Can new legislation help ‘Lost Canadians’ be found again?

Disappointing article on S-245 and “lost Canadians” that essentially uncritically take the position of Don Chapman and his assertion that “thousands” have lost their citizenship when the data does not support that and that the vast majority of cases were addressed in previous legislation.

S-245 addresses a gap: “Bill C-37 of 2008, which repealed the age-28 provision and grandfathered all those Canadians who had not yet turned 28 to be included in the policy change, left out a small group of Canadians who had already turned 28, specifically those born in the 50-month window between February 15, 1977, to April 16, 1981. This small cohort of lost Canadians is the group for whom this bill was brought forward in this Parliament once again.”

At a minimum, the CBC should have noted this rather than just taking Chapman’s statement at face value. CBC could also have asked CBC for data on the special procedures for persons caught in this situation (the data that I have seen on requests for proofs of citizenship indicates that the numbers of persons for which this is an issue has been consistently overstated).

There is, of course, the broader issue of the first generation cut-off where again, CBC should have provided more context for that decision (e.g., Lebanese Cdn evacuation of 2006 and the number of evacuees who had minimal to no connection to Canada).

Future stories on S-245 should address this imbalance by including outside experts, whether legal, academic or former citizenship officials, and ensure a diversity of views.

And articles need to be more data and evidence-driven, rather than relying on personal stories and advocates, a tendency that CBC appears to be increasingly relying upon (have provided these comments to CBC and will see if any substantive reaction):

When Pete Giesbrecht was summoned to his local police station on Halloween 2015, he had no idea he was 30 days away from being deported.

His crime? He had not reaffirmed his Canadian citizenship before the age of 28 under a complicated, confusing and not well publicized section of the Citizenship Act.

“They said, ‘No, actually, you have 30 days to leave the country. And if you do not leave willingly, we will fly you out with bracelets and all,’ ” Giesbrecht recalled recently from his home in southern Manitoba.

He’s one of thousands of so-called “Lost Canadians” — people who, because of where and when they were born, are caught up in confusing sections of the Citizenship Act. It can result in a loss of citizenship that forces them to leave Canada for countries they’ve never really known. Others become stateless.

The House of Commons will vote on new legislation this fall meant to solve the problem faced by Giesbrecht, although it doesn’t address a different issue affecting second-generation Canadians born abroad.

Cut off from Canada at age 28

Giesbrecht hopes the changes are passed — he and his family felt a mix of disbelief and anger over his impending deportation.

“I had carried a citizenship for 29 years. So now to find out that that was done didn’t mean anything. That was a bit of a shock,” he said.

At the time, Giesbrecht was a commercial truck driver living near Winkler, Man. He crossed the border more than 100 times a year for work.

He had a Canadian passport, which he received before turning 28, but let it lapse because he had a FAST card, which certified he’d been pre-cleared to cross the U.S.-Canada border.

His case was flagged when he re-applied for the card in August 2015.

Since 1977, second-generation Canadians born abroad had an automatic right to citizenship, but those children had to meet certain conditions and apply to retain their citizenship by the time they turned 28. If they didn’t, they automatically and unknowingly lost citizenship.

Legislative amendments in 2009 were supposed to fix that, but the changes didn’t apply to everyone and created new problems for others.

Bill C-37 introduced a rule limiting citizenship by descent to the first generation born abroad. People born abroad in subsequent generations now have to become immigrants, or in some cases they can apply for a grant of citizenship, which can take years, and there’s no guarantee they’ll be accepted.

The changes only affected people who had not yet turned 28 and didn’t help anyone who’d already lost citizenship.

That’s where Giesbrecht got caught — he was born on Aug. 11, 1979, in Mexico. His parents were Canadian, but they were born in Mexico to Mennonites who had moved there to have less government interference in their lives. However, when he was seven, his family moved back to Manitoba near where his Canadian grandparents were born.

Don Chapman, head of the Lost Canadians Society in B.C., says the problem was compounded because those affected weren’t told about the retention requirement.

“Here’s the problem: He got a citizenship certificate. There was no mention on that citizenship certificate that he had to reaffirm,” Chapman said.

New legislation aims to fix age-28 rule

New legislation coming before Parliament this fall is meant to reinstate those affected by the age-28 rule who weren’t covered by Bill C-37.

Bill S-245 has already passed in the Senate and passed first reading in the House of Commons before it recessed for the summer. If it becomes law, it will eliminate the requirement for people to reaffirm their citizenship by age 28. Those affected would be considered Canadian back to their dates of birth.

“These are individuals who were born to Canadian parents and who only know Canada as their country,” said Sen. Yonah Martin, who represents British Columbia and is currently the deputy leader of the opposition in the Senate. She introduced Bill S-245.

“They’re taxpayers. They had lived their lives as Canadians until this age-28 rule caught up to them because it wasn’t clearly communicated.”

Giesbrecht’s Canadian-born wife started the process to sponsor him for citizenship. As a permanent resident, he had to prove a long-time connection to Canada. He’d spent thousands on lawyers when he heard about Chapman and the Lost Canadians Society from other Mennonites going through the same process.

Chapman started advocating on his behalf and on Oct. 17, 2017, Giesbrecht received his Canadian citizenship — for a second time.

“It means security. It means a future. It means hope for the children and a place that we are free,” he said.

Pete Giesbrecht was told he had 30 days to leave the country after he unknowingly lost his Canadian citizenship due to a problem with the Citizenship Act.

Giesbrecht knows of others he says are afraid to come forward, worried they’ll be deported and lose everything.

“They have a life. They also have families. They have work. They have to give that all up,” he said. “That’s a very risky, very difficult thing to do.”

Chapman says many Lost Canadians don’t find out about their status until they apply for a passport, move provinces and apply for health benefits or a driver’s licence, or are convicted of a crime.

“Pete, he’s one of the lucky ones,” Chapman said.

“There are thousands of people, actually many thousands of people in Canada, that are affected and might still not know it. And this [legislation] will make it so they are whole, as though they never lost their citizenship.”

New rule created new Lost Canadians

But, there’s another category of Lost Canadians the new legislation won’t address.

The “second-generation cut-off” is a rule under Bill C-37 that permanently denies the first generation born abroad the ability to automatically pass on citizenship to their children if they are also born outside Canada.

It also eliminated the ability to gain citizenship by showing a “substantial connection” to Canada. Now, those second-generation children have to be sponsored by their parents to come to Canada as permanent residents, then apply for citizenship like any other immigrant.

Critics say it has created two classes of Canadian citizenship — one for Canadians born in Canada and one for those born abroad.

“What’s discriminatory about the Citizenship Act is that there is no way that people can rid themselves of this second class status no matter how close and deep their ties to Canada are,” said Sujit Choudhry, a constitutional lawyer in Toronto representing seven families living in Canada, Dubai, Hong Kong, Japan and the United States, who are all affected by this rule.

Choudhry filed a constitutional challenge in December 2021, asking that his clients’ children be granted citizenship and that this section of the Citizenship Act be struck down. The case will be before court in April 2023.

‘I’m not Canadian enough’

Victoria Maruyama is angry about the way her family has been treated because of where she and her children were born.

“I grew up [in Canada] like everybody else. Why am I being treated this way? Why are you treating my children this way? And why can’t we just come home like everybody else?” Maruyama, one of Choudhary’s clients, asked in a recent interview from her home in Nagoya, Japan.

Maruyama was born in Hong Kong and received Canadian citizenship through her father, who had previously immigrated from Vietnam. When she was a toddler, the family returned to Edmonton, where she attended school. She later got a degree at the University of British Columbia.

When she was 22, she moved to Japan temporarily to teach English and met her husband, a Japanese national. They married in 2007.

She was seven months pregnant with their first child when Bill C-37 took away her right to pass on citizenship to her children unless they were born in Canada.

“The shock of it, like, ‘Oh my God, I’m not Canadian enough,’ ” Maruyama said.

Their second child was also born in Japan two years later. The family has moved back to Edmonton from Japan several times so she could apply for citizenship for her children and sponsor them as immigrants.

All of those applications have been denied.

“Their grandparents helped build the stupid railroad … It makes me angry. Really angry.– Victoria Maruyama, whose children aren’t considered Canadian because they, and Maruyama, were born abroad”

A 2018 letter from Immigration, Refugees and Citizenship Canada said the children were rejected because “they are not stateless, will not face special and unusual hardship if you are not granted Canadian citizenship and you have not provided services of exceptional value to Canada.”

They returned to Japan in July 2019 because her husband had a job offer, but she says the family would like to live in a more multicultural and accepting society and be closer to her aging parents.

The children are “very aware that Canada is rejecting them,” Maruyama said. “[But] they feel Canadian. It’s just part of their identity.”

“Their grandparents helped build the stupid railroad … It makes me angry. Really angry.”

Stateless babies

In an even more extreme case, if a Canadian born abroad has a baby in a country that doesn’t provide citizenship at birth, that child is stateless.

This means no country is responsible for their legal protection and they can’t get a passport. They have no right to vote and they often lack access to education, employment, health care, registration of birth, marriage or death and property rights.

That’s the situation for Gregory Burgess, who was born in the U.S. to an American father and Canadian mother. He got citizenship through his mother, grew up and went to school in Alberta where his ancestors settled after fleeing what is now Ukraine many generations ago.

“It’s basically bureaucratic terrorism … I believe Canada is better than this.– Gregory Burgess, on the various applications needed to get his infant son Canadian citizenship”

He and his wife, a Russian citizen, are on work visas in Hong Kong. Their son was born there last October. Since neither parent is a citizen or permanent resident of Hong Kong, their son has no status.

“The children are the victims,” Burgess said recently.

Burgess says because he was born outside Canada — and can’t automatically give his child Canadian citizenship — he was told by an IRCC agent that his wife should apply for Russian citizenship for the baby. If that is rejected, he can then go through the process with Canada. However, there are no guarantees it would be successful.

However, Burgess doesn’t want his son to have Russian citizenship; he wants him to be Canadian.

“It’s basically bureaucratic terrorism. It’s horrible. It’s adversarial,” he said of the various applications he’s already made on behalf of both his son and his wife. “I believe Canada is better than this.”

Burgess is one of Choudhry’s clients and part of the constitutional challenge. The lawyer says Canada could fix the family’s situation if it would add back the ability for a second-generation child born abroad to prove a “substantial connection” to the country.

“This law creates hierarchies of Canadians based on where they were born,” Choudhry said.

In the meantime, he said Citizenship and Immigration Minister Sean Fraser could grant Burgess’s son citizenship by acknowledging the “special and unusual hardship” the family is facing.

CBC requested an interview with Fraser several times, but a spokesperson said he was unavailable.

However, in a statement, his department said there is a “discretionary mechanism” for anyone who doesn’t qualify for citizenship, including a special process if someone is stateless. The department said those cases are assessed individually.

Source: Can new legislation help ‘Lost Canadians’ be found again?

‘Lost Canadians’ case challenges ‘discriminatory’ citizenship law | CTV News

Inevitable that the first generation limit would be eventually challenged (there was considerable and careful legal analysis when it was introduced more than 10 years ago).

And of course, citizenship and immigration legislation and policy, in setting the criteria and conditions for becoming a citizen or resident, have inherent elements of discrimination, with the issue being whether the discrimination is reasonable from a policy, program and societal perspective:

Patrick Chandler is Canadian, but he can’t pass his citizenship on to his children.

While working in China in 2008, Chandler fell in love with a Chinese woman named Fiona. The pair got married and had two kids. Then, in 2017, Chandler landed a job in British Columbia. The young family planned to move to Canada together, until they learned their children didn’t qualify for Canadian citizenship.

Chandler was born in Libya to Canadian parents. Although he’s Canadian and has spent most of his life in Ontario, his kids don’t qualify for citizenship. It’s due to a citizenship law enacted by the federal Conservatives in 2009, which prevents Canadians born abroad from passing citizenship to their children, if they too were born outside of Canada.

“The rules – the way they are set up – creates two tiers of citizens,” said Chandler. “A tier that can pass on citizenship and a tier that cannot pass on citizenship.”

The intent of the 2009 law was to prevent citizenship from being continually passed down in families with no legitimate connection to Canada. For Chandler, who grew up, studied, and works full-time in Canada, the law makes him feel like a second-class Canadian.

“(The law) devalues citizenship because it shows Canadian citizenship does not mean equality,” said Chandler. “Unless we get that fixed, it’s going to hang over Canada’s head, and I don’t want that. And at the same time, I don’t want other people to have to go through this.”

Now, he and several other Canadian families have launched a Charter challenge, and are calling on the current federal Liberal government to change the rules.

“The law is discriminatory,” said Sujit Choudhry, a Toronto-based constitutional lawyer representing the families in the Charter challenge.

According to Choudhry’s research, there are 173,000 Canadian citizens living in Canada who were born abroad to other Canadian citizens. He said those people should have the right to start families abroad and give their children Canadian citizenship just as Canadians born in the country can. Choudhry said the current citizenship law is far too broad, causing families to fall through the cracks of bureaucracy.

“There are many other ways for the government to reinforce the value of Canadian citizenship and address the problem of indefinite generations of Canadians passing on citizenship abroad, without using such a blunt instrument,” said Choudhry.

When Chandler moved back to Canada in 2017, his wife and kids stayed behind in China. They were reunited in B.C. more than a year later, after the sponsorship process was approved and his children arrived in Canada as immigrants. In that year, all Chandler could do was keep in touch through video calls.

“It was absolutely difficult. As a parent, you want to be there for your kids. You want to be there to guide them, to educate them, to play with them,” Chandler said.

Just over three years since his kids arrived in Canada, one of them has been granted citizenship. Still, Chandler says, government red tape should never have got in the way of his role as a father. He hopes the Charter challenge will be successful, so no other Canadian families abroad find themselves in the same predicament.

Source: ‘Lost Canadians’ case challenges ‘discriminatory’ citizenship law | CTV News

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.