canadian c i t i z e n w i l l be e n t i t l e d as a Canadian c i t i z e n to receive a Canadian passport, to enter Canada, to be deported to Canada under circumstances i n which deportation i s required under e x i s t i n g p r i n c i p l e s of international law, to receive diplomatic protection, to enjoy f u l l p o l i t i c a l and economic righ t s within Canada and to own a Canadian ship or part of a ship". 226 I endeavoured to demonstrate that t h i s cannot be rigorously exact, both i n Canada and i n the United States,, and both at the federal and pro v i n c i a l or state l e v e l s , because the formal c i t i z e n s h i p i s irrelevant as for ascertaining the class of persons e n t i t l e d to p o l i t i c a l , c i v i l or whatever ri g h t s f o r in t e r n a l purposes: i t may constitute a useful marginal or cumulative t r a i t when the right s conferred are deemed pr i v i l e g e d , but i t cannot be used to determine who possesses the c i t i z e n s h i p status because t h i s status i s never granted only to those c i t i z e n s nor to a l l of them at the same time. "With respect to the c i t i z e n s h i p status of Canadian c i t i z e n s i n Canada, i t must be borne i n mind that i n spite of the fact that the (Canadian Cit i z e n s h i p Act) i s phrased i n terms of c i t i z e n s h i p , i t does not immediately a f f e c t p o l i t i c a l and c i v i l r i g h t s . Moreover, the c o n s t i t u t i o n a l set-up of Canadian federalism makes i t d i f f i c u l t f o r the Dominion of Canada to ensure to Canadian c i t i z e n s the equality of c i t i z e n s h i p rights con- sequent upon b i r t h or na t u r a l i z a t i o n i n Canada, i n the same sense as does c i t i z e n - ship i n the United States of America." 227 - 101 - I f i t i s necessary to venture an enumeration of the f i e l d s where the "population" of Canada as formally determined hy t h i s Act w i l l constitute an indispensable t r a i t , i t could run as follows: Canadian c i t i z e n s w i l l be those e n t i t l e d to Canadian passports, to diplomatic protection abroad, to re-enter Canada at any time and remain therein as long as they want, and, altogether, they w i l l be the actual scope of a p p l i c a b i l i t y of e x t r a - t e r r i t o r i a l l e g i s l a t i o n and of treaty r i g h t s and obligations, being those Canada o f f i c i a l l y represents on the international scene. Consequently, both the q u a l i f i c a t i o n s required from those who intend to obtain the formal c i t i z e n s h i p and the cases where they w i l l lose t h i s c i t i z e n s h i p w i l l be designed to ascertain that the ind i v i d u a l i s more connected with Canada than with another State. Section 10 of the Canadian Ci t i z e n s h i p Act requires that the applicant had been lawfully admitted to Canada f o r permanent residence: t h i s means that he must be landed immigrant and thus, have complied with every condition set forth i n the Immigration Act and not to be under order of deportation. Further residence q u a l i f i c a t i o n s w i l l come to strengthen the candidate's bounds to Canada, and anyway, he must intend 229 to make the country his permanent home. 7 F i n a l l y , he w i l l normally have to possess adequate knowledge of English - 102 - or French language and of the p r i v i l e g e s and r e s p o n s i b i l i t i e s of Canadian citizenships he must intend to comply with the oath of allegiance. But even though a person f u l f i l l s a l l these conditions, the grant of c i t i z e n s h i p remains a p r i v i l e g e that the minister i s empowered to confer at his own d i s c r e t i o n . 2 - ^ 0 As f o r the loss of Canadian c i t i z e n s h i p , i t can be effected only i n two s p e c i f i e d ways: voluntary expatria- t i o n or revocation by the Governor i n Council. In the f i r s t case, the provisions aim at the avoidance of double n a t i o n a l i t y and statelessness 2-^ 1 an i n d i v i d u a l can expatriate himself only when he v o l u n t a r i l y acquires, otherwise than by marriage the n a t i o n a l i t y of another State while being outside the realm, or when he formally renounces his Canadian c i t i z e n s h i p i f he has a double n a t i o n a l i t y . 2 - ^ 2 Section 18 of the Act lays down four cases which can lead to revocation of c i t i z e n - ship; fraudulent a c q u i s i t i o n of citizenship,* voluntary and formal a c q u i s i t i o n i n Canada of a foreign n a t i o n a l i t y (except by marriage); taking of an oath, affirmation or declaration of allegiance to a foreign country; making of a declaration renouncing Canadian c i t i z e n s h i p . Thus, the a c q u i s i t i o n i n Canada of a foreign n a t i o n a l i t y (other than the n a t i o n a l i t y of a country of the Commonwealth) leads to the loss of the Canadian c i t i z e n s h i p only i f the Governor i n Council decides to revoke i t . In a l l these cases, childr e n - 1 0 3 - of those who lose t h e i r c i t i z e n s h i p w i l l remain c i t i z e n s i f they would otherwise become s t a t e l e s s . 2 - ^ In the United States, the Supreme Court has s i g n i f i c a n t l y r e s t r i c t e d the power of Congress to s t r i p i ndividuals of t h e i r c i t i z e n s h i p to cases where they had f a l s e l y and fraudulently represented that they were attached to the p r i n c i p l e s of the American C o n s t i t u t i o n . 2 - ^ The provisions i n federal l e g i s l a t i o n purporting to withdraw the American c i t i z e n s h i p f o r d i f f e r e n t reasons have almost a l l been invalidated by the Supreme Court which held that there i s "a c o n s t i t u t i o n a l r i g h t to remain a c i t i z e n i n a free country unless he v o l u n t a r i l y relinquishes that c i t i z e n s h i p " 2 - ^ The Court i s no more impressed by the consideration that i t i s a matter related to foreign r e l a t i o n s and not supposed to be within the province of the j u d i c i a r y . - 104 - Conclusion In the case of the federal government, a formal d e f i n i t i o n of c i t i z e n s h i p was adopted as early as i n 1910 and embodied i n the Immigration Act 2-^where there i s admittedly a need f o r distinguishing between l o c a l c i t i z e n s and those of other countries. Indeed, t h i s kind of enactment i s so t i g h t l y connected with international law and the co- existence of States that i t i s on the very f i r s t manifesta- t i o n of i t s international presence that Canada had to adopt a general Act pr e c i s e l y defining i t s c i t i z e n s : i n 1921, the Canadian Nationals Act was passed simply because Canada had become an independent member of the League of Nations and had to specify the population f o r whom i t gained representa- t i o n as a d i f f e r e n t category of people than the other B r i t i s h subjects represented by the United Kingdom.2-^ The Canadian Ci t i z e n s h i p Act of 1946 came to implement the further evolution of the international status of Canada. 2-^ Generally speaking, the tendency to adopt a formal c i t i z e n s h i p i s a normal p a r a l l independence. p a r e l to the a c q u i s i t i o n by a State of i t s 239 Of course, the Canadian provinces could also formally define t h e i r own c i t i z e n s but that would be so f u t i l e that i t would not even be worth the e f f o r t : - 105 - "II semble par a i l l e u r s que r i e n n' empecherait un Etat p r o v i n c i a l d * i n s t i t u e r sa propre citoyennetee et de l a decerner selon ses propres c r i t e r e s . Vu toutefois l a competence exclusive de l ' E t a t federal en matiere de n a t u r a l i s a t i o n et les pouvoirs qu' i l exerce a l'egard des rel a t i o n s exterieures, cette citoyennete pro- v i n c i a l e ne pourrait avoir de s i g n i - f i c a t i o n legale, du moins sous l e present regime constitutionnel, que dans les limites de l ' E t a t p r o v i n c i a l . " 2k0 We have already seen that there i s no di r e c t use of such a c i t i z e n s h i p within the province, and only i n matters of i n t e r - p r o v i n c i a l concern could t h i s be relevant. But the domicile c r i t e r i o n r e l i e d on f o r the purposes of the c o n f l i c t of laws i s s u f f i c i e n t and accurate there. Moreover, the provinces have been i n fact denied any competence i n the f i e l d of immigration, and since they o f f i c i a l l y have no e x t r a - t e r r i t o r i a l powers, a formal c i t i z e n s h i p of t h e i r own would be as meaningless as i t i s i n the American states. Ontario has enacted the Department of the Pr o v i n c i a l Secretary and Citizenship Act, 1960-61, whereby the Minister s h a l l , i n t e r a l i a , "advance and encourage the concept and ide a l of f u l l and equal c i t i z e n s h i p among the residents of Ontario i n order that a l l may exercise e f f e c t i v e l y the r i g h t s , powers and pri v i l e g e s and f u l f i l l the obligations, duties and l i a b i l i t i e s of c i t i z e n s of - 106 - Canada within the Province of Ontario". This nice state- ment did not prevent i n any sense the Legislature of the Province from conferring r i g h t s and imposing obligations to aliens even though they were not "ci t i z e n s of Canada within Ontario" and from requiring d i f f e r e n t periods of residence within the Province for a l l kinds of more important purposes even though i t might lead to an unequal " c i t i z e n s h i p among residents of Ontario". The only possible use of a formal d e f i n i t i o n of membership i n the p r o v i n c i a l community would be to standardize the length of residence or domicile required for the exercise and enjoyment of p r i v i l e g e s i n c e r t a i n matters, thus making i t easier to reach uniformity amongst the provinces. But apart from these basic t r a i t s , there w i l l always remain some con- current need f o r supplementary requirements, depending on the importance of the matter, i t s p o l i t i c a l impact, and the socio-economic set-up conditioning each p a r t i c u l a r policy at every material time. The provinces i n t h i s respect are f u l l y sovereign and i t i s t h e i r own ro l e , i n our system, to determine whether i n each case the needs f o r uniformity outweigh the advantages of these peculiar regional p o l i c i e s that the co n s t i t u t i o n e n t i t l e s them to adopt. - 107 - CHAPTER 2 A Pattern of J u d i c i a l Attitudes i n Relation to the Citiz e n s h i p Status i n Canada 243 The recent case R. v. Dryhones J has generated many hopes i n those who are advocating the adoption by the highest Canadian tr i b u n a l of a di f f e r e n t conception of i t s role i n the elaboration and development of the law. It i s my purpose here to consider what, i n the future, could be the kind of approach accorded by the Canadian j u d i c i a r y and the Supreme Court i t s e l f , to the interpreta- t i o n and application of the broadly-termed human freedoms established and declared i n thi s B i l l of Rights to which Drvbones has given l i f e . This w i l l be inferred from a b r i e f analysis of the types of reaction Canadian courts had to the o r i g i n a l interpretation by the Privy Council of the a t t r i b u t i o n i n section 91 ( 2 5 ) of the B.N.A. Act to the federal Parliament of "aliens" as an exclusive subject-matter of l e g i s l a t i o n . The impact caused i n t h i s respect by the Bryden case and the types of j u d i c i a l attitudes that ensured w i l l be compared with the j u d i c i a l reactions to the Canadian B i l l of Rights and the Drvbones case, e s p e c i a l l y on the question of equality before the law and the Indian Act. Since the f i r s t approaches of the j u d i c i a r y related to the recognition and preservation -108- of c i v i l l i b e r t i e s inherent i n the c i t i z e n s h i p status were negative, t h i s w i l l give us an understanding of the possible means whereby the j u d i c i a r y can s t i l l s t e r i l i z e the e f f e c t of Drybones, and i t w i l l provide an outline of the stumbling-blocks that courts w i l l have to avoid i f t h i s recent landmark i n our c o n s t i t u t i o n a l law i s to meet the expectations that many have put i n i t . It w i l l be shown that there i s not much to expect from the Canadian B i l l of Rights i f judges are to react to Drybones i n the,way they have reacted to Bryden, and there are already some indications that i t i s not un l i k e l y to happen. - 1 0 9 - 1. Negative Types of J u d i c i a l Reaction to the P o s s i b i l i t y of Entrenching Some Fundamental rights by a Reliance on Section 91 (25) of the B.N.A. Act. Section 91 (25) of the B.N.A. Act would never have raised any problem i f i t had been made clea r at the outset that i t could not be used to invalidate p r o v i n c i a l l e g i s l a t i o n a f f e c t i n g aliens or naturalized c i t i z e n s . Indeed, t h i s i s what seems to have been decided i n Cunningham v Homma where a pr o v i n c i a l statute denying the franchise to Japanese, i n t e r a l i a , was upheld, the Lord Chancellor s t a t i n g that "the language of that section does not purport to deal with the consequences of either alienage or natu r a l i z a t i o n . But th i s i s not so cl e a r a r u l i n g because the l a t t e r statement was obiter and not necessary fo r the d i s p o s i t i o n of the case as such. More- over, the decision did not rej e c t the Bryden case but only distinguished i t , and there, the Privy Council, a f t e r having stated that the pro v i n c i a l act pro h i b i t i n g Chinese of f u l l age from employment i n underground coal working was u l t r a v i r e s as a f f e c t i n g i n pith and substance "a l i e n s " which i s a subject-matter exclusively reserved to the federal Parliament, departed, as i n Homma, from the practice of r u l i n g only to the extent to which i t 246 i s necessary fo r the d i s p o s i t i o n of the case at bar and l a i d down the following general rule: "...by virtu e of S. 91t sub.s. 25» the l e g i s l a t u r e of the Dominion i s invested with exclusive authority i n - 110 - a l l matters which d i r e c t l y concern I the r i g h t s , p r i v i l e g e s , and d i s a b i l i t i e s of the class of Chinamen who are resident i n the provinces of Canada". 247 These two decisions of the Privy Council pretend to stand together but they have seemed i r r e c o n c i l a b l e to most 248 authorities who have analysed them. One thing remains however: Bryden having been l e f t intact by Homma, the "Naturalization and Aliens" clause was to have a c e r t a i n content, more or less extended, as to the consequences of alienage at least, and for t h i s reason, the judges who had from then on to deal with the matter could not cope with such a finding by adopting a l e g a l i s t i c and p o s i t i v i s t approach without reaching a c o n s t i t u t i o n a l dead-end, as I w i l l attempt to demonstrate. Then I w i l l consider the expedients adopted by the courts to n u l l i f y the effects of that c o n s t i t u t i o n a l "absurdity" or "anomaly". 2^ 9 The common feature of the f i r s t cases dealing with the status of persons i n Canada i s that the judges e x p l i c i t l y claim not to be concerned with the reasonable- ness of wisdom of the Acts under review and that they intend to give e f f e c t to the supremacy of parliament: - I l l - "In so f a r as they possess l e g i s l a t i v e j u r i s d i c t i o n , the d i s c r e t i o n committed to the parliaments, whether of the Dominion or of the provinces, i s un- fettered. I t i s the proper function of a court of law to determine what are the l i m i t s of the j u r i s d i c t i o n committed to them; but, when that point has been se t t l e d , courts of law have no ri g h t whatever to inquire whether t h e i r j u r i s - d i c t i o n has been exercised wisely or not" 2S0 But so long as the d i s t r i b u t i o n of l e g i s l a t i v e powers i n the B.N.A. Act remains the only c r i t e r i o n available for the courts to s c r u t i n i z e the v a l i d i t y of p r o v i n c i a l l e g i s l a t i o n a f f e c t i n g the r i g h t s of people i n Canada, i t becomes obvious that these provisions can only be invoked 251 f o r the protection of aliens and naturalized persons. y Besides sections 9 3 and 1 3 3 , i t i s impossible to f i n d anything i n the B.N.A. Act that would preserve the rights and p r i v i l e g e s of natural-born B r i t i s h subjects (and now Canadian c i t i z e n s ) against interference by the p r o v i n c i a l l e v e l of government as long as the l a t t e r acts within the scope of i t s l e g i s l a t i v e powers; moreover, i t would be contrary to the whole scheme of the Act of 186? to assume that there i s only one l e v e l of government that can l e g i s l a t e so as to affe c t the status of the majority of Canadians, since t h i s would destroy the root of federalism i n Canada. 2^ 2 Even though we assume for a moment that Bryden and Homma cases where policy decisions i n whrh the wording - 112 - only was based on the B.N.A. Act, i t i s submitted that the same model of decision-making cannot be e f f i c i e n t i n respect of natural born Canadian c i t i z e n s . Since the courts decline the power to review l e g i s l a t i o n on a policy basis, i t remains impossible f o r them to obviate the d i f f i c u l t y by hiding t h e i r preferences behind the cur t a i n of j u d i c i a l legalism so long as the words of both the B.N.A. Act and the l e g i s l a t i o n under review point to a sole possible conclusion. Therefore, the courts faced a dilemmas while a t r a d i t i o n a l l e g a l i s t i c approach could give 71 them s u f f i c i e n t tools to invalidate discriminatory enactments with respect to aliens and naturalized persons, the same approach was impotent to permit any j u d i c i a l review of l e g i s l a t i o n a f f e c t i n g the rights and pr i v i l e g e s of natural-born c i t i z e n s . Judges found only one way out of t h i s , and i t was a negative solution: to r e f r a i n from using the d i v i s i o n of powers approach f o r the benefit of aliens or naturalized people i n order not to give them more righ t s than natural born. But what i s much more important than t h i s r e s u l t i s the kind of arguments they accepted i n support of i t , because i f we assume that the j u d i c i a l reasoning process i s i d e n t i c a l when confronted with analogous situations, we w i l l be able to understand what today could become the stereotyped reaction to the same kind of "absurdity" concerning equality before the law of Indian people and other issues raised by the Canadian B i l l of Rights. - 1 1 3 - A rough description of the reasoning of the judges who explained t h e i r negative approach to c i t i z e n s * status i n Canada can be described as follows: since natural born c i t i z e n s do not possess some guaranteed rights by- reason of the supremacy of both federal and provincial- parliaments and by reason of the inte r n a l sovereignty of the Canadian federation, i t must follow that aliens and naturalized persons cannot have guaranteed rig h t s either. Hence, there are two p r i n c i p a l applications of such an attitude: f i r s t , some judges have simply applied the basic p r i n c i p l e of parliamentary supremacy to uphold p r o v i n c i a l enactments as long as they affected or could have also affected the righ t s of natural-born c i t i z e n s ; second, other judges have applied the rule that since the d i s t r i b u t i o n of l e g i s l a t i v e powers covers the whole area of s e l f - government i n Canada, a s p e c i f i c power must belong either 2 to the federal Parliament or to the p r o v i n c i a l l e g i s l a t u r e s . In other words, the r e a l c h a r a c t e r i s t i c of the negative approach i s to take f o r granted that there exists at one or the other l e v e l the power to take away any ri g h t or p r i v i l e g e pertaining to any class of persons i n Canada, and that, accordingly, i t i s useless f o r the courts to r e s i s t descriminatory l e g i s l a t i o n since that could only r e s u l t i n a pri v i l e g e d position f o r aliens i n p a r t i c u l a r . - 114 - I The f i r s t a p p l i c a t i o n of the above-stated rule was developed shortly a f t e r the Bryden case. Indeed, i t appeared i n the Homma case where one of the main motives for the decision has been that since many other statutes i n Canada and elsewhere have withheld the franchise from many classes of persons (including formal c i t i z e n s ) and on a great number of grounds, i t would be absurd to construe section 91 ( 2 5 ) in such a way that p r o v i n c i a l enactments w i l l be i n v a l i d every time they a f f e c t some aliens or naturalized p e r s o n s . f p n e r e i i a n c e on statutes i n pari materia as an argument for the v a l i d i t y of the impugned l e g i s l a t i o n can also be found i n the concise reasons of F i t z p a t r i c k C.J. i n Quong-Wing where he had to consider the v a l i d i t y of a p r o v i n c i a l act proh i b i t i n g Chinese from employing white women or g i r l s i n t h e i r places of business or amusements af t e r having noted the existence of many other p r o v i n c i a l "factory Acts" f i x i n g the age of employment, authorizing d i s c i p l i n a r y and police regulations, and so on, the learned judge concluded i n t h i s s i g n i f i c a n t ways "The difference between the r e s t r i c t i o n s imposed on a l l Canadians by such l e g i s l a - t i o n and those r e s u l t i n g from the Act i n question i s one of degree, not of kind." 2 5 6 - 115 - Or, as Davis, J. stated i n the same case (Anglin J. con- curring) : "There i s no inherent rights i n any class of the community to employ women and child r e n which the l e g i s l a t u r e may not modify or take away altogether." 257 Such considerations led the judges to give much weight to the fact that the discrimination was against a race instead of a n a t i o n a l i t y : the inclu s i o n of some natural-born c i t i z e n s i n the l e g i s l a t i v e t r a i t was s u f f i - cient to uphold the v a l i d i t y of a pr o v i n c i a l enactment without i t being necessary to resort to the doubtful argument that section 91 (25) does not cover the con- sequences of alienage or n a t u r a l i z a t i o n . 2 - ^ In r e a l i t y , i t s u f f i c e d to say that the Act was not i n r e l a t i o n to "Naturalization and Aliens" since the c l a s s i f i c a t i o n included native-born persons. Despite the obvious f u t i l i t y of such a reasoning, 2^ 9 i t has been adopted on many occasions. For instance, Justice Duff has made i t very c l e a r : "If the enactment i n question had been confined to Orientals who are native- born B r i t i s h subjects i t would have been impossible to argue that there was any sort of invasion of the Dominion j u r i s - d i c t i o n under section 91 ( 2 5 ) ; and i t seems equally impossible to say that t h i s l e g i s l a t i o n deprives any Oriental, who i s a naturalized subject, of any - 116 - of "the rig h t s , powers and p r i v i l e g e s " which an Oriental, who i s a native- horn B r i t i s h subject, i s allowed to exercise or r e t a i n . " 26l In other words, p r o v i n c i a l l e g i s l a t u r e s only have to include some natural-born i n t h e i r discrimination and t h e i r enactments w i l l be free from j u d i c i a l i n t e r f e r e n c e . 2 ^ 2 The second aspect of the negative approach leads to the same re s u l t , according to which aliens and naturalized persons should not be pri v i l e g e s as compared with natural-born c i t i z e n s . But instead of r e l y i n g on the supremacy of pr o v i n c i a l l e g i s l a t u r e s i n r e l a t i o n to most c i t i z e n s as such, i t applies the p r i n c i p l e of inter n a l sovereignty of the federation as a whole. Taking f o r granted that there must exist a parliament competent to withhold any r i g h t , the only question that remains to be s e t t l e d i s which one, federal or p r o v i n c i a l . Such an attitude i s "negative" i n the sense that i t cannot afford any ground upon which the ju d i c i a r y could b u i l d some kind of entrenchment of fundamental righ t s embodied i n the Canadian c i t i z e n s h i p status. Thus, the Privy Council upheld i n 1923 the v a l i d i t y of a p r o v i n c i a l statute which confirmed the condition imposed f o r the granting of licenses and leases on c e r t a i n lands of the province that no Chinese or Japanese - 117 - s h a l l be employed i n connection therewith: the basis of the decision i s to be found i n the assumption that i f " t h e Dominion i s not empowered by (section 91) to regulate the management of the public property of the Province.. , , 2^3 such a competence pertains to the p r o v i n c i a l l e g i s l a t u r e by v i r t u e of sections 92 (5) and 109 of the B.N.A. Act. Much more e x p l i c i t l y , Duff, J., dealing with the same problem one year e a r l i e r , proceeded on a lengthy analysis i n order to determine whether the federal Parliament would have been competent to pass the pr o v i n c i a l Act there impugned; since his answer was negative, he f e l t free to 264 confirm the p r o v i n c i a l competence i n the matter. At the same time, he restated his conviction that discrimination against race could not f a l l within the purview of section 91 (25) of the B.N.A. Act. "An attempt on the part of the Dominion to enact the Act of 1921 would pass beyond the scope of the authority given by section 91. The r e s t r i c t i o n s imposed by the scheduled order-in-council a f f e c t , i t must be observed, naturalized B r i t i s h subjects and native born B r i t i s h subjects. C l e a r l y the Dominion could not on any ground capable of plausible statement pass a law r e s t r i c t i n g the right of grantees of interests i n pr o v i n c i a l property i n r e l a t i o n to the employment of native born B r i t i s h subjects; the Tomev Homma Case seems to negative the existence of such an authority i n r e l a t i o n to naturalized subjects. The proportion of naturalized and native born B r i t i s h subjects of Japanese and Chinese race to - 118 - the whole of the population within that category i n the province of B r i t i s h Columbia must be considerable. These considerations alone seem to present a formidable d i f f i c u l t y i n the way of supporting such l e g i s l a t i o n as Dominion l e g i s l a t i o n under i t s authority i n r e l a t i o n to aliens and n a t u r a l i z a t i o n . " 265 After becoming Chief Justice, somewhat l a t e r , the learned judge w i l l have to i n i t i a t e the "implied B i l l of Rights" approach to avoid the dead-end to which he knew t h i s type 266 of l e g a l i s t reasoning would lead. But i n fact, the r e a l difference between the negative j u d i c i a l attitudes described above and what would have been positive ones does not necessarily correspon to the dichotomy between positivism and realism or between the d i v i s i o n of powers* approach and the implied b i l l of r i g h t s ' approach. Quite the contrary, i t has been enough demonstrated that there i s much room f o r policy even i n a technical approach because a proper use of the p r i n c i p l e of stare d e c i s i s (or absence thereof) and of the rules of statutory in t e r p r e t a t i o n may allow any judge to reach the desired r e s u l t i n each case. 2 Then, "negative" types of rulings are not even i n accord with the genius of the common law because they shut the door to any possible reconsideration or new developments - 1 1 9 - i n t h e f u t u r e : and t h e f a c t t h a t s e c t i o n 9 1 ( 2 5 ) h a s n o t s e r v e d , f o r more t h a n f i f t y y e a r s , t o c h a l l e n g e p r o v i n c i a l e n a c t m e n t s i s c e r t a i n l y s i g n i f i c a n t . I t i s s u b m i t t e d t h a t t h e r e i s no need f o r a j u d g e t o r e c o g n i z e t h a t t h e power t o d i s c r i m i n a t e i n any r e s p e c t must r e s i d e somewhere n e i t h e r t o u p h o l d a n a c t u a l d i s c r i m i n a t i o n f o r t h e mere r e a s o n t h a t s i m i l a r l e g i s l a t i o n h a s b e e n e n a c t e d i n t h e p a s t o r c o u l d be e n a c t e d a g a i n s t o t h e r c l a s s e s o f p e r s o n s . A good e x a m p l e o f t h e p o s s i b i l i t i e s o f t h e t r a d i t i o n a l a p p r o a c h c a n be f o u n d i n t h e r e a s o n s o f I d i n g t o n , J . who d i s s e n t e d i n Quong-Wing. T h e r e , he showed t h a t t h e e x p r e s s i o n "no C h i n a m e n " was n o t a p l a i n p h r a s e i n t h e s t a t u t e u n d e r c o n s i d e r a t i o n , a l t h o u g h t h e c o n t r a r y had b e e n f o u n d i n B r y d e n , and he h e l d t h a t t h i s s t a t u t e must n o t be c o n s t r u e d s o a s t o g i v e e f f e c t t o a " d o u b t f u l " power • A c c o r d i n g l y , he d i d n o t e v e n h a v e t o d e t e r m i n e w h i c h l e v e l o f g o v e r n m e n t had c o m p e t e n c e t o d i s c r i m i n a t e i n t h e manner u n d e r r e v i e w n o r t o p r e c l u d e t h e p o s s i b i l i t y o f d e n y i n g s u c h power t o e i t h e r p a r l i a m e n t i n t h e f u t u r e . M o r e o v e r , b e c a u s e i t i s i m p o s s i b l e t o know w h e t h e r s e c t i o n 9 1 ( 2 5 ) c o v e r s t h e c o n s e q u e n c e s (and w h i c h o n e s ) o f a l i e n a g e and n a t u r a l i z a t i o n , i t w o u l d h a v e b e e n p o s s i b l e t o i n v a l i d a t e f e d e r a l d i s c r i m i n a t i o n s as i n v a d i n g p r o p e r t y and c i v i l r i g h t s w i t h i n t h e p r o v i n c e and p r o v i n c i a l d i s c r i m i n a t i o n s as f a l l i n g u n d e r t h e r u l e i n B r y d e n o r 2 6 9 u n d e r any f e d e r a l power. - 120 - Of course, the best way to reach positive r e s u l t s would have been to st r i k e down pr o v i n c i a l statutes discriminating on the basis of race because they necessarily af f e c t as well some aliens or naturalized persons, pro- te c t i n g at the same time natural-born c i t i z e n s . This type of reasoning, however, has not been popular i n Canada while American courts have often used i t , for example when they have considered immaterial the fact that a discrimination included more than only c i t i z e n s of 270 other states. ' But Justice Rand has resorted to i t when, recognizing that the eff e c t of Bryden was to place the fundamental rights of aliens beyond the reach of pr o v i n c i a l l e g i s l a t u r e s , he extended the rule to natural- born c i t i z e n s . In his words, "The contrary view would involve the anomaly that although B r i t i s h Columbia could not by mere prohibition deprive a naturalized foreigner of his means of li v e l i h o o d , i t could do so to a native- born Canadian". 271 Accordingly, when Rand, J., after having enumerated the content of the Canadian c i t i z e n s h i p status, states that a "subject of a f r i e n d l y foreign country i s in a sim i l a r p o s i t i o n " as any Canadian c i t i z e n i n thi s respect, i t may well be the reverse way to say that i n a l i k e position as aliens should be the Canadian c i t i z e n s themselves. But - 121 - these kinds of positive attitudes i n the construction of section 91 (25) have been extremely rare, and they c e r t a i n l y do not counterpoise the j u d i c i a l habit of negating rights to everybody equally rather than recog- ni z i n g them to a l l a l i k e . The best way to conclude on t h i s point may be to i l l u s t r a t e by r e f e r r i n g to the judgment of Martin, J. of the B r i t i s h Columbia Court of Appeal i n Re The Coal 272 Mines Regulation and Amendment Act, 1903 which was decided immediately after the Bryden and Homma cases. After section 4 of i t s Coal Mines Regulation Act had been struck down i n Bryden, the Legislature of B r i t i s h Columbia proceeded to re-enact i t i n almost the same terms, and the majority of the court had no d i f f i c u l t y to declare u l t r a v i r e s the new provision, seeing no difference with the one impugned i n Bryden and being bound by the precedent. But Martin, J. dissented from that view and defied the very recent r u l i n g of the Privy Council. He began by saying that i f "no part of the Federal j u r i s d i c t i o n can be found to apply to thi s matter, then the Pr o v i n c i a l Legislature i s 27 3 the absolute master of the si t u a t i o n " . [ J He then proceeded to consider the fac t that natural-born c i t i z e n s are e f f e c t i v e l y affected by such l e g i s l a t i o n and also that there exist analogous enactments of the p r o v i n c i a l l e g i s l a t u r e that are v a l i d . Pursuing his discourse i n the same vein, he - 1 2 2 - stated quite bluntly that the province could v a l i d l y exclude from such employment i n coal mines a l l Negroes and Indians, and l a i d down an argument ab absurdos "And what greater r i g h t s i n th i s country have, or should have the Chinese as a race than the Indians of Canada, almost a l l of whom are natural born B r i t i s h subjects, or than the Negro natural born subjects of the Crown? The term "Indian" or "Negro" would c l e a r l y be used i n a r a c i a l and descriptive sense, and hence unassailable." 21% Applying those premises to the case at bar, Martin J. found that the term "Chinaman" defines not a national class but a r a c i a l one and that when p r o v i n c i a l enactments touches Chinese who are native-born, they must be upheld, as i n Homma. The learned judge distinguished Bryden on i t s p a r t i c u l a r facts and on the ground that the Privy Council there took for granted that only two classes of Chinese could be affected by the l e g i s l a t i o n , not being aware of the existence i n the Province of natural-born 27 5 Chinese who w i l l also be affected. '^ He then concluded i n two s i g n i f i c a n t ways: f i r s t , a discriminatory l e g i s l a t i o n against race, including natural-born persons, i s within the powers of the provinces, "provided i t applies to them a l l a l i k e " ; and second, i f we take account of section 1 5 of the Naturalization Act which provides that naturalized - 1 2 3 - persons have the same rights and obligations as the native-born subjects, we see that "no naturalized China- man, and much less an a l i e n , can therefore have greater rights i n B r i t i s h Columbia than one who i s a natural-born B r i t i s h s u b j e c t . " 2 ? 6 Thus, the negative approach has led us to a complete vacuum, from a c i v i l l i b e r t i e s point of view, as f a r as the content of the Canadian c i t i z e n s h i p status i s concerned: naturalized Canadians, and a f o r t i o r i aliens, have the "obligation" not to achieve greater rig h t s and freedoms than natural-born c i t i z e n s , that i s to say none at a l l . Almost one half a century l a t e r , the same kind of j u d i c i a l sophism reappeared i n some cases dealing with 277 the Canadian B i l l of Rights. It then becomes important to analyse and compare the most recent cases on t h i s point i n order to determine whether we are heading towards an analogous deadlock. - 124 - 2. Negative Types of J u d i c i a l Reaction to the P o s s i b i l i t y of Giving Content to the Fundamental Freedoms Declared i n the Canadian B i l l of Rights. A problem of the same nature as the one just discussed has been raised by the enactment of the Canadian B i l l of Rights and i t s recognition that laws of Canada s h a l l be construed and applied so as not to abrogate, abridge or infringe the freedoms therein declared, and i n pa r t i c u l a r the r i g h t of individuals to equality before the law. Because the B i l l cannot serve to render inoperative p r o v i n c i a l statutes, R. v Drybones 2 7 8 has created a s i t u a t i o n s i m i l a r to the one that resulted from Bryden, but now, i t manifests i t s e l f i n the opposite way: the jud i c i a r y disposes of s u f f i c i e n t tools to bring about a complete entrenchment of fundamental rights and freedoms as aginst federal interference, but i t does not yet possess the means capable of e f f e c t i n g the same r e s u l t as against p r o v i n c i a l enactments. It i s , of course, i n the case of Indians that such a s i t u a t i o n may cause the greatest problems because they are, more than aliens themselves, a class of persons subject to the exclusive j u r i s d i c t i o n of the federal Parliament. Hence, by vi r t u e of the enactment of the B i l l of Rights, the absurdity may as well follow, here also, that Indians w i l l be guaranteed more rights and freedoms than non-Indians who remain f o r a substantial part - 125 - under the Damocles* sword of p r o v i n c i a l parliamentary supremacy. But even i n cases not related to the Indian problem, the mere factor that p r o v i n c i a l enactments cannot be subjected to the same j u d i c i a l scrutiny as federal statutes w i l l c e r t a i n l y constitute a break i n the expansion of the meaning of the basic freedoms declared i n the B i l l , simply because the j u d i c i a r y w i l l be reluctant to cause discrepancies i n the o v e r a l l a l l o c a t i o n of powers by refusing that the federal Parliament enacts some l e g i s l a - tions that the provinces could pass either i d e n t i c a l l y or analogously. I t i s my purpose to analyse what types of negative j u d i c i a l reactions t h i s apparent dilemma has caused and the rationale underlying them. In assuming that the judges who are prepared to adopt a negative approach i n dealing with the B i l l of Rights by reason of the above factors w i l l follow the same pattern of reasoning as the one u t i l i z e d i n the case of section 91 (25) , there w i l l be two main aspects i n i t . F i r s t , the judges w i l l be very sensible to the "this has been done i n the past "argument, because inasmuch as c e r t a i n discriminations are found long since i n diverse analogous sit u a t i o n s , i t w i l l be more improper to invalidate them only f o r federal purposes while the experience of the past has shown that i t i s at the p r o v i n c i a l l e v e l that most rights and freedoms are l i k e l y to be infringed. In t h i s - 126 - sense, the invocation of statutes i n pari materia discriminating against the same or other classes of c i t i z e n s i n a s i m i l a r or analogous manner w i l l bear much weight. Secondly, as has already been seen, a consideration of the powers of both lev e l s of government would serve to impose on the one the same standards as the other, that i s to say, most of the time, none at a l l . For example, i f Indians are subject to federal discriminations that c e r t a i n provinces themselves i n f l i c t upon non-Indians, or i f the provinces simply could i n f l i c t them on non-Indians, judges may be brought to conclude that i t would be absurd to entrench f o r the benefit of Indians what cannot be f u l l y guaranteed to other people, and to refuse to impose on the federal Parliament standards that the provinces need not meet. Let us consider the instances where these kinds of argu- ments have been used. The f i r s t aspect of the negative approach to the question of equality before the law has not yet been applied by the Supreme Court i n the case of Indians, but the pro- pensity of i t s judges to be favouable to i t may be found 2 7 9 i n Robertson and Rosetanni v The Queen. 1 7 In t h i s case, the Lord's Day Act was held not to abrogate, abridge or infring e the freedom of r e l i g i o n recognized by the B i l l of Rights. It may be that the appellants should also have invoked the "equality before the law" clause, but at any - 127 - rate, i t appears that the re s u l t would have been the same because the majority agreed that r e l i g i o u s freedoms means "religious equality, not c i v i l immunity. " The rationale i n t h i s case i s largely s i m i l a r to the one i n Homma. Justice Ritchie f o r the majority stressed the fact that "there have been statutes i n t h i s country since long before Confederation passed for the express purpose of safeguarding the sanctity of the Sabbath (Sunday)," that the human rights and fundamental freedoms declared i n the B i l l had been recognized long before by the Courts of Canada and that the B i l l i t s e l f recognized these rig h t s and freedoms to have existed; accordingly, the Lord's Day Act had never been considered as an infringement of freedom of r e l i g i o n , and i t s e f f e c t being purely secular, i t does not run counter to the B i l l of Rights. The f a l l a c y of such an approach i n the l i g h t of section 5 (2) of the B i l l has been pointed out i n Drybones, but i t was mentioned, however, that Robertson and Rosetanni was not an authority f o r the proposition that the freedoms recognized i n the B i l l must be circum- scribed by the laws of Canada as they existed i n i960. In the l a t t e r case, Cartwright, J. dissented and rejected expressly "the argument that because the Lord's Day Act had been i n force for more than h a l f a century when the - 128 - C a n a d i a n B i l l o f R i g h t s was e n a c t e d , t h e P a r l i a m e n t must be t a k e n t o h a v e b e e n o f t h e v i e w t h a t t h e p r o v i s i o n s o f t h e L o r d ' s Day A c t do n o t i n f r i n g e f r e e d o m o f r e l i g i o n . " 2 ^ I t i s s u b m i t t e d t h a t t h e d i s t i n c t i o n b e t w e e n t h e e f f e c t and t h e p u r p o s e o f t h e L o r d ' s Day A c t was v e r y s e c o n d a r y and h a d b e e n c r e a t e d t o j u s t i f y t h e r e s u l t c o m p e l l e d b y t h e f a c t t h a t t h i s A c t had s t o o d f o r s o l o n g w i t h o u t t h e r e b e i n g a n y b o d y t o q u e s t i o n i t s p r o p r i e t y . What i s w o r t h y o f e m p h a s i s h o w e v e r , i s t h a t D r v b o n e s has i n no way p r e - c l u d e d t h e r e l i a n c e i n t h e f u t u r e o f t h e t y p e o f n e g a t i v e a r g u m e n t h e r e u n d e r c o n s i d e r a t i o n b e c a u s e i t a p p r o v e d i m p l i c i t l y t h e c o n c l u s i o n o f t h e C o u r t i n R o s e t a n n i and b e c a u s e i t makes c l e a r t h a t i t s own h o l d i n g d o e s n o t a p p l y t o a l l t h e p r o v i s i o n s o f t h e I n d i a n A c t . A c c o r d i n g l y , a f t e r t h e D r y b o n e s c a s e , t h e mere f a c t t h a t t h e d i s p u t e d l e g i s l a t i o n e x i s t e d b e f o r e t h e B i l l w i l l h a v e a g r e a t i m p a c t , and t h e l o n g e r i t h a s b e e n i n e x i s t e n c e , t h e l e s s l i k e l y i t i s t h a t i t w i l l be d e c l a r e d i n o p e r a t i v e b y t h e c o u r t s . F o r e x a m p l e , t h e j u d g m e n t o f W e l l s C . J . i n R. v . S m y t h e 2 ^ was b a s e d on a l e n g t h y c o n s i d e r a t i o n o f t h e k i n d o f e q u a l i t y b e f o r e t h e l a w t h a t e x i s t e d a t t h e t i m e t h e B i l l was p a s s e d , and e m p h a s i s was p l a c e d on t h e d e c l a r a t i o n o f t h e B i l l t h a t t h e human r i g h t s and f r e e d o m s e n u m e r a t e d h a v e e x i t e d u n t i l ?86 t h e n . The l e a r n e d j u d g e went b a c k t o t h e 13th c e n t u r y - 129 - i n order to consider the nature of the o f f i c e of Attorney- General, and his conclusion i s very s i g n i f i c a n t : "From the above discussion i t becomes very cl e a r that there has existed i n the United Kingdom, and thus i n Canada, a c o n s t i t u t i o n a l d i s c r e t i o n i n the Attorney-General, which d i s c r e t i o n i s exercised on behalf of the Crown, to deal with the i n s t i t u t i o n and control of prosecutions. It therefore follows that the right of the in d i v i d u a l to equality before the law, a ri g h t which i s recognized by the Canadian B i l l of Rights to have always existed i n our law, i s modified by the exclusive con- s t i t u t i o n a l r i g h t of the Attorney- General, as the chief law o f f i c e r of the Crown, to deal with the prosecution of the offences under our law. This modification has existed since early time and has never been regarded as discriminatory." 287 However, the attitude of the Court of Appeal i n t h i s 288 case seems much preferable because i t simply approved the decision i n R. v Court of Sessions of the Peace, 289 Ex p. Lafleur ' where the same question had received the same answer, but the main reason for judgment being that there was s t i l l no better system conceivable f o r enforcing the law. Besides, what probably had much weight i n the eyes of the courts i s that the same types of powers are vested i n Attorneys-General of the provinces by pro- v i n c i a l enactments, and i n these cases the B i l l of Rights - 1 3 0 - could not be invoked: thus, a serious discrepancy would be inserted i n Canadian laws by applying the B i l l only when these powers are conferred by federal statute. 2^° In the Smythe case, the Attorney-General himself seemed to have understood that an argument showing the effects of a departure from the status quo would, be successful: he f i l e d with the court a memorandum enumera- t i n g 4 4 examples from 1 6 d i f f e r e n t statutes where d i s c r e t i o n 291 was given to proceed summarily or by indictment. The judge was also impressed by the fact that the Attorney- General possessed other discriminatory powers of an 292 293 analogous nature. S i m i l a r l y , i n Dowhopoluk v Martin, J the respondent, i n his motion, f i l e d a statement that between 2,000 and 3»000 applicants f o r c i t i z e n s h i p had been refused c e r t i f i c a t e s since the Canadian Citizenship Act came into force, but the judge, having more l e g a l i s t i c grounds to make the B i l l of Rights inapplicable to the case at bar, pointed to the irrelevancy of the statement. 2^ F i n a l l y , i t i s i n t e r e s t i n g to note that i n cases raised i n Ontario and B r i t i s h Columbia, the vagrancy sub- section of the Criminal C o d e 2 ^ has not been rendered - 131 - inoperative despite i t s application to females only: the courts held that such discrimination by reason of sex was not incompatible with the p r i n c i p l e of equality before the law and stressed that there are many other offences of a p a r t i c u l a r nature i n the Code which are 296 applicable to people of one sex only. 7 The weak point in these cases, of course, i s that i t i s f a r from con- vincing that only a woman can be a "prostitute" or "nightwalker"; t h i s admittedly harsh provision of the 297 Criminal Code ' could e a s i l y have been made inoperative by the court without r i s k of "emasculating" the Code because Drybones had showed the p o s s i b i l i t y of s t r i k i n g down one provision without worrying about the rest of the Act, and i t i s very unfortunate that judges s t i l l r e l y on thi s kind of reason to r e f r a i n from applying the B i l l of Rights. Moreover, i t i s not because an enactment, or analogous ones, have t r a d i t i o n a l l y stood before the B i l l that they ought to be perpetuated as against an o r i g i n a l elaboration of a substantial content to the fundamental rights and freedoms therein declared. The second aspect of the negative approach has some foundation, i f not benediction, i n the Drybones case i t s e l f . There, Justice Ritchie, speaking for the majority, said that "law" i n the phrase "equality before the law" means "law of Canada" as defined, i n section 5 (2) 298 of the B i l l . ' S t r i c t l y speaking, p r o v i n c i a l laws would - 132 - be irrelevant to determine whether or not people are treated equally by the laws of Canada since they could not be made one term of the comparison. This conclusion, however, has not been expressly made by the majority, and the question was declined as immaterial since both terms of the comparison i n the case at bar were federal enact- 299 ments. " But m his dissent, Justice Pigeon noted that the construction of equality before the law given i n the courts below implied that Indians w i l l have "to be subject i n every province to the same rules of law as a l l others i n every p a r t i c u l a r not merely on the question of drunken- ness," and that i t was absurd i n so far as complete uniformity i n pr o v i n c i a l l e g i s l a t i o n was not to be expected,^ 0 0 Lyon and Atkey have pointed to the problem i n the following ways "Fortunately f o r Drybones, the "law" with which section 9 k (b) i m p l i c i t l y was compared as a test f o r equality was an ordinance of the Northwest T e r r i t o r i e s , clearly, a federal "law" under section 5 (2) of the b i l l . But what i f Drybones had been charged i n one of the provinces under Section 94 (b) of the Indian Act where the test f o r equality (or denial thereof) would have been a p r o v i n c i a l law r e l a t i n g to the control and use of liq u o r i n the province? Would Drybones' counsel s t i l l have been able to per- suade a majority of the Supreme Court of Canada that he was denied "the ri g h t to equality before the law" i n view of - 1 3 3 - section 5 ( 2 ) of the b i l l and the fact that the "equality t e s t " would have to relate to p r o v i n c i a l l e g i s - l a t i o n over which parliament has no control?" 3 0 1 It seems obvious that i f the same approach as has been adopted i n the case of aliens i s to be repeated here, the answer w i l l be i n the negative. Indeed, th i s i s what has been decided recently by a Saskatchewan D i s t r i c t Court i n R. v. Whiteman (No. l ) - ^ 0 2 There, section 96 (b) of the Indian Act providing that "a person who i s found (...) intoxicated on a reserve, i s g u i l t y of an offence" was attacked as in f r i n g i n g , i n t e r a l i a , the equality before the law recognized by the B i l l . The accused was an Indian and had been convicted aft e r having been found intoxicated i n his home on the reserve. One of his contentions was that since Saskatchewan law did not make an offence to be intoxicated i n one's home, section 96 (b) imposed "a d i s a b i l i t y under law on an Indian l i v i n g on a reserve not imposed on other p e r s o n s . T h i s argu- ment was rejected by the Court which refused to r e l y on standards adopted by the provinces, by virtue of t h e i r powers under "property and c i v i l r i g h t s " , i n order to determine the content of equality before the law. The Court stressed the fact that i t cannot render inoperative. - 134 - laws of Canada which would abridge some p r i v i l e g e granted by p r o v i n c i a l law, "a p r i v i l e g e which may vary from pro- vince to province and from time to t i m e " . T h e learned judge distinguished Drybones i n that, f i r s t , the offense before him applied to any "person" rather than to any "Indian"-^0-' and, second, "In the Drybones case i t was a T e r r i - t o r i a l Ordinance dealing with intoxica- t i o n enacted pursuant to authority granted by the Parliament of Canada, that placed Indians subject to the Indian Act at a disadvantage under the law. In the case before me i t i s a p r o v i n c i a l statute dealing with i n - toxicat i o n enacted^pursuant to the province's exclusive j u r i s d i c t i o n to l e g i s l a t e on "property and c i v i l r i g h t s " that gives Saskatchewan residents not l i v i n g on reserves greater freedom with respect to in t o x i c a t i o n than that enjoyed by persons who are subject to the Indian Act while on a reserve." 306 It i s to affirm that Joseph Drybones, indeed, had been very lucky to l i v e i n the Northwest T e r r i t o r i e s and that the r u l i n g i n his case w i l l be inapplicable most of the time because the vast majority of the federal discrimination against Indians would come, with respect to non-Indians, under the "property and c i v i l r i g h t s " clause and would be imposed or not by pro v i n c i a l l e g i s l a t i o n with which a law of Canada cannot be compared. Accordingly, purely criminal discriminations w i l l be the sole ones the courts - 135 - w i l l be prepared to eliminate because both terms of the comparison are within federal competence; but we already know that i n t h i s f i e l d the courts are very reluctant to interfere and no provision of the Criminal Code has been 307 yet rendered inoperative. 301 Possibly, as noted by Lyon and Atkey, the pro v i n c i a l l e g i s l a t i o n , i n so f a r as applicable to Indians, could be considered as having been v a l i d l y incorporated i n the federal l e g i s l a t i o n , e s p e c i a l l y i n the l i g h t of section 87 of the Indian Act, and then, the d i f f i c u l t y would be overcome. But that could not be applied i n cases a r i s i n g under a l l the federal statutes which do not incorporate or ref e r to pr o v i n c i a l l e g i s l a t i o n . At any rate one hardly sees why the courts should r e f r a i n from using p r o v i n c i a l laws as a test for the equality before the law clause under the pretence that these laws may vary from province to province and from time to time when, i n r e a l i t y , they are i d e n t i c a l and the ri g h t sought i s recognized everywhere, such as was the r i g h t to get intoxicated i n one's home. And were such a ri g h t denied by a province, i t would be a good opportunity for the court to entrench i t as being a fundamental one out of the reach of pr o v i n c i a l l e g i s l a t u r e s . Here i s c e r t a i n l y a task f o r the Supreme Court i f i t does not want i t s r u l i n g i n Drybones to become p r a c t i c a l l y f u t i l e and nugatory. - 1 3 6 - Conclusion It can be inferred from the above considerations that Canadian judges have a greater propensity towards status quo than innovation. Because they do not l i k e to run r i s k s , t h e i r bias i n favour of conservatism w i l l increase with the length of time or with the number of times things went i n a p a r t i c u l a r way. This i s an attitude which i s adopted i n every f i e l d of the law,^°9 and i t may be warranted, most of the time, by an imperative need f o r certainty. Such an attitude may even be j u s t i f i e d i n c o n s t i t u t i o n a l matters, but i t i s c e r t a i n l y out-of-place i n cases related to c i v i l l i b e r t i e s , and s t i l l more i n the construction and application of a general text l i k e the Canadian B i l l of Rights. "The meaning of such expressions as "due process of law", "equality before the law", "freedom of r e l i g i o n , " "freedom of speech", i s i n truth unlimited and undefined. According to in d i v i d u a l views and the evolution of current ideas, the actual content of such l e g a l concepts i s apt to expand and to vary as i s s t r i k i n g l y apparent i n other countries." 3 1 0 What the dissenting judges i n Drybones were not prepared to accept from mere implication was t h i s wide delegation by Parliament of i t s " r e s p o n s i b i l i t y f o r updating the statutes i n t h i s changing w o r l d " , b u t i f the challenge - 137 - created by the holding of the majority i n thi s case i s to be f u l l y met, i t becomes cle a r that the courts w i l l have to r e s i s t any temptation to adopt an approach which w i l l t i e i t s hands for the future. F i r s t of a l l , i n dealing with the B i l l of Rights, the Supreme Court w i l l have to depart from the habit of deciding a case by r e l y i n g on the wording of previous 312 decisions, The l i m i t a t i o n of rules by rules and of words by words l i m i t s , at the same time, the p o s s i b i l i t y of deciding cases on th e i r own merits. In the matter of individual rights and freedoms, Dicey had magist e r i a l l y demonstrated that carefully-worded c o n s t i t u t i o n a l documents have not given re s u l t s comparable to what the English ju d i c i a r y has achieved by constantly safeguarding these rights i n ind i v i d u a l cases. It i s true that the t r a d i t i o n a l common law model of decision-making has played a very important role and i s s t i l l capable of protecting a l l these fundamental freedoms declared i n the B i l l of Rights. Writing i n 1964, D.A. Schmeiser noted that "The B i l l has rarely made any difference i n p a r t i c u l a r cases, and the same results probably could have been reached by applying well-established common law p r i n c i p l e s . " 313 - 138 - I f , then, the enactment of the B i l l of Rights i s supposed to have endowed the jud i c i a r y with a larger role i n the preservation of c i v i l l i b e r t i e s than what was conceded to i t i n the past, i t becomes clear that the judges must supplement the slow pace of common law development with a constant adaptation of the vague declarations of the B i l l to the fa s t evolution of the needs and feelings of our society, and that they must be able to cope with the accelerated interventions of Parliament and government i n the l i f e of individuals. In t h i s sense, even the suggestion of Lyon and Atkey that "we are not going to have a co n s t i t u t i o n worth worrying about" i f the Supreme Court comes short of giving to Chief Justice Duff's obiter i n the Alberta Press 314 case an authoritative value^ seems improper. However illuminative such j u d i c i a l pronouncement and others might be, i t i s now time that c i v i l l i b e r t i e s issues be decided i n context rather than forced into authoritative frameworks presumably out-of-touch with the new needs of an ever- 31 changing society. J It i s a meagre consolation to know that our courts could " m a n i p u l a t e t h e language of former decisions so as to reach desired results when i t i s clear that they would have achieved much more i f they had departed - 139 - from c e r t a i n authoritative statements given during the era of pure l i b e r a l i s m . In dealing with the B i l l of Rights, they should not replace a form of stare d e c i s i s by another one, s t i c k i n g to the values and assumptions of the past, imposing forever a way of l i f e and of thinking which each generation has f e l t should be i n t e g r a l l y perpetuated. It may be proper to adhere to what Justice Rand has c a l l e d the "shadowy provisional postulates of a transcendental nature" u n d e r l y i n g our system of s o c i a l 317 law, ' but judges do not have to worry about preserving them since courts are obviously impotent to prevent a revolutionary change even peacefully achieved. Commenting on the fact that Drybones went short of explaining what equality before c?the law r e a l l y means, Professor J.C. Smith noted: "This i s very wise. A good many cases may well come before the courts i n the next few years, challenging federal l e g i s l a t i o n i n terms of t h i s concept. A premature d e f i n i t i o n could saddle the courts with a p r i n c i p l e which on l a t e r experience, w i l l turn out to be inadequate. Issues of t h i s kind are, however, questions of p r i n c i p l e and can only be decided i n terms of p r i n c i p l e . Lower courts i n p a r t i c u l a r w i l l need a c l e a r statement from the Supreme Court of the nature and li m i t a t i o n s of t h i s doctrine." 318 - 1 4 0 - It seems to me that what has been "wise" to do i n Drybones w i l l remain so i n any future case dealing with the content of the freedoms declared i n the B i l l of Rights. Even a formal test designed to determine whether or not a sub- stantive p r i n c i p l e i s respected cannot but hinder the Court i n preventing i t from deciding what common sense of j u s t i c e compels at a p a r t i c u l a r time and i n p a r t i c u l a r circumstances. The achievements of the Supreme Court of the United States have been great when they were the r e s u l t of a thorough re-evaluation of cases and p r i n c i p l e s i n a contemporaneous context. It may s u f f i c e to r e c a l l that recently t h i s Court has held that states must d i s - tribute the seats f o r the elections of the members of the l e g i s l a t u r e s so as to apportion equally the votes of the electors, and i t has also decided that every c i t i z e n , naturalized or native-born, has the r i g h t to remain a 319 c i t i z e n . Both these stands constitute a departure from previous rulings and are adapted to the stage of evolution of the American society i t s e l f . This i s what a formal test of equality before the law, for example, i s unable to do, not being flexible^; enough to s t r i k e down shocking techniques such as gerrymandering, p o l l i n g inequality and denaturaliza- 320 tion. It i s only normal that a r i g i d frame of reference cannot meet the new demands i n a changing society. Our pr i n c i p l e s should, of course, apply f o r the time being to a l l those who are i n the same circumstances, but they need not l a s t forever l i k e a r e l i g i o u s dogma. - 141 - It seems to me that i f there i s a need f o r a clear statement on the part of the Supreme Court of Canada, i t should he a d i r e c t recognition that since the b e l i e f s and ideals of the society are constantly i n a dynamic process, each case under the B i l l of Rights w i l l have to be decided on i t s own merits and to conform as f a r as possible with the " i n t u i t i v e sense of j u s t i c e " - ^ 2 1 of the current society. Common sense as understood at the time of the l i t i g a t i o n being henceforth the c r i t e r i o n f o r certainty, the rulings of the courts w i l l be more predictable than they ever were i n the past. In the f i e l d of c i v i l l i b e r t i e s , while nobody could have guessed what would be the rulings of the Supreme Court nor have foreseen i t s main achievements}.in the 1950's,^ 2 2 no one should be surprised at the kind of decisions the Supreme Court w i l l reach i f they are to r e f l e c t a coeval sense of j u s t i c e . Attorney-General of Canada v L a v e l l which i s bound to be the next important case on the Canadian B i l l of Rights to be considered by the Supreme Court^ 2-^ should be disposed of i n t h i s l i g h t . It would be relevant indeed f o r the Court to determine whether the holding of the Federal Court of Appeal endangers the status of Indians by putting t h e i r bands i n such a position as to increase the l i k e l i h o o d of assimilation, and i t i s s i g n i f i c a n t that many Indians themselves would want to see t h e i r colleague losing her case. The weighing of - 142 - competing values i n such a case i l l u s t r a t e s the fac t that a r a t i o n a l decision today cannot serve to reach a future decision on the same issue because then, the threat of assimilation may be more or less acute, thus having more or less impact as compared to the problem of sex discrimination. It remains that the study of the j u d i c i a l attitudes i n r e l a t i o n to both section 91 (25) of the B.N.A. Act and the Canadian B i l l of Rights has shown that the courts are reluctahtt to expand the content of en- trenched rights and freedoms when they can only be safe- guarded as against one l e v e l of government, Thus, i f the Supreme Court i s to accept the challenge of consistently applying the B i l l of Rights on the federal scene, i t w i l l have to supplement i t s attitude by adopting, with respect to p r o v i n c i a l enactments, some sort of "implied B i l l of Rights" approach, which i n the past has only been adopted by a minority of judges i n a minority of cases, and develop i n t h i s way a uniform c i t i z e n s h i p status throughout Canada. By so doing, the answer to the argu- ment that federal acts cannot be rendered inoperative i f equality before the law i s to be measured by reference to very diverse p r o v i n c i a l laws w i l l also be provided. - 143 - In the actual state of a f f a i r s , however, th i s i s very unlike l y to happen, f o r two reasons. F i r s t , Canadian judges i n general are not prepared to accept the roles r e a l i s t s have suggested f o r them because they are s t i l l the product of a kind of l e g e l education whose main feature resides i n a p o s i t i v i s t conception and ex- position of the law. Accordingly, most "hunches" of our judges are l i k e l y to come from r e c a l l s of leg a l rules r a t h e r than from personal f a c t o r s or h a b i t s of con- 324 sidermg policy issues. In thi s sense, Professor Weiler*s inquiry as to whether we "should await the advent of judges who are products of a di f f e r e n t l e g a l education"-^2-' before thinking of confiding a B i l l of Rights to the ju d i c i a r y may have had some merit. For sure, the judges of the Supreme Court, among others, are aware of the fact that t h e i r continued disregard for policy considerations has led to harsh c r i t i c i s m s on the part of some eminent authorities. But th e i r decision- making process did not evolve sensibly as a r e s u l t of these attacks; they only have been brought to explain on the public place the reasons why they believe i n the t r a d i t i o n a l j u d i c i a l behaviour. Speaking at the Ninth International Symposium on Comparative Law held i n Ottawa i n September, 19?1» Justice Pigeon noted that the Supreme Court had not exercised an improper r o l e , as - lkk - suggested, by Professor Weiler.- 3 2^ He admitted that courts do not have to b l i n d l y apply statutes, but he stated that they must not either pronounce beyond what i s necessary for the solution of the c a s e . - ^ In his view, since judges have to keep up with the requirements of the adversary system, they cannot consider at the same time general interests which are often opposed to those of the parties at bar, and t h i s must be l e f t to the l e g i s l a t o r . Justice Laskin, for his part, i s not prepared to go further, as appears from the address he made to the Students' Law Society at Queen's University i n November, 1°70.^2^ The most l i b e r a l judges of the Court s t i l l remain fervent advocates of our t r a d i t i o n a l parliamentary supremacy,^29 and the most they could be prepared to admit i s that there are some factors of uncertainty i n the j u d i c i a l process that enable the judges to make the law. J J Hence, some of them could go as f a r as accepting the " f i r s t model" of decision-making described by Weiler, a l i m i t e d creative role i n the d i s p o s i t i o n of i n d i v i d u a l controversies! "The courts have a not inconsiderable part i n the t o t a l i t y of the l e g i s l a t i v e process, that i s the shaping of the law as i t i s e f f e c t i v e l y applied i n in d i v i d u a l cases." 331 Second, and much more important, i s the f a c t that even though the Supreme Court's general approach to - 145 - the law may be open to c r i t i c i s m , so i s i t s organization as such. The c r i t i c i s m s on the l a t t e r point, ever since the creation of the Court-^ 2 are usually directed to the fact that the Supreme Court i s a body created by, and with a j u r i s d i c t i o n determined by, the federal Parliament alone, that itsajudges are appointed by the federal govern- ment, and that i t i s part of a j u d i c i a l system which i s not federated as are the l e g i s l a t i v e and executive functions. It appears that the judges of the Supreme Court are as much aware of thi s second kind of c r i t i c i s m as they are of the f i r s t , and probably as vulnerable therefrom. Being conscious that the position they hold has given grounds for attacks of bias i n favour of c e n t r a l i z a t i o n and of il l e g i t i m a c y , the judges of the Supreme Court of Canada are c e r t a i n l y not w i l l i n g to imitate t h e i r American counter- parts, thereby substantiating these attacks every time t h e i r policy w i l l d i s s a t i s f y the provinces. Professor Weiler has noted that judges evolving i n a system where they can use a policy-maker model should have a p o l i t i c a l program and should i d e a l l y be elected, or at least nominated by p a r t i c i p a t i o n of a l l the interested p a r t i e s , H e also pointed to the d i f f i c u l t y of forc i n g lower courts to respect and implement the decisions of the highest tribunal when they not only disagree with the results but d i s t r u s t the legitimacy of the organ. As long as our Supreme Court w i l l remain organized and i t s judges appointed as they are - 146 - now, i t w i l l always r e f r a i n from adopting the kind of role the American Court can afford to play by reason of the supremacy of the Constitution and of a Long-lasting t r a d i t i o n of policy-making. If the "r o l e " flowing from the position of the judge i n a n v society i s determined by a "set of shared expectations about the type of conduct that i s appropriate to that p o s i t i o n , i t seems that the one of Canadian judges i s l i k e l y to remain p o s i t i v i s t for a long time. - 147 - GENERAL CONCLUSION It i s at the moment he i s applying f o r the status of immigrant that an a l i e n should be rejected or not from the Canadian community. But once he i s accepted therein, i t has been demonstrated that his lack of formal c i t i z e n s h i p which has served to submit him to the requirements of the Immigration Act and which continue to make him an a l i e n for e x t r a - t e r r i t o r i a l purposes should not be considered as a j u s t i f i c a t i o n f o r denying him the right to share i n the general status of a l l the c i t i z e n s . Hence, every freedom recognized i n the B i l l of Rights should undoubtedly apply to them for a l l i n t e r n a l purposes. Of course, the' provisions of the B i l l dealing with procedural require- ments of natural justice or with the conduct of criminal prosecutions apply to aliens as well, even i n immigration matters where the " p r i v i l e g e " conception of immigration has been somewhat "mitigated i n the sense that, no matter what the f i n a l decision on an alien's attempt to enter or remain i n Canada might be, he can be assured at least of being heard by an impartial t r i b u n a l " . A n a l i e n w i l l also be e n t i t l e d , while i n Canada, "to the benefit of the writ of habeas corpus to test i n Court i f his detention i s according to law. "336 a^out the substantive freedoms declared i n the B i l l , and i n p a r t i c u l a r the r i g h t aliens should have to equality before the law with formal c i t i z e n s ? - 1 4 8 - It has been suggested that an a l i e n i s assured "by the Canadian B i l l of Rights that he i s afforded protection of the law without discrimination by reason of his national o r i g i n . " - ^ 7 I f thi s would be so, aliens would as well be e n t i t l e d to equality before the law. It i s doubtful, however, that such a construction of "national o r i g i n " , as the phrase appears i n the f i r s t section of the B i l l of Rights, would be sustained by the c o u r t s . The phrase may mean that c i t i z e n s must not be discriminated against by reason of t h e i r national o r i g i n , which i s quite d i f f e r e n t from saying that anybody must not be discriminated against by reason of his actual n a t i o n a l i t y or of his actual lack of c i t i z e n s h i p . If, on the other hand, the types of discrimination the B i l l would serve to eliminate are not limited to the enumera- tio n l a i d down i n section one,-^ 8 aliens could be e n t i t l e d to equality before the law with formal c i t i z e n s . What- ever i t be, the judi c i a r y should use the B i l l so as to eliminate the unnecessary d i s t i n c t i o n s i n federal l e g i s l a - t i o n between c i t i z e n s and aliens lawfully landed i n Canada. In fact, i t i s un l i k e l y that the courts w i l l deny aliens of t h e i r r i ght to seek redress by invoking any provision of the Canadian B i l l of Rights. But there must be a point where outsiders w i l l not be e n t i t l e d to equality before the law with Canadians; i n immigration - 149 - matters, t h i s i s obvious: i t would be absurd to recognize to everyone i n the world the ri g h t to enter and remain i n Canada which i s given to Canadian c i t i z e n s and to aliens domiciled herein. Accordingly, foreigners seeking to immigrate or to remain i n Canada w i l l not be e n t i t l e d to such substantive right (as opposed to procedural) as equality before the law. This i s warranted at least by considerations of internal security and i t i s so funda- mental that there i s no way the courts w i l l s t r i k e down the type of discrimination made i n immigration and deporta- t i o n matters. But t h e i r reasoning may be quite eccentric. In Re_Shea.339 ^ o r instance, the learned judge found that the Drybones case did not imply that the B i l l s h a l l p r e v a i l over any statute of Canada which i s i n c o n f l i c t with i t and he held that i n the case of the Immigration Act, i t was s u f f i c i e n t that i t s provisions apply equally to a l l those to whom they apply. Of course, the r e s u l t i s sati s f a c t o r y , but there i s no sense i n reverting to the f u t i l e d e f i n i t i o n of equality before the law given i n Gonzales and i n l i m i t i n g a r b i t r a r i l y the application of Drybones i n order to keep the Immigration Act operative. Such reasoning may i n c i t e the judges to think that discrimination against aliens i s more acceptable than any other kind and to perpetuate the fals e assumptions I have denounced i n the f i r s t chapter that there are, even for inter n a l purposes, some inherent rights linked - 150 - with formal c i t i z e n s h i p which i t i s just normal to deny to aliens. In the Dowhopoluk case, the judge stated his reasons as follows: "As to S. 1 (h) above, unlike the accused i n the case of (Drybones) who, by reason of the fact that he was an Indian, would have been g u i l t y of an offence which would have been no offence i f committed by a man of another race, the p l a i n t i f f i n t h i s case cannot possibly complain of i n - equality before the law since the portion of the Canadian Citizenship Act on which he complains applies equally to a l l aliens, and that part of the Canadian B i l l of Rights cannot possibly be interpreted to mean that a l l aliens are to have the same right s as Canadian c i t i z e n s . If such were the case the absurd r e s u l t would be that Canadian c i t i z e n s h i p would have no meaning what- soever, and, i n c i d e n t a l l y , the p l a i n t i f f would then have no cause of action". 3^0 Here also, the res u l t probably should not be d i f f e r e n t because the grant of c i t i z e n s h i p to an a l i e n i s also a " p r i v i l e g e " related to the imperatives f o r security and sovereignty. The problem i s to know where the l i n e should be drawn, where aliens cease to be only e n t i t l e d to procedural fairness and become f u l l members of the Canadian community with the right to equality with a l l other Canadians. The danger i n the kind of argument set forth above i s that the judges do not consider d i r e c t l y the merits of the case and may be led to assume that equality before the law i n Canada i s not f o r aliens - an unfortunate conclusion. - 151 - It i s submitted that we need clear recognition that a l l aliens w i l l be e n t i t l e d , f or inter n a l purpose, to equality before the law with Canadian c i t i z e n s not before but as soon as they have met the requirements of the Immigration Act (that i s to say as soon as they have been accepted i n the community), and that they w i l l be en t i t l e d to the same equality, for international purposes, as soon as they have s a t i s f i e d the requirements of the Canadian Citizenship Act (that i s to say as soon as they have been accepted i n the class of those Canada represents on the international plane). As f o r the rest, the same type of approach as suggested previously should be adopted: each discrimination w i l l be considered by the courts i n the l i g h t of what the i n t u i t i v e or common sense of justice of the moment compels. Aliens, indeed, need not be conferred every p o l i t i c a l r i g h t to be equal before the law with formal c i t i z e n s . As long as the judi c i a r y would not bind i t s e l f to a dogmatic approach, there i s no reason why i t could not decide each case on i t s merits and uphold the cases of discrimination against aliens as are j u s t i f i a b l e at the stage of evolution of our society. I f we consult the record of the Supreme Court of the United States for instance, the day may not be f a r off when i t w i l l no longer consider i t reasonable to deny aliens law- f u l l y landed i n the country the ri g h t to vote i n municipal - 152 - or other types of elections, and t h i s would not mean that i t was unreasonable to do so 50 years before. In any case, i t seems that another approach would be un- s a t i s f a c t o r y to aliens, and, f o r example, a formal test of equality before the law would probably not protect them as t h e i r status i s not necessarily gained at b i r t h nor unchangeable i n the future. The B i l l of Rights should serve to improve the status of aliens i n Canada even to the point of rendering nugatory, except with respect to immigration and n a t u r a l i z a t i o n and save as for the non obstante clause, the federal competence over aliens qua aliens bestowed by section 91 (25) of the B.N.A. Act, just as Drybones, brought to i t s l o g i c a l conclusion, would annihilate the federal authority over Indians qua Indians granted by section 91 (24).3 k l These two subsections of the B.N.A. Act are the only ones which have conferred l e g i s l a t i v e power over individuals instead of subject-matters, thus creating two categories of "federal persons". ̂ 2 This i s a l i t t l e absurd because the purpose of d i s t r i b u t i n g l e g i s l a t i v e powers i n a federation i s to decentralize the State ratione materiae, the decentralization ratione personae being effected by the mere creation of two levels of government. The day when aliens and Indians are no longer viewed as - 153 - p o t e n t i a l l y dangerous intruders and as burdensome second- class c i t i z e n s w i l l n u l l i f y the need for l e g i s l a t i v e com- petence over them as such. The provinces do not need l e g i s l a t i v e competence over Indians to promote t h e i r 344 c u l t u r a l and economic welfare;-^ at the federal l e v e l , there i s no need of l e g i s l a t i v e competence over veterans to create a Department of Veterans' A f f a i r s , nor over old- age and b l i n d persons to pass l e g i s l a t i o n for t h e i r b e n e f i t . The j u d i c i a l o b l i t e r a t i o n of the words "Indians" and "aliens i n section 91 (24) and (25) of the B.N.A. Act would i n no way threaten Canadian security and sovereignty and would constitute at least a withdrawal of the temptation to d i s - criminate against these people. This alone would be a s i g n i f i c a n t step f o r the better. -154- FOOTNOTES 1. R.S.C., 1970, c. C-26, Adopted i n 1946, t h i s Act came into force on January 1st, 1947. 2. For an enumeration of these ancient Acts, see C. Parry, Nationality and Citizenship Laws of the Commonwealth and of the Republic of Ireland, London, Stevens and Sons Ltd., 1957t at p. 439 s, and G.T. Tamaki, "The Canadian Citizenship Act, 1946" (1947-48) 7 V.T.L.J. 68, at p. 69. Usually, they enacted that a l l aliens having r e s i d e d i i n the colony for 3 to 7 years w i l l automatically become B r i t i s h subjects by taking the oath of allegiance. 3. (1847) 10 - 11 Vict. c. 83 4. (1844) 7-8 V i c t . , c. 66; nor the na t u r a l i z a t i o n Act of (1870) 33 V i c t . c. 14 5. N.W. Hoyles, "Naturalization of Aliens," (1905) 25 Can. L.T. 181, at p. 190 s; J.S. Ewart, "Naturalization", (1911) 31 Can. L.T. 837, at p. 840 s. Thus, the Canadian na t u r a l i z a t i o n Acts of 1868 and 1881 only had a l o c a l operations S.C. 1867-68, v o l . 2, c. 66, and s.c. 1880- 81, c. 13. 6. This i s why a person naturalized i n Canada, f o r instance, was sometimes designated as "Canadian subject of the Queen" or " B r i t i s h subject as regard Canada" rather than simply as a B r i t i s h subjects Union C o l l i e r y Co. of B r i t i s h Columbia v. Brvden. (1899) A.C. 580, at p. 586; Newman v Bradshaw.Tl915-16) 23 B.C.R. 492 (B.C.C.A.), at p. 498. 7. Tamaki, note (2), at p. 70-71; M. O l l i v i e r , Problems of Canadian Sovereignty, Toronto, Can. Law Book, 1945, at p. 265. 8. B r i t i s h Nationality and Status of Aliens Act, 4-5 Geo V, c. 17; i n Canada, s.c. 1914, c. 44. See A.H. Clarke, "Citizenship and Naturalization", (1915) 35 Can L.T. 317, at p. 321-2, 9. R.S.C., 1927, c. 93t s. 2 (c). 10. Tamaki, note (2), at p. 72; W.J. Lindal, Canadian Citizenship and our Wider Loyalties, Winnipeg, Can. Press Club, 1946, at p. 104-5; Canadian Citizenship Branch of the Dept. of the Secretary of State, "The Canadian Citizenship Act," (1947) 25 C.B.R. 365; W.P.M, Kennedy, The Constitution of Canada, 1534-1937. An Introduction to i t s Development, Law and Custom, 2nd ed., Oxford U.P., 1938, at p. 372-3. - 155 - 11. R.S.C., 192?, c. 21. 12. Tamaki, note (2), at p. 72: Can. C i t . Branch, note (10), at p. 365 sj Kennedy note (10), at p. 484 s and i n "Nationality", (1935-36) 1 V.T.L.J. 139, at p. 41. Such a s i t u a t i o n was l i k e l y to provoke some hardship: for instance, a B r i t i s h subject naturalized i n Canada or a Canadian national could obtain a Canadian pass- port and receive abroad diplomatic protection from the Canadian or B r i t i s h government, but he remained subject to deportation (or to be refused re-entry i n Canada) i f he did not f a l l within the d e f i n i t i o n of the Immigration Act. 13. The status of B r i t i s h subjects was henceforth a "symbolic" one: Parry, note (2), at p. 109; M.A. Banks, "The F r a n c h i s e i n B r i t a i n and C a n a d a " , (1967) 17 U.T.L.J. 187; R.R. Wilson and R.E. Clute, "Commonwealth Citizenship and Common Status," (1963) 57 Am. J. Int. L. 566. 14. B. Laskin, Canadian Constitutional Law. 3rd Ed. Toronto, Carswell, 1966, at p. 990* and see the opinion of Rand, J. i n Winner v S.M.T. (Eastern) Ltd.. (195D S.C.R. 887 at p. 919. 15. M. St-Aubain, "La province de Quebec e s t - e l l e un Etat?" (1963) 13 R.J.T. 51. M. Caron, "La Province de Quebec e s t - e l l e un etat?" (1938) 14 Ac t u a l i t y economique 121. 16. T. Hodgins, "The Law of Allegiance i n Canada", (1881) 1 Can. L.T. 1. 17. E. Bates, 10 Op. Atty. Gen. 382, at p. 388. See also In re Rousos. (1909) 119 N.Y.S. 34 (S.C.), at p. 36 In other words, we must distinguish between the status (the fact of being a c i t i z e n or an alien) which i s determined by public law and the rights of the individuals flowing from private law: see Hodgins, note (16), at p. 13-14, and Ewart, note (5), at p. 845-6. 18. Johnstone v Pedlar. (1921) 2 A.C. 262 (H.L.) 19. In Canada, see The Providence, (1810) Stewart's 186 (N.S. Vice-Adm.). at p. 196; R. v. Felton (1915) 9 W.W.R. 819 (Alta. S.C., App. D.) In the United States, this p r i n c i p l e appeared as soon as 1776, i n the following proceedings of a convention of the State of New York, as reproduced i n E. Freund et a l . , Constitutional Law, 2nd ed., Boston, L i t t l e , Brown and Co., 1961, v o l . II, at p. 828: - 156 - "Resolved unanimously, that a l l persons abiding within the state of New York, and deriving protection from the laws of the same,' owe allegiance to the said laws, and are members of the state; and that a l l persons passing through, v i s i t i n g , or making a temporary stay i n said state, being e n t i t l e d to the protection of the laws during the time of such passage, v i s i t a t i o n , or tem- porary stay, owe, during the same allegiance thereto. - That a l l persons, members of or owing allegiance to t h i s state, as before described, who s h a l l levy war against the said state, within the same, or be adherent to the king of Great B r i t a i n , or others, the enemies of the said state, within the same, giving to him or them aid or comfort, are g u i l t y of treason against the state, and being thereof convicted, s h a l l s u f f e r the pains and penalties of death." And i t follows from the judgments i n Ross v Maclntyre, (1891) 140 U.S. 453, and Husar v. United States. (1928) 26 F. (2d) 847 (C.C.A.), at p. 850, that a member of the crew of an American ship need not be formally c i t i z e n to be " e n t i t l e d to the protection and benefits of a l l the laws passed by Congress on behalf of American seamen, and subject to a l l t h e i r obligations and l i a b i l i t i e s " ; and that such i s also the case f o r those holding o f f i c i a l positions under the American government. 20. Calvin's Case. (1609) 7 Rep. 1. See also Kawakita v United States. (1952) 343 U.S. 717. 21. "A f r i e n d l y a l i e n resident i n this country can undoubtedly be prosecuted f o r high treasons De Jager v. Attorney-General of Natal (1907) A.C. 326, because i t can then be averred that he acted contra l i g e n t i a e suae debitum: Calvin's case (7 Rep. 6 b)"s per Lord Atkinson i n Johnstone v Pedlar, note (18), at p. 283-4. 22. (1946) A.C. 347 (H.L.) 23. R.S.C. 1970 c. 0-3. 24. "..so long as (an a l i e n friend) remains i n t h i s country with the permission of the Sovereign, express or implied he i s a subject by l o c a l allegiance with a subject's rights and obligations.": per Viscount Care i n Johnstone v. Pedlar, note (18), at p. 276. - 157 - 25« Winner case, note (14), at p. 920 26. This has been applied i n Re Krasnak (Krasnakora) Estate. (195D 3 D.L.R. 412 (Sask. C.A.) and Re Lukac; Hayzel v Public Trustee. (1963) *K) D.L.R. (2d) 120 (Alta. S.C.) 2?. In re Daniluk Estate. (1935) 1 W.W.R. 142 (Sask.K.B.), at p. 143. 28. A l l r e s t r i c t i o n s upon a l i e n s ' property rights have been abolished i n 1849 i n Canada by the Act 12 V i c t . c. 197, s. 12, See also the Aliens Act, R.S.B.C., i960, c. 8, and the C i v i l Code of Quebec. 29. The Creamette Co. v Famous Food Ltd., (1933) Ex. CR. 200 See also 1. L. Head, "The Stranger i n Our Midst 1 a Sketch of the Legal Statue of the Aliens i n Canada", (1964) 2 C. Yearbook Int. L. 107i p. 131 s; Parry, note (2), at p. 4s. In Quebec, see s. 57*»and 65 of Code of C i v i l Procedure. 30. See note (25) 31. Bridges v Wixon. (1945) 325 U.S. 135. at p. 161. See also Harisiades v. Shaughnessy, (1953) 342 U.S. 580. 32. Wong Wing v United States. (I896) 163 U.S. 228; Kwong Hai Chew v Colding. (1953) 7-3 S. Ct. 472, at p. 477. Thus, aliens are e n t i t l e d to invoke the writ of habeas corpus Ekiu v. United States. (1892) 142 U.S. 651, at p. 660. 33. Russian Volunteer Fleet v United States. (1931) 282 U.S. 34. Truax v Raich. (1915) 239 U.S. 33s Yick Wo v Hopkins. (1886) 118 U.S. 3565 Takahashi v Fish & Game Commission. (1948) 334 U.S. 410 E. Freund, Standards of American Le g i s l a t i o n , Chicago, Univ. of Chic. P. 1965 at p. 9-10. 35. Edwards v. C a l i f o r n i a . (1941) 314 U.S. 160, reasons of Jackson J. 36. Fong Yue Ting v United States (1893), 149 U.S. 698, at p. 754. For a general survey of the rights of aliens under the U.S. Constitution, see C.J. Antieau, Modern Constitutional Law, C a l i f o r n i a , Bancroft Whitney Co., 1969, Vol. 1, p. 715 s. - 158 - 37. As for the federal competence, i t was said i n Re Insurance Act, (1932) 1 D.L.R. 97 (P.C.), at p. 105i "Their Lordships have no doubt that the Dominion Parliament might pass an Act forbidding aliens to enter Canada or forbidding them so to enter to engage i n any business without a licence, and further they might furnish rules for t h e i r con- duct while i n Canada, requiring them, e.g. to report at stated i n t e r v a l s . But the sections here are not of that sort, they do not deal with the position of an a l i e n as such; but under the guise of l e g i s l a t i o n as to aliens they seek to intermeddle with the conduct of insurance business.." and hence they were held u l t r a v i r e s . 38. The uncertainty on that account has been pointed out by Head, n o t e (29), at p. 125 s ' B» Laskin, n o t e (14), at p. 990 and 996-7 j J. Mercier, "Immigration et droits des provinces", (1944) 4 R. du B. 149, at p. 15635 J. Brossard, L'Immigration, Montreal, P.U.M., 1967, at p. 43s and 119-120.• 39. This rule seems, however, to have been s i g n i f i c a n t l y r e s t r i c t e d i n the recent case Graham v Richardson. (197D 91 S. Ct. 1848 where i t was indicated that c l a s s i f i c a t i o n s based on alienage, n a t i o n a l i t y or race are inherently suspect and w i l l be subject to close j u d i c i a l scrutiny. 40. M.R. Konvitz, The A l i e n and the A s i a t i c i n American Law. New York, Cornell U.P., 1946, at p. 157s; J. Tussman and J. tenBrock, "The Equal Protection of the Laws", (1949) 37 C a l i f . L.R. 341, at p. 375 s. 41. Oyama v C a l i f o r n i a , (1948) 68 S. Ct. 269; C r o c k r i l l v C a l i f o r n i a . (1924) 268 U.S. 258; Prick v. Webb. (1923). 263 U.S. 326; Webb v O'Brien. (1923) 263 U.S. 3131 Terrace v Thompson, (1923) 263 U.S. 197. 42. Heim v McCall. (1915) 239 U.S. 175s Clarke v Deckebach. (1927) 274 U.S. 392. Justice Black once pointed out that these state laws a f f e c t i n g aliens were upheld only because they were not inconsistent with t r e a t i e s and federal l e g i s l a t i o n . Consequently, i t has been said that, by occupying the f i e l d , Congress could render un- con s t i t u t i o n a l any kind of state enactment discriminating against aliens i n the matter of professions, property rights and so on. See Konvitz, note (40), at p. 239; and Graham v Richardson, note (39). - 159 - 43. Greenough v Board of Police Com'rs. (1909) 74 A. 785 R.I.S.C.). at p. 787, F i e l d v Adreon, (1854) 7 Md. 209 (Md.G.A.), at p. 214. 44. For instance, the formal d e f i n i t i o n of c i t i z e n of a state i n the Fourteenth Amendment has been transformed i n a requirement of domicile within the state f o r j u r i s - d i c t i o n a l purposes i n cases of d i v e r s i t y of c i t i z e n s h i p , t h i s applying to corporations as well, but not to alienst Bird Machine Co. v Day. (1969) 303 F. Supp. 834 (D.C.) at p. 836; Kaiser v~Loomis. (1968) 391 F. (2d) 1007 (C.A.); Deese v. Hundley. (1964) 232 F. Supp. 848 (D.C.) See also Edgewater Realty Co. v Tennessee Coal f Iron  & Railroad Co.. (1943) 49 F. Supp. 807 (D.C.).. at p. 809 Dorsey v Kyle. (1869) 30 Md. 512 (Md.C.A.), at p. 518 where c i t i z e n was held to be synonymous with inhabitant or permanent resident; In re Wehlitz. ( I 8 6 3 ) 16 Wis. 468 (S.C.); Halaby v Board of Directors of University of C i n c i n n a t i. (1954) 123 N.E. 2d. 3 (Ohio S.C.). at p. 7. 45. Sedgwick v Sedgwick. (1911) 114 p. 488 (Col. S.C.), at p. 490. 46. For j u r i s d i c t i o n a l purposes, among others; and, f o r instance, corporations have also been held to be "c i t i z e n s resident" f o r the purpose of conducting a liqu o r business i n the Greenough case, note (43). But they are not " c i t i z e n s " as the word i s used i n the Constitutions Paul v V i r g i n i a (1869) 19 L. Ed. 357 (Sup. Ct.); Asbury Hospital v Cass" County. (1945) 326 U.S. 207; D.D.B. Realty Corp. v. M e r r i l l . (1964) 232 F. Supp. 629 (D.C.), at p. 637; Pilgrim Real Estate, Inc. v. Superintendent of Police of Boston. (1953) 112 N.E. 2d 796 (Mass. S.J.C.). at p. 798. 47. Prowd v Gore. (1922) 207 p. 490 ( C a l i f . C.A.) at p. 491. 48. Baldwin v Franks. (I887) 120 U.S. 678 49. R. v. Felton. note (19)1 at p. 823 50. R.S.B.C. I960 c. 239 s 34 (c) 51. Minor v Happersett. (1875) 88 U.S. 162, at p. 166. 52. United States v Cruikshank, (I876) 92 U.S. 542, at p. 549 - 160 - 53. Roncarelli v Duplessis. (1959) S.C.R. 121, at p. 141. 54. This condition may serve to exclude ambassadors, members of t r i b a l communities not subject to the j u r i s d i c t i o n of the State, and so on. 55. See C.S. Emden, The People and the Constitution. 2nd ed. Oxford, Clarendon Press, 1956, at p. 319. 56. Among which are Hodge v The Queen ( 1 8 8 3 ) , 9 A.C., 117, and Liquidators of Maritime Bank v Rec. Gen, of New Brunswick (1892) A.C. 437. 57. B r i t i s h Coal Corp. v The King. (1935) A.C. 500 58. A.-O. of Canada v A.G. for Ontario (1937) A.C. 326, P. 351s. 59. Note ( 5 3 ) , at p. l4os. 6 0 . Slaughter-House Cases. (1873) 21 L.Ed. 394 (Sup. Ct.), and C.J. Antieau, Commentaries on the Constitution of the United States. Buffalo. Dennis & Co.. I960, at p. 165. 61. Att.-Gen f o r Saskatchewan v. Can. Pac. Ry. Co. (1953) A.C. 594; Re Constitutional V a l i d i t y of S. 17 of the Alberta Act, (1927) S.C.R. 364; Att.-Gen for Manitoba v Com. PacT Ry. Co.. (1958) S.C.R. 744. See, contra, the opinion of Stuart J. i n R. v Ulmes. (1923) 1 D.L.R. 304 (Alta. C.A.). 62. B.N.A. Act of 1871, s. 2. 63. S.C. 1905i c. 3 and 42. 64. There are, obviously, p o l i t i c a l arguments that can be put forward to r e s i s t the bestowment of a p a r t i c u l a r status to a province. See, for example, R. I. Cheffins, The Constitutional Process i n Canada. Toronto, McGraw- H i l l , 1969, at p .165. 65. As f o r the powers of these l e g i s l a t u r e s , which are si m i l a r to those of the provinces but must not be construed as being wider than these, see Northwest T e r r i t o r i e s Act, R.S.C., 1970, c. N.-22, s. 13 and 14 (1); and Yukon Act. R.S.C., 1970, c. Y-Z, p. 16 and 17 (1); both as mod. by R.S.C. 1970, 1st supp. c. 49. See also O'Brien v Al l e n. (1900) 30 S.C.R. 340; Dinner v Humberstone. (1896) 26 S.C.R. 252. The p r i n c i p l e i n Hodge v The Queen, note ( 5 6 ) , i s applicable/, - 161 - to these i n f e r i o r l e g i s l a t u r e s : see R. v. Lynn Holdings Ltd. (1969) 68 W.W.R. 64 (Yukon Terr. Mag C.), and the opinion of Duff J . i n Re. Gray. (1918) 57 S.C.R. 150, at p. 170-1. Their sovereignty i s however limited by the paramount powers of the federal Parliament: The North B r i t i s h Canadian Investment Co. v Trustees of St. John School D i s t r i c t (1904) 35 S.C.R. 460. 66. Paul v V i r g i n i a . (I869) 19 L. Ed. 357 (Sup. Ct.) at p. 360. 67. Ward v. Maryland, (18?1) 20 L. Ed. 449 (Sup. Ct.) at p. 452. 68. B. Laskin, "Constitutional Law - State L e g i s l a t i o n Prohibiting Interstate Migration - A p p l i c a b i l i t y of Problem to Canada," (1941) 19 C.B.R. 750. 69. See note (67), and Toomer v Wjtsell , (1948) 68 S. Ct. 1157« Chalker v Birmingham & N.W.R. Co. (1919) 249 U.S. 522; Travis v Yale & Towne Mfg. C o T T~(1920) 252 U.S. 60; Blake v McClung. (1898) 172 U.S. 239. A l l these cases have noted that the fact that the discrimination was aimed at "non-residents"instead of "non-citizens" was im- material: see notes (191) and (192), i n f r a . 70. Canadian Northern Ry. Co. v Eggen. (1920) 252 U.S. 553 at p. 562; Douglas v New Heaven Ry. Co.. (1929) 279 U.S. 377, at p. 387. But i n McCready v V i r g i n i a . (1877) 94 U.S. 391, the Court confirmed the v a l i d i t y of a denial to c i t i z e n s of other states of a substantial i n t e r e s t i n the ^public property. 71. In La Tourette v McMaster. (1919) 248 U.S. 465, the state l e g i s l a t i o n requiring two years* residence to be licensed as insurance broker was upheld, but f o r the sole reason that the discrimination there included also the c i t i z e n s of the enacting state who resided elsewhere. In Graham v Richardson. (1971) 91 S.Ct. 1848, i t was held that a state could not deny welfare benefits to resident aliens who have not been residents f o r a number of years. 72. Kryus v Crow's Nest Pass Coal Co. Ltd.. (1912) A.C. 590, at p. 594. ~~ 73. See the preamble of s. 92 and most of i t s enumerated powers; also, A.-G. for Ontario v. A-.G. fo r Canada. (194?) A.C. 127. 74. Royal Bank of Canada v. The King (1913) A.C. 283; Beauharnois L.. H. & P. Co. v Hydro E l e c t r i c Power Com'n. (19371 3 D.L.R. 458 (Ont. C.A.Jf B.C. E l e c t r i c Ry. Co. v. The King, (1946) A.C. 527; Re: Offshore Mineral Rights of B^C., (1967) S.C.R. 792. 75. AI-G. for Ontario v. Scott. (1956) S.C.R. 137, at p. 142. 76. (1882) 8 A.C. 82 - 162 - 77. Ibid., at p. 95-6, My underlining. 78. (1922) 1 A.C. 215 79. Ibid., at p. 228 80. Krzus case, note (72), at pp. 577" "Where that employment i s c a r r i e d on i n the Province of B r i t i s h Columbia, one of the r e s u l t s of t h i s i n t r a - t e r r i t o r i a l operation of the statute may, the respondents admit, possibly be that i n some cases a non-resident a l i e n may derive a benefit under i t . . . " In Bonanza Creek Gold Mining Co. v R. (1916) 1 A.C. 566, i t was held that the provinces had power, wither by virtue of prerogative r i g h t s or by statutory provisions, to endow a corporation with a status similar to the one of a natural person and to confer i n t h i s way the capacity to act even e x t r a - t e r r i t o r i a l l y upon receiving ab extra powers to that e f f e c t . 81. (1920) A.C. 184 82. Ibid., at p. 191J my underlining. 83. J.H.C. Morris, The C o n f l i c t of Laws, London, Stevens and Sons Ltd., 1971. at p. 3. 84. Ibid., at p. 1»3 85. Ibid., at p. 4 86. Ibid., at p. 14, the point i s made that as a general rule there i s no such thing as domicile i n Canada because the relevant countries where domicile i s relevant are the provinces. But by l e g i s l a t i o n i n the f i e l d of i t s competence, Canada can create a uniform domicile c r i t e r i o n , such as i n the Canadian Divorce Act, 1968, s. 5 (1) (a). Admittedly, Canada could have r e l i e d on the concept of formal n a t i o n a l i t y , but since i t has not been done, t h i s i l l u s t r a t e s the f a c t that n a t i o n a l i t y i s not a f a c t o r more appropriate to connect individuals with a sovereign country than i s domicile. 87. Vezina y W i l l H. Newsome Co., (1907) l k O.L.R. 658 (Ont. Div. C ) , ab p. 664; A.-G.~for Alberta v. Cook. (1926) A.C. 444, at p. 450t "Uniformity of law, c i v i l i n s t i t u t i o n s e x i s t i n g within ascertained t e r r i t o r i a l l i m i t s and j u r i s t i c authority i n being there f o r the administration of the law under which rig h t s attributable to domicil are claimed, are i n d i c i a of domicil, a l l of which are found i n the Provinces. Unity of law i n respect of the matters which depend on domicil does not at present extend to the Dominion. - 163 - The rights of the respective spouses i n t h i s l i t i g a t i o n , therefore, cannot be dealt with on the footing that they have a common domicil i n Canada, but must be determined upon the footing of the rights of the parties and the remedies available to them under the municipal laws of one or other of the Provinces." 88. J.-G. Castel, Private International Law. Toronto, Canada Law Book Co., I960, at p. 54} and Morris, note (83) at p. 16. 89. Udny v Udny. (I869) L.R. 1 H.L. Sc 441, at p. 457, c i t e d i n Cook case, note (87). 90. Where the Legislature of Quebec deems necessary to add further requirements to the basic residence or domicile c r i t e r i o n , i t i s l i k e l y that the Canadian c i t i z e n t r a i t w i l l be used instead of the B r i t i s h subject one, such as f o r the granting of a permit under the Liquor Board Act, R.S.Q., 1964, c. 44, p. 42 as amended. 91. Optometry Act. R.S.B.C., i960, c. 272, s. 12 (a) and (b): Medical Act, R.S.B.C., i960, s. 35 (1) c. 239 (a doctor need not be B r i t i s h subject, but the Council has only the power to admit other medical pra c t i t i o n e r s from countries of the Commonwealth, upon r e c i p r o c a l terms)} Barbers Act, R.S.B.C., I960, s. 6 (1) e. 24; Land Surveyors Act. R.S.B.C. I960, e. 211, s. 46 (a); Trust Companies Act. R.S.B.C. i960, c. 389, s. 23 (5); Government Liquor Act. R.S.B.C. I960, c. 166, s. 38 (2)} Protection of Children Act. R.S.B.C., I960, c. 303, s. 21 (1). 92. R.S.B.C., i960, c. 250, s. 3 (b), where one of the q u a l i f i c a - tions required from the applicant i s that she " i s a B r i t i s h subject or was formerly a B r i t i s h subject by b i r t h or n a t u r a l i z a t i o n " (SIC). 93. R.S.B.C., I960, c. 50, s. 4 (1): "A person who i s the f u l l age of twenty-one years, and i s domiciled i n the Province, and i s a B r i t i s h subject by b i r t h or n a t u r a l i z a t i o n , may, unless prohibited by any of the provisions of t h i s Act, change his name on complying with the provisions herein ' contained." 94. R.S.B.C., i960, c. 329, where, by v i r t u e of s. 98, any shareholder i s e l i g i b l e to o f f i c e i n the company whether he i s B r i t i s h subject or not, resident i n the Province or not, but i t i s provided by s. 110 (3) that " i f the company received aid towards the construction of t i s railway or any part thereof from the Province, a majority of i t s directors s h a l l be B r i t i s h subjects." See also - 164 - the Prospectors' Grub-stake Act. R.S.B.C, i 9 6 0 , c. 302 s. 2 and 3; only the prospectors who are B r i t i s h subjects can make application for a grub-stake. 95. Coal Mines Regulation Act. S.B.C, 1 9 6 9 . c. 3 s. 26, replacing R.S.B.C, I 9 6 0 , c. 6 1 , s. 2 1 ( l ) ( a ) ; Chiro- practic Act Amendment Act, S.B.C, 1 9 6 4 , c. 10 s. 2 1 , Public L i b r a r i e s Act Amendment Act, S.B.C, 1 9 6 8 , c. 4 4 , s. 1 0 . 96. Compare the Land Act. R.S.B.C, i960, c. 206, s. 1 2 , with the Land Act. S.B.C, 1970, c. 1 7 , s. 7 (3); and the Game Act. R.S.B.C, i 9 6 0 , c. 1 6 0 , s. 4 3 ( 1 ) (a) and 6 1 ( 1 ) , with the W i l d l i f e Act. S.B.C, 1 9 6 6 , c. 55. s. 6 ( 1 ) and 32 ( 1 ) , as amended by S.B.C, 1 9 7 1 , c, 6 9 . See also the Legal Professions Act Amendment Act, S.B.C, 1 9 4 1 , c. 31 I ? , and S.B.C, 1 9 6 5 , c. 1 5 : The Pharmacy Act Amendment Act, S.B.C, 1 9 6 4 , c. 38, s. 4 . 97. This i s the same s i t u a t i o n at the federal l e v e l where the very formal class of persons defined i n the Canadian Citi z e n s h i p Act i s as much ir r e l e v a n t f o r the determination of the general c i t i z e n s h i p status as i t i s i n the provinces. The Canadian c i t i z e n t r a i t may be of convenient use, but only as an alternative or a supplementary c r i t e r i o n . The scope of a p p l i c a b i l i t y of the federal enactments conferring r i g h t s and imposing obligations to persons i n Canada does not correspond at a l l to the r e s t r i c t e d sense of the term "Canadian c i t i z e n " , i s determined by each p a r t i c u l a r Act i n t h i s respect, and covers most of the time aliens as well. For instance, see the Canada Council Act. R.S.C 1970, c. C - 2 , s. 8 ( 1 ) (b) and (c); and the provisions c i t e d i n f r a , note ( 1 2 2 ) . 9 8 . See notes (95) and ( 9 6 ) . For instance, i n the case of e l i g i b i l i t y f o r membership i n the council of t h e i r association under the former B.C, Foresters Act. R.S.B.C. I 9 6 0 , c. 37, s. 5 (5), the candidates had only to be resident i n the Province, while has been added the require- ment of being Canadian c i t i z e n i n the B.C. Professional Foresters Act. S.B.C, 1 9 7 0 , c. 4, s. 7 (3)« thus, the l a t t e r requirement i s an additional one and not a basic^one. 99. I n d i r e c t l y , as, f o r example, under the Securities Act. 1 9 6 7 , S.B.C, 1 9 6 7 , c. 4 5 , s. 32, where the auditors must have practiced i n B.C. In d i r e c t l y also, i n every p r o v i n c i a l statute where no e x p l i c i t provision i s made, because they can only apply i n t r a - t e r r i t o r i a l l y , i n p r i n c i p l e . 1 0 0 . Universities Act, S.B.C, 1 9 6 3 , c. 52, s. 20 ( 1 ) (f) and 2 1 ; Pharmacy Act, R.S.B.C, I 9 6 0 , c. 282, s. 5 ( 1 ) ; Physiotherapists and Massage Practitioners Act, R.S.B.C. I 9 6 0 , c. 283, s. 27 (3) and 32 (c); C e r t i f i e d General Accountants Act. R.S.B.C, i 9 6 0 c. 4 7 , s. 13; Chartered Accountants Act. R.S.B.C, i 9 6 0 , c. 51, s. 5 and 18 ( 1 ) ; - 165 - Engineering Profession Act. R.S.B.C. i960, c. 128, s. 11 (1) and (4); Securities Act, 1967, S.B.C, 1967, c. 45, s. 15 as amended by S.B.C, 19?0, c. 43, and 1971, c. 58; Agrologists Act, R.S.B.C., i960, c. 6, S. 6b and 10 (4); A r c h i t e c t u r a l Profession Act, R.S.B.C., i960, c. 16, s. 15 (d), 32 (e), 33 (a) and 41; Companies Act. R.S.B.C., i960 c. 67, s. 103-104; Marriage Act, R.S.B.C. i960, c. 232, s. 4 and 6; Medical Act. R.S.B.C, i960, c. 239, s. 11, 13 and 17 (d) and 18 (1); Revenue surplus Appropriation Act. R.S.B.C. 1969, c. 33 s. 6; P r o v i n c i a l Home Act] S.B.C. 1969, c. 29, s. 3 and 4; Stock Brands Act. R.S.B.C. I960, c. 371, s. 44 (1) as amended; Trust Companies Act. R.S.B.C, I960, c. 389, s. 6 and 23 (5); Credit Unions" Act. S.B.C, 1961, c. 14, s. 11 (2) (a); Gas Act. R.S.B.C., I960, c. 161, s. 21 (1) as amended by S.B.C. 1966, c. 19, s. 5. 101. That i s to say that the intention of continuing to reside i n the province w i l l then be as important as the actual residence therein. For instance, the Mental Health Act. 1964, S.B.C. 1964, c. 29, s. 2, as modified by 1968, c. 27, and 1969, c. 17, defines resident of the Province as meaning "a person who has resided i n the Province f o r a period determined by the Lieutenant-Governor i n Council", and the regulations thereunder, B.C. Reg. 233-64, s. 1.01, have adopted the d e f i n i t i o n contained i n the Residence and Responsibility Act, R.S.B.C i960, c. 340, s. 2, where the term means "to have a home (...), a permanent place of abode to which, wherever a person i s absent, he has the intention of returning..." In the Mother's Allowances Act, R.S.B.C., i960, c. 250, s. 2, resident i n the Province means that "the person has his main place of abode i n th i s Province, to which whenever he i s absent he has the intention of returning, but i n no case s h a l l a person be considered resident i n the Province during any period of absence from the Province which exceeds s i x months." Theoretically, a person may have more than one residence, but the very type of residence that i s required i n many cases, combined with i t s length, i s almost imcompatible with such a s i t u a t i o n and amounts to a domicile require- ment. As f o r the notion of domicile i t s e l f , which i s the same i n a l l the Canadian provinces, see Castel, note (88), at p. 52s; Morris, note (83), at p. 13; Trahan v Vezina, (1947) 3 D.L.R. 769 (P.O.) and Crosby v Thompson. (1926) 4 D.L.R. 56 (N.B.S.C App. D. ) 102. Six months' residence: W i l d l i f e Act, S.B.C. 1966, c. 55, as amended by 1971, c. 69, s. 2. One year's residence; Government Liquor Act, R.S,B.C, i960, c. 166, s. 38 (2); Savings and Loan Associations Act, R.S.B.C., i960, c. 346 s. 10 (3) (a) and 38 (2); Provincial Home Acquisi t i o n Act, S.B.C, 1967, c. 39, s. 3 and 3A, as modified by - 166 - S.B.C. 1968, c. 42; Medical Grant Act, S.B.C., 196?, c. 25, s. 2; Prospectors' Grub-stak"e~Act, R.S.B.C, I960, c. 302, s. 2 and 3. Three years' residence: Mother's Allowances Act, R.S.B.C i960, c. 250, s. 3 (a). In the Revenue Surplus Appropriation Act, 1969, S.B.C 1969, c 33, s. 3, the " F i r s t Citizen's Fund" there established for the advancement and expansion of the culture, education and economic l i f e of the North American Indians i s r e s t r i c t e d to the benefit of those who were born i n and are s t i l l residents i n the Province. 103. R.S.Q., 1964, c. 246, as amended by S.Q. 1970, c. 57, s. 2. 104. J. W i l l i s , "Securing Uniformity of Law i n a Federal System - Canada", (1943-44) 5 U.T.L.J. 352, at p. 360 s; L.R. Mactavish, "Uniformity of L e g i s l a t i o n i n Canada - An Outline," (1947) 25 CB.R. 35. at p. 42. 105. For uniform statutes i n the f i e l d of the c o n f l i c t of laws, see Castel, note (88), at p. 10-11; and for a general table of 36 model statutes of which Quebec adopted only one, see H.E. Read, "The Public Responsibilites of the Academic Law Teacher i n Canada," (1961) 39 CB.R. 232, at p. 249=250. 106. MacTavish, note (104), at p. 49. 107. R.S.C, 1970, c. C - l . 108. Unemployment Assistance Act, R.S.C, 1970, c. U-l, s. 3 (3) providing that the agreement must be substantially as l a i d down i n the Schedule whose s. 4 i s as follows: "Length of residence s h a l l not be made a condition f o r the receipt of assistance' i f (a) the applicant has come from a province whose government has entered into an agreement s i m i l a r to t h i s respecting unemployment insurance, and (b) such agreement includes a l i k e clause as herein contained i n respect of length of residence not being a condition f o r receipt of assistance." Hospital Insurance and Diagnostic Services Act. R.S.C, 1970, c. H-8, s. 5 (2), whereby the province must covenant and agree, i n t e r a l i a , "(a) to make insured services available to a l l residents of the province upon uniform terms and conditions (...), and s. 8 (1) whereby the Governor i n Council may make regulations, in t e r a l i a , " ( a ) defining "residents of a province" f o r the purposes of t h i s Act, but no s p e c i f i e d period of residence s h a l l be required as a condition precedent to the establishment of residence i n a province (...)". - 167 - 109. R.S.C., 1970, c. B-7* c. 0-5; and c. D-6 respectively. 110. S. 3 (2) ( i i i ) , 3 (2) ( i i ) and 3(2) ( i i ) respectively. 111. S. 7 (c) ( i i ) , 7 (d) ( i i ) and 7 (d) ( i i ) respectively. 112. Blind Persons Act, note (109), s. 7 (c). Corresponding sections i n the two other Acts are subst a n t i a l l y identical. 113. In B r i t i s h Columbia, the Blind Persons* Allowances Act, R.S.B.C., I960, c. 29,.and the Old-Age Assistance Act, R.S.B.C, i960, c. 270, confer on the Lieutenant-Governor i n Council the power to enter into agreements with the federal government pursuant to the provisions of the corresponding federal Acts. More generally, the S o c i a l Assistance Act. R.S.B.C, i960, c. 360, s. 12, grant the same power "as to any measures or general schemes of family allowances, s o c i a l insurance, or other forms of s o c i a l l e g i s l a t i o n i n the Province, pursuant to the provisions of any Act of Canada heretofore or hereafter passed (...)". See also the Mental Health Act. 1964, S.B.C, 1964, c. 29, s. 17. 114. In fact, t h i s residence requirement may be equated with a domicile within Canada since there i s an implied condition that the rec i p i e n t s h a l l have the intention either to remain or to return i n Canada while temporarily abroad, as appears from the regulations adopted under the relevant federal Acts: S.O.R. i960 (1549), s. 10, and (1564) s. 16. 115. Thus, as we have seen, they w i l l impose a period of residence where the scheme adopted i s not part of an agreement with the federal government. See, for instance, the regulations under the Soc i a l Assistance Act, note (113)• i n B.C. Reg. 444-59, s. 5 (c). 116. As i n the case of the Medical Services Act. S.B.C. 1967, c. 24, s. 2, and the Hospital Insurance Act. R.S.B.C, I960, c. 180, s. 2, where resident "means a person who has made his home i n B r i t i s h Columbia and i s o r d i n a r i l y present therein, but does not include a t o u r i s t , a transient, or a v i s i t o r to the Province." S. 3 of t h i s Act also confers to the government the power to pass regulations, i n t e r a l i a , "for determining whether a person has made his home i n B r i t i s h Columbia and i s o r d i n a r i l y present therein and f o r determining the conditions under which a person ceases to be a resident of the Province": regulation 4 dealing with the loss of residence by bene- f i c i a r i e s makes i t clear that the intention of these - 168 - persons to remain or come back to the province i s a major factor to be taken into account: B.C. Reg. 2 5 - 6 1 as amended by 6 5 - 6 6 . As we have seen, supra note (108), the corresponding federal Act also confers to the Governor i n Council the power to define "residents of a province"! 117. For example, Regulation 3 of the B.C. Reg. 6 5 - 6 6 amending 25-61 adopted under the Hospital Insurance Act. Ibid., require a three months' waiting period. 118. Medical Care Act, R.S.C. 1970, c. M-8, s. 2 and 4 (1) (d). 119. Health Insurance Act, R.S.B.C., i960, c. 171, s. 2,> and 5 ; The Unemployment Insurance Act. R.S.C. 1970, c. U-2, s. 64. But a period of residence w i l l be required i f the government pays a substantial part of the premium of e l i g i b l e persons, as i n the Medical Grant Act. S.B.C. 1965, e. 2 5 . 120. The provinces can only r e f r a i n from, or prohibit persons i n the province from, encouraging non-residents to come therein to benefit from i t s welfare laws and f a c i l i t i e s , as i n the Community Care F a c i l i t i e s Licensing Act. S.B.C. 1969, c. 4, s. 13, and the Protection of Children Act. R.S.B.C., I960, c. 303, s. 44s. and 58 whereby the person who brought i n the Province a c h i l d who becomes a public charge w i l l be l i a b l e for his maintenance. 121. Supra note (110). See also the Old Age Security Act. R.S.C, 1970, c. 0 - 6 , which i s exclusively for federal purposes and does not provide for agreements with the provinces: i t s s. 3 (1) requires, however, at least the same lengthy period of residence, and i t s s. 7 (1) and 9 (2) (c) deal with the e f f e c t of an absence from Canada for s i x months. 122. As i n the case of the Family Allowances Act. R.S.C, 1970 c. F - l , s. 2 where ""chil d " means any person under the age of sixteen years who i s a resident of Canada at the date of r e g i s t r a t i o n , and (a) who was born i n Canada and has been a resident of Canada since b i r t h . (b) who has been a resident of Canada f o r one year immediately p r i o r to the date of r e g i s t r a t i o n , (c) whose father's or mother's domicile at the time of such person's b i r t h and f o r three years p r i o r thereto was i n Canada and has continued to be i n Canada up to the date of r e g i s t r a t i o n , or (d) who was born while his father or mother was a member of the Canadian Forces or the naval, army or a i r forces of Canada or within twelve months afte r his father or mother had ceased to be a member of the - 169 - Canadian forces or those forces, but does not mean any person who i s i n Canada contrary to the provisions of the Immigration Act". Or i n the case of the Canada Student Loans Act. R.S.C. 1970, c. S-l?, s. 2 (a) as amended by R.S.C. 1970, 1st supp., c. 42, s. 1 (3)t where a qu a l i f y i n g student i s either a Canadian c i t i z e n or a landed immigrant who resided i n Canada for one year. 123. Under the Immigration Act. R.S.C. 1970, c, 1-2, s. 2, "landing" means the lawful admission of an immigrant to Canada f o r permanent residence, and under the new regulations, S.O.R. 67-434, s. 31s, the objective c r i t e r i a upon which the immigration o f f i c e r must r e l y to accept such application for permanent residence are supposed to " r e f l e c t the p a r t i c u l a r applicant's chances of establishing himself successfully i n Canada": s. 32 (4). 124. For instance, a p a r t i c i p a t i n g province w i l l have to support i t s former resident who departed f o r a,non- p a r t i c i p a t i n g province, as has been seen supra, text and note (112), at the same time i t indemnifies a l l i t s residents without being able to require from them any period of residence. The welcoming province may, never- theless, be exempted from paying assistance to a new resident for a short period of time when thi s person i s s t i l l deemed to be a resident of the o r i g i n a l province and e n t i t l e d to benefits therefrom, as provided i n S.O.R. 58-261, s. 3 (2A), adopted under the Hospital Insurance and Diagnostic Services Act, note (108). Also, i t must be noted that a clause of the kind embodied i n the Unemployment Assistance Act, note (108), to the effe c t that provinces can specify a period of residence i n the case of the people coming from a non-participating province, does not solve the problem of those who are leaving f o r such a province. 125. In B r i t i s h Columbia, f o r instance, see the Workmen's Compensation Act. 1968, S.B.C., 1968, c. 59, s. 8«9: Mothers' Allowances Act, note (102), s. 6; Tuberculosis Institutions Act. R.S.B.C., i960, c. 391, s. 7. 126. R.S.B.C, I960, c. 253. s. 106 (B) (6) as modified by S.B.C. 1965» c. 27. See also s. 108 (4). 127. "Federalism i s union without uniformity": A.S. Abel, "The Role of the Supreme Court i n Private Law Cases", (1965) 4 A l t a L.R. 39. at p. 4?. 128. Public international law acknowledges that aliens have no r i g h t to the franchise or to e l i g i b i l i t y f o r any kind of public o f f i c e or function i n the State where - 170 - they happen to be: i n t h e i r case, they can only possess the " p r i v i l e g e " of sharing i n the p o l i t i c a l rights of the c i t i z e n s . See J. Charpentier, L'etranger en dr o i t interna- t i o n a l , Paris, I n s t i t u t des Hautes Etudes Internationales, 1966-67, at p. 90s. 129. Fong Yue Ting v United States. (1893) 1^9 U.S. 698, at P. 754, per Justice F i e l d , dissenting i n the r e s u l t . 130. The P o l i t i c s of A r i s t o t l e , translated with an introduction notes and appendixes by E, Barker, Oxford, Clarendon Press, 19^6, at p. 93. 131. Loc. c i t . 132. Ibid, at p. 95 133. I t i s Bouvier's d e f i n i t i o n of " p o l i t i c a l r i g h t s " which has been adopted i n such cases as Blackman v Stone, (1936) 17 F. Supp. 102 (D.C.) at p. 107; Wjnnett v Ad'ams, (1904) 99 N.W. 681 (Neb.S.C), at p. 684; Anthony v Burrow. (1904) 129 F. 783 ( c c . ) at p. 789; People v Barrett. ("1903) 67 N.E. 742 (111. S.C.) at p. 744; Friendly v Olcott. (1912) 123 P. 53 (Ore. S . C ) , at p. 56; State ex r e l . McGovem v. Gilkison. (1935) 196 N.E. 231 (Ind. S . C ) , at p. 232; Caven v. Clark. (1948) 78 F. Supp. 295 (D.C.) at p. 298; Herken v. Glynn. (1940) 101 P. 2d 946 (Kan.S.C.) at p. 954; Litzelman v. Town of Fox. (1936) 1 N.E. 2d 915 ( H I . App. C ) , at p. 917. 134. Greenough v Board of Police Com'rs of Town,; of Tiverton. (1909) 74 A. 785 (R.I.S.C.), at p. 787: "In American law (a c i t i z e n i s ) one who, under the Constitution and laws of the United States, has a r i g h t to vote f o r Representatives i n Congress and other public o f f i c e r s , and who i s q u a l i f i e d to f i l l o f f i c e s i n the g i f t of the people. One of the sovereign people. A constituent member of the sovereignty, synonymous with the people. A member of the c i v i l state, e n t i t l e d to a l l i t s p r i v i l e g e s " ; Gardina v Board of Registrars of Jefferson County. (1909) 48 So. 788 (Ala. S . C ) , at pp. 790-1. 135. Scott v Sandford. (I857) 19 How. 393 (S.Ct.) at p. 404, as r e l i e d on i n In re Silkman. (1903) 84 N.Y.S. 1025 (S.C App.D.), at p. 1031; C i v i l Rights Cases. (I883) 109 U.S. 3, at p. 31, per Harlan J. dissenting; Boyd v Nebraska. (1892) 143 U.S.135t at p. 159. 136. Emben, note (55)t at p. 317. 137. Bryce, Modern Democracies, v o l . 1, p. 162, as c i t e d i n Emden, i b i d , at p. 320. My underlining. 138. Konvitz, note 40, at p. 1. - 171 - 139. E. Bates, 10 Op. Atty. Gen. 382, at p. 387-8. This opinion seems accurate as for the point under consideration here, but the learned Attorney-General i n the same pages, equates the general meaning of c i t i z e n s h i p with i t s formal sense, which, I think, i t i s not better than confusing i t s p o l i t i c a l acceptation with the formal one. He said that "the phrase", a c i t i z e n of the United States", without addition or q u a l i f i c a t i o n , means neither more or less than a member of the nation. And a l l such are, p o l i t i c a l l y and l e g a l l y , equal - the c h i l d i n the cradle and i t s father i n the Senate, are equally c i t i z e n s of the United States. And i t needs no argument to prove that every c i t i z e n of a State i s , necessarily, a c i t i z e n of the United States; and to me i t i s equally c l e a r that every c i t i z e n of the United States i s a c i t i z e n of the p a r t i - cular State i n which he i s domiciled." I submit that a "member of the nation" need not be c i t i z e n i n t h i s l a t t e r sense, as has been demonstrated i n the f i r s t section. 140. United States v Morris. (1903) 125 F. 322 (D.C.) at p. 325; State ex r e l . McCampbell v County Court. (I887) 2 S.W. 788 (Miss. S.C.). at p. 789; Crosse v Board of Supervisors of Elections. (I966) 221 A. 2d 431 (Md. C.A.), at p. 435: "A person does not have to be a voter to be a c i t i z e n of either the United States or of a state, as i n the case of native-born minors." 141. Cunningham v Homma. (1903) A.C. 1 5 1 , at p. 156. 142. Art. I, sect. 2, c l . 2 and sect, 3» c l . 3* Art. II, sect. 1, c l . 5. 143. Art. I, sect. 2. 144. Constitution of Colorado, art. VII, sect. 1: a voter i s a c i t i z e n of the United States and one year resident i n Colorado. Constitution of C a l i f o r n i a , art. II, sect. 1: "Every native c i t i z e n of the United States of American, every person who s h a l l have acquired the rights of c i t i z e n s h i p under and by virtue of the Treaty of Querataro, and every naturalized c i t i z e n thereof, who s h a l l have become such 90 days pr i o r to any election, of the age of 21 years, who s h a l l have been a resident of the State one year next preceding the day of the e l e c t i o n , and of the county i n which he or she claims his or her vote 90 days, and i n the e l e c t i o n precinct 5^ days, s h a l l be e n t i t l e d to vote at a l l elections which are now or may hereafter be authorized by law.." This combination of c i t i z e n s h i p and residence c r i t e r i a i s s u b s t a n t i a l l y the same i n the other states: see Cal. Const. A., v o l . 2, p. 723. - 172 - 145. Constitution of C a l i f o r n i a , art V, sect. 2: the Governor " s h a l l he an elector who has been a c i t i z e n of the United- States and a resident of this State f o r 5 years immediately preceding his election"; and art. IV, sect. 2 (c): "A person i s i n e l i g i b l e to be a member of the Legislature unless he i s an elector and has been a resident of his d i s t r i c t f o r one year and a c i t i z e n of the United States and a resident of C a l i f o r n i a for 3 years immediately preceding his e l e c t i o n . " As for these kinds of provisions i n the constitutions of other states, see Cal. Const. A., vo l . 2, p. 735. 146. As i n the provisions under consideration i n Huston v. Anderson, (1904) 78 P. 626 ( C a l i f . S.C.), at p. 635. 14?. Blake v McClung, (1898) 172 U.S. 239, at p. 256, per Justice Harlan. 148. Harper v V i r g i n i a State Board of Elections. (1966) 86 S. Ct. 1079. at p. 1080; United States v C l a s s i c . (1941) 313 U.S. 299, at p. 315; Ex parte Yarbrough."~Tl8"84) 110 U.S. 651, at p. 663-4; Baker v Carr, (1962) 369 U.S. 186 at p. 242-3. In Breedlove v Suttles. (1937) 302 U.S. 277» a p o l l tax not designed to disfranchise a p a r t i c u l a r race or color has been held to be reasonable, but t h i s i s obsolete by reason of the 24th Amendment and the Harper case, supra, at p. 1082. A l i t e r a c y test which l e f t no leeway fo r r a c i a l discrimination has been upheld as reasonable i n L a s s i t e r v Northampton County Board of _ Elections. (1959) 79 S. Ct. 985, at p. 989-991. but tests of t h i s nature permitting much d i s c r e t i o n f o r t h e i r enforcement have been invalidated i n Davis v Schnell. (1949) 81 F. Supp. 872 (D.C.) affirmed at 336 U.S. 933. and i n Louisiana v United States. (1965) 85 S. Ct. 817. It i s reasonable to require a declaration of intention from newcomers: Pope v Williams (1904) 193 U.S. 621. 149. Harper case, preceding note, at p. 1080-1. See also Carrington v Rash. (1965) 85 S.Ct. 775. 150. U.S. Constitution, 15th and 19th Amendments; Guinn v United States, (1915) 238 U.S. 347; Lane v Wilson. (1939) 309 U.S. 268. !51. Otsuka v Hite, (1966) 4 l4 P. 2d 412 ( C a l i f . S.C.), at p. 416. 152. Antieau, note (60), 1967 Supplement, at p. 73. and the cases there c i t e d . 153. S.C. 1919-20, c. 46. 154. O i l , Chemical & Atoroiq Workers International Union v. Imperial O i l Ltd. (1963) S.C.R. 5B4; lcKay_v IPhe Queen U965J. S.C.R. 798. It seems also that they could not interfere with the working of our parliamentary i n s t i t u - t i ons: Re Alberta Statutes (1938) S.C.R. 100; Switzman v E l b l i n g . (1957) S.C.R. 285. - 173 - 155. Cunningham v Homma. (1903) A.C. 151. 156. In B r i t i s h Columbia, an oath of allegiance only i s required from every judge appointed under the Provincial Court Act, S.B.C, 1969# c. 28, s. 4 (1); from the coroners under the Coroners Act, R.S.B.C i960, c. 78, s. 4; from every person appointed under the Corrections Act, S.B.C. 1970, c. 10, s. 4 (4); and from a l l o f f i c e r s and permanent employees of a municipality under the Municipal Act, R.S,B.C. i960 c. 255, s. 190. In Quebec, the Public O f f i c e r s Act, R.S.Q 1964, c. 12, s. 9 as amended by 1969, c. 14, s. 14, enacts that "Every person appointed to any o f f i c e , function or employment, every mayor, every member or o f f i c e r of any public corporation, and every person admitted to practise as a land surveyor, advocate or notary s h a l l make and subscribe the oath or declaration of allegiance and o f f i c e . ( . . . ) " 157. This i s also true at the federal l e v e l , and i n the United State, In 1966, i n the Crosse case, note ( l 4 o ) f at p. 435, the Court of Appeals of Maryland held that, even though the state c o n s t i t u t i o n required to have been a " c i t i z e n of the State" f o r "at least f i v e years preceding his el e c t i o n " i n order to q u a l i f y f o r the o f f i c e of s h e r i f f , an a l i e n who had been resident therein was q u a l i f i e d , but the court admitted that the provisions implied "that a s h e r i f f cannot owe allegiance to another nation"; since the appellant there had been naturalized one month preceding i t s application, his allegiance could not be questioned, but the remarks of the Court point out that i f i n such p o l i t i c a l matters the formal requirements of c i t i z e n s h i p are to be disregarded, allegiance as such remains an implied condition. 158. P r o v i n c i a l Elections Act, R.S.B.C. I960, c. 306, s. 3« B r i t i s h subjects, 12 months0 residence i n Canada, and 6 months' residence i n the Province. E l e c t i o n Act. R.S.Q. 1964, c. 7, s. 133* Canadian c i t i z e n s and 1 year's domicile i n the Province. At the federal l e v e l , the Canada Elections Act. R.S.C. 1970, 1st Supp., c. 14, s. 14, requires the Canadian c i t i z e n s h i p , but B r i t i s h subjects who were q u a l i f i e d f o r the previous e l e c t i o n and who s t i l l o r d i n a r i l y reside i n Canada may vote u n t i l June 26th, 1975; under s. 17 (3) and (4), place of residence may be equated with domfcile, but no p a r t i c u l a r length of such residence within Canada i s required. 159. P r o v i n c i a l Elections Act, Ibid., s. 5 5 t and Constitution Act. R.S.B.C. I960, c. 71. s. 22, and s. 27: wNo person i s capable of being elected a member of the L e g i s l a t i v e - 174 - Assembly unless he i s duly registered or entered as a voter on the l i s t of voter for some e l e c t o r a l d i s t r i c t i n the Province, according to the provisions of the Pr o v i n c i a l Elections Act, at the time of his election, and has been resident within the Province f o r one year previous to the date*df his e l e c t i o n " . In Quebec, see the E l e c t i o n Act, Ibid., s. 47 (4) combined to s. 131 as amended by S.Q. 1965, c. 12. At the federal l e v e l , see s. 20 of the Canada Elections Act, i b i d . , and s. 23 of the B.N.A. Act. 160. R.S.B.C., I960, c. 71. s. 54. 161. Judges appointed by the federal government must have been ba r r i s t e r s or advocates standing at the bar of any province for at least 10 years* Judges Act. R.S.C. 1970, c. J - l , s. 3. Analogous requirements are provided f o r i n Quebec, f o r most of the judges appointed by the Province t Courts of Justice Act. R.S.Q., 1964, c. 20, as amended. Butrin B r i t i s h Columbia, judges of the Provincial Court need not be b a r r i s t e r s or s o l i c i t o r s so that the sole express statutory requirement i s t h e i r taking of an oath of allegiance, as has been seen, note (156). 162. Supra, note (103), and Bar Act. S.Q. 1966-67, c. 77. s. 6 l . 163. Legal Professions Act. R.S.B.C., I960, c. 214, s. 41 (c). as amended by S.B.C. 1969, c. 15, and 1971, c. 31* ".. any person who i s not a Canadian c i t i z e n , but i s a B r i t i s h subject, may be c a l l e d to the Bar i f he i s enrolled as a student-at-law before the f i r s t day of July, 1971, but, i n t h i s case, the person s h a l l cease to be a member of the Society i f he f a i l s to f i l e with the secretary proof of his having become a Canadian c i t i z e n within seven years of his c a l l to the Bar, unless the Benchers otherwise d i r e c t . " See also the I n f e r i o r Courts Practitioners Act, R.S.B.C. I960, c. 194, s. 2. 164. Notaries Act. R.S.B.C., i960, c. 266, s. 6: "Every person who seeks enrolment as a Notary Public s h a l l make applica- t i o n therefor to the Court (...) but no application s h a l l be considered unless the applicant i s a B r i t i s h subject and has resided within the Province f o r a period of three years immediately preceding the date of his application"; Jury Act. S.B.C., 1970, c. 14, s. 4 and 5 (d): since the juror must have the q u a l i f i c a t i o n s of a voteijhe shall.be B r i t i s h subject and six months' resident at leas t . In Quebec, see the Jury Act. R.S.Q. 1964, e. 26, s. 2 (a), and s. 26 of the C i v i l Code. - 175 - 165. Are appointed pursuant to the provisions of the C i v i l Service Act each D i s t r i c t Registrar, Deputy D i s t r i c t Registrar, other o f f i c e r s and cler k s , the Accountant of the Court, o f f i c i a l reporters to the Court and deputy o f f i c i a l reporters, under the Supreme Court Act, R.S.B.C, I960, c. 37 k, s. 22? the Director of Correction and his s t a f f under the Corrections Act, S.B.C, 1970, c. 10, 2. 4; S h e r i f f s , Deputy S h e r i f f s , clerks and employees, under the S h e r i f f s Act. R.S.B.C, c. 355» s. 52-3, as amended by S.B.C. 1965, c. 48; clerks, o f f i c e r s and employees of the Court and of the J u d i c i a l Council, under the Pr o v i n c i a l Court Act. S.B.C, 1969, c. 28, s. 8 (4) and 21 (2); Inspector of Legal Offices Registrars and Deputy Registrars (who, anyway, have to be members of the Bar), and other o f f i c e r s and clerks, under the Land Registry Act. R.S.B.C., i960, c. 208, s. 9 to 13. 166. These are the c r i t e r i a used i n the d e f i n i t i o n of "public o f f i c e r " given i n the Public O f f i c e r ' s Security Act, R.S.B.C, i960, c. 317, s. 2. 167. Public Service Employment Act, R.S.C 1970, c. P-32 s. 12 (2), 16 (3), 17 and 23. 168. R.S.B.C, i960, c. 56, s. 53 and 54. 169. Ibid.. s. 80 170. It should be noted that such conditions of employment con- s t i t u t e discrimination by reason of n a t i o n a l i t y and place of o r i g i n contrary to the B.C. Human Rights Act. S.B.C 1969, c. 10, s. 5, although t h i s Act does not bind the Crown. Are to be made pursuant to the C i v i l Service Act the appointments under the following, i n t e r a l i a t Govern- ment Liquor Act. R.S.B.C. i960, c. 166, s. 134 and 139. as amended by S.B. Cl 1965, c. 50, s. 10; Law Reform Commission Act, S.B.C, 1969. c. 14; Corrections Act. S.B.C, 1970, c. 10, s. 4; Pr o v i n c i a l Museum Act. 1967. S.B.C, 1967, c. 41, s. 6; Public Trustee Act, S.B.C, 1963. c. 38 s. 3; Hospital Act. R.S.B.C. I960, c. 178, s. 30; Mental Health Act. S.B.C, 1964, c. 29, s. 9 (1) as amended by S.B.C. 1969, c. 17; E l e c t r i c a l Energy Inspection Act. R.S.B.C, i960, c. 126, s. 4-5; Insurance Act. R.S.B.C, I960, c. 197, s. 309; L e g i s l a t i v e Library Act. R.S.B.C, i960, c. 216, s. 7; Milk Industry Act. R.S.B.C., I960, c. 243, s. 51; Mineral Act. R.S.B.C. I960, c. 244, s. 89 and 96, as amended by 1965, c. 26; - 176 - Motor Vehicle Act, R.S.B.C., i960, c. 253, s. 119; Motion Pictures Act, S.B.C. 1970, c. 27, s. 3; Protection of Children Act. R.S.B.C., i960, c. 303, s. 4 (1). 171. C i v i l Service Act, S.Q. 196-5, c. 14, s. 46 as amended by S.Q. 1969* c. 14, s. 33« "Before entering upon t h e i r duties or receiving any salary, the deputy-heads and permanent functionaries and the members of the o f f i c e of a minister, of the Leader of the Opposition, of the President of the National Assembly, of the Vice-President of the National Assembly, of the Chief Government Whip or of the Chief Opposition Whip s h a l l make the oath or solemn affirmation (of allegiance and o f f i c e ) contained i n Schedule A to t h i s Act. - the same oath or affirmation may be required of temporary or supernumerary employees by the head of the department." 172. Police and Prisons Regulation Act. R.S.B.C., i960, c. 288, s. 7 (1); Municipal Act, R.S.B.C., i960, c. 255, s. 674 as amended by S.B.C., 1967 c. 28, s. 30. Police Act. S.Q. 1967-68, c. 17, s. 3 (a). In B r i t i s h Columbia, the same apply to members of the Board of Commissioners of Police, under the Municipal Act, i b i d . , s. 664 (4). 173. In B r i t i s h Columbia, see Municipal Act, i b i d . . s. 49, 50 155 (2) and 190, as amended. In Quebec, Canadian c i t i z e n s h i p and two years* residence i n the municipality are required: C i t i e s and Towns Act, R.S.Q. 1964, c. 193, s. 122 as amended by S.Q. 1969, c. 55? and s. 226 of the Municipal Code as modified. 174. See the Public Schools Act. R.S.B.C., I960, c. 319, s. 35 (a) as amended by S.B.C, 1971, c. 47; Regional Hospital D i s t r i c t s Act. S.B.C, 1967, c. 43, as amended, s. 2; Water Act. R.S.B.C., i960, c. 405, s. 57 ( D ; Liquor- control P l e b i s c i t e s Act. R.S.B.C., I960, c. 221, s. 2; Public L i b r a r i e s Act, R.S,B.C. i960, c. 316 s. 2, as amended by S.B.C 1971, c. 46. As f o r q u a l i f i c a t i o n s of electors at the municipal l e v e l i n B r i t i s h Columbia, see the Municipal Act, i b i d . . s. 31s, but an "owner-elector" does not necessarily have to reside within the munici- p a l i t y . In Quebec, Canadian c i t i z e n s h i p and one year's domicile are required, except i n the case of a corporation: C i t i e s and Towns Act, i b i d . . s. 128 (a) as amended by S.Q. 1965, c. 55; and s. 243, 244 as modified, of the Municipal Code. 175. Supra, note (156) - 177 - 176. For instance, the Public L i b r a r i e s Act, R.S.B.C, I960, c. 316, s. 29 as modified by S.B.C 1968, c. 44, s. 10, struck out the B r i t i s h subject's q u a l i f i c a t i o n needed f o r being appointed a member of the Board. Now, i f the person i s not an elector inlthe meaning of the Municipal Act, he must at least have resided i n the municipality f o r not less than six months l a s t preceding his appointment. 177. R.S.C, 1970, c. C-19, s. 4 (1) constitutes a t r a n s i t i o n a l provision declaring c i t i z e n s by b i r t h a certa i n number of persons born before the Act came into operation, and s. 9 conferred Canadian c i t i z e n s h i p on ce r t a i n categories of persons i n Canada who did not meet the conditions to be natural born citiz e n s s the l a t t e r provision i s thus some sort of massive n a t u r a l i z a t i o n enactment of a t r a n s i t i o n a l nature which cannot serve any more to confer c i t i z e n s h i p on anyone else. 178. S. 5 (1) and (2) i s the d e f i n i t i v e provision used to determine whether those who are born a f t e r the coming into force of the Act are c i t i z e n s by b i r t h . A l l other persons may only acquire Canadian c i t i z e n s h i p by following a procedure of na t u r a l i z a t i o n ( i n the general sense of the term) and meeting the q u a l i f i c a t i o n s e s s e n t i a l l y l a i d down i n s. 10 of the Act. Both c i t i z e n s by b i r t h and by nat u r a l i z a t i o n gain a completely i d e n t i c a l status: s. 22. 179. S. 21 180. (1857) 19 How. 393 (S. Ct.) 181. Ibid., at p. 405» per Taney C f . 182. Ewart, note (5), at p. 839s. 183. Supra, text and notes (2)s. 184. Scott case, note (180), at p. 405 185. B.N.A. Act, s. 91 (25)5 U.S. Constitution, Art. I, s. 8. 186. Scott case, note (180), at p. 405-6. My underlining. 187. The phrase "and subject to the j u r i s d i c t i o n thereof" i s supposed to exclude children of a l i e n enemies i n h o s t i l e occupation of the country, and children of foreign diplomatic representatives, just as the common law previously provided. Freund et a l , note (19) at p. 840? United States v. Wong Kim Ark. (I898) 169 U.S. 649. - l?8 - 188. According to the decisions of the United States* Supreme Court "from the standpoint of the basic freedoms, there i s to be no d i f f e r e n t i a t i o n between the native-born and the naturalized c i t i z e n : they are on equal footing"; Konvitz note (40) at p. 146. The same applies also i n Canada, by vir t u e of s. 22 of the Canadian Citizenship Act. 189. Slaughter-House Cases. (1873) 16 Wall. 36 (S.Ct.) at p. 74. 190. For j u r i s d i c t i o n a l purposes i n cases of d i v e r s i t y of cit i z e n s h i p , see Bird, Kaiser and Deese case, note (44); f o r the purpose of Art. IV, s. 2, of the Constitution, see the cases i n notes (66)s. 191. Toomer v W i t s e l l . (1948) 334 U.S. 385t at p. 397. Chalker v. Birmingham & Northwestern R. Co.. (1919) 249 U.S. 522 at p. 527. In La Tourette v McMaster. (1919) 248 U.S. 465» at p. 469, the state l e g i s l a t i o n was upheld because even the supreme court of the state construed the d i s - crimination as a f f e c t i n g as well the " c i t i z e n of t h i s state, who i s not a resident of the state, and has not been a licensed insurance agent of t h i s state f o r two years". I t i s , however, very u n l i k e l y that a c i t i z e n of the state w i l l not be resident therein since he i s domiciled there. 192. Travis v Yale & T. Mfg. Co. (1920) 252 U.S. 60, at p. 78-9; Blake v McClung. (1898) 172 U.S. 239, at p. 247. 193. Edwards v C a l i f o r n i a (1941) 314 U.S. 160, at p. 183, per Jackson, J. 194. U.S. Constitution, Art. I l l , s. 2, c l . 1. 195. Notes (43) and following. 196. Notes (144) and (145). 197. (1966) 221 A. 2d 431 (Md. C A . ) 198. See note (140). 199. At p. 434. 200. (1893) 56 F. 576 ( c c ) , at p. 58I. 201. Crosse case, note (197), at p. 436. 202. (1966) 222 A. 2d 693 (Md.C.A.). 203. See, f o r instance, the provisions c i t e d i n notes (144) and (145). - 179 - 204. Crosse case, note (197), at p. 433, and authorities there c i t e d . 205. P. Weis, Nationality and Statelessness i n International Law, London, Stevens & Sons Ltd., 1956, at p. 239. 206. Stoeck v Public Trustee (1921) 2 Ch. 67. G. Schwarzenberger, A Manual of International Law, 5th ed. London, Stevens and Sons, Ltd., 1967, at p. 141; L. Cavare, Le d r o i t interna- t i o n a l public p o s i t i f , Paris, Ed. A. Pedone, 1967, at p. 279? L. Delbez, Les principes generaus du d r o i t international public, Paris, 1964. at p. 191s. International law imposes c e r t a i n l i m i t s on municipal competence i n t h i s respect, by prohibiting, f o r instance, massive revocations of n a t i o n a l i t y coupled with deportation, massive imposition of n a t i o n a l i t y to foreigners, and so on. But i t must be noted that there i s no unanimity concerning what these rules are and what i s t h e i r authority: see Weis, i b i d . , at p. 65s and 97s: Parry, note (2), at p. 9s; Dr. I. Brownlie, "The Relations of Nationality i n Public Interna- t i o n a l Law", (1963) 39 Br. Y. Int. L. 284, at p. 286s. 207. Brossard, at note (38), at p. 27: "La souverainete comporte entre autres l e d r o i t pour un Etat de r e g i r ses citoyens ou q u ' i l s se trouvent (competence personnelle) et c e l u i de re"gir - a quelque exceptions pres - les personnes et les biens qui se trouvent sur son t e r r i t o i r e (competence t e r r i t o r i a l e ) . " 208. See generally Parry, note (2), at p. 19? Brossard, l o c . c i t . ; Carpentier, note (128), at p. 1, 9. It i s because the several States are free to define at t h e i r own d i s c r e t i o n who are t h e i r c i t i z e n s that inconsistencies r e s u l t necessarily as betweenttheir respective c i t i z e n - ship and n a t u r a l i z a t i o n laws, and lead to cases of double or multiple n a t i o n a l i t y and cases of statelessness. On the one hand, they can r e l y on d i f f e r e n t c r i t e r i a to confer t h e i r c i t i z e n s h i p at b i r t h : .jus s o l i , .jus sanguinis, or a combination of both. On the other hand, n a t u r a l i z a - t i o n (or the grant of c i t i z e n s h i p to an alien) i s a completely discretionary power and the State to whom the person belonged needs not be consulted, whether i t permits or not the expatriation of i t s nationals: Re Herzfeld. (1914) Que. S.C. 281, at p. 282. Many e f f o r t s have been made both on municipal and international planes to eliminate the c o n f l i c t s of n a t i o n a l i t y laws and the hardship of statelessness and double n a t i o n a l i t y . Internally, a change of n a t i o n a l i t y should always r e s u l t from the conjunction of the laws of both countries i n that the one terminates the former allegiance as soon as the other naturalizes the i n d i v i d u a l ; a State cannot - 180 - withdraw by i t s own means the former n a t i o n a l i t y of those i t naturalizes and " i t w i l l thus be seen that the laws of most countries now r e c i p r o c a l l y contain general assent to the expatriation of c i t i z e n s as a consequence of t h e i r n a t u r a l i z a t i o n i n other countries": Ewart (note 5) at p. 845. Internationally, The Hague Conference of 1930 f o r the c o d i f i c a t i o n of law brought some results i n t h i s respect: see Weis, note (205), at p. 29s, and Brownlie, note (206), at p. 329s. Other e f f o r t s have been made i n treaties to better the condition of stateless persons, refugees, etc. 209. I f we take f o r granted that the exercise of a personal competence i s always made outside the t e r r i t o r y , we must admit that such competence i s not exclusive, but con- current with the t e r r i t o r i a l competence of another State. Therefore, the obligations imposed by a State to i t s c i t i z e n s abroad can only be enforced with the consent of the other State, according to the p r i n c i p l e s of interna- t i o n a l law and comitas gentium. Rf. Parry, i b i d . , at p. 1|; Brossard, i b i d . , at p. 27-28: Delbez, note (206) at p. 190s. Without such a consent, the enforcement w i l l be l i k e l y to take place only by vir t u e of the t e r r i t o r i a l competence, that i s to say, when the c i t i z e n w i l l have come back to his own State. Thus, the exercise of a personal com- petence does not d i f f e r s u b s t a n t i a l l y from any other kind of e x t r a - t e r r i t o r i a l power i n that any State can, with the consent of another State, enforce a l l the measures i t wants to pass, even against pure foreigners, as i n the case of extradition, f o r example. 210. Weis, note (205), at p. 35; Brownlie, note (206), at p. 333; Parry, note (2), at p. 89s and 352s. 211. Citizens as such are e n t i t l e d to diplomatic protection of t h e i r government without having to possess further q u a l i f i c a t i o n s , but that does not prevent non-citizens, i n c e r t a i n cases, from enjoying such p r i v i l e g e , as the " B r i t i s h protected persons" f o r example. "There does exi s t a c e r t a i n c o r r e l a t i o n between n a t i o n a l i t y and the r i g h t of protection. But i t i s impossible to i d e n t i f y a State's nationals with those whom i t i s e n t i t l e d to protect or vice versa": Parry, i b i d . , at p. 11. 212. There exist other substantial rules ("clean hands", exhaustion of a l l int e r n a l recourses...), but they are irrelevvant f o r my purpose. See Charpentier, note (128) at p. 39s; E.B. Wang, "Nationality of Claims and Diplomatic Intervention - Canadian Practice", (1965) 43 C.B.R. 136. - 181 - 213. Wang, Ibid.. at p. 144. 214. In Att.-Gen. of Canada v Cain, (1906) A.C. 542, the Privy Council held that the power to deport implied, i f i t i s to be enforced, the power to impose e x t r a - t e r r i t o r i a l constraint, and that the Parliament of Canada was com- petent to deal with such a matter despite the Coloni a l laws V a l i d i t y Act. 215. Text reproduced i n (1949) 27 CB.R. 204. See Delbez, note (206), at p. 195. 216. See Weis. note (205), at p. 49s. In the matter of deportation, the need to take account not only of the removal of the in d i v i d u a l from Canada but also of his acceptance by another country appears i n the following cases: Chan v McFarlane, (1962) O.R. 798 (Ont. C.A.); Re Santa Singh. (1924) 3 D.L.R. 1088 ( B . C . S . C . ) i Re Immigration Act and Hanna, (1957) 21 W.W.R, 400 (B.C.S.C ) j Moore v Minister of Manpower and Immigration (1968) S.C.R. 8~39~; 217. Charpentier, note (128), at p. 54s and 73s. 218. Laskin, note (14), at p. 990. Re Immigration Act and Munshi Singh. (1914) 6 W.W.R. 1347 (B.C.C.A.); Co-operative Com, on Japanese Canadians v Att. Gen of Can. (1947) A.C. 87, at p. 105. 219. By virtue of the Immigration Act of 1910, R.S.C 1927, c. 93 s. 18; and now, the Immigration Act, R.S.C. 1970, c. 1-2, s. 3 (1) enacts that "a Canadian c i t i z e n has the ri g h t to come into Canada". A person may have the burden to prove that he i s a Canadian c i t i z e n : R. v Smith; Ex p. Soudas. (1939) 3 D.L.R. 189 (N.B.S.C); Varin v Cormier. (1937) 3 D.L.R. 588 (Que. S . C ) . But a preponderance of evidence w i l l be s u f f i c i e n t : R. v Soon Gin An. (1941) 3 D.L.R. 125 (B.C.C.A.); Re Lee Wo Haw. (1941) 3 W.W.R. 223 (B.C.S.C.) 220. Re Chin Chee. (1905), 11 B.C.R. 400 (B.C. i n Ch.,); Shin Shim v. R.. (1938) S.C.R. 378, at p. 380, per Duff, C J . e9A?}t:rconstruing the Chinese Immigration Act, R.S.C, 1927, c. 95, repealed i n 19471 "I do not think I am j u s t i f i e d i n con- cluding that i t was the intention of Parliament to prevent Canadian c i t i z e n s of Chinese o r i g i n or descent generally from entering Canada..." 221. In Louie Yuet Sun v R., (1961) S.C.R. 70, a Chinese woman had given b i r t h to a c h i l d i n Canada and contended that she could not be deported because her c h i l d , as a Canadian c i t i z e n , had the rig h t to remain i n the country. The Supreme Court unanimously rejected t h i s argument but ad- mitted that the infant could remain i n Canada (SIC). - 182 - Also, i n Voicy v Minister of Citizenship and Immigration (1959) Que. P.R. 38, at p. 44-5, the same contention was rejected because i t was said that a person does not acquire Canadian c i t i z e n s h i p by the mere fact of giving b i r t h to a Canadian c i t i z e n . 222. Ekin v United States, (1892) 142 U.S. 651, at p. 659. 223. Charpentier, note (128), at p. 56s; Brossard, note (38), at p. 90j R.D. Yachetti, "Natural Justice and the Al i e n " , (1965) 4 Western L.R. 68, at p. 68-9. In Canada, Re Janoczka. (1932) 3 W.W.R. 29 (Man. C A . ) , at p. 31-2; Musgrove v Chung Teeong Toy. (1891) A.C 272, at p. 282; Masella v Langlais. (1955) S.C.R. 263 at p. 281; Vaaro v R.» (1933) S.C.R. 36 at p. 40. In the United States, Harisiades v Shaughnessy. (1952) 342 U.S. 580, at p. 586s; Fong Yue Ting v United States. (1893) 149 U.S. 698, at p. 707. 711-714. 730; Knauff v Shaughnessy. (1950) 338 U.S. 537; Calvan v Press. (1954) 347 U.S. 522, at p. 529-305 Shaughnessy v MezeiT (1953) 73 S. Ct. 625. 224. Harisiades case, i b i d . , at p. 588-9» and the cases there c i t e d . Also. Ekin case, note (222); and Hines v. Davidowitz, (1941) 312 U.S. 52, where a federal statute requiring r e g i s t r a t i o n of aliens was upheld because the power was connected with n a t u r a l i z a t i o n and international a f f a i r s . 225. This "domicile" i s acquired by having one's place of domicile i n Canada f o r at least 5 years a f t e r being lawfully ad- mitted for permanent residence 1 s. 4 (1), and s. 4 (2)s giving c e r t a i n exceptions. Also, aliens who have a Canadian domicile cannot be deported i n any of the cases established i n s. 18 (e). 226. House of Commons, Debates, A p r i l 2, 1946, at p. 504, See also Can. C i t . Branch, note (10), at p. 367-8. 227. Tamaki, note (2), at p. 82. 228. Ibid.. at 72 and 82. 229. S. 10 (1) (b), (c) ( i ) and (g). Re Albrecht. (1968) 2 Ex. CR. 388. 230. See Dowhopoluk y Martin (1972) 1 O.R. 311 (Ont. H.C), and Tamaki, note (2), at p. 76; Parry, note (2), at p. 492. - 183 - 231. Double n a t i o n a l i t y was a very frequent r e s u l t of the common law rule "nemo potest exuere patriam": "once a B r i t i s h subject, always a B r i t i s h subject." This p r i n c i p l e was abolished i n Great B r i t a i n i n 1870 by the Naturalization Act, 33 V i c t , c, 4, whereby nat u r a l i z a t i o n i n a foreign country led to the loss df B r i t i s h n a t i o n a l i t y , and i n Canada i n 1881 by the f i r s t general Actaof n a t u r a l i z a t i o n , S.C. 1880-81, c. 13. 232. S. 15 (1) and 16 of the Canadian Ci t i z e n s h i p Act. 233. Ibid, s. 20. 234. Knauer v. United States. (1946) 328 U.S. 654. But Communist Party membership i s not s u f f i c i e n t , unless convincing evidence i s given of the knowledge of the Party's illegal advocacy of governmental overthrow: Nowak v United States, (1958) 78 S.Ct. 955; Maisenberg v United States. (1958) 78 S. Ct. 960. Convincing evidence was given i n Po l i t e s v. United States, (i960) 81 S. Ct. 202. 235. Afroyim v Rusk. (1967) 87 S. Ct. 1660, at p. 1668: over- r u l i n g Percy vBrownell. (1958) 356 U.S. 44, at p. 60, where a provision making "voting i n a p o l i t i c a l e l e c t i o n i n a foreign state or p a r t i c i p a t i o n i n an el e c t i o n or pl e b i s c i t e to determine the sovereignty over foreign t e r r - i t o r y "a ground for withdrawl of c i t i z e n s h i p had been upheld because i t was "reasonably calculated to effect the end that i s within the power of Congress to achieve, the avoidance of embarrassment i n the conduct of our foreign relations attributable to voting by American c i t i z e n s i n foreign p o l i t i c a l e l e c tions." See also Mackenzie v Hare. (1915) 239 U.S. 299. In Nishikawa v Dulles. (1958) 356 U.S. 129, the fac t of having i n v o l - u n t a r i l y served i n a foreign army was held not to be a reasonable ground for deprivation of c i t i z e n s h i p ; and so for the fact of having been convicted of war-time desertion from the armed forces, i n Trop v Dulles. (1958) 356 U.S. 865 f o r remaining out of the United States i n time of war to avoid m i l i t a r y service, i n Mendoza-Martinez v Mackey. (1958) 356 U.S. 258; Kennedy v Mendoza-Martinez. (1963) 83 S.Ct. 554. In Schneider v Rusk. (1964) 84 S.Ct. 1187, a provision that a naturalized c i t i z e n w i l l loose his c i t i z e n s h i p i f he resides abroad continuously fo r 3 years was held u l t r a v i r e s because there was no such l i m i t a t i o n imposed on natural-born c i t i z e n s . 236. R . S . C , 1927, c 93, s. 2 (b). - 184 - 237. Kennedy, note (10), at p. 372-3* "The covenant of the league of nations i s perhaps the most remarkable recogni- t i o n of Canada's c o n s t i t u t i o n a l development. Canada i s included as an o r i g i n a l member of the league i n i t s own rights, possessing a vote i n the assembly of the league and the right to be represented there by not more than three delegates, i n the same manner as the B r i t i s h Empire, (note) The covenant of the league recognizes that each member has "nationals" of i t s own. As a con- sequence "Canadian nationals" were defined by a federal Act i n 1921 (11-12 Geo V C.H.). The status of "Canadian nationals" as B r i t i s h subject i s not touched. Certain B r i t i s h subjects are merely declared to have a status as "Canadian nationals." 238. See House of Commons, Debates, A p r i l 2nd, 1946, at p. 502s. 239. W.W. Toxey, "Restrictive Citizenship P o l i c i e s Within the Commonwealth", (1967) 13 McGill L.J. 494. 240. Brossard, 1st Div., note (23). at p. 48. 241. S. 95 of the B.N.A. Act confers a concurrent competence with respect to immigration to federal and pr o v i n c i a l l e g i s l a t u r e s , but the courts have seriou s l y l i m i t e d , i f not completely denied, p r o v i n c i a l competence i n the matter by r e l y i n g on the paramountcy doctrine, i n v a l i d a t i n g p r o v i n c i a l Acts even though they were not inconsistent with federal l e g i s l a t i o n , because the l a t t e r had "provided a complete code dealing with immigration" and the former was not " i n furtherance or aid of the federal l e g i s l a t i o n " : Brossard, i b i d . , at p. 46 and 59s; Laskin, note (14), at p. 990; R. v Narain. (1908) 8 W.L.R. 790 (B.C. F u l l ' C ) ; Re Nakane and Okazake. (1908) 13 B.C.R. 370 (B.C. F u l l C.)i Re Munshi Singh. (1914) 20 B.C.R. 243 (B.C.C.A.,) at p. 265. The only power remaining to the provinces are to render more or less a t t r a c t i v e the l i f e i n the province fo r certain/persons by excluding them from sharing i n the pro v i n c i a l p r i v i l e g e s , as far as possible, and by l e g i s l a t i n g where the f i e l d i s unoccupied, such as for the reception, recruitment and integration of immigrants. In the United States i t has been held unconstitutional for the states to pass l e g i s l a t i o n a f f e c t i n g the entry of immigrants into t h e i r respective j u r i s d i c t i o n since the matter i s vested exclusively i n Congress: Chy Lung v Freeman, (1875) 92 U.S. 272. 242. R.S.O. 1970, c. 121. - 185 - 2 4 3 . (1970) S.C.R. 2 8 2 . 2 4 4 . Note ( 6 ) 2 4 5 . ( 1 9 0 3 ) A.C. 151, at p.156. 2 4 6 . In Bryden, note ( 6 ) , i t was mentioned, at p. 586, that i t was not "necessary, i n the present case, to consider the precise meaning which the term "naturalization" was intended to bear"; accordingly, the Privy Council con- strued only the term "aliens" i n section 91 (25), but i t was not necessary either to go as f a r as i t went. 2 4 7 . Ibid., at p. 587. 2 4 8 . See R.R. Price, "Mr. Justice Rand and the Privileges and Immunities of Canadian C i t i z e n s " , ( 1 9 5 8 ) 16 U.T. Fac. L.R. 161 and the authorities c i t e d i n note ( 3 8 ) . 2 4 9 . These terms have been used by the Lord Chancellor i n Homma, note (245), at p. 156, and by Justice Rand i n Winner, note ( 1 4 ) , at p. 9 1 9 . 250. Bryden, note (6), at p. 585. See also Homma, i b i d . , at 155-6; Ouong-Wing v The King. ( 1 9 1 4 ) 49 S . C . R 7 ~ W O at p. 4 4 5 and 4 6 5 . 251. See Price, note ( 2 4 8 ) , at p. 1 9 . 252. As has been noted by Lord Watson i n Bryden. note (6), at p. 586, while speaking of the "natural-born Canadians It can hardly have been intended to give the Dominion Parliament the exclusive right to l e g i s l a t e for the l a t t e r class of persons resident i n Canada." 253. ...at least as f a r as pr o v i n c i a l l e g i s l a t i o n i s concerned, because Homma did not so r e s t r i c t Bryden as to empty s. 91 (25) of a l l consequential content. See In re The Japanese Treaty Act. 1 9 1 3 . (1920) 3 W.W.R. 937 (B.C.C.A.), at p. 940 per Macdonald C.J.A. (Galliher J.A. concurring):("Bryden decided)that the statute was aiming at both a l i e n and naturalized Chinese and that, as to both classes t h e i r r i g h t s and d i s a b i l i t i e s were i n the hands of the Dominion Parliament". And Brooks-Bidlake and Whi t t a l l , Ltd. v. Att. Gen, f o r B.C.. ( 1 9 2 3 ) A.C. 450. at p. 4 5 7 . per Viscount Cave L.C.: "Sect. 91 reserves to the Dominion Parliament the general right to l e g i s l a t e as to the rights and d i s a b i l i t i e s of aliens and naturalized persons..." - 186 - 254. Bank of Toronto v Lambe, (188?) 12 A.C. 575, at p. 588: Att-Gen. for Ont. v. Att.-Gen f o r Canada (1912) A.C. 571. at p. 581 and 584; Att.-Gen f o r Ont. v. Att.-Gen f o r Canada. (1947) A.C. 127, at p. 150. 255. Homma, note (245), at p. 156: "The extent to which na t u r a l i z a t i o n w i l l confer p r i v i l e g e s has varied both i n t h i s country and elsewhere (...) In the history of thi s country the r i g h t to the franchise has been granted and withheld on a great number of grounds, conspicuously upon grounds of r e l i g i o u s f a i t h , yet no one has ever suggested that a person excluded from the franchise was not under allegiance to the Sovereign". 256. Quorg-Wing case, note (250), at pp. 445. My underlining. 257. Ibid.. at p. 447-8. 258. For example, such argument was given by Davies, J. Anglin c o n e , loc. c i t . But i t i s a doubtful one by reason of the fact that even Homma, note (245), at p. 157, recognized at least that s, 91 (25) covered the "ordinary ri g h t s of the inhabitants" of a province, and among these, the right to reside i n the province and to earn one's l i v i n g therein. 259. See the argument of Idington, J., dissenting, i n Quong- Wing. i b i d . . at p. 457-8, and also Att.-Gen. of B.C. v. Att. Gen of Canada (1924) A.C. 203, at p. 212. 260. Homma, note (245), at p. 156: "A c h i l d of Japanese parentage born i n Vancouver City i s a natural born subject of the King, and would be equally excluded from the possession of the franchise." Quong-Wing. i b i d . . at p. 444, 449s and 463s, where the four judges of the majority make much use of expressions l i k e "independent of n a t i o n a l i t y " , " r a c i a l p r o h i b i t i o n " and so on. 261. Quong-Wing. Ibid.. at p. 469. Also, Re Employment of Aliens, (1921-22) 63 S.C.R. 293, at p. 337, per Brodeur, J l "A pr o v i n c i a l l e g i s l a t u r e cannot discriminate against an a l i e n upon the ground of his lack of B r i t i s h n a t i o n a l i t y , but a person may nevertheless be under d i s a b i l i t y , c i v i l or p o l i t i c a l by reason of r a c i a l descent, a d i s a b i l i t y which he would share with natural born or naturalized B r i t i s h subjects of l i k e extraction." 262. See H.R. Eddy and W.W. Black, Casebook on C i v i l Liberties U.B.C., at p. 1-17. 263. Brooks-Bidlake case, note (253), at p. 457. - 187 - 264. Re Employment of Aliens, note (26l), at p. 320 to 323. 265. Ibid., at p. 321. 266. Re Alberta Statutes. (1938) 2 S.C.R. 100. 267. See Cheffins, note (64) at p. 50: and J. W i l l i s , "Statute Interpretation i n a Nutshell',' (1938) 16 C.B.R. 1, at p. 23 and 17: "Only one conclusion can be drawn from the present j u d i c i a l addiction to the ancient pre- sumptions and that i s that the presumptions have no"; longer anything to do with the intent of the l e g i s l a t u r e ; they are means of c o n t r o l l i n g that intent. Together they form a sort of common law " B i l l of Rights" English and Canadian judges have no power to declare Acts unconstitutional merely because they depart from the good old ways of ^thoughts they c a n , h o w e v e r , use the presumptions to mould l e g i s l a t i v e innovation into some accord with the old notions. The presumptions are i n short "an id e a l c o n s t i t u t i o n " f o r England and Canada." 268. This point i s so obscure that even the same judges contradict themselves when dealing with i t . Compare the attitude of Davies and of Anglin J . J . i n Quong- Wing, note (250), with t h e i r reasons i n Re Employment of Aliens, note (261), at p. 301-2 and 333-4. 269. See f o r instance R. v P r i e s t . Jan. 18th, 1904, on note at (1901-04) 10 B.C.R. 436, at p. 437: "If these persons are al i e n s , the case i s governed by (Bryden). I f they are B r i t i s h subjects, i t affects trade and commerce.(...) Although the Province may make laws re- l a t i n g to property and c i v i l r i g h t s , I do not think the l a t t e r can be treated as enabling the Legislature to exclude a large number of persons from earning a l i v i n g i n the manner they were brought up to".* 270. See notes (191) and (192), and Goodwin v State Tax Commission. (1955) 1^6 N.Y.S. 2d 172 (N.Y.S.C., App. D.). 271. Winner case, note (14), at p. 919. 2?2. (1901-04) 10 B.C.R. 408. 273. Ibid.. at p. 418. 274. Ibid, at p. 422. - 188 - 275. Ibid.. at p. 432-4; but Martin J. seems to have omitted to read the f i r s t sentence of Bryden, at p. 586. 276. Ibid., at p. 4-34^5: "...to hold otherwise would r e s u l t i n the conclusion that the rights of the natural-born subjects of the King i n B r i t i s h Columbia are less than those of aliens or naturalized Chinese," and that, i t i s said, would be contrary to common sense and natural j u s t i c e . 277. For instance, i n Att.-Gen of B.C. v McDonald, (1961) 131 C.C.C.126 (B.C.Co.Ct.), section 94 (a) of the Indian Act was upheld because, being enacted for the protection of Indians, the accused had the right to equality with other Indians before the law! See also R. v Whiteman (No. 1), (1971) 2 W.W.R. 316 (Sask. Dist. C ) , at p. 318. 278. (1970), S.C.R. 282 279. (1963), S.C.R. 651 280. Ibid., at p. 656 per Ritchie, J. Taschereau, Fauteux and Abbott, J.J. concurring, c i t i n g Frankfurter, J. i n Board of Education v. Barnette. (1943) 319 U.S. 624, at p. 653. 281. Loc. c i t . See also at p. 658* " . . l e g i s l a t i o n for the preservation of the sanctity of Sunday has existed i n th i s country from the e a r l i e s t times and has at lea s t since 1903 been regarded as a part of the criminal law i n i t s widest sense. H i s t o r i c a l l y , such l e g i s l a t i o n has never been considered as an interference with the. kind of "freedom of r e l i g i o n " guaranteed by the Canadian B i l l of Rights." 282. Drybones. note (278) at p. 295-6. 283. Robertson and Rosetanni, note (279), at p. 661. 284. Drybones, note (278), at p. 298. 285. (1971) 3 C.C.C. (2d) 98 (Ont. H.C.). 286. Ibids., at p. 103 and 101. 287. Ibid., at p. 109-110. 288. Ibid., at p. 122. Affirmed by the Supreme Court of Canada. 289. (1967) 3 C.C.C. 244 (Que. Q.B.), at p. 248. Leave to appeal was refused by the Supreme Court. - 189 - 290. Smythe, note (285), at p. 110? "I have dealt at considerable length with the position of the Attorney-General i n the administration of our criminal law. I t , of course, applies also to the Attorneys-General of the Provinces^ although t h e i r authority i s not i n question here. But i n greater or lesser degree they are a l l e n t i t l e d i n the administra- t i o n of t h e i r o f f i c e s to make decisions regarding prosecu- t i o n i n an independent and j u d i c i a l manner." 291. Ibid., at p. 106. 292. Ibid., at p. 105* " i t would seem to me that the con- s t i t u t i o n a l aspect of the Attorney-General's d i s c r e t i o n i n deciding whether to proceed by indictment or summarily i s the same as his d i s c r e t i o n i n deciding whether to proceed at a l l , under which offence to proceed, or w h e t h e r to e x e r c i s e his right t o w i t h d r a w a c h a r g e or enter a nol l e prosequi on an indictment." 293. (1972) 1 O.R. 311 (Ont. H.C.). 294. Ibid., at p. 314. 295. 164 (1) (c) 296. R. v Beaulne. Ex p. La t r e i l l e . (1971) 1 O.R. 630 (Ont. H.C.); R. v Lavoie. (1971) 1 W.W.R. 690 (B.C.Co.Ct.) approved by the Court of Appeal on July 14th, 1971, unreported. Contra. R. v Viens. (1970) 10 C.R.N.S. 363 (Ont. Prov. C ) . 297. A s i g n i f i c a n t fact i s that the Royal Commission on the Status of Women in Canada had recommended i t s repeal because i t was discriminatory and susceptible of abuses see comment on Lavoie case by L. Smith at (1971) 6 U.B.C. L.R. 442, at p. 445 and 448. 298. Drybones. note (278), at p. 297. 299. Ibid.. at p. 291. But by having limited "law" i n "equality before the law" to laws of Canada, Drybones can be taken to have set t l e d the matter; for instance the Federal Court of Appeal i n L a v e l l , note (323), at p. 4-5, spoke about Drybones i n these terms* "It i s of course cl e a r that the discrimination incthat case was between the rights of Drybones, as an Indian to whom the Indian Act applied, and those of other Canadians not subject to the p a r t i c u l a r provision but nevertheless subject only to the laws of Canada as distinguished from laws of pa r t i c u l a r provinces of Canada..." (my underlining). - 190 - 300. Ibid. t at p. 303. 301. J.N. Lyon and R.G. Atkey, Canadian Constitutional Law i n a Modern Perspective. Toronto, Univ. Tor. P. 1970, at p. 434. 302. (1971), 2 W.W.R. 316 -(Sask. D i s t . C ) . 303. Ibid.. at p. 317. 304. Ibid., at p. 320. 305. But he did i n no way answer the contention of the appellant that such a wording was irre l e v a n t since the provision amounted i n practice "to discriminate against Indians who, with rare exceptions, are the only persons l i v i n g on reserves": i b i d . . at p. 317. 306. Ibid.. at p. 319. 307. The most recent challenges were directed at the new breathalizer provisions, but none has succeeded: see R. v. Curr. (1971) 4 C.C.C. (2d) 24 (Ont. H.C); R. v Ness. (-1971) 4 C.C.C. (2d) 42 (Sask. C A.); R. v McKay, (1971) 4 C.C.C. (2d) 45 (Man. C.A.); R. v Brownridge. (1971) 4 C.C.C. (2d) 462 (Ont. C A . ) ; R. v Vrchychyn. (1971) 4 C.C.C (2d) 481 ( A l t a S . C , App. D. ); R. v Russell. (1971) 4 C.C.C (2d) 494 (N.S.S.C., App.D.); R. v. Duke. (1971) 4 C.C.C (2d) 504 (Ont. C.A.). 308. And i t remains that the federal Parliament had not pro- h i b i t e d the same conduct o f f a reserve ( i . e . to non-Indians i n fact) by using i t s criminal law competence; then i t would have been easy to hold that i t cannot l e g i s l a t e to t h i s e f f e c t by virtue of section 91 (24) only. 309. See, for instance, A. Bradbrook, "An Empirical Study of the Attitudes of the Judges of the Supreme Court of Ontario Regarding the Workings of the Present Child Custody Adjudication Laws". (1971) 49 CB.R. 557, e s p e c i a l l y at p. 564-5. 310. Drybones, note (278) , at p. 306, per Pigeon J., dissenting. 311. Loc. c i t . See also at p. 299, Abbott, J . dissenting. 312. See P. Weiler, "Two Models of J u d i c i a l Decision-Making", (1968) 46 CB.R. 406, at p. 423. 313. C i v i l L i b e r t i e s i n Canada. London, Oxford U.P. 1964, p. 42. - 191 - 314. Note (301), at p. 64. See also J.N. Lyon, "A Fresh Approach to Constitutional Laws Use of a Policy-Science Model", (1967) 45 CB.R. 55^, at p. 561. 315. See the approach of Clement J.A. i n R. v Vrchyshyn, note (307). 316. J. Frank, as reproduced i n J. Matkin, The Legal Process of the Supreme Court of Canada, preliminary draft edition, U.B.C, 1971, at p. 257. 317. I.C. Rand, "The Role of an Independent Judiciary i n Preserving Freedom", (1951-52) 9 U.T.L.J. 1, at p. 4. 318. J.C, Smith, "Regina v. Drybones and Equality Before the Law, (1971) 49 CB.R. 163, at p. 170. 319. Notes (152) and (235). 320. It i s the same kind of test as the one proposed by Professor Smith i n his a r t i c l e , loc. c i t . , that has been applied i n R. v Lavoie, note (296), at p. 695s, where i t was decided that since a woman acquires v o l u n t a r i l y the status of prostitute, she i s not i n a pos i t i o n to complain that she i s unequal before the law. Such test would also come short of rendering inoperative the provision impugned i n L a v e l l , note (323), i f the court wants to consider that the Indian woman only has not to get married i f she wants to remain i n the band. 321. Smith, i b i d . , at p. 186. See also P. Weiler, "Legal Values and J u d i c i a l Decision-Making", (1970) 48 CB.R. 1; and Rand, note (317), at p. 6: "...although i n the public aspect, the conclusion of controversies i s of paramount importance, i t w i l l be n u l l i f i e d i n so far as i t f a l l s short of general acceptance by the community." 322. For an enumeration of them, see Schmeiser, note (313, ) at p. 287. 323. On appeal from L a v e l l v Att.-Gen of Can.. Oct. 8, 1971, Fed. C. of App., Jackett, C.J., Thurlow and Pratte, J . J. unreported yet. 324. Frank, note (316), recognizes that rules and pr i n c i p l e s of law are among the factors susceptible of influencing the judge i n his decision-making process, besides his personality i t s e l f which i s one of the most important "hunch producer". But the more thi s personality w i l l - 192 - have been moulded, through passage i n the law school and evolution i n the legal arena, i n p o s i t i v i s t and l e g a l i s t i c patterns, the less l i k e l y i t i s that other kinds of prejudices or in d i v i d u a l factors w i l l weigh i n the balance. 325. Note (312), at p. 471. 326. P. Weiler, "The Supreme Court of Canada and the Doctrines of Mens Rea," (1971) 49 C.B.R. 280. 327. L.-P, Pigeon, speech at the Ninth International Symposium on Comparative Law, Ottawa, September, 1971, mimeo, at P. 15. 328. Reproduced i n Matkin, note (316), at p. 376s. 329. For instance, see the reasons of Laskin J.A., as he then was, i n R. v. Tarnopolsky, Ex parte B e l l , (1970) 11, D.L.R. (3d) 658 (Ont. C.A.) at p. 668-9. 330. Laskin, note (328), at p. 383; and L-P. Pigeon, "The Human Element i n the J u d i c i a l Process", (1970) 8 Alta. L.R. 301, at p. 310. 331. Pigeon, i b i d . . at p. 304. See also Laskin, i b i d . . at p. 384 332. For a general account of them, see P.H. Russell, The Supreme Court of Canada as a B i l i n g u a l and B i c u l t u r a l I n s t i t u t i o n , Documents of the Royal Commission on Bilingualism and Biculturalism, Ottawa, Information Canada, 1969, 1st and 2nd chapters. 333. Note (312), at p. 437s. 334. Ibid;., at p. 407. 335. Yachetti, note (223), at p. 89. 336. Vaaro v The King. (1933) 1 D.L.R. 359 (S.C.C.) at p. 362, per Lamont J. Consequently, the right to habeas corpus declared i n s. 2 (c) ( i i i ) of the B i l l of Rights w i l l be available to aliens, even i n immigration matters: Hecht v McFaul. (1961) Que. S.C. 392. 337. Head, note (29), at p. 139. 338. "...without discrimination by reason of race, national o r i g i n , colour, r e l i g i o n or sex..." Prof. Smith, note (318), at p. 170, noted that the judges of the majority i n Drybones took "subsection (b) to be not limited by the enumerated forms of discrimination i n the opening sentence of the f i r s t section". However, the contrary has been decided recently i n Smythe, note (285), and the point must be taken as unsettled.. - 193 - 3 3 9 . ( 1 9 7 0 ) 5 C.C.C. 1 0 7 (N.S.S.C). 340. Note ( 2 9 3 ) . at p. 3 1 8 . 341. See Pigeon J., dissenting i n Drybones, note (278), at p. 3 0 3 - 4 . 342. The phrase has been used by K. Lysyk, "The Unique Constitutional Position of the Canadian Indian," ( 1 9 6 7 ) 4 5 CB.R. 5 1 3 , at p. 5 3 5 . 3 4 3 . Then, i t would be just normal that each of these levels be e n t i t l e d to act, within the range of i t s l e g i s l a t i v e powers, with respect to a l l people who are i n i t s borders, irrespective of what status they possess. 3 4 4 . See note ( 1 0 2 ) i n fi n e , for example. 3 4 5 . See, f o r instance, the Acts cited i n note ( 1 0 9 ) . LITERATURE CITED A.S. Abel, "The Role of the Supreme Court i n Private Law Cases", (1965) 4 A l t a L.R. 39. C.J. Antieau, Commentaries on the Constitution of the United States, Buffalo, Dennis & Co., I960. C.J, Antieau, Modern Constitutional Law, C a l i f o r n i a , Bancroft Whitney Co., 1969. ~~ M.A. Banks, "The Franchise i n B r i t a i n and Canada", (1967) 17 U.T.L.J. 187. A. Bradbrook, "An Empirical Study of the Attitudes of the Judges of the Supreme Court of Ontario Regarding the Workings of the Present Child Custody Adjudication Laws," (1971) 49 C.B.R. 557. J . Brossard, L*immigration. Montreal, P.U.M. 1967. Dr. I. Brownlie, "The Relations of Nationality i n Public Interna- t i o n a l Law", (1963) 39 Br. Y. Int. L. 284. Canadian Citizenship Branch of the Dept. of the Secretary of State, "The Canadian Citizenship Act", (1947) 25 C.B.R. 364. M. Caron, "La Province de Quebec e s t - e l l e un etat?" (1938) 14 Actualite economique 121. J.-G. Castel, Private International Law. Toronto, Canada Law Book Co. i960. L, Cavare, Le droi t international public p o s i t i f , Paris, Ed. A. Pedone, 1967. J. Charpentier, L'etranger en dr o i t international. Paris, I n s t i t u t des Hautes Etudes Internationalies, 1966-67. R.I. Cheffins, The Constitutional Process i n Canada. Toronto, McGraw-Hill, 1969. A.H. Clarke, "Citizenship and NaturalizaHon," (1915) 35 Can, L.T. 317. L. Delbez, Les principes generaux du d r o i t international public. Paris, 1965. - 2 - H. R. Eddy and W.W. Black, Casebook on C i v i l L i b e r t i e s , U.B.C., 1971 C S . Emden, The People and the Constitution, 2nd ed., Oxford, Clarendon Press, 1956. J.S. Ewart, "Naturalization", (1911) Can. L.T. 837. E. Freund et a l , Constitutional Law, 2nd ed. Boston, L i t t l e , Brown and Co., 1961. E. Freund, Standards of American L e g i s l a t i o n , Chicago, Univ. of Chic. P.1965. I. L. Head, "The Stranger i n Our Midst» A Sketch of the Legal Status of the A l i e n i n Canada", (1964) 2 Can. Y. Int. L. 107. T. Hodgins, ?The Law of Allegiance i n Canada", (1881) 1 Can. L.T. 1. N.W. Hoyles, "Naturalization of Aliens", (1905) 21 Can. L.T. 181. W.P.M. Kennedy, The Constitution of Canada. 1534-1937. An Introduction to i t s Development. Law and Custom, 2nd ed.. Oxford U.P.. 1938. W.P.M. Kennedy, ''Nationality", (I935r36) 1 U.T.L.J. 139. M.R. Konvitz, The Al i e n and the A s i a t i c i n American Law, New York, Cornell U.P. 1946. B. Laskin, Canadian Constitutional Law. 3rd ed., Toronto, Carswell, 1966. B. Laskin, "Constitutional Law - State L e g i s l a t i o n Prohibiting Interstate Migration - A p p l i c a b i l i t y of Problem to Canada", (1941) 19 CB.R. 750. W.J. L i n d a l , Canadian Citizenship and our Wider Loyal t i e s . Winnipeg, Can. Press Club, 1946. J.N. Lyon, "A Fresh Approach to Constitutional Laws Use of a Policy-Science Model", (1967) 45 C.B.R. 554. J.N. Lyon and R.G. Atkey, Canadian Constitutional Law i n a Modern Perspective, Toronto, University of Toronto Press, 1970. - 3 - K. Lysyk, "The Unique Constitutional Position of the Canadian Indian," (1967) 45 C.B.R. 513. L.R. MacTavish, "Uniformity of L e g i s l a t i o n i n Canada - An Outline, (194?) 25 C.B.R. 36. J. Matkin, The Legal Process of the Supreme Court of Canada, preliminary draft edition, U.B.C. 1971. J. Mercier, "Immigration et d r o i t des provinces", (1944) 4 R. du B. 149. J.H.C. Morris, The C o n f l i c t of Laws. London, Stevens and Sons Ltd., 1971. M. O l l i v i e r , Problems of Canadian Sovereignty, Toronto, Can. Law Book, 1945. C. Parry, Nationality and Citizenship Laws of the Commonwealth and of the Republic of Ireland. London, Stevens and Sons Ltd., 1957. L.P, Pigeon, "The Human Element i n the J u d i c i a l Process", (1970) 8 A l t a L.R. 301. L.P. Pigeon, speech at the Ninth International Symposium on Comparative Law, mimeo, Ottawa Sept. 197. R.R. Price, "Mr. Justice Rand and the Privileges and Immunities of Canadian Citiz e n s " , (1958) 16 U.T. Fac. L.R. 16. I.C. Rand, "The Role of an Independent Judiciary i n Preserving Freedom", (1951-52) 9 U.T.L.J. 1. H.E. Read, "The Public R e s p o n s i b i l i t i e s of the Academic Law Teacher i n Canada", (1961) 39 C.B.R. 232. P.H. Russell, The Supreme Court of Canada as a B i l i n g u a l and B i c u l t u r a l I n s t i t u t i o n , Documents of the Royal Commission on Bilingualism and Biculturalism, Ottawa, Information Canada, 1969. M. St.-Aubain, "La province de Quebec e s t - e l l e un Etat?", (1963) 13 R.J.T. 51. D. A. Schmeiser, C i v i l L i b e r t i e s i n Canada, London, Oxford U.P., 1964. G. Schwarzenberger, A Manual of International Law, 5"th edition, London, Stevens and Sons Ltd., 196?. J.C. Smith, "Regina v Drybones and Equality Before the Law," (1971) 49 C.B.R. 163. L. Smith, "Case and Comment", (1971) 6 U.B.C.L.R. 442. G.T. Tamaki, "The Canadian Citizenship Act, 1946", (1947-48) 7 U.T.L.J. 68. W.W. Toxey, "Restrictive Citizenship P o l i c i e s Within the Commonwealth", (196?) 13 McGill L.J. 494. J. Tussraan and J. tenBrock, "The Equal Protection of the Laws", 1949 37 C a l i f , L.R. 341. W.B. Wang, "Nationality of Claims and Diplomatic Intervention - Canadian Practice," (1965 43 C.B.R. 136. P. Weiler, "Legal Values and J u d i c i a l Decision-Making" (1970) 48 C.B.R. 1. P. Weiler, "The Supreme Court of Canada and the Doctrines of Mens Rea", (1971) 49 C.B.R. 280. P. Weiler, "Two Models of J u d i c i a l Decision-Making", (1968) 46 C.B.R. 406. P. Weis, Nationality and Statelessness i n International Law. London, Stevens and Sons Ltd., 1956. J. W i l l i s , "Securing Uniformity of Law i n a Federal System - Canada", (1943-44) 5 U.T.L.J. 352 J . W i l l i s , "Statute Interpretation i n a Nutshell", (1938) 16 C.B.R. 1. R.R. Wilson and R.E. Clute, "Commonwealth Citizenship and Common Status", (1963) Am.J. Int.L. 566. R.D. Yachetti, "Natural Justice and the Alien", (1965) 4 Western L.R, 68.

Cite

Citation Scheme:

    

Usage Statistics

Country Views Downloads
Japan 6 0
China 5 0
United States 3 2
France 1 0
Canada 1 4
City Views Downloads
Tokyo 6 0
Beijing 5 0
Clarks Summit 2 0
Unknown 1 3
Québec 1 0
Ashburn 1 0

{[{ mDataHeader[type] }]} {[{ month[type] }]} {[{ tData[type] }]}

Share

Share to:

Comment

Related Items