Canadian nationality law

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Canadian citizenship
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Immigration
Immigration to Canada
History of immigration to Canada
Economic impact of immigration
Canadian immigration and refugee law
Immigration Act, 1976
Immigration and Refugee Protection Act
Permanent residency
Temporary residency
Permanent Resident Card
Canadian nationality law
History of nationality law
Citizenship Act 1946
Citizenship Test
Oath of Citizenship
Agencies
Immigration, Refugees and Citizenship Canada
Citizenship classes
Honorary citizenship
Commonwealth citizen
Issues
Lost Canadians
"Canadians of convenience"
Demographics of Canada
Canadians
Population by year
Ethnic origins

Canadian nationality law is promulgated by the Citizenship Act (R.S.C., 1985, c. C-29) since 1977. The Act determines who is, or is eligible to be, a citizen of Canada. The Act replaced the previous Canadian Citizenship Act (S.C. 1946, c. 15) in 1977 and has gone through four significant amendments in 2007, 2009, 2015 and 2017.

Canadian citizenship is typically obtained by birth in Canada on the principle of jus soli, or birth abroad when at least one parent is a Canadian citizen or by adoption by at least one Canadian citizen under the rules of jus sanguinis. It can also be granted to a permanent resident who has lived in Canada for a period of time through naturalization. Immigration, Refugees and Citizenship Canada (IRCC, formerly known as Citizenship and Immigration Canada, or CIC) is the department of the Federal government responsible for citizenship-related matters, including confirmation, grant, renunciation and revocation of citizenship.

On 19 June 2017, the Act has been amended for a fourth time by the 42nd Canadian Parliament. A set of changes has already taken effect on that date, while the remaining provisions will come into force in fall 2017 and early 2018.[1]

Contents

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".[2] 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.[3] 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,[4] 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.).[5] 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 British subjects with ties to Canada. Subsequently, on 1 April 1949, the Act was extended to Newfoundland, upon the former British Dominion joining the Canadian confederation as the province of Newfoundland.

The 1947 Act 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.[6] The 2009 act also limited the issuance of citizenship to children born outside Canada to Canadian ancestors (jus sanguinis) to one generation abroad.[7] Bill C-24 in 2015 further granted Canadian citizenship to British subjects with ties to Canada but did not qualify for Canadian citizenship in 1947 (either because they had lost British subject status before 1947, or did not qualify for Canadian citizenship in 1947 and have not yet apply for naturalization).[7]

Acquisition of Canadian citizenship[edit]

Birth in Canada[edit]

Current legislation[edit]

Under paragraph 3(1)(a) of the 1977 Act, any person who was born in Canada on or after 15 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".[8] Hence, Immigration, Refugees and Citizenship Canada considers all children who were born over Canadian airspace as Canadian citizens.[9] 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.[10]

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 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:[11]

  • 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.[12]

Previous legislation[edit]

Under the 1947 Act, all persons who were born on Canadian soil or a ship registered in Canada on or after 1 January 1947 acquired Canadian citizenship at birth, while those who were born before 1 January 1947 on Canadian soil or Canadian ships acquired Canadian citizenship on 1 January 1947 if they had not yet lost their British subject status on that day. This Act was amended to include Newfoundland in 1949. Unlike the 1977 Act, the 1947 Act provided no exception to this rule, ergo children of persons who enjoyed diplomatic immunity would also acquire Canadian citizenship if born on or before 14 February 1977.[13]

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.[14] As of 2016, however, Minister John McCallum said during an interview that there is no plan to end birthright citizenship.[15]

Automatic grant of Canadian citizenship for persons born in Canada before 1947[edit]

The 2015 amendment (Bill C-24) of the 1977 Act, which went into effect on 11 June 2015, 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 Canadian citizens after 1947 (or 1949). Under the 1947 Act, 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 or had their British subject status revoked are not included in the grant.[16]

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) on or after 17 April 2009 is automatically a Canadian citizen by descent.[9]

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 his or her citizenship restored or granted under either Bill C-37 or C-24 is automatically a Canadian citizen by descent. The person's 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).[9]

The exceptions to the first-generation rule are:[9]

  • 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.
2009 amendments to the Citizenship Act

An Act to amend the Citizenship Act (S.C. 2008, c. 14) (previously Bill C-37)[7] came into effect on 17 April 2009[17] 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."[18] 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 under subsection 5(2) without the residency requirement.[7]

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).[7] 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.[19]

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.[20]

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.[20]

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.[13] 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 could be registered at any age after 15 February 1977 up until 14 August 2004.[21] 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 (i.e., born between 1977 and 1981).[20]

Although married women were unable to pass down citizenship to their offspring under the 1947 Act, a provision in the 1977 Act (paragraph 5(2)(b)), before it was repealed on 17 April 2009, also allowed children born to Canadian mothers in wedlock to apply for Canadian citizenship through a special grant before 14 August 2004.[22] Unlike the delayed registration, the grant of citizenship under this provision was not retroactive to birth, and hence children born to such parents would not have a claim to Canadian citizenship by descent if they were born before their parents' citizenship was granted because the parents were not yet Canadian citizens. The special grant was also available for children who were born to Canadian fathers out of wedlock between the period of 17 May and 14 August 2004. Those who were born after the parent's citizenship was granted would also had to apply for retention if fall under the retention rules.[20]

Those who failed to register or apply for a grant before 14 August 2004 would see their citizenship granted on 17 April 2009 if they were the first generation born abroad. Unlike those registered for or granted citizenship before the 2004 deadline, however, their children will not be able to acquire Canadian citizenship by descent, regardless of the time of birth.

Canadian citizenship through naturalization[edit]

A person may apply for Canadian citizenship by naturalization under section 5 of the Citizenship Act if the outlined conditions are met.

General provision[edit]

Under subsection 5(1), a person of any age may apply for Canadian citizenship if he or she:[23]

  • 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 (CAF), including times served as a member of CAF, or a foreign military member attached or seconded to CAF;[24] and,
  • files income tax, if required under the Income Tax Act, for at least four out of six years; and,
  • is not serving a conditional sentence (or being paroled) at the time of application (period of the entire sentence also does not count toward the physically presentation period);[1] and,
  • is not a subject to any criminal prohibitions; and,
  • is not a war criminal.[25]

In addition, an applicant between the age of 18 and 64 must:[23]

  • pass the Canadian Citizenship Test; and,
  • demonstrate sufficient knowledge in English or French, either by passing a language test (ministered by the Federal or provincial government, or a third party), or providing transcripts that indicate the completion of secondary or post-secondary education in English or French.

The above two requirements no longer apply to persons under 18 if applying for naturalization under subsection 5(1) since 19 June 2017, but other requirements must be met even when the applicant is under 18. Additionally, minors with a Canadian citizen parent or guardian cannot apply under this subsection and must follow subsection 5(2) which has fewer requirements and lesser fees.[26]

Prior to 2015's Bill C-24, the Strengthening Canadian Citizenship Act, the requirement for time spent in Canada was 1095 days over four years including at least two as a permanent resident (time spent in Canada as a temporary resident could count as one year of residence at most). The language and knowledge requirement applied only to persons aged 18 to 54.[27]

The age requirement and the requirement to declare the applicant's intention to reside in Canada or continue the service with the CAF has been repealed when Bill C-6 became law on 19 June 2017. Prior to this date, only those over 18 can apply for naturalization under subsection 5(1).[1]

All applicants are required to maintain the requirements for citizenship from the day they submit the applications to the day they take the oath.[1]

Special provision for children with a Canadian parent or guardian[edit]

Since 19 June 2017, a minor under 18 can apply for citizenship individually under subsection 5(1) if they meet all requirements. In other circumstances, however, the minor child's parent or guardian can apply for Canadian citizenship on their behalf under subsection 5(2). Citizenship will be granted under subsection 5(2) if:[23]

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

The parent who submits the application on the child's behalf does not have to be the one with Canadian citizenship. For example, a permanent resident child's non-citizen father can apply for citizenship if the mother of the child is a Canadian citizen.[23]

Unlike minors applying under subsection 5(1), those applying under subsection 5(2) must comply with the following requirements if aged between 14 and 17:[28]

  • pass the Canadian Citizenship Test; and,
  • provide proof of adequate knowledge of English or French.

The residence requirement does not apply to those applying under subsection 5(2).[1]

Stateless children of Canadian citizens by descent[edit]

When Bill C-37 became law in 2009, a new provision, subsection 5(5), was also added to provide a path to citizenship for stateless children born to Canadian parents who acquired citizenship by descent. To qualify, the applicants must:[29]

  • be born outside Canada on or after 1 April 2009;
  • have at least one parent who is a Canadian citizen by descent;
  • meet the residency requirement (1,095 days in four years);
  • have been stateless since birth (i.e., cannot have a claim to citizenship of another country, and cannot renounce or lose citizenship of another country); and,
  • be less than 23 years of age at the time of application.

Unlike subsections 5(1) and 5(2), subsection 5(5) does not require the applicant to hold permanent resident status to apply (as long as the residence requirement has been met). Additionally, they do not need to attend a ceremony or take the Oath of Citizenship. Other requirements, such as the income tax filing, also do not apply to them.

After 19 June 2017, it is possible for such children to apply for a discretionary grant under subsection 5(4) on the sole ground of being stateless and hence bypassing all requirements, although subsection 5(5) is left intact as a part of the Act.[1]

Citizenship ceremonies[edit]

All applicants for naturalization aged 14 or over (except for those naturalizing under subsection 5(5) or those with the requirement waived by the minister) 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.[30] 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.[31]

Waiver of requirements[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 disabilities.

Moreover, under subsection 5(4), the Minister may grant citizenship to individuals "to alleviate cases of special and unusual hardship" and "to reward services of an exceptional value to Canada", or individuals who are stateless.[1] Such persons do not need to fulfill any of the requirements.

Future changes[edit]

After the passage of Bill C-6, the Federal government has indicated that a set of amendments included in the bill, all regarding naturalization, will be in force in fall 2017. These amendments include:[1][32]

  • reduction of the physical residence period (three out of five years), and the matched income tax filing period;
  • repealment of the 183-day residency requirement out of every year;
  • reinstatement of the policy that counts the time spent as a temporary resident or a protected person toward the residency period for citizenship (each day as a temporary resident counts as a half-day as a permanent resident, and a maximum of 365 days of residency period may be included under this rule);
  • reversal of the age range of the language and knowledge requirements (from 14 to 64 years to 18 to 54 years).

Applicants who submit their citizenship applications between 19 June 2017 to the day these changes would take effect will still be subject to the original set of rules, such as the four-year-out-of-six physical residence period. However, other changes that took effect on 19 June 2017 would apply to them, such as the removal of age limitations and the repealment of the intention to reside requirement.

Canadian citizenship by adoption[edit]

Prior to 2007, there was no provision in the Act for adopted persons to become Canadian citizens without going through the process of immigration and naturalization. In May 2006 the Federal government introduced draft legislation, Bill C-14: An Act to Amend the Citizenship Act (Adoption), which was designed to allow adopted children the right to apply for citizenship immediately after the adoption without having to become a permanent resident. This bill received Royal Assent on 22 June 2007.[33]

After the passage of the bill, a person who is adopted by a Canadian citizen may become 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.

Unlike the execution of citizenship by descent provisions which automatically grants citizenship to first-generation born abroad, the exercise of adoption provisions is voluntary, and adoptees may become Canadian citizens either by immediately applying for Canadian citizenship under section 5.1, or through naturalization under section 5 after the adoptees become permanent residents.[34] However, those adopted by one or both parents who derived their citizenship through jus sanguinis or under the adoption provisions are not eligible and must apply for naturalization, 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, while a adoptee who acquired citizenship through naturalization may pass down citizenship to future children born abroad.

Although not included in section 5.1, persons who were adopted before 1 January 1947 were also granted Canadian citizenship on 11 June 2015 if their adoptive parents can pass down citizenship by descent and they had never received Canadian citizenship.[7]

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.[7]

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 born abroad) would automatically lose their Canadian citizenship on their 28th birthday under section 8 of the 1977 Act, unless they apply for retention of citizenship.

Retention of citizenship would only be approved for applicants who had satisfied one of the following conditions:[20]

  • they had resided in Canada for over one year immediately before the application prior to attaining 28 years of age; or,
  • they had provided proof of "substantial connections" with Canada between the age of 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.[20]

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 retain 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 retain 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.[35] 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 after the loss of citizenship. Accordingly, they must take steps to restore their Canadian citizenship under section 11 of the Act.[20]

Loss of Canadian citizenship[edit]

After Bill C-37 came into force in 2009, there is no provision for involuntary loss of Canadian citizenship, except when in certain circumstances the Minister may revoke a person's citizenship. Between 1977 and 2009, only persons who failed to file for retention faced the involuntary loss of citizenship.

Between 1947 and 1977, a number of Canadian citizens had involuntarily lost their citizenship under the 1947 Act, mostly by naturalizing in a foreign country.[16] These persons' citizenship have been restored en masse on 17 April 2009.

While there are no grounds for involuntary loss of citizenship, voluntary loss of citizenship, or renunciation, is permitted.

Revocation of citizenship[edit]

Current legislation[edit]

Under subsection 10(1), the Minister may revoke a person's citizenship if the person's citizenship or permanent resident status is:[36]

  • acquired by "false representation" (e.g., forging the residence period in Canada);
  • acquired by fraud; or,
  • acquired after knowingly concealing material circumstances.

Revocations under subsection 10(1) normally applies to naturalized Canadians. Persons whose citizenship is revoked under 10(1) may become stateless.[36]

After revocation, a person's status in Canada may be a permanent resident (for those who acquired citizenship with fraud) or a foreign national with no status in Canada (for other revocations). Those who become foreign nationals will be subject to deportation, while those with permanent resident status may be issued deportation orders by a Federal court on the grounds of security, human rights violations, or organized crime.[36]

Since 28 May 2015, the revocation of citizenship became streamlined. More powers are vested in the Department and the Minister, who can revoke a person's citizenship without involving the Governor in Council.[36] After the change of procedure, the number of revocation nearly tenfolded when comparing to 2014.[37]

Previous legislation[edit]

Before 2015, revocation only applied to naturalized citizens, and the Governor in Council must be notified about the revocation without exception.[36]

Prior to 19 June 2017, subsection 10(2), as amended in 2014 by Bill C-24, added provisions when the Minister can revoke a person's citizenship, including but not limited to:[36]

  • lifetime imprisonment due to conviction for treason;
  • at least five years' imprisonment due to conviction for terrorism in a Canadian court; or,
  • at least five years' imprisonment due to conviction for terrorism in a foreign court.

Revocations under subsection 10(2) only applied to those with citizenship or nationality in another country.

The subsection has been formally repealed on that day when Bill C-6 received Royal Assent.[1] Zakaria Amara, a dual Jordanian-Canadian citizen whose Canadian citizenship was revoked in 2015 because of his involvement in the 2006 Ontario terrorism plot, has his citizenship reinstated when Bill C-6 became law.[38] Amara is the only person whose citizenship was revoked under subsection 10(2).

Future changes[edit]

Part of Bill C-6, which is scheduled to take effect in early 2018, further amended the revocation process. The changes include:[1]

  • the power of revocation will be shifted from the Minister to the Federal court, unless the person explicitly requests the minister to make the decision; and,
  • the IRCC officers will gain power to seize all documentations relating to the investigation.

As these changes will not take effect until 2018, all revocation cases before then are still subject to current rules.

Involuntary loss of citizenship[edit]

Between 2005 and 2009, a number of Canadians lost their citizenship due to their failure of retaining citizenship.

After 2009, it is no longer possible to lose Canadian citizenship involuntarily unless it has been revoked.

Lost Canadians[edit]

The term "Lost Canadians" are used to refer to persons who believed themselves to be Canadian citizens but have lost or never acquired Canadian citizenship due to the legal hurdles in the 1947 Act. Under the 1947 Act, Canadian citizenship can be lost by:[16]

  • naturalizing in any other country, including a Commonwealth country;
  • absenting from Canada for over six years for naturalized Canadians (prior to 1967);
  • naturalizing of a parent when the person was a minor (only when he or she received foreign citizenship along with the parent); or,
  • failing to retain Canadian citizenship before the age of 22 (for persons born outside Canada before 15 February 1955).

Certain Canadian residents born before 1977, including but not limiting to war brides and persons who were born outside Canada to Canadian citizens (primarily those who were born in U.S. hospitals along the U.S.-Canadian border who automatically acquired U.S. citizenship at birth), also do not possess Canadian citizenship because it was not possible to acquire Canadian citizenship between 1947 and 1977 automatically through marriage or by descent. Some of those people have been living in Canada for their entire lives. In response, the Federal government took actions through legislation process to reduce these cases.

In February 2007, the House of Commons Standing Committee on Citizenship and Immigration held hearings on so-called Lost Canadians,[39] 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.[40] 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 retain their citizenship before turning 28. Some of the people affected reside in towns near the border, and hence were born in American hospitals.[41] Others, particularly Mennonites, were born to Canadian parents in Mexico or Paraguay.[42] 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.[43]

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.[44] 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.[45] 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.[46]

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.

Renunciation of citizenship[edit]

A Canadian citizen who wishes to voluntarily renounce his or her citizenship must make an application directly to the Federal government, and he or she ceases to be a Canadian citizen only after the Federal government has approved such request. Renouncing Canadian citizenship to a foreign government (such as by taking the Oath of Allegiance to the United States) is not sufficient in itself to be considered as a voluntary renunciation of Canadian citizenship.

In general, there are two forms of renunciations: subsection 9(1) of the Act, for all renunciations, and section 7.1 of the Citizenship Regulations, for persons who acquired citizenship in 2009 and 2015 due to the changes of law.

All renunciations are subject to approval by the Governor in Council, who has the power to refuse an application on national security grounds.

General renunciation[edit]

Under subsection 9(1), a person renouncing citizenship must:[47]

  • be 18 or over;
  • be a citizen or national of another country;
  • reside outside Canada; and,
  • understand the implications of renunciation.

The person may be required to attend an interview.

In some cases, the Minister may waive the residence and implication understanding requirements. However, a person may not renounce his or her citizenship when the revocation of citizenship is in action.[47]

Special renunciation[edit]

Section 7.1 of the Regulations provides a simpler way for those whose citizenship was restored in 2009 and 2015 to renounce their citizenship. To qualify, the applicant must have acquired or reacquired his or her citizenship under the 2009 and 2015 amendments, and:[48]

  • is a citizen of another country; and,
  • understands the implications of renunciation.

The implication understanding requirement can also be waived by the Minister.

Persons renouncing under section 7.1 do not need to attend an interview, and there is no fee for renunciation.[48]

Resumption of Canadian citizenship[edit]

Under subsection 11(1) of the Act, a former Canadian citizen who renounced his or her citizenship in accordance with Canadian law is generally required to satisfy a number of conditions before he or she can resume Canadian citizenship. The conditions are:[49]

  • being a permanent resident;
  • having physically been in Canada for no less than 365 days immediately before application; and,
  • filing income taxes.

The income taxes and residence intention requirements were added on 11 June 2015 when Bill C-24 became law. The residence intention requirement, however, was repealed on 19 June 2017 when Bill C-6 received Royal Assent.[1]

Former citizens who lost their citizenship by revocation are not eligible to resume their citizenship. They must follow naturalization procedures if not permanently prohibited from doing so.[49]

Automatic restoration and special acquisition[edit]

In 2009, Bill C-37 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 descendants born abroad. The 2015 Bill, Bill C-24, further granted citizenship to those who were born or naturalized in Canada but had lost British subject status before 1947 and those who were born to such parents outside Canada if they are the first generation born abroad.[7]

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.

Women who lost British subject status before 1947[edit]

Although Bill C-24 covered the majority of ex-British subjects who would have acquired citizenship in 1947, certain number of female ex-British subjects were excluded from the Bill, mainly those born in another part of the British Empire other than Canada, had been residing in Canada long enough to qualify for citizenship under the 1947 Act, but had lost their British subject status either by marrying a foreign man before 1947, or losing British subject status when her spouse naturalized in another country. These people can acquire Canadian citizenship under subsection 11(2) of the 1977 Act by a simple declaration made to the IRCC. There are no additional requirements other than the declaration.[50]

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,[51] the Queen of Canada is considered Canadian.[51][52][53] 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][56][57] in the Canadian context, members of the Royal Family are subjects specifically of the monarch of Canada.[58][59] Members of the Royal Family have also, on occasion, declared themselves to be Canadian and called Canada "home".[n 2][51]

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"[65] 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,[66] 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,[67] 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",[68] that "there cannot be two correct interpretations of a statute",[69] 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",[70] that there's a "scandalous incertitude in the law",[71] 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".[72]

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).[73][74][75]

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.[76][77][78]

A few of the other major decisions are:

Significant cases relating to Canadian citizenship
Case Description
Glynos v. Canada, [1992] 3 FC 691 (FCA).[79] 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), Supreme Court (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] After the amendment in 2007, most adopted persons now automatically acquires citizenship after the finalization of adoption even when the adoption took place prior to the amendment, and this ruling is no longer relevant.
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.[80] 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.[81]

Rights and responsibilities of citizens[edit]

Comparing to permanent residents, Canadian citizens have additional rights, including but not limited to:

  • Vote in political elections on local, provincial or Federal levels upon reaching the age of 18 (if qualified under the Canada Elections Act).
  • Run for political office upon reaching the age of 18.
  • Obtain Canadian passports for travel and seek consular protection when outside Canada.
  • Avoid deportation from Canada.
  • Be employed by Federal, provincial or territorial government in certain cases when citizenship is required.
  • Live outside Canada indefinitely while retaining the right to return to Canada.
  • Pass on Canadian citizenship to children born outside Canada (to the first generation only).

In addition, only Canadian citizens may petition to receive a grant of armorial bearings.[82]

Canadian citizens, however, have the responsibility to complete jury duty when called to do so, and failure to respond or appear may come with legal consequences. Permanent residents, on the other hand, are legally ineligible to serve as jurors.[83][84]

Documentary proof of Canadian citizenship[edit]

Under current rules, the Federal government has designated a number of documents as proof of citizenship:[31][85][86]

  • birth certificate issued by a provincial or territorial government;
  • certificate of citizenship (including citizenship cards);
  • certificate of naturalization (only issued to British subjects 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 February 1977).

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.[87] 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.[88] 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.[86]

As those who were born in Canada normally acquired citizenship 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.[31] 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 statuses 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).[31] 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.[12]

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 a provincial or territorial government are also not proof of Canadian citizenship. Such certificates were common in Quebec, as the provincial government did not start to issue birth certificates until 1994.[86]

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.[86] 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.[89]

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[90] 6th in terms of travel freedom.[91]

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..."[54] 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.[55]
  2. ^ Princess Elizabeth, Duchess of Edinburgh, said in 1951 that when in Canada she was "amongst fellow countrymen".[60][61] When queen, she, in 1983, before departing the United States for Canada, said "I'm going home to Canada tomorrow" and,[62] in 2005, said she agreed with the statement earlier made by her mother, Queen Elizabeth, that Canada felt like a "home away from home."[63] 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.[51][64]

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Further reading[edit]

External links[edit]