Birthplace doesn’t necessarily guarantee citizenship, feds argue at Supreme Court

Have been engaging on Twitter on this case and striking that this press report seemed to miss the focus of the government’s brief: whether the children of spies not working out of a diplomatic mission should be entitled or not to birthright citizenship.

As the factum notes:

98. The Registrar’s interpretation is also consistent with the interpretive principle of avoiding absurdity. The result of the majority’s interpretation is that the children of foreign intelligence agents posted to an embassy and benefiting from diplomatic privileges and immunities (e.g. by posing as “economic development officers”) are caught by s. 3(2)(a), while the children of undercover intelligence agents engaged in surreptitious espionage are not. Justice Bell recognized this absurdity on judicial review,147 but the majority dismissed it on appeal as a policy choice – despite the presumption against absurdity being a well-established principle of statutory interpretation.148

99. Indeed, the policy preference that the majority cited is itself somewhat illogical and results in anomalous outcomes. Here, Vavilova and Bezrukov’s purpose for being in Canada was the same as the other categories of persons in s. 3(2)(a) of the Act, namely, to serve their home government, in their case through their undercover work as long term Illegals for Russia’s Foreign Intelligence Service. Like the other persons listed in s. 3(2)(a), their presence and employment in Canada was intended to advance their state’s interests.

100. As the majority indicates, its preferred interpretive policy choice for s. 3(2)(a) of the Act tries to avoid visiting “the sins of the parents” upon Vavilov, whose parents were undercover Russian spies, but has no difficulty in visiting those same “sins” on the children of accredited diplomats or foreign spies merely because they operate out of an embassy. In any event, this is not a case about the “sins” of Vavilov’s parents, but rather their employment as Russian spies and their duty and service to Russia at the time of his birth in Canada. When considered in this way, the provision provides for the same outcome for both of these categories of persons in Canada in the service of a foreign government. In both cases, the children’s citizenship status is a result of their parents’ chosen employment. By contrast, the majority’s interpretation results in a more favourable outcome for the children of those whose employment is surreptitious and undertaken by fraudulent means.

The CP artilce:

International law does not require Canada to give citizenship to babies born on its soil, the federal government is telling the Supreme Court — an argument that could inadvertently bolster a recent Conservative party resolution aimed at stemming so-called birth tourism.

Canada is one of fewer than three dozen countries that follow the practice of citizenship based on birthplace and some — including Australia and Britain — have modified or ended automatic birthright in recent years, the government says in a case that will determine whether the Toronto-born sons of Russian spies are Canadian citizens.

“Indeed, no European countries, for example, grant an unqualified automatic citizenship by birth and they have no obligation to do so,” the federal submission says.

“Only 34 countries grant the automatic acquisition of citizenship through birthplace regardless of parents’ nationality or status. This practice is not consistent and uniform enough to ground a rule of customary international law.”

Federal lawyers are playing down the concept of automatic citizenship in laying out the reasons the government believes Alexander and Timothy Vavilov — the offspring of Russian intelligence agents — should not be recognized as Canadian citizens, even though they were born in Ontario.

The federal Liberals adopted a decidedly different tone recently after the Conservatives passed a policy resolution calling on the government to enact legislation to end birthright citizenship “unless one of the parents of the child born in Canada is a Canadian citizen or permanent resident of Canada.”

Conservative Leader Andrew Scheer says one of the goals is to end the practice of women coming to Canada simply to give birth to a child that will automatically attain Canadian citizenship.

Refugee and human rights advocates have objected, saying there is no evidence of a birth tourism problem to solve and that the Conservative policy would open the door to stateless children being born in Canada.

Birthright isn’t set in stone

Following passage of the resolution, Mathieu Genest, a spokesperson for Immigration Minister Ahmed Hussen, said it’s a “shame to see the Conservatives going back down the path established by the Harper government, which seeks to strip away the citizenship of people who have only ever known Canada as a home.”

Justin Trudeau’s principal secretary, Gerald Butts, called the Conservative policy “a deeply wrong and disturbing idea.”

However, the federal submission to the Supreme Court strongly suggests the legal notion of automatic birthright is not carved in stone.

It notes even those states that have chosen to grant citizenship to children born on their soil are not prohibited from applying exceptions. “A review of citizenship entitlements in various countries reveals a multitude of variations and restrictions on automatic citizenship by birth.”

The Supreme Court will hear oral arguments in December in the case of the Vavilov brothers.

“In short, nothing in international law requires Canada to bestow citizenship on the basis of birth, much less to give citizenship to children born to parents in the service of a foreign government,” the written federal submission says.

Two years ago, the government took a rosier view of the concept in a formal response to a petition against birthright citizenship sponsored by Conservative MP Alice Wong.

John McCallum, immigration minister at the time, pointed out that the United States and Mexico, as well as a number of other countries in the Americas, such as Brazil and Argentina, provide citizenship based on birthplace.

“While there may be instances of expectant mothers who are foreign nationals who travel to Canada to give birth, requiring that a parent be a citizen or permanent resident in order for their child to acquire citizenship through birth in Canada would represent a significant change to how Canadian citizenship is acquired,” McCallum added.

Source: Birthplace doesn’t necessarily guarantee citizenship, feds argue at Supreme Court

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

One Response to Birthplace doesn’t necessarily guarantee citizenship, feds argue at Supreme Court

  1. Marion Vermeersch says:

    As a Lost Canadian who found my family lost citizenship after having it for 58 years, since arriving as part of Canadian military and families after WWII, I know only too well that Canadian citizenship is not carved in stone.
    Even my brother, himself a Canadian Naval Veteran, is still out of citizenship, so this is a concerning move by the Conservatives, perhaps with a view to future seizure of citizenship from people who had “born-abroad” parents. We have had a great life here, and our children are all Canadian citizens by birth but obviously our contributions were not enough. And my father, originally a Home Children from Scotland to Canada who only went back to serve in WWII, only had the best intentions for Canada in choosing to do that, thus making me a “born-abroad”.(worse yet, to the government, a “second generation born abroad”, definitely not citizenship material.

    My children did not choose to be born here, nor did they choose born-abroad parents. They are not responsible for anything we did to cause them to be born here.
    The Vavilov boys, similarly, were born here to born-abroad parents and are not responsible for the circumstances or for choices of their parents, either.
    I hope they get citizenship. Not only do they deserve it, but denying it would be just another way to allow stripping of citizenship to future generations.
    Perhaps our present Citizenship Act contains legislation drafted without serious consideration of possible negative consequences for innocent Canadians. It certainly does not provide secure citizenship.

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