Chris Selley: A dumb citizenship law, easily fixed, is finally headed to court [not so easily, not so simple]

Whenever someone says “simple problem” or “easily fixed,” they don’t fully understand the policy and operational issues involved. Surprising from someone as seasoned as Selley, who normally does his homework before condemning an “idiot law.”

Over reliance on anecdotes, bereft of any understanding of the issues and practicalities involved. No discussion of the problems encountered in the previous retention provisions, which were difficult to administer fairly and transparently. And no discussion of the parliamentary discussions and report that discussed the provision.

Not in the Minister’s mandate letter but issue has been percolating for some time.

Will be interesting to see how courts respond to the lawyer’s argumentation (hopefully stronger than his overblown rhetoric as quoted in the article:

Gregory Burgess certainly presents as a full-blooded 46-year-old Canadian. He has long, deep roots in this country, and none anywhere else: His great-grandparents emigrated from Ukraine in 1894 and settled the Edna-Star colony in Alberta. He was born a Canadian citizen. He attended elementary, secondary and post-secondary institutions in Edmonton. He holds only a Canadian passport, he says, and has never had permanent legal status anywhere else.

But he was born abroad — in Connecticut, where his American father was working at the time. And much to his horror, he recently discovered what that means: His son, Philip, who was born three months ago in Hong Kong — where Burgess works in building information management — has no claim to Canadian citizenship. Indeed, because foreigners’ children have no official status in Hong Kong, Philip is currently stateless.

That’s been the law in Canada for 13 years: No matter how purely and unequivocally Canadian you might be, if you happen to have been born abroad to a Canadian parent, then you cannot pass your citizenship on automatically to your children unless they are born on Canadian soil.

Burgess can apply to sponsor Philip as a dependant-child immigrant to Canada, but there are no guarantees. (There are medical tests to be passed, for example.) And Burgess says the government has mooted timelines of up to two years to arrive at a solution. His Hong Kong work visa expires in six months.

“If my son doesn’t have citizenship, and I have to leave in six months, and my son technically does too — because he will be connected to me; that’s the only reason he would be allowed to stay here — (then) I don’t know exactly what the (Canadian) government expects,” says Burgess, exasperated. “Like, where he’s supposed to go and where I’m supposed to go.”

Philip may have a claim to Russian citizenship through his mother: Burgess met Viktoriya Kharzhanovich in 2017 in Shanghai, where she was a student, later becoming a translator and a quality-assurance manager in the textiles industry; they married in September. But Gregory isn’t sure about his own claim. He and Viktoriya are only just now wrapping their minds around this dilemma, on top of caring for an infant.

In any event, they don’t want to move to Russia — and there is no earthly reason they ought to have to. But Ottawa has already denied their application for a temporary passport for Philip. And in the meantime, even if some country is willing to provide Philip with travel documents, it’s entirely possible they will have to be separated.

In theory, Citizenship Minister Sean Fraser could intervene in a case like this on humanitarian grounds. In practice, citizenship ministers rarely do that.

Now-retired airline pilot Don Chapman has been advocating on behalf of “Lost Canadians” in this situation — and many other equally bizarre situations — for many years. Seemingly no one in Ottawa is willing to go on record in support of the status quo. But despite various tweaks to Canada’s utterly byzantine citizenship laws over the years, this simple problem never gets solved. And now it has finally landed in the courts.

The Burgess family will soon be joining seven others as applicants to a constitutional challenge filed in December in the Ontario Superior Court of Justice. Lawyer Sujit Choudhry, who represents the families, argues the law discriminates unjustifiably not just on grounds of national origin, but of gender as well. “It’s quite frankly insulting to my women clients to be told to basically stop working, to arrive in Canada without health insurance, to not have an obstetrician or gynecologist (and have a baby)” just to avoid this ridiculously overbroad and arbitrary law, Choudhry convincingly argues.

The “second generation born abroad” problem dates back to the 2006 war between Israel and Hezbollah. After the then-Conservative government helped evacuate Canadian citizens from Lebanon, a few of the evacuees turned up in the news kvetching about the quality of the service. Some had tenuous connections to Canada. People got angry about “citizens of convenience,” and the government hatched this very blunt solution: Henceforth, no Canadian citizen who wasn’t born in Canada could pass on citizenship to any foreign-born children of their own.

The absurd results are particularly visible within families. Burgess has a younger sister who was born in Edmonton; if Philip was her Hong Kong-born baby, he would automatically be eligible for a passport. And it doesn’t even solve the issue that the Lebanon situation flagged. If Gregory and Viktoriya had made a three-week trip to Canada to give birth and returned immediately to Hong Kong, precisely nothing useful would have been accomplished vis-à-vis Canadian citizenship.

Luckily, there is an obvious solution other than simply letting Canadians pass down citizenship in perpetuity, no questions asked: Part of the process of naturalizing as a Canadian citizen is proving your substantial ongoing connection to the country. Why not simply ask the same of Gregory Burgess and other Canadians who have done nothing wrong except take a job overseas, fall in love and make what they assumed would be a brand-new Canadian?

The lawsuit is one last opportunity for the government finally to pull its thumb out and fix the problem. Arguing for the status quo in court would be especially humiliating for a Liberal government, wedded as it is to the internationalist vision of Canada in the world. But having followed this file for some years now, I’m sorry to say that’s the most likely outcome. If so, I intend to write more about this idiot law and its victims in the new year.


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.

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