The purpose of C-6 is to create one class of Canadian. Unless amended,
the Bill will not achieve its objective.
Preamble:
“A Canadian is a Canadian is a Canadian.” –Justin Trudeau, acceptance speech
as Prime Minister, October 19, 2015.
“We believe very strongly that there should be only one class of Canadians, that
all Canadians are equal, that a Canadian is a Canadian is a Canadian from coast
to coast to coast.” –John McCallum, Citizenship Minister, February 3, 2016.
Fabulous words. Now let’s make it a reality. Bill C-6, as written, is but a startit doesn’t get Canada to the Promised Land. If passed into law, unequal rights
will continue, resulting in different classes of Canadian citizen- some with
more rights than others. There will also be people denied citizenship
altogether due to ongoing discrimination within the Act.
My point in the following discussion is to exemplify the confusion and unjust
legislation that bonds us together as Canadians. Trying to explain our current
citizenship act is easy vs. deciding who under the law qualifies to call
themselves Canadians, and why.
For example, Canadian citizenship as we know it is an amalgamation of all the
previous citizenship and immigration legislation going back more than 100
years. As such, the current Act is not a complete code for citizenship and
nationality in that certain provisions of the 1947 Act must still be read as
unrepealed.
The authority for this is the Interpretation Act 1985 (44[h]), which specifies
that provisions of a repealed Act must be read as unrepealed if those
provisions are required to give effect to the Current Act. Hence, persons born
before 1974 are recognized as citizens and nationals by reference to their
status under the former 1947 Act.
When analyzing the history of the nationality and citizenship legislation, you’ll
find the 1947 Act was simply a consolidation with amendments of the 1921
Nationals Act. The 1974 Citizenship Act relies on references to the 1947 Act
for its implementation, and the current 1985 Citizenship Act is a consolidated
version of the 1974 Act.
In so many words, it's a mess, which hasn’t gone unnoticed on both sides in
Parliament.
Several years ago the House Citizenship committee and the Senate committee
on Social Affairs, Science, and Technology did separate studies regarding our
citizenship laws. Both issued reports and recommendations that were
virtually identical. In all-party, unanimous recommendations, they said the
current Act, being effectively over 90 years old, has been renovated and
patched in so many places that it’s become virtually incomprehensible.
Excerpts from their reports:
Senate (April 2008):
“your committee wishes to focus the government’s attention on the longstanding and obvious need for a new citizenship Act. Canada’s current
Act, which came into force in 1977, has been amended many times over
the years. Today it is nothing short of a cumbersome patchwork of
technically drafted provisions, many of which refer to other provisions in
now-repealed legislation. Legal experts find the Citizenship Act difficult
to understand; for other Canadians it is impossible to navigate.
Your committee is of the opinion that members of the public should be
able to read Canada’s citizenship legislation, understand the system and
determine whether they are citizens. To this end the committee suggests
that the government prioritize replacing the Citizenship Act entirely
with new, clear and straightforward citizenship legislation in the near
future.”1
House (December, 2007):
“Citizenship is a fundamental aspect of belonging in our Canadian
society. It transcends our many differences to be the basic common
denominator that unites us as a nation. Canada should be the club in
which we are all members.
Citizenship legislation from 1947 and 1977 was a product of its time,
reflecting societal attitudes and beliefs of the era during which it was
enacted. As our society has evolved, so too has our understanding of the
principles of fairness upon which citizenship must be based.
Unfortunately, Canadian citizenship law has not kept pace.
It is not appropriate for us to be confined by anachronistic laws that
continue to affect citizenship determinations, even today. The
government now has an opportunity to address some of the features of
past citizenship legislation. The Committee urges the government to
fully implement all its recommendations, as soon as possible, to achieve
1
Report of the Committee, The Standing Committee on Social Affairs, Science, and
Technology, April 16, 2008. A report on Bill C-37, An Act to Amend the Citizenship Act:
http://www.parl.gc.ca/Content/SEN/Committee/392/soci/rep/rep11apr08-e.htm
2
the kind of responsible, fair, compassionate and inclusive outcome that
is suitable for Canada.
In the longer term, our recommendations should be helpful in drafting a
new citizenship act and in directing how Citizenship and Immigration
Canada (CIC) should address certain systemic issues.”2
Long-term solution:
A state-of-the-art, Charter compliant Act is the only real solution. The
committee should immediately begin to work on an entirely new, mint-fresh
and Charter compliant Citizenship act, to be introduced into law on July 1,
2017. What a gift to Canadians for their 150th anniversary of Canada
becoming a country.
Short term Solution:
Bill C-6. As it stands, different classes of Canadian citizenship will still
exist. Mr. Trudeau and Mr. McCallum’s words will be for naught. There needs
to be some amendments.
Bill C-6, Problems still remaining, and the respective
solutions:
The age 28 reaffirmation of citizenship rule.
Explanation:
This anomaly was first put into law with the 1977 Citizenship Act, and
remained in force until April 17, 2009, the day C-37 became effective. Under
C-37, 2nd-generation born abroad folks, in order to retain their Canadian
citizenship, were no longer required to reaffirm, so long as they were born
between April 18, 1981 and April 16, 2009. For the second-generation
Canadians born on or between February 15, 1977 and April 17, 1981, they
were excluded from C-37 and subsequently stripped of their Canadian
citizenship. Particularly affected were Mennonites, who were shocked to
discover many of their people were no longer citizens, despite having held
Reclaiming Citizenship for Canadians: A Report on the loss of Canadian Citizenship. Report of
the Standing Committee on Citizenship and Immigration – December, 2007, 39th Parliament,
2nd Session.
http://www.parl.gc.ca/Content/HOC/committee/392/cimm/reports/rp3159522/cimmrp02
/cimmrp02-e.pdf
2
3
Canadian citizenship and Certificates of Canadian citizenship for most of their
lives.3 4 Even now, some people remain unaware.
Note: All these people were Canadian citizens, and most currently live in
Canada. Our country, and the Prime Minister, should embrace not just the
words, but follow through with actions, “Every individual is equal before and
under the law and has the right to equal protection and benefit of the law
without discrimination.”5 Putting a time frame on inclusiveness, and hence
acceptance, or put another way, having a four-year window of denial, does not
conform to the spirit of “equality and protection” under the Charter. There’s
also a Supreme Court ruling upholding the granting of citizenship to the
second-generation born children, Montano vs. Sanchez, 1964. 6 (The Supreme
Court recognized the validity of religious marriages in Mexico based on
Canadian law, in spite of Mexico’s refusal to do likewise.)
Solution:
Completely do away with the age 28 rule.
Second-generation born abroad.
Explanation:
3
From a report of the House Standing Committee on Citizenship and Immigration, titled, The
Report on the loss of Canadian Citizenship, dated December, 2007: “A second group
particularly affected by the wedlock distinction are descendants of Mennonites. This category
includes persons whose Canadian ancestors moved to Mexico in the 1920’s and had church
marriages instead of civil marriages. For decades Canada accepted these marriages as valid and
issued citizenship documents to children of Canadian fathers. Much later, Canada stopped
recognizing those church marriages as valid because Mexico did not recognize them. As a result,
children of such unions were deemed to have been born out of wedlock, with the further result
that prior to 1977 Canadian citizenship was not passed down through generations from father
to child.”
4
Allen Ussher, born in the Philippines to a Canadian father, grew up in Canada since
infancy. On September 9, 2009 he went to get his valid Canadian passport renewed. Instead
of walking out with a new one, the government invalidated his current one. Allen discovered
he was stateless, a man without a country. There was no mention on his citizenship
certificate that he had to renew it on his 28th birthday. Nothing was mentioned in his
Canadian passport- it didn't expire until January 2010. All of this came as a total surprise.
Allen had absolutely no idea that for almost four years he had been rendered stateless.
5
Actual language used in the Canadian Charter of Rights and Freedoms, section (15)(1).
Judgements of the Supreme Court of Canada, Montano v. Sanchez, [1964] S.C.R. 317, March
23, 1964. http://scc.lexum.org/en/1964/1964scr0-317/1964scr0-317.html
6
4
Bill C-37 was the first time that 2nd-generation born abroad children no
longer had the right of citizenship. The intent of Parliament was to make the
law apply only to children born on or after C-37's effective date, which is April
17, 2009. The real outcome, however, was that the bureaucrats retroactively
took away the right of citizenship to all 2nd-generation folks- even those born
before C-37 became effective. It's akin to having a 50 kilometer per hour
speed limit on April 16, the government changes it to 30 kilometers per hour
on the 17th, and on the 18th you get a speeding ticket for having driven 50
kilometers per hour on the 16th. Retroactively taking a right away is wrong,
and indefensible in court.
A further side effect of the 2nd-generation rule, was that immediately after C37's effective date, stateless children began appearing- despite being born to a
Canadian citizen(s). By retroactively taking away rights of citizenship against
only 2nd-generation born abroad Canadians, it froze into law age and gender
discrimination- especially affected were children of Canadian women vs.
Canadian men. It thoroughly violates several court decisions, especially
Benner vs. Canada, SSC, 1997, whereby the court ruled that children of
Canadian women must enjoy the same rights as Canadian men.7 Put another
way, gender equality is both paramount and a Constitutional right.
Solution:
Allow every 2nd-generation born abroad, born before April 17, 2009, an
immediate right to Canadian citizenship.
First-generation born abroad vs. Naturalized Canadians:
After C-37, 1st-generation born abroad Canadians no longer had the right to
pass on citizenship to their children, while all naturalized Canadians were
deemed to have been born in Canada. The result: Naturalized Canadians
could pass citizenship onto their children (with the exception of children of
Lost Canadians who got their citizenship through the naturalization process -I'll refer them to LC2's). Even though the LC2's are also naturalized
Canadians, they were "undeemed" to have been born in Canada, which means
today, they’re the only naturalized Canadians to be so singled out and denied
this right. Hence, three separate classes of citizenship all fall within the 1stgeneration born abroad vs. the Naturalized Canadian citizen category. All
have different sets of rights.
The discrimination was partially fixed with C-24, but only for some 1stgeneration born abroad Canadians, such as those born to parents serving for
7
Supreme court decisions – Benner vs. Canada, 1997:
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1482/index.do
5
Canada in the military, or working at a Canadian Consulate or Embassy. All
other 1st-generation born abroad Canadians were left out, and thus they have
less rights than naturalized Canadians (with the exception of LC2's, who in
this regard have no rights).
To explain the anomaly, in order to get citizenship an immigrant Canadian
must first go before a citizenship judge to prove their "substantial connection"
to Canada. If approved, the judge's decision is then reviewed by Ottawa. After
they give the green light, the immigrant is then scheduled for a citizenship
ceremony. Concurrently with being naturalized, they are "deemed" to have
been born in Canada, thus their children, if born outside of Canada, will be 1stgeneration born abroad, despite their actually being 2nd-generation born
abroad.
To equalize the rights to every Canadian, all 1st-generation born abroad
Canadians must be afforded the same opportunity to prove a “substantial
connection” that immigrant Canadians enjoy. This would be accomplished by
allowing all 1st-generation born abroad Canadians to go before a citizenship
judge, using the exact same parameters that an immigrant Canadian must
undergo -- residency, Koo, Ng, or Papadogiorgakis -- to prove their "substantial
connection." Once again, if accepted by the judge and Ottawa, the 1stgeneration born abroad applicant would also be "deemed" to be born in
Canada, and thus their children, if born outside of Canada, will be 1stgeneration born abroad. After six years of inequality, Canadian-born citizens
will finally be elevated to have the same rights as naturalized Canadian
citizens. May I suggest the 1st-generation person has only until their 23rd
birthday to go before a judge. By doing this, the "citizenship of convenience"
issue stays intact, meaning for those people who really don't have a
substantial connection to Canada (the Lebanon situation), they won't be able
to pass citizenship onto their children. It also prevents situations like Rachel
Chandler (a stateless baby born to a Canadian father) from happening.8
For LC2's, they too should be deemed to be born in Canada. Singling out a
small group is tantamount to unreasonable prejudice and discrimination,
which is a violation of our Charter.
8
As reported by award winning investigative journalist Daphne Bramham:
http://www.canada.com/vancouversun/news/editorial/story.html?id=c3a5560d-5170-4d4a-a318a8675e759171
Lost Canadians on CBC’s The National. October, 22, 2009:
http://www.youtube.com/watch?v=smjrQPLeWkU
6
Note:
There will not be a massive increase in the workload of citizenship judges, as
all first-generation born-abroad children won't be in their child-bearing years
for at least ten years. That leaves a time frame of more than a decade for a
very small group of Canadians to prove their “substantial connection” to the
country. No one person or one group would have more rights, or less rights,
than another. It also preserves the Charter, section 15(1), where it states:
“Every individual is equal before and under the law and has the right to equal
protection and benefit of the law without discrimination.”
Solution:
1) All naturalized Canadians (including LC2's) shall be deemed to be born in
Canada.
2) All 1st-generation born abroad Canadians have the right to go before a
Citizenship judge anytime before their 23rd birthday to prove their
substantial connection to Canada. If accepted, they will be deemed to have
been born in Canada for purposes of passing on citizenship. (If this solution
had been implemented along with C-37, Canada would not have produced one
stateless baby).
Statelessness, including stateless babies:
C-37 created the conditions for Canadian parents to give birth to a stateless
baby. Currently there’s a dilemma unique to First Nations people whose
parents, being victims of the Residential schools, never registered their babies
born in Canada. There’s also a problem with First Nation's folks who were
legally brought to Canada as infants under the Jay treaty, later to discover the
laws had changed and thus were denied both citizenship and Indian status. In
addition, other folks are in Canada today who lack any sort of proof of
citizenship, like the Butterbox babies, the Canadian home children, the
Department of Defence (DND) babies (children born abroad to a Canadian
parent serving in the military), and even people from Quebec (the Province
didn't issue birth certificates, but rather baptismal certificates).
Solution:
1) If a stateless baby is born to a Canadian parent, Canada will immediately
grant that baby Canadian citizenship.
2) If a person was a Butterbox baby, a Home child, a DND baby, or born in
Quebec, they will be immediately given a modern-day 'Certificate of Canadian
Citizenship'.
7
3) For First Nation's folks, they must be recognized as being citizens. People
brought to Canada under the Jay Treaty must be able to apply for citizenship
from within Canada.
4) If a person has been living in Canada twenty or more years, has been law
abiding, paying taxes, and living as a productive Canadian, but because of a
quirk in the law is not a citizen, they must immediately be offered a section
5.4 citizenship grant.
Pre-1947 citizenship:
This sounds odd, but in law the Harper government argued that Canadian
citizenship didn't exist before 1947. Today, CIC continues to insist that we
were only British Subjects.
While it’s true British Subject status ended for Canadians in 1977, Canada in
1952 amended the Citizenship Act to adopt the redefinition of ‘British subject’
in the 1948 British Nationality Act. In Canada and throughout the former
Empire ‘British subject’ was redefined to be synonymous with
‘Commonwealth citizen’ retroactive without time limit.
The government now needs to state exactly when citizenship began in
Canada. (Note: Ramifications still exist as people are still discovering their
own citizenship could depend on their parent’s status, even though their
parent died before 1947. There’s also the symbolic factor. If citizenship
didn’t exist before 1947, then next year will be Canada’s 70th birthday- not the
150th. Further, it means that none of our war dead from WWI and II were
ever Canadian citizens).
So, just when did citizenship and nationality begin in Canada?
According to Canada’s first Governor-General, Viscount Monck, in his speech
on the opening of Canada’s first Parliament, Canadian nationality began in
1867. According to Prime Minister Laurier, in his speech before Parliament
on Canada’s entry into the Boer War, Canadian citizenship coexisted with
Canadian nationality. In the 1901 Order in Council for Canada’s Fourth
Census, Minister of Agriculture (and the Census) Sidney Fisher instructed
enumerators that Canadian nationality and citizenship had become
synonymous and the term “Canadian” should be used for people who satisfied
the conditions later used to define citizens in the 1910 Immigration Act when
he was still a leading member of Laurier’s Cabinet.
Several statutes prior to 1947 relied on the common-law definition of
Canadian citizen, including the 1906 Employment of Aliens Act and the 1923
Copyright Act among others. In 2013 the Supreme Court of Canada allowed to
stand the 2007 decision of the Manitoba Court of Queen’s Bench on the claim
8
by the Attorney-General of Canada that Metis and other inhabitants of
Manitoba became full Canadian citizens on accession of Manitoba to
Confederation in 1870.
Denial of Canadian citizenship prior to 1947 is especially discriminating
against the First Nations people as well as Canadians of Chinese
heritage. Douglas Jung, Canada's first MP of Chinese decent, on his 1924
Canadian registration of birth, it states: "This certificate does not establish legal
status in Canada." Hence, if citizenship didn't then exist, it means anyone of
Chinese decent who was born in Canada and died before 1947 was nothing
more than a 'stateless registered alien'. Such is the situation for Quan Louie
and Fred Ho- they died in WWII as Chinese Canadian soldiers. Both were
born in Canada. Thus, if a Chinese Canadian is buried in the Tomb of the
Unknown Soldier, they certainly have earned the right not just to a national
identity, but a 'Canadian' identity.9
Note:
The first Governor General of Canada, Viscount Monck, welcomed Canadians
on behalf of Queen Victoria as a new nationality. The first substantive Act of
Canada’s Parliament was a Naturalization Act that had force only within
Canada until the 1914 British Nationality Act was adopted by Canada as the
Naturalization Act 1914.
The first definition of ‘Canadian citizen’ with statutory force was the definition
used in the Order in Council for the 4th Census in 1901. The Employment of
Aliens Act 1906 relied on the term “citizen of Canada” for its effect, but did not
define the term. The Immigration Act 1910 adopted a refined version of the
Census definition, but restricted its use to exempting citizens from the
provisions of the Immigration Act.
This restricted use of the 1910 statutory definition was in effect until 1921
when the Minister of Justice introduced a Bill to define citizenship in general
law, the Canadian Nationals Act, thus removing the restriction of the statutory
definition for immigration purposes only.
Solution:
In introducing the Bill that became the Citizenship Act, Paul Martin Senior
explained the state of the law prior to 1947 and made clear the intent of the
Government in introducing the Bill. The solution to many of our present
Veterans Affairs Canada – Heroes Remembers – Chinese-Canadian Veterans:
http://www.veterans.gc.ca/eng/remembrance/those-who-served/chinese-canadianveterans
9
9
problems in defining Canadian citizenship can be found in Paul Martin’s
speeches quoted in Hansard beginning in 1945.
To give effect to the law as it stood prior to 1947, this statement should be
adopted into C-6:
‘A person who at any time before January 1, 1947 was a Canadian
citizen as defined by reference from the Canadian Nationals Act 1921 to
the Immigration Act 1927 and did not lose that status by renunciation
or by revocation under any law in force before January 1, 1947, is
deemed to have been a citizen for the purposes of this Act.’
There it is — clear and simple. In fact, it could have been written in 1946
because Paul Martin Senior in introducing the Bill that became the 1946 Act
stated that citizenship was defined in the Canadian Nationals Act.
Accepting that Canadian citizenship was defined in 1921 would include
our servicemen (and women) of both World wars, and everyone else who was
a Canadian during those years, including the Chinese and First Nations. The
reason is that the 1921 Act was a declaratory Act that merely set out the law
as it existed without changing the law.
And just because a Bill passes into law…
Passing a law and implementation of that law often yield unexpected
results. The "will" of Parliament often gets lost in the bureaucratic
process. Some people who were covered by C-37 are still being denied
citizenship seven years after the Bill’s implementation, despite being born in
Canada.
This is why a Citizenship Ombudsman should be assigned. Undo delay in
recognizing a right contravenes the Charter. Just because Parliament passes
legislation, doesn’t at all mean that Parliament’s intent will be followed. Part
of Parliament’s duty should be to make certain C-6 is quickly implemented
and administered by CIC as intended.
Further discussion of pre-1947 citizenship:
You don’t know where you’re going if you don’t know where you’ve been…
When analyzing the history of nationality and citizenship legislation, you’ll
find the 1947 Act was simply a consolidation with amendments of the 1921
Nationals Act.
10
This is what Paul Martin Sr. said when he introduced for first reading the Bill
that became the 1947 Act. He specifically stated that the 1921 Act defined
Canadian citizenship by reference to the 1910 Immigration Act. This is
consistent with what Minister of Justice Charles Doherty had claimed in
Parliament was the Government's intent when he was promoting the Bill that
became the 1921 Act.
The 1921 Canadian Nationals Act contained a definition of Canadian citizen by
reference. In committee, Charles Doherty, Minister of Justice, explained that
the reference to the 1910 definition had the same force of law as if the words
of the definition were written into the Canadian Nationals Act.
Effectively, the definition of Canadian citizen that had been hitherto confined
to the Immigration Act 1910, as consolidated in 1927, was the same in
substance as the definition in the Nationals Act 1921 and the Citizenship Act
1947. The authorities for this are Paul Martin and Charles Doherty's
statements in Hansard.
Accordingly, everyone defined as a Canadian citizen by the Canadian
Nationals Act was already a Canadian citizen on the eve of the coming into
force of the 1947 Act.
In effect, the 1947 Act was a nationality statute given the short title
'Citizenship Act'' that has caused confusion ever since. By contrast, the UK has
always used 'Nationality' in its Act that defines citizenship. British citizenship
is one of 6 forms of British nationality. Some British nationals are not British
citizens.
Similarly in Canada, some wives and children of Canadian citizens were
Canadian Nationals under the 1921 Act but were not defined as citizens under
that Act. They did not become Canadian citizens in 1947 unless later
domiciled while British subjects or naturalized.
However, section 50 of the 1947 Act consolidated in 1970, contains a savings
clause preserving the status of persons who were either or both Canadian
nationals and citizens prior to 1947. Section 50 clearly means that persons
who were citizens on December 31, 1946 as defined in the 1921 Canadian
Nationals Act, did not change their status on January 1, 1947:
Canadian Citizenship Act. R.9., c. 33, s. 1 [1970].
50. (1) Notwithstanding the repeal of the Naturalization Act, chapter
138 of the Revised Statutes of Canada, 1927, and the Canadian
Nationals Act, this Act is not to be construed or interpreted as depriving
any person who is a Canadian national, a British subject or an alien, as
11
defined in the said Acts or in any other law in force in Canada, of the
national status he possessed, on the 1st day of January 1947.
Everyone serving with the Canadian Forces during WWII who was defined as
a citizen under the 1921 Act was both a Canadian national and a Canadian
citizen from the date of birth or naturalization, or from the date of acquiring
domicile in Canada while a British subject. This is clear for some
Newfoundlanders under Section 40(4) 1947 Act (1970 consolidation):
40. (1) A person who...(c) had Newfoundland domicile on the 1st day of
April 1949... is a Canadian citizen.
(4) A person who is a Canadian citizen by virtue of paragraph (1)(c),
shall be deemed to have become a Canadian citizen on the day he
acquired Newfoundland domicile.
It would be absurd to claim that an immigrant from the UK who became
domiciled in Newfoundland in 1921 could claim citizenship from that date,
but a person born in Montreal or Toronto in 1921 cannot claim he or she was
a citizen while serving with Canadian forces on D-day 1944.
Honour of the Crown is at stake by the fact that CIC denies Canadian
citizenship was defined by statute between 1921 and 1947. CIC has continued
to make this claim even after the Supreme Court allowed to stand the claim by
the Attorney-General on behalf of Canada that Metis and other inhabitants of
Manitoba acquired full Canadian citizenship in 1870 on accession of Manitoba
to Canada.10
What is needed is recognition that Canadian nationality and citizenship are
inherent in the Constitution Act 1867. Statutes derogated the definitions from
the common law in 1910, 1921, 1947, and 1974. But the common law
definition set out in the Order in Council for the 4th Census (1901) was already
in use and continued in use until incorporated in statute. For the 1901
Census, Sidney Fisher ordered that the term ‘Canadian’ meant Canadian
national and Canadian citizen and that the status was held by persons defined
as such by later statutes.
Summary of recommendations for Bill C-6:
* Completely do away with the age 28 rule.
Manitoba Metis Federation v. Canada (Attorney General), SSC, 2013:
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12888/index.do
10
12
* Allow every 2nd-generation born abroad, born before April 17, 2009, an
immediate right to Canadian citizenship.
* All naturalized Canadian citizens shall be deemed to be born in Canada.
* All 1st-generation born abroad Canadians have the right to go before a
Citizenship judge anytime before their 23rd birthday to prove their
substantial connection to Canada. If accepted, they will be deemed to have
been born in Canada for purposes of passing on citizenship to their children.
* If a stateless baby is born to a Canadian parent, Canada will immediately
grant that baby Canadian citizenship.
* If a person was a Butterbox baby, a Home child, a DND baby, or born in
Quebec, they will be recognized immediately with a new 'Certificate of
Canadian Citizenship'.
* For First Nation's folks, they must be recognized as being citizens. People
brought to Canada under the Jay Treaty must be able to apply for citizenship
from within Canada.
* If a person has been living in Canada for over twenty years, has been law
abiding, paying taxes, and living as a productive Canadian, but because of a
quirk in the law is not a citizen, they must immediately be offered a section
5.4 citizenship grant.
* This statement should be included in C-6 to capture our pre-1947 people:
‘A person who at any time before January 1, 1947 was a Canadian
citizen as defined by reference from the Canadian Nationals Act 1921 to
the Immigration Act 1927 and did not lose that status by renunciation
or by revocation under any law in force before January 1, 1947, is
deemed to have been a citizen for the purposes of this Act.’
*************************************************
Law Professor Donald Galloway is a known leading expert on Canadian
citizenship. He teaches at the University of Victoria. Here are his comments
on C-6:
I think the issues can be stated this way:
a) We currently have three principal ways to obtain citizenship: by birth
in Canada, by descent and by naturalization.
b) In addition, in the past we unfairly stripped individuals of citizenship
13
without proper notice or opportunity to obtain it (for example, those
who did not affirm before 28, or those who didn’t act quickly enough
to respond to the government’s remedy after the Benner decision).
c) In addition, we have retroactively deemed some individuals who
gained citizenship by naturalization to have obtained it by descent.
d) How one obtains citizenship has implications for the status holder.
Most prominent is the fact that those who gained citizenship by
descent cannot pass it on to children born overseas, while this liability
is not faced by those who are born in Canada or who are naturalized.
e) We need to remedy the situation of: i) those born outside the country
whose parents gained citizenship by descent but who maintained a
substantial connection with Canada; ii) those who have been
retroactively deemed to have gained citizenship by descent; and iii)
those who were stripped of citizenship for omitting to fulfill a
formality that they were not personally informed about.
f)
In addition, we need to recognize that the citizenship department has
been insufficiently sympathetic to those long-term residents, including
members of first nations, who cannot prove that they meet the
requirements of citizenship because of the difficulties of obtaining
documentation that was not readily available at an earlier time.
g) We should advocate for a regime where the government should be
more proactive in informing i) permanent residents of the avenues to
obtain citizenship, ii) the children of citizens about any formalities
needed to obtain or retain citizenship.
h) Moreover, any requirement imposed on those who may obtain
citizenship by descent must not be too onerous and must be linked to
the individual retaining a connection with Canada, either
geographically, socially or economically.
In previous testimony before the House Citizenship committee, Professor
Galloway said this about the current citizenship act:11
I want to propose to you, first, that there is a very simple and very thin conception
11
From the House of Commons, Standing Committee on Citizenship and Immigration, 39th
Parliament, 1st Session, Evidence, no. 044, March 26, 2007:
http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=2796372&Language=%2
0E&Mode=1#T1210
14
of citizenship that underlies our Citizenship Act and the various acts that identify
the rights of Canadian citizens, such as the Canada Elections Act and the
Immigration and Refugee Protection Act.
The simple idea is this: a Canadian citizen is a person in whose name the
government of Canada acts and whose interests the government of Canada has
undertaken to promote. It is these two facets, these two principles, that underlie the
Citizenship Act and its predecessor, the Citizenship of Canada Act.
How do we distinguish between a citizen and a non-citizen? It is not that the
government has no obligations to non-citizens. Whether somebody is a permanent
resident, a temporary resident, a foreign national, or an enemy combatant in war,
the government has an obligation to respect the human rights of these individuals.
The obligation to Canadian citizens is greater than that. The government has
undertaken to look after the interests of Canadians and to promote them, not just
to respect them. Similarly, the government claims to act not in the name of
permanent residents or foreign nationals; it claims to act in the name of us
citizens.
When did the government of Canada start acting on behalf of Canadians? Was it
in 1947, or was it much earlier? The answer, I think, is obvious.
Is the government living up to its undertakings to look after the interests of
Canadians and to promote them? If we look at the Citizenship Act, I think the
answer is no. In the first part of my brief I try to argue that this is a continuing
failure. We’re not just dealing with historical anomalies concerning people who
have arrived in Canada and are being mistreated or people who were born here
and were mistreated. It’s something that continues.
***************************************************
Justin Trudeau’s Press Release on Lost Canadians:
[LE FRANÇAIS SUIT L'ANGLAIS]
For Immediate Release
March 18, 2011
Liberals pledge further action for “lost Canadians”
OTTAWA – A Liberal government will ensure that there is an effective path for ‘lost Canadians’
to obtain citizenship, Liberal Citizenship and Immigration Critic Justin Trudeau said today.
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“The rules regarding Canadian citizenship must remain consistent with the values of the
Charter of Rights and Freedoms,” Mr. Trudeau said. “To have people treated differently
depending on which parent had Canadian citizenship or whether or not their parents were
married is anachronistic at best, and at worst, a violation of the Charter.
“Any rules regarding Canadian citizenship that result in different treatment based on gender
must be changed.”
The Citizenship Acts of 1947 and 1977 contained intricate rules that determined how Canadian
citizenship could be obtained and how it could be lost. As a result of these complex rules, it
has been argued that hundreds of thousands of people worldwide believed with good reason
that they were Canadian citizens, but in actual fact were not.
Although in 2008, Bill C-37 restored citizenship to many of these people retroactively, it left
out some who consider themselves to be “lost Canadians” and still treats some individuals
differently depending on which parent had Canadian citizenship and whether or not their
parents were married.
“We welcome proposed changes to extend Canadian citizenship beyond the first generation
limit for the children of people who were born, or adopted, abroad while their parent was
working for the federal, provincial or territorial governments, but this still excludes some
individuals who consider themselves to be ‘lost Canadians’,” said Mr. Trudeau.
Although some lost Canadians can get a special grant of citizenship, it only recognizes their
status from the date of the grant forward, which can lead to further complications.
“Solutions must also provide 'lost Canadians' with a path to citizenship that is retroactive to
birth, or when that citizenship was lost, as the case may be,” said Mr. Trudeau. “We need
some common sense when it comes to this issue.”
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Contact:
Office of Justin Trudeau, MP, 613-995-8872
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Links to recent news stories on current and on-going inequalities in
citizenship law:
http://www.cbc.ca/news/canada/ottawa/ww-ii-veteran-not-allowed-to-renew-health-card1.3375487
http://www.theprovince.com/touch/story.html?id=11465738
http://www.ctvnews.ca/canada/red-tape-prevents-b-c-mom-from-bringing-toddler-tocanada-1.2603585
http://m.insideottawavalley.com/news-story/5958863-smiths-falls-boy-receivescitizenship-after-19-month-fight
http://www.thestar.com/news/immigration/2015/11/21/grieving-dad-in-immigration-tugof-war-in-wake-of-wifes-death.html
http://www.cbc.ca/news/canada/british-columbia/lost-canadians-fallen-soldiers1.3314735
http://globalnews.ca/news/2279886/calgary-womans-canadian-birth-certificate-notrecognized-as-proof-of-citizenship/
http://globalnews.ca/news/2408082/im-on-country-arrestlethbridge-woman-fights-forcanadian-citizenship/
http://www.cbc.ca/news/canada/99-year-old-denied-citizenship-and-healthcare-1.3242077
***************************************************
I’d like to appear before the committee as a witness regarding Bill C-6. I would
further ask the Professor Donald Galloway, Heather Harnois, and Kyle Lopez be
called as witnesses.
Thank you,
Don Chapman
The Lost Canadians: A Struggle for Citizenship Rights, Equality, and
Identity
http://www.amazon.com/The-Lost-Canadians-StruggleCitizenship/dp/0994055404
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