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.


‘If we are not Canadian, what are we?’ How a 2009 law is leaving some children stateless

Not unexpected but the Act does have a provision to address statelessness. Would be interesting to have the data on the extent of its its application rather than just highlighting individual cases (which highlight issues).

The previous retention provisions were hard to administer consistently and fairly (“substantial connection” not as simple as it sounds), and there are advantages to clarity provided by the first generation limit.

From a policy perspective, the focus was on providing equal treatment for those born in Canada and immigrants who became naturalized Canadians.

And ironic that some expatriate Canadians complain about having to pay for healthcare should they return to Canada to give birth to “restart the clock” when more than a few thousand foreign women do so as “birth tourists.”

But a useful reminder that expatriates need to consider citizenship implications more closely when planning to have children.

After numerous failed attempts to conceive a child, including a lost pregnancy through in vitro fertilization, Emma Kenyon and her husband were grateful and thrilled for the arrival of their first baby.

On Dec. 5, healthy six-pound, two-ounce Darcy was born at a public hospital in Hong Kong. However, a bureaucratic nightmare for his Canadian expatriate parents has just begun.

As new parents, the nursing mother and her husband, Daniel Warelis — both foreign-born Canadian citizens who grew up in Greater Toronto — must fight to find a way to bring their stateless child home.

“I don’t think any country, especially a country like Canada, should allow little babies to be born stateless to Canadian citizens. It’s a travesty,” said Kenyon, 35, who was born in Tokyo while her father was working there for the Bank of Nova Scotia.

“The most important thing for us is that Darcy is not stateless as soon as possible.”

This week, the couple joined five other Canadian families to launch a Charter challenge against a rule in Canada’s citizenship act that denies the transmission of citizenship by descent to these foreign-born kids if both their Canadian parents also happened to be born overseas.

The previous Conservative government changed the law in 2009 and imposed the so-called “second generation” cut-off against Canadians born abroad after Ottawa’s massive effort to evacuate 15,000 Lebanese Canadians stranded in Beirut during a month-long war between Israel and Lebanon in 2006.

The $85 million price tag of the evacuation effort sparked a debate over “Canadians of convenience” about individuals with Canadian citizenship who live permanently outside of Canada without “substantive ties” to Canada but were part of the government liability.

Source: ‘If we are not Canadian, what are we?’ How a 2009 law is leaving some children stateless