Mcneil v. Canada (Secretary of State), docket T-2745-92

    

Date: 20000915

Docket: T-2745-92

BETWEEN:

     KATHLEEN BURT McNEIL

     Plaintiff

     - and -

     THE SECRETARY OF STATE OF CANADA

     THE MINISTER OF MULTICULTURALISM AND CITIZENSHIP

     Defendants

     REASONS FOR JUDGMENT

HENEGHAN J.

[1]      Ms. Kathleen Burt McNeil ("Ms. McNeil"), was born at Timmins, Ontario on January 7, 1935. On June 24, 1968, Ms. McNeil became an American citizen. She now seeks a declaration that she is a Canadian citizen. The sole issue is whether she voluntarily gave up her Canadian citizenship in 1968.

[2]      Ms. McNeil was the only witness at the trial. The relevant facts are found in her evidence.

[3]      Ms. McNeil, by virtue of her birth in Ontario, was a British subject. When the Canadian Citizenship Act, R.S.C. 1952, c. 33, came into force in 1947, she became a Canadian citizen.

[4]      Ms. McNeil moved to the United States of America when she was approximately twenty-one years of age. On February 7, 1957, at age twenty-two, Ms. McNeil married Leonard McNeil ("Mr. McNeil") an American citizen, in New York City.

[5]      On the basis of being married to an American citizen, Ms. McNeil applied for and received a U.S. "green card" which permitted her to live and work in the United States. She successfully renewed her green card on an annual basis until 1968.

[6]      During the period April 1958 to May 1959, Ms. McNeil and her husband returned to Canada where she worked for about one year and was the main provider for the family unit. Her husband took no steps to change his citizenship during their brief sojourn in Canada.

[7]      Ms. McNeil and her husband returned to New York City late in 1959. Mr. McNeil accepted a position with the U.S. Treasury Department as a federal narcotics agent in March 1960. In late 1962, he transferred from employment with the Federal Bureau of Narcotics to the U.S. Customs Service.

[8]      In 1963, Ms. McNeil, then aged approximately twenty-eight years, gave birth to her son Leonard, in the United States.

[9]      In late May 1968, Mr. McNeil was advised by his then employer, the U.S. Customs Service, that he had been selected for a foreign job posting at the American Embassy in London, U.K., where he was to work for the U.S. Customs Service as a customs representative. This posting became available to him after he had successfully passed an examination held for candidates for foreign postings. He competed with several thousand other applicants for this position.

[10]      On May 31, 1968, Ms. McNeil and her husband went to Washington, D.C. for a meeting with the U.S. Commissioner and the Assistant Commissioner of Customs Service, in connection with the upcoming foreign job posting to London. According to the Agreed Statement of Facts which was entered as consent number one at the trial, the purpose of this meeting was for the U.S. Customs Service to ascertain if the Ms. McNeil was supportive of her husband's new foreign job posting and to ensure that she was suitable as a wife of a U.S. government official soon to be posted abroad. Ms. McNeil says that her Canadian citizenship was mentioned by her at the meeting but elicited no reaction or comment from the U.S. Customs Service senior officials. She testified that her father was English and she had relatives in England, and was looking forward to the new job assignment.

[11]      On June 8 or 9, 1968, Mr. McNeil's job posting to London was given final approval, with his job to commence in London in August 1968.

[12]      On June 10, 1968, Mr. McNeil was contacted by telephone by the U.S. Customs Service Assistant Commissioner who advised him that it was American government "policy" that spouses of American civil servants posted abroad should be American citizens as well.

[13]      It was stated that his wife, Ms. McNeil, should become an American citizen before the family moved to London. She was told the details of this telephone conversation by her husband later the same day.

[14]      On June 11, 1968, Ms. McNeil attended at the Federal Courthouse in New York City, where she spent several hours completing forms in connection with an application for American citizenship, was asked some questions and provided some answers in that connection as well, for example, "who was the first American President".

[15]      After leaving the courthouse on June 11, 1968, Ms. McNeil was hospitalized in New York City. She was approximately seven and one half months pregnant at the time. Her son, Michael, was born on June 12, 1968 approximately six weeks prematurely. Ms. McNeil remained in the hospital for several days and was released on June 18, 1968, together with her newborn son.

[16]      On June 24, 1968, Ms. McNeil attended a formal citizenship ceremony with others at the U.S. District Court in New York City. At that time, she swore an oath of allegiance to the United States of America and assumed American citizenship. She received a certificate stating she was an American citizen and that her former nationality was Canadian. A copy of this citizenship certificate was entered in evidence as exhibit

P-2. Ms. McNeil was thirty-three years of age in 1968.

[17]      On August 7, 1968, Ms. McNeil and her husband and their two young children left the United States of America by ship, en route to London, England and Mr. McNeil's new position with the U.S. Customs Service. In contrast with his former employment with the United States government service, which involved undercover surveillance and investigative work, Mr. McNeil assumed an office position in London.

[18]      Approximately four years later, in 1972, Ms. McNeil and her family moved back to the United States. The marital relationship disintegrated and on September 24, 1976, she received a divorce from her husband, issued by a California Court.

[19]      Two years later, in 1978, Ms. McNeil moved back to Canada with her children. She intended to live in Canada. At that time, her parents were elderly and ill, and her father was hospitalized in a Toronto hospital. When she returned to Canada in 1978, her son Michael, who had been born on June 12, 1968, also became ill and was hospitalized in Toronto.

[20]      Upon her return to Canada in 1978, Ms. McNeil sought advice from an immigration lawyer in Toronto as to her status as a Canadian citizen. She was advised that she was no longer a Canadian citizen as a result of having assumed American citizenship ten years earlier in New York City in 1968. Further to legal advice, she applied to the Canadian authorities to become a permanent resident of Canada. She testified that she was given approval to make this application from within Canada and that the process would take approximately three months.

[21]      Ms. McNeil made arrangements to place her children in school and bought a house, testifying that she had sufficient funds to sustain her during the proposed waiting period. Her application for permanent residence was allegedly approved by the Canadian government in late 1978; she testified that she was advised by her lawyer that she had received approval as a permanent resident but she did not recall receiving a record of landing. A search of the defendants' records did not reveal a record of landing issued to Ms. McNeil.

[22]      In late 1978, having received approval for permanent residence status which gave her the legal right to remain in Canada, Ms. McNeil decided to bring her children to live with their father who was then posted in Montreal with the U.S. Customs Service. She made this decision because she was experiencing severe financial difficulties at that time.

[23]      Ms. McNeil testified that she had an outstanding trial date in a California Court relative to repossession of a motor vehicle and she went to California. She lived in the United States of America from late 1978 until 1983, when she decided to return to Canada. When she came back to Toronto some time in 1983, she contacted her Toronto immigration lawyer to inquire about her permanent status in Canada. Ms. McNeil was advised that she had no legal status in Canada because she had left the country and moved to the United States immediately after having been approved for permanent residence status in 1978. She was advised that she would have to reapply to obtain permanent residence status.

[24]      Ms. McNeil testified that she sought advice from another Toronto lawyer who told her that she remained a Canadian citizen. She testified that she did not make application in 1983 for permanent residence status in Canada. In explanation, she testified, at some length, about the length of time the initial process had taken and her lack of confidence that a subsequent application would be processed any differently.

[25]      From 1983 to the present, Ms. McNeil has lived continuously in Canada, with some brief absences abroad in the United States.

[26]      On April 11, 1987, some four years after moving back to Canada, Ms. McNeil applied for and received an Ontario birth certificate. This was issued in Toronto in her maiden name, that is "Kathleen Louise Burt". On April 15, 1987, she used this Ontario birth certificate to apply for a Canadian passport in her maiden name and indicated on her passport application that she never was a citizen of any country other than Canada. At trial, she admitted that this was a false declaration.

[27]      On April 23, 1987, the Canadian government issued Ms. McNeil, a Canadian passport in her maiden name, without knowledge that she had been an American citizen since 1968. This Canadian passport expired in 1992 and no application has been made for a subsequent Canadian passport.

[28]      Sometime in 1988, Ms. McNeil's son Leonard, who was born in 1963 in the United States, applied for Canadian citizenship in Canada, on the grounds that his mother was a Canadian citizen at the date of his birth. Leonard McNeil stated in his citizenship application that his mother became an American citizen after his birth, that is on June 24, 1968. Leonard McNeil was granted Canadian citizenship in September 1989.

[29]      In 1991, Ms. McNeil engaged lawyers in Toronto to approach the Canadian government on her behalf with a request that she be recognized as a Canadian citizen. On February 25, 1992, the Canadian government, through Mr. Drabkin, then Special Assistant to the Minister of Multiculturalism and Citizenship, replied to her. He advised Ms. McNeil that she had lost her Canadian citizenship by operation of law some twenty-three years earlier when she assumed American citizenship in 1968. However, he invited her, as a former Canadian citizen, to apply pursuant to the current Citizenship Act, R.S., 1985, c. C-29, for permanent resident status which, if granted, would permit her to become a Canadian citizen after one year's residence in Canada. Ms. McNeil declined to make such application.

[30]      On November 6, 1992, this action was commenced, in which Ms. McNeil seeks a declaration that she never lost her Canadian citizenship.

[31]      The sole issue in this action revolves around the issue whether Ms. McNeil "by any voluntary" act acquired her American citizenship. There is no doubt that the ceremony in which she participated on June 24, 1968, when she received a certificate of American citizenship in New York City, was a "formal act" within the meaning of the Canadian Citizenship Act, supra, section 15. The section provides as follows:

15. (1) Un citoyen canadien qui, se trouvant hors du Canada et n'étant pas frappé d'incapacité, acquiert, par un acte volontaire et formel autre que le marriage, la nationality ou la citoyenneté d'un pays autre que le Canada, cesse immédiatement d'être citoyen canadien.

15. (1) A canadian citizen, who, when outside of Canada and not under a disability, by any voluntary and formal act other than marriage, acquires the nationality or citizenship of a country other than Canada, thereupon ceases to be a Canadian citizen.

[32]      Ms. McNeil argues that the pressures of her personal situation, including the premature delivery of her son Michael, her subsequent illness and hospitalization, her awareness of her husband's desire for the foreign posting and her own wish to support her husband's ambitions, the task of dismantling the home in New York and preparing to move with two small children to a foreign country, militated against her ability to make an independent decision concerning the consequences of assuming American citizenship. She argues that she was operating under duress.

[33]      Ms. McNeil testified that she did not seek advice either from lawyers or the Consulate Office or indeed from anyone else, about the effect of assuming American citizenship. She testified that she did not discuss with her then husband the consequences, if any, of taking this step. She did not seek any kind of advice prior to taking her oath of allegiance on June 24, 1968, nor at any time after that date, until she came to Canada in 1978.

[34]      In response, the defendants argue that Ms. McNeil was under no impediment in the matter of seeking advice, either in New York, from family members in Canada or indeed upon her arrival in London, and was under some obligation to investigate the consequences of taking American citizenship before doing so.

[35]      Counsel for both parties referred me to a number of American case authorities dealing with the question of duress in the context of citizenship cases. However, I note that the American citizenship legislation imports the requirement that a person not only participate in an act of denaturalisation but must intend that such act will have the effect of the loss of American citizenship. There is no such requirement of intention in the Canadian legislation and that, of course, is what must be considered in the present case.

[36]      It is trite law that a person is deemed to intend the consequences of her act. Likewise, it is well recognized that ignorance of the law is no excuse and I am satisfied that there was an onus upon Ms. McNeil to satisfy herself, in a reasonable time, as to the consequences of assuming American citizenship.

[37]      The question then becomes whether Ms. McNeil has shown that her actions in assuming American citizenship in 1968, were involuntary. In other words, was she acting under duress at the time she participated in the process leading up to the issuance of a certificate of naturalization by the United States Government on June 24, 1968.

[38]      The leading Canadian case on duress is Stott v. Merit Insurance Corporation (1988), 63 O.R. (2d) 545 (Ont.C.A.) where the court found that three facts must be established before a legal finding of duress can be made. These three facts are:

1. The pressure must amount to coercion of the will;

2. The pressure must be illegitimate;

3. The party seeking relief must have taken steps to avoid the act complained of.

[1]      In Pao On v. Lau Yiu, [1979] 3 All E.R. 65, the Privy Council found that four factors must exist in order to support a finding of coercion of the will. At page 78, Lord Scarman said:

[...] In determining whether there was a coercion of will such that there was no true consent, it is material to enquire whether the person alleged to have been coerced did or did not protest, whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it.[...]

[2]      Applying the test in Pao On, supra, I must ask the following questions:

1. Did the plaintiff protest at the time the question of American citizenship arose, in relation to her husband's employment opportunities?

2. Was there an alternate course available to her, other than proceeding with the application for American citizenship?

     3. Did she receive advice, and not necessarily legal advice?

4. What is the appropriate time frame to assess the request made to her to assume American citizenship?

[3]      On the basis of the evidence, I find that Ms. McNeil did not raise any objections to the request on behalf of her husband's employer that she become an American citizen. She testified that while she was not thrilled about it, neither was she averse to the idea. She described her response to the proposal as being somewhat proud of the opportunity to be an American citizen. It is clear that there is no evidence of objection to the idea of becoming an American citizen.

[4]      On the second point, whether an alternative course was open to Ms. McNeil, I find that she had a number of alternative courses.

[5]      She had the choice of refusing to participate in the process leading to American citizenship. She had the choice of seeking advice either from a lawyer or from the Canadian Consular authorities in New York or from Canadian government officials in Canada. She had the option of requesting more time to deal with the request by the authorities about a change in citizenship, having regard to her advanced state of pregnancy and the need to care for her then two year old son, Leonard.

[6]      As well, she had the choice of advising her husband that he should proceed to London without her and that she would join him at a later time, once she had dealt with the demands arising from the needs to dismantle her household in New York and to deal with a new baby who was born prematurely and who was a restless child.

[7]      Furthermore, neither Ms. McNeil nor her husband were unsophisticated young people. Mr. McNeil had been working with the Federal Narcotics Bureau and according to the evidence, had occasionally participated in undercover work in connection with his employment. Ms. McNeil had been employed as a television actress and had worked in New York City. She had consistently maintained her status in the United States as a "green card" holder from 1959 to 1968.

[8]      I infer from this fact that Ms. McNeil had some awareness about her status as a Canadian citizen working in the United States and it is not unreasonable to expect that she would have made inquiries concerning the effect of assuming American citizenship upon her then status as a Canadian citizen.

[9]      As for the third element, whether Ms. McNeil received advice, it is clear from the evidence that she did not go to the Canadian Consulate in New York nor seek legal advice. In fact, she sought no advice from anyone

[10]      A number of choices were open to Ms. McNeil other than following the course of least resistance which was to go along with the request made to her to take American citizenship, which request arose in the context of her husband's new employment opportunity.

[11]      Finally, in assessing Ms. McNeil's submissions concerning the lack of time within which she had to make a decision concerning the request that she assume American citizenship, three possible time frames emerge from the evidence.

[12]      The first is the short period from June 10 to June 18. June 10 is the date when Mr. McNeil received a telephone call from the U.S. Customs Service, advising of the American government policy respecting the citizenship of spouses of American government employees posted abroad. The second date, June 18, is the date when the Ms. McNeil returned from the hospital after giving birth to her son Michael.

[13]      The second time frame is from June 10, 1968, again the date of the telephone call to Mr. McNeil, and late August 1968, when Ms. McNeil arrived in London with her family.

[14]      The third possible time frame is from June 1968 to 1978 when Ms. McNeil returned to Canada. At that time, she sought legal advice. Based on the evidence, it appears that her reaction to what she learned was not to protest the loss of her Canadian citizenship but to apply for status in Canada as a permanent resident.

[15]      Since Ms. McNeil's case is based upon the argument that she was operating under duress, I think it is appropriate to adopt the second time frame, that is from June 10, 1968 to late August 1968, as the context in which the issue of duress must be examined.

[16]      Since that is the relevant time frame, I find that Ms. McNeil could reasonably have sought advice as to her status upon her arrival in London. After all, her husband was employed with the American Government Service and was working within the confines of the diplomatic community. It is reasonable to anticipate that she could have sought advice from the Canadian authorities upon arrival in London in the early fall of 1968.

[17]      The authorities recognize that economic duress is a form of duress which can affect the voluntary nature of an act. Ms. McNeil testified that she had been working early in her married life and continued to work in New York City even after the birth of her son Leonard. Following the birth of her second child, she was financially dependent upon her husband. It appears that she also felt some responsibility to contribute to the personal satisfaction of her husband in the matter of his career advancement. However, there is no evidence that Ms. McNeil would have been left without financial support if she had decided to refuse the request to assume American citizenship.

[18]      Turning again to the elements required to establish duress in the legal sense, as stated by the court in Stott, supra, I find that Ms. McNeil has not established that she was coerced into making application for American citizenship. The test for "coercion of the mind" has not been met by Ms. McNeil.

[19]      The second issue I must address is whether the pressures operating on Ms. McNeil during the period June 10 to late August 1968, were illegitimate.

[20]      I find that Ms. McNeil experienced a high degree of personal pressure at that time, resulting from her personal circumstances. She was pregnant, her child was born prematurely and both mother and child were hospitalized for some time after the birth. At the time, Ms. McNeil also had the responsibility of dismantling the family home in New York and overseeing the transition to London.

[21]      These are all pressures of family life. They cannot be characterized as illegitimate in the sense of offending any law.

[22]      The third element addressed in Stott, supra, that is the steps taken by the parties seeking relief to avoid the act complained of, has already been addressed in my consideration of the test in Pao On, supra. I have already found that Ms. McNeil took no steps, within a reasonable time frame, to avoid the consequences of assuming American citizenship.

[23]      A similar issue was considered by this Court in Young v. Secretary of State, [1982] 2 F.C. 541 (T.D.). In that case, the plaintiff assumed American citizenship in order to enhance his employment opportunities in the United States as a medical practitioner. Ms. McNeil argues that Dr. Young was not operating under the same time pressures as was she.

[24]      I do not see any difference in principle between the situation in Young, supra, and the situation here. The question is whether Ms. McNeil voluntarily participated in the ceremony by which she acquired American citizenship. She argues that she was subjected to duress at the time. However, on the basis of the evidence, I find that no duress, in the legal sense, was operating upon Ms. McNeil at the relevant time. Accordingly, I find that she assumed American citizenship by "a voluntary act" within the meaning of the Canadian Citizenship Act, supra.

[25]      No submissions were made concerning the applicability of the current Citizenship Act, supra, and it is not necessary to comment on the effect, if any, of that Act.

[26]      The action is dismissed with costs.

"Elizabeth Heneghan"

J.F.C.C.