Canadian nationality law

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Canadian citizenship
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Immigration
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Canadian immigration and refugee law
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History of nationality law
Citizenship Act 1946
Citizenship Test
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Lost Canadians
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Canadian nationality law determines who is eligible to be a citizen of Canada. Canadian nationality is typically obtained by birth in Canada, or birth abroad when at least one parent is a Canadian citizen or by adoption by at least one Canadian citizen. It can also be granted to a permanent resident who has lived in Canada for a period of time.

History of British subject into Canadian citizenship[edit]

First official Canadian Citizenship ceremony; at the Supreme Court Building, Ottawa, 1947

After Canadian Confederation was achieved in 1867, the new Dominion's "nationality law" initially closely mirrored that of the United Kingdom and all Canadians were classified as British subjects. Section 91(25) of the British North America Act, 1867, passed by the British Parliament in London (now referred to as the Constitution Act, 1867), however, gave the Parliament of Canada authority over "Naturalization and Aliens". The Immigration Act, 1910, for example, created the status of "Canadian citizen".[1] This distinguished those "British subjects" who were born, naturalized, or domiciled in Canada from those who were not, but was only applied for the purpose of determining whether someone was free of immigration controls.[2] The Naturalization Act, 1914, increased the period of residence required to qualify for naturalization in Canada as a "British subject" from three years to five years. A separate additional status of "Canadian national" was created under the Canadian Nationals Act, 1921, in order that Canada could participate in international forces or military expeditions separately from Britain.

Canadian independence from Britain was obtained incrementally between 1867 (confederation and Dominion status within the Empire) and 1982 (patriation of the Canadian constitution). In 1931, the Statute of Westminster provided that the United Kingdom would have no legislative authority over Dominions without the request and consent of that Dominion's government to have a British law become part of the law of the Dominion. The law also left the British North America Acts within the purview of the British parliament, because the federal government and the provinces could not agree on an amending formula for the Canadian constitution. (Similarly, the neighbouring Dominion of Newfoundland did not become independent because it never ratified the Statute.) When, in 1982, the British and Canadian parliaments produced the mutual Canada Act 1982 (UK) and Constitution Act 1982 (Canada), which included a constitutional amendment process, the UK ceased to have any legislative authority whatsoever over Canada.

By the 1930s and the outbreak of World War II, Canada's naturalization laws consisted of a hodgepodge of confusing acts,[3] which still retained the term "British subject" as the designation for "Canadian nationals". This eventually conflicted with the nationalism that arose following the First and Second World Wars, and the accompanying desire to have the Dominion of Canada's sovereign status reflected in distinct national symbols (such as flags, anthem, seal, etc.).[4] This, plus the muddled nature of existing nationality law, prompted the enactment of the Canadian Citizenship Act, 1946, which took effect on 1 January 1947. On that date, "Canadian citizenship" was conferred on most Canadians previously classified as "British subjects". Subsequently, on 1 April 1949, Canadian nationality law was extended to Newfoundland, upon the former British colony joining the Canadian confederation as the Province of Newfoundland.

Canadian nationality law was substantially revised again on 15 February 1977, when the new Citizenship Act came into force. From that date, multiple citizenship became legal. However, those who had lost Canadian citizenship before that date did not automatically have it restored until 17 April 2009, when Bill C-37 became law.[5] The 2009 act also limited the issuance of citizenship to children born outside Canada to Canadian ancestors (jus sanguinis) to one generation abroad.[6]

Acquisition of Canadian citizenship[edit]

Birth in Canada[edit]

Current legislation[edit]

Under paragraph 3(1)(a) of the 1977 Citizenship Act, any person who was born in Canada after 14 February 1977 acquires Canadian citizenship at birth. The Interpretation Act states that the term "Canada" not only includes Canadian soil, but also "the internal waters" and "the territorial sea" of Canada, with the term "internal waters" being defined as including "the airspace above".[7] Hence, Immigration, Refugees and Citizenship Canada considers all children who were born over Canadian airspace as Canadian citizens.[8] In one 2008 case, a girl born to a Ugandan mother aboard a Northwest Airlines flight from Amsterdam to Boston was deemed a Canadian citizen because she was born over Canadian airspace.[9]

In addition, the interpretation section of the Citizenship Act states that any person who was born on an aircraft registered in Canada, or a vessel registered in Canada, is considered to be born in Canada.

There are only three exceptions to this rule, which are listed below.

Exceptions[edit]

Subsection 3(2) of the Citizenship Act states that Canadian citizenship by birth in Canada is not granted to a child born in Canada if neither parent is a Canadian citizen or permanent resident, and either parent was employed by the following at the time of the child's birth:[10]

  • a foreign government in Canada,
  • an employee of the foreign government in Canada, or,
  • a foreign organization which enjoys diplomatic immunity in Canada, including the United Nations.

In a high-profile 2015 case, Deepan Budlakoti, a stateless man born in Ottawa, Ontario, was declared not to be a Canadian citizen because his parents were employed as domestic staffs by the High Commissioner of India in Canada and their contracts legally ended two months after his birth, despite the fact that they started to work for a non-diplomat well before their contracts ended and before Budlakoti was born.[11]

Proposed abolishment[edit]

In 2012, Citizenship and Immigration Minister Jason Kenney proposed to modify the jus soli birthright citizenship recognized in Canadian law as a means of discouraging birth tourism. The move had drawn criticism from experts who said that the proposal was based on overhyped popular beliefs and nonexistent data.[12] As of 2016, however, Minister John McCallum said during an interview that there is no plan for the change to end birthright citizenship.[13]

Retroactive acquisition of Canadian citizenship for persons born in Canada before 1947[edit]

The 2015 amendment (Bill C-24) of the Citizenship Act has retroactively granted Canadian citizenship for the first time to people who were born in Canada before 1 January 1947 (or 1 April 1949 if born in Newfoundland and Labrador), ceased to be British subjects before that day, and never became a Canadian citizen after 1947 (or 1949). Under previous legislations, most of these people were never considered to be Canadian citizens because they have lost their British subject status before the creation of Canadian citizenship. Persons who had voluntarily renounced British subject status and had their British subject status revoked are ineligible.[14]

Canadian citizenship by descent[edit]

Current legislation[edit]

Under Bill C-37 which went into force on 17 April 2009, every person born outside of Canada in the first generation abroad (i.e. born to a parent who is not a Canadian citizen by descent) after 17 April 2009 is automatically a Canadian citizen by descent.[8]

The first generation rule applies to those whose citizenship was restored or who has retroactively acquired citizenship by Bill C-37 and Bill C-24, so a person who was born to a parent who has their citizenship restored under either Bill C-37 or C-24 is automatically a Canadian citizen by descent. His or her children, regardless of whether born before 17 April 2009, do not possess Canadian citizenship because the acquisition of citizenship under both bills is not retroactive to birth (i.e., the citizenship was acquired on 17 April 2009 or 11 June 2015 and not on the date of birth).[8]

The exceptions to the first-generation rule are:[8]

  • the parent, who is a Canadian citizen by descent, is employed by the federal or provincial government (including Canadian Forces) at the time of the child's birth, or,
  • the grandparent, who is a Canadian citizen by descent, is employed by the federal or provincial government (including Canadian Forces) at the time of the child's parent's birth.

Previous provisions[edit]

Between 15 February 1977 and 16 April 2009, a child of a Canadian citizen who was born abroad acquires Canadian citizenship automatically at birth, regardless of whether the parent was a Canadian citizen by descent.[15]

However, a Canadian citizen who was born outside Canada after the first generation between 15 February 1977 and 16 April 1981 is required to apply for a retention of Canadian citizenship before their 28th birthday.[15]

Between 1947 and 1977, a person born to a Canadian citizen parent would only acquire Canadian citizenship if his or her birth was registered at a Canadian embassy, consulate or high commission. Canadian citizenship between this period could only be passed down by Canadian fathers when born in wedlock, or Canadian mothers when born out of wedlock.[16] Although the 1947 Act had mandated that a child must be registered within two years from the date of the child's birth, the 1977 Act abolished the mandatory registration period so that eligible persons and their children born before 1977 can be registered at any age after 15 February 1977 up until 14 August 2004.[17] This provision, known as delayed registration, was retroactive to birth, so children born to these citizens would automatically acquire Canadian citizenship by descent if born between the period of 15 February 1977 to 16 April 2009 and would have to apply for retention if fall under the retention rules.[15] Those who failed to register before 14 August 2004 would see their citizenship granted on 17 April 2009 if they were the first generation born abroad. However, their children will not be able to acquire Canadian citizenship by descent, regardless of the time of birth.

2009 amendments to the Citizenship Act[edit]

An Act to amend the Citizenship Act (S.C. 2008, c. 14) (previously Bill C-37)[6] came into effect on 17 April 2009[18] and changed the rules for Canadian citizenship. Individuals born outside of Canada can now become Canadian citizens by descent if one of their parents is a citizen of Canada either by having been born in Canada or by naturalization. The new law limits citizenship by descent to one generation born outside Canada. One of the changes instituted by the Government of Canada is the "first generation limitation". Jason Kenney, Minister for Citizenship, Immigration and Multiculturalism, said the following in the House of Commons of Canada on 10 June 2010: "That's why we must protect the values of Canadian citizenship and must take steps against those who would cheapen it.... We will strengthen the new limitation on the ability to acquire citizenship for the second generation born abroad."[19] The new rules would not confer a Canadian citizenship on children born outside of Canada to parents who were themselves Canadian citizens by birth but not born in Canada. Thus the new rule makes a distinction between Canadian citizens born in Canada and immigrants granted citizenship on the one hand and citizens by birth who were born outside Canada on the other who have attenuated rights to pass on citizenship to their children.

In a scenario, the new rules would apply like this: A child is born in Brazil in 2005 (before the new rules came in effect) to a Canadian citizen father, who himself is a born abroad citizen by descent, and a Brazilian mother who is only a Permanent Resident of Canada. Child automatically becomes a Canadian citizen at birth. Another child born after 17 April 2009 in the same scenario would not be considered a Canadian citizen. The child is considered born past "first generation limitation" and the parents (the father) would have to sponsor the child to Canada to become a Permanent Resident. Once the Permanent Residency is granted, a Canadian parent can apply for Canadian citizenship on behalf of the child without fulfilling the residency requirement.[6]

After 2009, every person born outside Canada but within one generation of the native-born or naturalized citizen parent is automatically a Canadian citizen by descent (retroactive to date of birth or date citizenship was lost).[6] The second generation born abroad, however, is not a citizen of Canada at birth. Such an individual might even be stateless if without claim to any other citizenship. In one case, a toddler who was born out of wedlock to a Chinese mother and a Canadian father who acquired his citizenship by descent was left stateless for 14 months until she was registered for Irish citizenship because of her Irish-born grandfather.[20]) The second generation born abroad can gain Canadian citizenship only by immigrating to Canada; this can be done by the Canadian citizen's parents sponsoring as a dependent child, a category with fewer requirements, which would also take less time than most other immigration application categories.

Canadian citizenship through naturalization[edit]

A person who is a permanent resident may apply for Canadian citizenship by naturalization (grant) under section 5 of the Citizenship Act if the outlined conditions are met.

Adults[edit]

Under subsection 5(1), a person over 18 may apply for Canadian citizenship if he or she:[21]

  • is aged 18 years or over; and,
  • is a permanent resident; and,
  • has been physically in Canada for a total of 1,460 days (i.e., four years) during the six years preceding the application for citizenship and must have been physically present in Canada for 183 days in four of the calendar years, including a minimum of four years as a permanent resident; or,
  • has completed at least 1,095 days (i.e., three years) of service in the Canadian Armed Forces (including times served as a member of CAF, or a foreign military member attached or seconded to CAF);[22] and,
  • has knowledge of Canada (as demonstrated by taking the Canadian Citizenship Test, which is required as part of the application process, but only if the applicant is between 14 and 64 years of age); and,
  • files income tax; and,
  • declares intention to either reside in Canada, or continue the service with the CAF; and,
  • is not a subject to any criminal prohibitions; and,
  • is not a war criminal; and,
  • is able to speak English or French well enough to communicate with people (demonstrated by taking an appropriate test in English or French, either ministered by the Canadian or provincial government, or a third party).[23]

Prior to 2014's Bill C-24, the Strengthening Canadian Citizenship Act, the requirement for time spent in Canada was 1095 days over four years including two as a permanent resident. The language and knowledge requirement is unchanged except it applies to persons aged 14 to 64.[24]

Children aged under 18[edit]

The naturalization requirements for children under 18 are different from those for adults. Under subsection 5(2), a parent or a guardian can apply for Canadian citizenship on behalf of his or her minor child if:[21]

  • the child is a permanent resident; and,
  • a parent of the child should be a Canadian citizen or in the process of applying for Canadian citizenship.

A child aged over 14, however, is also required to:[25]

  • take the Canadian Citizenship Test; and,
  • provide test result for adequate knowledge of English or French.

The residence and the residence intention requirements do not normally apply to those aged under 18.[21]

Citizenship ceremonies[edit]

All applicants for naturalization aged 14 or over must attend a citizenship ceremony as the final stage of their application. After taken the Oath of Citizenship, they will be given a paper citizenship certificate as the legal proof of Canadian citizenship. [26] Prior to February 2012, applicants would receive a wallet-sized citizenship card and a paper commemorative certificate, but only the citizenship card served as the conclusive proof of Canadian citizenship.[27]

Waiver of certain conditions[edit]

Under subsection 5(3), the Minister may waive the following requirements in "compassionate cases":

  • the language requirement; and,
  • the requirement of taking the Canadian Citizenship Test.

The Minister may further waive the residence intention requirement and the oath requirement for persons with mental disabilities.

Canadian citizenship by adoption[edit]

In May 2006 the Federal government introduced draft legislation, Bill C-14: An Act to Amend the Citizenship Act (Adoption), which is designed to allow adopted children the right to apply for immediate citizenship. This bill received Royal Assent on 22 June 2007.[28]

After the passage of the bill, a person who is adopted by a Canadian citizen automatically becomes a Canadian citizen under section 5.1 of the Citizenship Act if

  • the adoption takes place on or after 1 January 1947 (1 January 1949 for Newfoundland residents); or,
  • the adoption took place before 1 January 1947 (or 1 January 1949 for Newfoundland residents) and the adoptive parent became a Canadian citizen on that day;, and,
  • the adoption follows the applicable laws of both countries; and,
  • the adoption is not for the sole purpose of obtaining Canadian citizenship.

In addition, for adoptees over 18 years old, evidence must be submitted to show that the adoptive parents and the adoptee have a "genuine relationship between parent and child" before the adoptee turned 18.

For Quebec adopters, the adoption must be approved by the Government of Quebec.

However, those adopted by one or both parents who derived their citizenship through jus sanguinis or under the adoption provisions (section 5.1) are not eligible and must apply for naturalization under section 5, unless the parent concerned, at the time of adoption, is serving in the Canadian forces or employed by the Canadian or provincial government, or was born to a parent who was serving in the Canadian forces or employed by the Canadian or provincial government at the time of birth.

Furthermore, those who acquired citizenship under section 5.1 cannot pass down citizenship to their future offspring born outside Canada through jus sanguinis.

Retention of Canadian citizenship[edit]

Current legislation[edit]

There is no longer a requirement to file for retention of Canadian citizenship before a person's 28th birthday after the repeal of section 8 of the Act on 17 April 2009.[6]

Historical provisions[edit]

Prior to Bill C-37 entered into force, all Canadians who acquired their Canadian citizenship by descent through a Canadian parent who also acquired Canadian citizenship by descent (known as the second and subsequent generations) would automatically lose their Canadian citizenship on their 28th birthday under section 8 of the 1977 Act, unless they:[15]

  • had resided in Canada for over one year immediately before the application prior to attaining 28 years of age; or,
  • had provided proof that they have "substantial connections" with Canada between the age 14 and 28 (including English and French language test results, proof of attendance at a Canadian school, or proof of employment of the Federal or provincial government).

Applications would be considered by a citizenship judge and, if rejected, could be filed again after the applicant had met the requirements. Successful applicants would be issued a citizenship card and a certificate of retention, and both serves as the legal proof of citizenship.[15]

This provision was formally repealed on 17 April 2009 when Bill C-37 came into effect, and those who attained 28 years of age on or after the date no longer has a requirement to maintain citizenship. Thus, only those who were born between the period of 15 February 1977 (the day that the 1977 Act went into effect) and 16 April 1981 were required to maintain citizenship and, if had not taken the steps to do so, would lose their Canadian citizenship between 15 February 2005 and 16 April 2009. However, a child born to such parent would still be a Canadian citizen and no longer had to apply for retention, if he or she was born after 16 April 1981 but before 17 April 2009 and the parent had not formally lost Canadian citizenship at the time of the child's birth. The parent, nevertheless, would face the loss of citizenship if he or she had not successfully filed for retention.

On 4 December 2016, the Vancouver Sun reported that some individuals who were subject to section 8 and have not filed an application to keep their citizenship before turning 28 have lost their Canadian citizenship. The number of affected individuals is unknown, however.[29] These people would become de jure stateless if also holding no other nationalities or citizenship, and would also have no legal immigration status in Canada. Accordingly, they must take steps to restore their Canadian citizenship under section 11 of the Act.[15]

Loss of Canadian citizenship[edit]

Current legislation[edit]

Under the current legislation, there is no provision for involuntary loss of Canadian citizenship except when naturalized Canadians can have their citizenship revoked if convicted of fraud in relation to their citizenship application, or their original admission to Canada as an immigrant.

Similar provisions also exist under the nationality laws of the UK, US, Israel, Australia, New Zealand and Spain.

However, Bill C-24 has added other conditions under which a Canadian with dual or multiple citizenship can lose his or her Canadian citizenship, including but not limited to:

  • committing an act of terrorism, or,
  • being convicted of an act of terrorism by a foreign court.

Persons with sole Canadian citizenship are not affected.

Only citizens who have citizenship with another nation can renounce their Canadian citizenship. This is because Canada has agreed to comply with the UN’s 1961 Convention on the Reduction of Statelessness.[30]

Previous legislations[edit]

Before 17 April 2009, some Canadians lost their citizenship prior to 15 February 1977 through:[14]

  • naturalization in another country,
  • long residence overseas (prior to 1967),
  • naturalization of a parent (only when the person is a minor and receives foreign citizenship along with the parent), and,
  • failing to retain Canadian citizenship.

Most of these people have had their Canadian citizenship automatically restored when Bill C-37 came into effect on 17 April 2009. The only exceptions to the automatic resumption are when the person acquired Canadian citizenship as second or subsequent generations born outside Canada and lost it as a minor, and when the person has lost his or her citizenship on his or her 28th birthday as second generation born abroad.[14]

Lost Canadians[edit]

In February 2007, the House of Commons Standing Committee on Citizenship and Immigration held hearings on so-called Lost Canadians,[31] who found out recently, on applying for passports, that for various reasons they may not be Canadian citizens as they thought. Don Chapman, a witness before the committee, estimated that 700,000 Canadians have either lost their citizenship or are at risk of having it stripped.[32] However, Citizenship and Immigration Minister Diane Finley said her office has had just 881 calls on the subject. On 19 February 2007, she signed documents granting citizenship to 33 such individuals. Some of the reasons citizenship may have been lost is if the individual was born out of wedlock before 1977, or to a father who took a second citizenship. Another reason is if the child was born outside Canada, and failed to confirm their citizenship before turning 24 or 28. Some of the people affected reside in towns near the southern border, and hence were born in American hospitals.[33] Others, particularly Mennonites, were born to Canadian parents in Mexico or Paraguay.[34] An investigation by the CBC, based on Canadian census data, concluded that the problem could affect an estimated 10,000 to 20,000 individuals currently residing in Canada.[35]

On 29 May 2007, Canadian Minister of Citizenship and Immigration Diane Finley announced her proposal to amend the Citizenship Act. Under the proposal, anyone naturalized in Canada since 1947 would have citizenship even if they lost it under the 1947 Act. Also, anyone born since 1947 outside the country to a Canadian mother or father, in or out of wedlock, would have citizenship if they are the first generation born abroad.[36] Appearing before the Standing Committee on Citizenship and Immigration, Finley asserted that as of 24 May 2007, there were only 285 cases of individuals in Canada whose citizenship status needs to be resolved.[37] Under the proposed legislation, anyone born before 1947 to a Canadian citizen abroad would be dealt with on a case-by-case basis; such individuals would have to apply for a ministerial permit.[38]

Bill C-37, which received Royal Assent on 17 April 2009, amended the Citizenship Act to give Canadian citizenship to those who lost or never had it, due to outdated provisions in existing and former legislation. The law came into effect on 17 April 2009.

Bill C-24, which came into force on June 11, 2015, further extended citizenship to additional "Lost Canadians" on that date, who were born before 1947 and did not become citizens on January 1, 1947 when the first Canadian Citizenship Act came into effect. The extension also applies to their first generation children born outside of Canada.

Resumption of Canadian citizenship[edit]

Former Canadian citizens who renounced their citizenship are generally required to obtain landed immigrant (permanent resident) status under normal rules and live in Canada for one year in order to resume Canadian citizenship.

The 2009 Act resumed Canadian citizenship to all those who have obtained Canadian citizenship on or after 1 January 1947 but have subsequently lost it under the 1947 Act and their first generation descendents born abroad. The 2015 Act further resumed citizenship for Canadians who have lost British subject status before 1947 and those who were born to such parents outside Canada if they are the first generation born abroad.[6]

On 22 September 1988, Prime Minister Brian Mulroney agreed to a redress package for Japanese-Canadians deported from Canada between 1941 and 1946 (about 4,000 in total) and their descendants. The package authorized a special grant of Canadian citizenship for any such person. All descendants of deported persons were also eligible for the grant of citizenship provided that they were living on 22 September 1988, regardless of whether the person actually deported from Canada was still alive.

The Royal Family[edit]

Though she resides predominantly in the United Kingdom and it is uncertain whether a monarch is subject to his or her own citizenship laws,[39] the Queen of Canada is considered Canadian.[39][40][41] She and those others in the Royal Family who do not meet the requirements of Canadian citizenship (there are five Canadian citizens within the Royal Family) are not classified by either the government or some constitutional experts as foreigners to Canada;[n 1][44][45] in the Canadian context, members of the Royal Family are subjects specifically of the monarch of Canada.[46][47] Members of the Royal Family have also, on occasion, declared themselves to be Canadian and called Canada "home".[n 2][39]

Judicial review of provisions of current and previous citizenship acts[edit]

There have been a number of court decisions dealing with the subject of Canadian citizenship. In particular, the interpretation of the 3-year (1,095-day) residence requirement enacted by the 1977 Citizenship Act, which does not define the term "residence" and, further, prohibits an appeal of a Federal Court decision in a citizenship matter to the Federal Court of Appeal or the Supreme Court, has "led to a great deal of mischief and agony"[53] and generated considerable judicial controversy.

Over the years two principal schools of thought with respect to residence have emerged from the Federal Court.

Early on, in 1978, Associate Chief Justice Arthur L. Thurlow in Papadogiorgakis (Re), [1978] 2 F.C. 208,[54] opined that residency entails more than a mere counting of days. He held that residency is a matter of the degree to which a person, in mind or fact, settles into or maintains or centralizes his or her ordinary mode of living, including social relations, interests and conveniences. The question becomes whether an applicant's linkages suggest that Canada is his or her home, regardless of any absences from the country.

In Re Koo,[55] Justice Barbara Reed further elaborated that in residency cases the question before the Court is whether Canada is the country in which an applicant has centralized his or her mode of existence. Resolving such a question involves consideration of several factors:

  1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
  2. Where are the applicant's immediate family and dependents (and extended family) resident?
  3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
  4. What is the extent of the physical absences – if an applicant is only a few days short of the 1095-day total it is easier to find deemed residence than if those absences are extensive?
  5. Is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?
  6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

The general principle is that the quality of residence in Canada must be more substantial than elsewhere.

In contrast, a line of jurisprudence flowing from the decision in Re Pourghasemi (1993), 62 F.T.R. 122, 19 Imm. L.R. (2d) 259, emphasized how important it is for a potential new citizen to be immersed in Canadian society and that a person cannot reside in a place where the person is not physically present. Thus, it is necessary for a potential citizen to establish that he or she has been physically present in Canada for the requisite period of time.

In the words of Justice Francis Muldoon:

It is clear that the purpose of paragraph 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become "Canadianized." This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples – in a word wherever one can meet and converse with Canadians – during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook... So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else.

The co-existence of such disparate, yet equally valid approaches has led some judges to comment that the citizenship "law is in a sorry state",[56] that "there cannot be two correct interpretations of a statute",[57] that "it does not engender confidence in the system for conferring citizenship if an applicant is, in the course of a single application, subjected to different legal tests because of the differing legal views of the Citizenship Court",[58] that there's a "scandalous incertitude in the law",[59] and that "there is no doubt that a review of the citizenship decisions of this Court, on that issue, demonstrates that the process of gaining citizenship in such circumstances is akin to a lottery".[60]

In 2010 it seemed that a relative judicial consensus with respect to decision-making in residence cases might emerge. In several Federal Court decisions it was held that the citizenship judge must apply a hybrid two-test approach by firstly ascertaining whether, on the balance of probabilities, the applicant has accumulated 1,095 days of physical presence. If so, the residency requirement is considered to have been met. If not, then the judge must additionally assess the application under the "centralized mode of existence" approach, guided by the non-exhaustive factors set out in Koo (Re).[61][62][63]

However, most recently, this compromise formula was rejected by Federal Court judges, who continued to plead for legislative intervention as the means to settle the residency requirement debacle.[64][65][66]

A few of the other major decisions are:

Significant cases relating to Canadian citizenship
Case Description
Glynos v. Canada, [1992] 3 FC 691 (FCA).[67] The Federal Court of Appeal ruled that the child of a Canadian mother had the right to be granted Canadian citizenship, despite the fact that the responsible parent of the child (i.e. the father) had naturalized as a U.S. citizen before 15 February 1977 and had thus lost his Canadian citizenship.
Benner v. Canada (Secretary of State) 1997 CanLII 376, [1997] 1 SCR 358 (27 February 1997), Canada) The Supreme Court of Canada ruled that children born abroad before 15 February 1977 of Canadian mothers were to be treated the same as those of Canadian fathers (i.e. granted citizenship upon application without the requirements of a security check or taking a citizenship oath).
Canada (Attorney General) v. McKenna 1998 CanLII 9098, [1999] 1 FC 401 (19 October 1998), Federal Court of Appeal (Canada) The Federal Court of Appeal ruled that the Minister had to establish a bona fide justification pursuant to section 15(g) of the Canadian Human Rights Act for the discriminatory practice in the Act on adoptive parentage, where children born abroad to Canadian citizens obtain "automatic" citizenship while children adopted outside Canada must gain admission to Canada as permanent residents, as mandated by paragraph 5(2)(a ) of the Citizenship Act, which incorporates by reference the requirements imposed by the Immigration Act pertaining to permanent resident status. However, this case also declared that the Canadian Human Rights Tribunal had overreached itself in declaring that the granting of citizenship was a service customarily available to the general public,[citation needed] and had breached the rules of natural justice by failing to notify the Minister that the provisions of the Citizenship Act were being questioned.[citation needed]
Taylor v. Canada (Minister of Citizenship and Immigration) 2007 CanLII 349, [2008] 3 FCR 324 (2 November 2007), Federal Court of Appeal (Canada) The Federal Court of Canada had ruled in September 2006 that an individual born abroad and out of wedlock to a Canadian serviceman father and a non-Canadian mother acquired citizenship upon arrival in Canada after World War II and did not subsequently lose Canadian citizenship while living abroad.[68] This was reversed by the Federal Court of Appeal in November 2007, which held that Taylor had lost his Canadian citizenship under section 20 of the 1947 Act (absence from Canada for ten consecutive years), and therefore the court could not grant his request. However, he was now able to request a grant of citizenship under section 5(4) of the current Act (special cases),and citizenship was subsequently granted in December 2007.[69]

Rights and responsibilities of citizens[edit]

According to Citizenship and Immigration Canada, citizens are:

  • Able to vote in political elections upon reaching the age of 18 (provided they are not absent from Canada for more than 5 years and intend to resume residency in Canada).
  • Able to run for political office upon reaching the age of 18.
  • Able to obtain a Canadian passport.
  • Able to prevent risk of getting deported from Canada (if the subject was born outside Canada, but is naturalized).
  • Able to be employed by the Federal and provincial government in some cases which citizenship is required.
  • Allowed to live outside Canada indefinitely while retaining the right to return.
  • Able to pass on Canadian citizenship to children born outside Canada (to the first generation only).

In addition, only individuals who are Canadian citizens may petition to receive a grant of armorial bearings.[70]

Citizens are responsible for:[71]

  • Obeying Canada's laws.
  • Voting in Elections.
  • Serving on jury when reaching the age of majority, and if selected.
  • Taking responsibility for themselves and their family.
  • Helping others in the community.
  • Caring for and protecting the Canadian heritage and environment.
  • Respecting the rights and freedoms of others.
  • Eliminating discrimination and injustice.

Documentary proof of Canadian citizenship[edit]

Under current rules, the Federal government has designated a number of documents as proof of citizenship:[72][73][74]

  • birth certificate issued by a provincial or territorial government;
  • certificate of citizenship (including citizenship cards);
  • certificate of naturalization (only issued before 1 January 1947);
  • certificate of retention (only issued between 1 January 1947 and 16 April 2009);
  • certificate of registration of birth abroad (only issued between 1 January 1947 and 14 August 2004).

Of these documents, only the certificate of citizenship is still being issued by the Federal government. The certificate is usually issued to an individual who has become a Canadian citizen through naturalization, but can also be issued to any Canadian upon request. If requested, a certificate is only issued after a complete investigation on whether the individual possess Canadian citizenship under current or historical legislation.[75] The certificate replaced the wallet-sized citizenship card on 1 February 2012 and can be verified electronically, but unlike the citizenship card, it can no longer be used as an identification document as it does not contain a photo.[76] The citizenship card was originally issued between 1954 and 1977 as a supplement of the larger certificate before the 1977 Act. Between 1977 and 2012, it was the only valid proof of Canadian citizenship for those who acquired citizenship through naturalization or by descent.[74]

As those who were born in Canada normally acquired Canadian at birth under both 1947 and 1977 Acts, birth certificates issued by the provincial or territorial government are usually considered by Immigration, Refugees and Citizenship Canada as adequate proof of citizenship.[72] There are, however, complications when the person failed to acquire Canadian citizenship because of the exceptions listed under subsection 3(2) of the Act. As the Federal government does not keep records of the immigration status of parents at birth, a person may be recognized as a Canadian based solely on his or her birth within Canada when, in fact, he or she does not possess Canadian citizenship in accordance with subsection 3(2).[72] Deepan Budlakoti, a stateless man born in Ontario, was twice issued a valid Canadian passport based on his Ontario birth certificate before the Federal Government realized that he is not a Canadian citizen under subsection 3(2) and revoked his Canadian passport.[11]

Documents other than those listed above, including Canadian passports, are not considered as proof of citizenship, but a passport is issued only after review of other documentary proof, as noted above. Church-issued baptismal certificates and birth certificates issued by an authority other than the provincial or territorial governments are also not proof of Canadian citizenship.[74]

A special birth certificate issued by the Department of National Defence to children of CAF members born abroad, known as DND 419, is not a proof of citizenship due to the lack of legal status of the certificate.[74] This has caused difficulties for some individuals as they were forced to apply for a certificate of citizenship to confirm their status and to apply for a passport.[77]

Visa requirements[edit]

Visa requirements for Canadian citizens are administrative entry restrictions by the authorities of other states placed on citizens of Canada. According to the 2016 Visa Restrictions Index, holders of a Canadian passport can visit 172 countries and territories visa-free or with visa on arrival, and the score of Canada is currently ranked[78] 6th in terms of travel freedom.[79]

Commonwealth citizenship[edit]

Because Canada is a member of the Commonwealth of Nations, Canadian citizens also have the status of "Commonwealth citizen", the functional meaning of which varies from one member state to another. Under British law, Canadians are entitled to certain rights in the United Kingdom, including:

The following right has also applied in other Commonwealth Realms, though it may not be current law in all of them:

  • While abroad in a country where Canada does not have a consular office, Canadians may receive assistance from an Australian consular office under the Canada–Australia Consular Services Sharing Agreement. In areas where neither country has a diplomatic mission, Canadians may receive assistance from a British office. In cases where a Canadian needs an emergency travel document and Canada does not maintain a consular office, Canadians may obtain, as Commonwealth citizens, a British emergency passport.

See also[edit]

Notes[edit]

  1. ^ The Department of National Defence, in its manual The Honours, Flags and Heritage Structure of the Canadian Forces, separates the monarch of Canada and Canadian Royal Family from "foreign sovereigns and members of reigning foreign families, [and] heads of state of foreign countries..."[42] Further, in 2013, the constitution of the Order of Canada was changed so as to add, along with the preexisting "substantive" (for Canadian citizens only) and "honorary" (for foreigners only), a new category of "extraordinary" to the order's three grades, available only to members of the Royal Family and governors general.[43]
  2. ^ Princess Elizabeth, Duchess of Edinburgh, said in 1951 that when in Canada she was "amongst fellow countrymen".[48][49] When queen, she, in 1983, before departing the United States for Canada, said "I'm going home to Canada tomorrow" and,[50] in 2005, said she agreed with the statement earlier made by her mother, Queen Elizabeth, that Canada felt like a "home away from home."[51] Prince Philip, Duke of Edinburgh, refused honorary appointment to the Order of Canada on the grounds that, as the royal consort of the Queen, he was Canadian, and thus entitled to a substantive appointment.[39][52]

References[edit]

  1. ^ S.C. 1910, c. 27
  2. ^ Flournoy, Richard W; Hudson, Manley Ottmer (1983) [1930]. A Collection of nationality laws of various countries, as contained in ... F.B. Rothman. p. 73. ISBN 0837705444. Retrieved 12 October 2010. 
  3. ^ "Forging Our Legacy: Canadian Citizenship And Immigration, 1900–1977". Immigration, Refugees and Citizenship Canada. Retrieved 17 July 2012. 
  4. ^ "Forging Our Legacy: Canadian Citizenship And Immigration, 1900–1977 – The growth of Canadian nationalism". Immigration, Refugees and Citizenship Canada. Retrieved 17 July 2012. 
  5. ^ "Legislation to restore citizenship to lost Canadians passes". Immigration, Refugees and Citizenship Canada. 16 April 2008. 
  6. ^ a b c d e f "Changes to citizenship rules". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  7. ^ "Interpretation Act (R.S.C., 1985, c. I-21)". Justice.gc.ca. Department of Justice. 
  8. ^ a b c d "Acquisition of citizenship". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  9. ^ "Baby girl born on US-bound flight". BBC. 1 January 2009. Retrieved 23 April 2017. 
  10. ^ "Subsection 3(2) of the Citizenship Act, R.S.C., 1985, c. C-29". 
  11. ^ a b Brean, Joseph (15 June 2014). "'I can't be stateless': Born-in-Canada criminal fighting deportation after Ottawa decides citizenship not valid". National Post. Postmedia Network. Retrieved 23 April 2017. 
  12. ^ Brean, Joseph (5 March 2012). "Tory crackdown on 'birth tourists' will eliminate Canadian passport babies". National Post. Postmedia Network. Retrieved 23 April 2017. 
  13. ^ Harris, Kathleen (22 October 2016). "Petition to Parliament calls for end to automatic citizenship to end 'birth tourism'". CBC News. Retrieved 23 April 2017. 
  14. ^ a b c "Loss of Canadian citizenship and British subject status, and acquisition and restoration of Canadian citizenship". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  15. ^ a b c d e f "Retention of citizenship prior attaining 28 years old". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  16. ^ "Canadian Citizenship Act, 1947, 10 Geo. VI.". Canadian Museum of Immigration at Pier 21. 
  17. ^ "Proof and certificates of citizenship: Delayed registration of birth outside Canada". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  18. ^ See the Executive summary of the REGULATIONS AMENDING THE CITIZENSHIP REGULATIONS, 1993 (SOR/2009-108). The Act to amend the Citizenship Act itself states (sec. 14): "The provisions of this Act, other than section 13, come into force on a day or days to be fixed by order of the Governor in Council, but no later than 365 days after the day on which this Act receives royal assent." Royal assent was given on 17 April 2008. No Order in Council appears to have been made.
  19. ^ "Speaking notes for The Honourable Jason Kenney, P.C., M.P. Minister of Citizenship, Immigration and Multiculturalism to announce legislation regarding citizenship". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  20. ^ "High-flying professionals producing a generation of stateless children". National Post. Postmedia Network. Reuters. 26 November 2010. Retrieved 23 April 2017. 
  21. ^ a b c "Determine your eligibility – Citizenship". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  22. ^ "Determine your eligibility for citizenship – Canadian Armed Forces". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  23. ^ "Application for Canadian citizenship under subsection 5(1) – Adults 18 years of age and older (CIT 0002)". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  24. ^ "Archived - Strengthening Canadian Citizenship Act: A comparative view". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  25. ^ "Guide CIT 0003 - Application for Canadian Citizenship - Minors (under 18 years of age)". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  26. ^ "Prepare for the citizenship ceremony". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  27. ^ "Documents accepted as proof of citizenship". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  28. ^ "Bill C-14: An Act to amend the Citizenship Act (adoption) (LS-528E)". Parl.gc.ca. Retrieved 27 July 2010. 
  29. ^ Karstens-Smith, Jemma (4 December 2016). "University class takes on case of B.C. woman stripped of citizenship". Vancouver Sun. Postmedia Network. The Canadian Press. Retrieved 23 April 2017. 
  30. ^ "What dual citizens need to know about Bill C-24, the new citizenship law". CTV News. June 17, 2015. Retrieved 22 April 2017. 
  31. ^ "CIMM – Loss of Canadian Citizenship for the years 1947, 1977 and 2007 – Committees of the House of Commons". Cmte.parl.gc.ca. Retrieved 25 January 2011. 
  32. ^ Maughan, Chris (26 February 2007). "Children of soldiers among 'Lost Canadians'". Toronto Star. The Canadian Press. Retrieved 23 April 2017. 
  33. ^ "Manitoba 'border babies' officially become Canadians". CBC News. 20 February 2007. Archived from the original on 23 February 2007. 
  34. ^ "The hunt for lost Canadians". Macleans.ca – Features. 20 February 2007. Retrieved 25 January 2011. 
  35. ^ "450 'lost Canadians' caught in passport glitch: Finley". CBC News. 19 February 2007. Archived from the original on 3 April 2007. 
  36. ^ "Statement from the Minister of Citizenship and Immigration on Proposed Changes to the Citizenship Act" (Press release). CIC Canada. 29 May 2007. Retrieved 30 May 2007. 
  37. ^ Finley, Diane (29 May 2007). "Notes for an Address by The Honourable Diane Finley, P.C., M.P. Standing Committee on Citizenship and Immigration "Main Estimates and Loss of Citizenship"". Ottawa, Ontario. Retrieved 5 June 2009. 
  38. ^ CTV.ca News Staff (29 May 2007). "Citizenship limbo to end for war bride children". Archived from the original on 18 November 2007. Retrieved 30 May 2007. 
  39. ^ a b c d McCreery, Christopher (2005), The Order of Canada: Its Origins, History and Development, University of Toronto Press, p. 227, ISBN 978-0-8020-3940-8 
  40. ^ Holloway, Ian (2007). "Constitutional Silliness and the Canadian Forces" (PDF). Canadian Monarchist News. Toronto: Monarchist League of Canada. Summer 2007 (26): 9. Archived from the original (PDF) on 25 June 2008. Retrieved 14 June 2009. 
  41. ^ Buckner, Phillip (2005). "The Last Great Royal Tour: Queen Elizabeth's 1959 Tour to Canada". In Buckner, Phillip. Canada and the End of Empire. Vancouver: UBC Press. p. 66. ISBN 0-7748-0915-9. Retrieved 24 October 2009. 
  42. ^ Department of National Defence (1 April 1999). "The Honours, Flags and Heritage Structure of the Canadian Forces" (PDF). Ottawa: Queen's Printer for Canada: 14–3–6, 13–2–1, 13A–1. A-AD-200-000/AG-000. Archived from the original (PDF) on 25 March 2009. Retrieved 23 May 2009. 
  43. ^ Elizabeth II (2013), The Constitution of the Order of Canada, Queen's Printer for Canada, retrieved 2 May 2013 
  44. ^ Aralt Mac Giolla Chainnigh v. the Attorney-General of Canada, T-1809-06, 14.4 (Federal Court of Canada 21 January 2008).
  45. ^ McCreery, Christopher (22 July 2005), "Christopher McCreery", The Globe and Mail, Toronto, retrieved 10 May 2012 
  46. ^ Department of National Defence 1999, p. 4-1-7
  47. ^ Noonan, Peter C. (1998). The Crown and Constitutional Law in Canada. Calgary: Sripnoon Publications. ISBN 978-0-9683534-0-0. 
  48. ^ MacLeod, Kevin S. (2008). A Crown of Maples (PDF) (1 ed.). Ottawa: Queen's Printer for Canada. ISBN 978-0-662-46012-1. Retrieved 21 June 2009. 
  49. ^ Bousfield, Arthur; Toffoli, Gary (2002). Fifty Years the Queen. Toronto: Dundurn Press. ISBN 1-55002-360-8. 
  50. ^ "Monarchy > Elizabeth II, Queen of Canada". Canadian Royal Heritage Trust. Archived from the original on 18 April 2008. Retrieved 10 May 2012. 
  51. ^ MacLeod 2008, p. 11
  52. ^ Valpy, Michael (28 September 2002). "The Fresh Prince". The Globe and Mail. Toronto. Archived from the original on 2 December 2005. 
  53. ^ "Imran v. Canada". Federal Court of Canada. 14 June 2012. Retrieved 10 August 2010. 
  54. ^ "In re Citizenship Act and in re Antonios E. Papadogiorgakis". Federal Court of Canada. 30 June 1978. Retrieved 14 December 2012. 
  55. ^ Koo (Re) 1992 CanLII 2417, [1993] 1 FC 286 (3 December 1992), Federal Court (Canada)
  56. ^ "Mann v. Canada". Federal Court of Canada. 16 December 2003. Retrieved 11 November 2010. 
  57. ^ "Chen v. Canada". Federal Court of Canada. 29 December 2001. Retrieved 11 November 2010. 
  58. ^ "Collier v. Canada". Federal Court of Canada. 30 November 2006. Retrieved 11 November 2010. 
  59. ^ "Harry (Re) (1998), 1998 CanLII 7442 (FC), 144 F.T.R. 141, 77 A.C.W.S. (3d) 933". Federal Court of Canada. 13 February 1998. Retrieved 19 March 2012. 
  60. ^ "CP – 5 Residence" (PDF). Citizenship and Immigration Canada. 11 June 2010. Retrieved 11 November 2010. 
  61. ^ "Canada v. Salim". Federal Court of Canada. 29 September 2010. Retrieved 11 November 2010. 
  62. ^ "Canada v. Elzubair". Federal Court of Canada. 16 March 2010. Retrieved 11 November 2010. 
  63. ^ "Dedaj v. Canada". Federal Court of Canada. 26 July 2010. Retrieved 11 November 2010. 
  64. ^ "Sarvarian v. Canada". Federal Court of Canada. 17 November 2010. Retrieved 9 February 2011. 
  65. ^ "Ghaedi v. Canada". Federal Court of Canada. 25 January 2011. Retrieved 9 February 2011. 
  66. ^ "Hao v. Canada". Federal Court of Canada. 28 January 2011. Retrieved 9 February 2011. 
  67. ^ Glynos Decision (p. 56-59)
  68. ^ Taylor v. Canada (Minister of Citizenship and Immigration) 2006 FC (1 September 2006), Supreme Court (Canada)
  69. ^ "Who is Joe Taylor?". Maven New Media. 
  70. ^ Governor General of Canada (2014-08-19). "Applying for Armorial Bearings". Heraldry. Retrieved 2016-04-24. All Canadian citizens […] may petition to receive a grant of armorial bearings. 
  71. ^ "Rights and Responsibilities of Citizenship". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  72. ^ a b c "Documents accepted as proof of citizenship". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  73. ^ "How to show proof of Canadian citizenship for adult passport applications". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  74. ^ a b c d "Types of citizenship certificates". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  75. ^ "Application for a Citizenship Certificate for Adults and Minors (Proof of Citizenship) under Section 3 (CIT 0001)". Immigration, Refugees and Citizenship Canada. 
  76. ^ "Notice – New Citizenship Certificate". Canada.ca. Immigration, Refugees and Citizenship Canada. 
  77. ^ Tighe, Tony (15 October 2015). "Calgary woman's Canadian birth certificate not recognized as proof of citizenship". Global News. Retrieved 25 April 2017. 
  78. ^ Using dense ranking.
  79. ^ "Global Ranking - Visa Restriction Index 2016" (PDF). Henley & Partners. Retrieved 27 February 2016. 
  80. ^ http://www.army.mod.uk/join/How-to-join.aspx
  81. ^ http://www.royalnavy.mod.uk/careers/how-to-join/eligibility#nationality-and-residency
  82. ^ https://www.raf.mod.uk/recruitment/how-to-apply/eligibility-check/
  83. ^ http://www.policecouldyou.co.uk/police-officer/am-i-eligible/index.html
  84. ^ [1][dead link]

Further reading[edit]

External links[edit]