Canadian citizenship must be a constitutional right: Chapman misses the mark
2017/02/27 9 Comments
While I have a great deal of respect for Don Chapman and other advocates who successfully pushed the previous government to address the issue of “lost Canadians” in C-37 (2009) and C-24 (2014), I find his latest op-ed misses the mark, arguing for opening up the constitution to add citizenship as a right in the Constitution.
Apart from the fact that no government in their right mind would open up the Constitution given the divisive process that would result (been there, done that!), their column makes assertions about numbers (“many”) without any real serious look at the data.
The data we have primarily consists of the demand for citizenship proofs. The 2009 and 2014 changes to the Citizenship Act addressed the majority of the potential cases; however, the number of annual proofs did not change significantly, suggesting less demand than Chapman and other advocates claimed.
That is not to say that some cases remain, but that they are best dealt with individually through consideration for a discretionary grant of citizenship (s 5(4) of the Act).
Moreover, as one of my former colleagues noted:
Chapman also engages in fear mongering with respect to Canadian dual nationals living in the US being forced to renounce their US citizenship in order to avoid potential revocation in cases of acts of terrorism or treason. C-6, currently in the Senate, will repeal this provision and thus address the major Charter violation that treats dual nationals separately from “mono-nationals”:
The practical implication is that the more than 100,000 Canadian casualties from the First and Second World Wars never lived to become citizens, and many of their children have spent decades fighting for their right to citizenship, denied them simply because their fathers did not survive the war. The hallmark of former minister of citizenship and immigration Jason Kenney was the consistency with which he denied these applicants. Although many of these Canadians eventually regained their citizenship through parliamentary victories, too many died as they were simply waited out by Ottawa.
Particularly heinous is the untold number of Indigenous Canadians that are currently stateless because their parents never registered their births, rightfully fearing their children would be sent to a residential school. Now adults, these Canadians have no rights or benefits. They are citizens of nowhere, unable to legally work, marry, attend school, buy a home, get a loan, drive a car or even take a bus, train or plane without identification. They are ghosts in their own land, forced to live in the shadows.
Even recent amendments that reinstated citizenship to some have left many others stateless, and did nothing to prevent that reinstated status from being stripped in the future.
Former prime minister Stephen Harper’s policies further complicated citizenship rights, making second-class citizens of anyone with dual-citizenship status. With the current political turmoil in the United States, thousands of these dual citizens – especially targeted professionals such as journalists and human-rights workers – now face the painful option of renouncing their U.S. citizenship, fearing their second-class status in Canada could, on a whim from our leadership, force them to live in Mr. Trump’s United States.
Our national identity has no foundation if we have no inherent rights, and Mr. Trump’s idle threats against his own people prove how urgent it is to give serious thought to our Canadian citizenship – what it actually is, how we get it and how it’s lost.
As we approach our 150th birthday, this is the perfect time to focus on defining and protecting our identity. It is time to make citizenship a constitutional right. Pierre Trudeau gave us the Charter of Rights and Freedoms. Wouldn’t it be fitting for the Prime Minister to take the final step to true nationhood: an inviolable, constitutional right of citizenship.
Source: Canadian citizenship must be a constitutional right – The Globe and Mail
About Andrew
Multicultural Meanderings 
As a child of a War Bride and a veteran of the Canadian Artillery in WWII, born in Britain but here since 1946, I lost my citizenship, along with my brother (a Canadian Navy Veteran) in 2003-4. No notice was ever given to us, my brother just found out when he applied for a passport to travel when retired. I was told that that, should I attempt to get citizenship from that time forward, I could be charged with federal offences for having voted illegally all my life. In that first couple of years, all the officials I spoke to were extremely dismissive when learning I had been born a couple of months prior to my parents’ marriage, which was due to refusal of permission to marry required in the Canadian Army.
My father had originally come from Scotland as part of a shipment of Home Children to work on farms. 15 years afterwards, he signed up to serve throughout WWII , returning in 1945. We never had any question about the citizenship my parents’ documents stated we would receive on arrival in Canada. And I know we were not alone:Don Chapman and the other advocates of Lost Canadians have been very busy all these years because our group was only one of 12, all with different reasons for having citizenship stripped. I never could understand where the government numbers came from: i.e. claiming there were only 81 in all of Canada in 2007 when the demographer from UBC estimated thousands. Don Chapman himself spent many years trying to get his own citizenship back, and since has worked tirelessly trying to help all the Lost Canadians still coming to his attention.
Under Mr. Kenney’s ministry, there was a noticeable emphasis on the 1947 date as the only marker for citizenship in Canada. I was told in 2015 that we did not have the “Canadian Parent” required under C-24 as I was a second generation born abroad, that my father should never have had citizenship, he was not domiciled within the country for the time required prior to 1947.
I do not believe that any one individual should have the right to either grant or revoke citizenship, and ours is an example of why that can right can lead to abuse of power when you get a government with different beliefs and interpretations of history than previous ones. I do not know how it could be done, but it seems to me that citizenship is too important to be left to the whims of one person or government. Surely it should be somehow outside the reach of governments, which change every few years.
At the moment, all our adult children, born in Canada and good Canadian citizens, are also entitled to the British citizenship they inherited due to a parent born in Britain because of a grandparent serving with the Canadian military. Why should they be punished by being made vulnerable to the same process of revocation that we experienced? And I know they say it is only for fraud or terrorism, but the last government also left it open to expand reasons in future.
In Canada, there must be a better way.
C6 will repeal that provision (terror or treason). For fraud or misrepresentation, C24 removed procedural protections, not addressed in C6 but signals that it will be addressed from previous minister. That is now the bigger issue, although whether the government will choose to go back to the previous system (federal court) or something like the Immigration Appeal division remains to be seen.
I am one of the researchers who has supported Don Chapman over the period 2008 2013.
What strikes me as the most appalling aspect of Canadian governance of citizenship is the imbalance between immigration and citizenship, including knowledge of the jurisprudence by ministers and their senior staff and advisers.
Have a look at the official CIC guidelines. Staff are still told that until 1947, Canadians were not citizens but merely British subjects.
As if Canadians were not British subjects after 1947. As if Canada did not adopt in 1952 the provision of the UK Nationality Act 1948, that British subject status is synonymous with Commonwealth citizenship, with retroactive effect effective and no start date. So before 1947, Canadians were merely Commonwealth citizens?
In 2007 the Attorney-General for Canada argued before the Manitoba Court of Queens Bench that the Manitoba Act was part of Canada’s nation building, and that from 1870, when Manitoba joined Canada, all inhabitants of Manitoba were full citizens of Canada, except status Indians. (Manitoba Metis case). Canada’s claim concerning the citizenship status of Manitobans was upheld by the Manitoba Court of Appeal and in 2013 by the Supreme Court of Canada.
After Canada succeeded in its claim that citizenship was conferred on accession to Canada, the Minister of CIC was still claiming in other Federal courts that before 1947 Canadian citizenship did not exist until 1947.
From the 1901 Census every Census of Canada has conflated Canadian nationality and Canadian citizenship, as noted by Sidney Fisher in his instructions to enumerators, part of the Order in Council that implemented the 1901 Census.
Have a look at the forms for the Censuses from 1901 to 1941. (All the Censuses before 1921 are online.)
James Ellis was born in Ontario 1911. The Census defined him as a Canadian national / citizen. He served in the Canadian Army in Europe in WWII. His commanding officer refused him permission to marry. His daughter was born in England. When his partner arrived in Canada with the daughter, they married. Under the Ontario Legitimation Act 1921, the daughter became legitimized from birth. But she was denied citizenship until 65 years later. She sued, but the Minister/Attorney-General still claimed her father was not a Canadian citizen in 1945 when she was born.
Then have a look at the definition section of the current Act which states that legitimation etc are defined by provincial law. The current Act dates to 1977. But the 1977 Act does not recognize children born out of wedlock. The Minister had to remedy this omission by a regulation. In effect, he claimed to have amended the Act by a regulation. It’s even more bizarre than that. But you need to analyze in detail the interpretation section of the current Act to discover what a mess they made of it. And they still have not fixed it. The law means whatever the CIC says it means.
So what was the Canadian Nationals Act 1921 all about? When Charles Doherty, Minister of Justice, introduced the Act, he pointed out that it was a declaration and as such would change nobody’s status. The Nationals Act had the effect of bringing into general law the citizenship definition of the Immigration Act 1910, which had restricted the definition of Canadian citizenship to that Act itself.
From 1921, the Canadian citizenship definition in the 1910 Immigration Act became general law. Charles Doherty explained this to MPs in committee (Hansard, 1921).
Over 25 years later, Paul Martin Sr. explained this to MPs when he introduced (twice) the Bill that became the 1947 Citizenship Act. Paul Martin Sr. specifically stated that the Nationals Act and the Naturalization Act would be consolidated with amendments. He specifically stated that prior law would be updated. The definition of Canadian citizenship in the 1947 Citizenship Act was derived from the Canadian Nationals Act 1921 by reference to the Immigration Act. In substance it was the definition used by the 1901 Census. (Hansard, 1946)
The current Citizenship Act (1977 consolidated 1985) still relies on the definition in the 1947 Act. You can verify for yourself by reading section 44 of the Interpretation Act 1985 where it states that if a provision (definition) in a repealed Act is required to give force to the new Act and the provision (definition) is not contained in the new Act, then to that extent, the provision in the former Act shall be read as unrepealed.
(This rule of statutory interpretation dates back to the UK Interpretation Act 1850, Lord Brougham’s Act, after which repeal of a statute was not longer interpreted as its obliteration.)
Repeal of the Naturalization and National Acts actually did repeal them because their provisions were consolidated with amendments into the 1947 Citizenship Act.
Not so when the 1947 Act was repaled in 1977. Even up to 2009, if a Canadian citizen born before 1977 applied for a Citizenship certificate, the CIC had to apply the repealed 1947 Citizenship Act to determine whether or not the person was a citizen on the date of the coming into force of the 1977 Act. (The current Act is not a complete code of citizenship law as was the 1947 Act.)
It is time the CIC gives some serious thought about updating its view of citizenship jurisprudence right back to the Constitution /Act 1867.
There really is no excuse for the Minister of CIC to be claiming in Federal Courts that Canadian citizenship originated in the 1947 Act, when the Attorney-General has already won a case by arguing that Canadian citizenship was inherent in the Constitution Act 1867.
Res judicata (the thing has been decided) must have some meaning, even for the CIC.
How many scholars in immigration and citizenship policy support your interpretation?
I don’t agree with using the stats on proof of citizenship as proof that Don has ‘missed the mark’. Many people have proof of citizenship, they simply have no idea that it’s expired.
If this had a real impact on people, then the proof stats should have changed. That they have been flat says something.
With all due respect, Andrew, I still disagree. How would that number change when many aren’t even aware that they’ve lost their citizenship? Maybe I’m not fully understanding what the chart represents.
Fair enough. But my point is that the lack of people requesting proofs means that there is little practical impact on them, otherwise they would likely take action if it prevented them from voting or getting passports etc.
Surely if this were an issue that was important to many people, the data would reflect that. And for Indigenous peoples, surely this would have been raised during the TRC.
And if people are not aware, and thus not apply for proofs, that also suggests that their lives are not being affected in a manner that is important to them.
Again, there remain cases of people who have fallen through the cracks even after C-37/24 (there always are) but I just don’t see any hard evidence that this affects many.
I don’t know how many people would be affected, but I am sure we are not the only ones who are going without documents such as passports, health cards and the right to vote. You can live here without them, but you are no longer regarded as truly Canadian. . More people probably have yet to discover the loss of citizenship when they try to renew documents. It just seems so wrong that Canada not only took citizenship from groups of people for strange reasons. Many got it back in 2009, like War Brides and people born on bases overseas, although some continued to have problems in the years since. Why would Canadians not want to fix this rather than have it continue to happen?
Many people have died without even knowing they had lost their citizenship(I’m glad my family members never knew they were no longer Canadian citizens – they would have been devastated.) But their children may still be having problems, as we are, especially with old laws and that emphasis on 1947. And once you have been told, often harshly, that you can never be eligible, many would just go on with their lives without citizenship as best they can.
In the rural area where I live there are large numbers of people who originally came to work on farms, excellent workers and badly needed for food production. Some groups, such as Mennonites from Mexico, are very self sufficient but are sometimes not familiar with dealing with government paperwork. It has not been unusual to learn of cases where a farm accident or illness revealed the lack of health coverage, for instance, caused by having no proof of citizenship. The Mennonite Central Committee, often working with community agencies, has been active throughout Southwestern Ontario in helping when needed but I would assume there are still unknown numbers without that proof.
We went through years in the very recent past when it was impossible to get through to anyone at CIC on the phone system, nearly impossible to find anyone to help, or even be pleasant about it, in some of the CIC offices (I experienced that myself) and no help available from MP offices if they agreed with the revocation of citizenship. That has vastly improved over the last couple of years, but it may take more time to show an increase in applications for proof, as people may have been to discouraged to try.
I don’t think the charts and stats tell the whole story and can be the only basis for the need to correct the legislation, somehow.