World Citizenship by Descent

The authors of Free People Search have posted the following graphic on their website which provides a useful overview of numerous countries’ “citizenship by descent” law.

Second Passport

A previous post of mine which discusses the limitations on citizenship by descent in Canada can be found here.


Ontario Superior Court upholds Constitutionality of Citizenship Oath Requirement

On September 20, 2013, Justice Edward Morgan of the Ontario Superior Court of Justice (the “ONSC“) released his decision in McAteer et al v. Attorney General of Canada, 2013 ONSC 5895 (“McAteer“).  McAteer involved a constitutional challenge to the citizenship oath requirement on the grounds that the requirement violates the constitutional protections of freedom of expression, freedom of religion, and equality that are  found in The Canadian Charter of Rights and Freedoms (the “Charter“).  Ultimately, while the ONSC determined that the citizenship oath requirement does indeed violate s. 2(b) of the Charter‘s right to freedom of expression, the ONSC ultimately found that the breach was justified under the reasonable limits test under s. 1.  The ONSC also held that the citizenship oath requirement does not breach either s. 2(a) or 15 of the Charter, which protect freedom of religion and equality.

In reaching its decision, the ONSC interpreted the citizenship oath’s references to the queen in a very different way than I think most people do.  It is this interpretation that is going to be the subject of this blog post, as I think the McAteer decision can provide some meaning and significance to potential oath takers.  (For those interested in reading a summary of how Justice Morgan analysed the Charter challenges, including his application of the Oakes test, I suggest you read this wonderfuly concise 12 paragraph summary.)

The Citizenship Oath

Section 3(1)(c) of the Citizenship Act, RSC 195, c C-29 (the “Citizenship Act“), provides that:

Subject to this Act, a person is a citizen if the person has been granted or acquired citizenship pursuant to section 5 or 11 and, in the case of a person who is fourteen years of age or over on the day that he is granted citizenship, he has taken the oath of citizenship

Section 12(3) of the Citizenship Act goes on to provide that a citizenship certificate does not become effective until a permanent resident takes the oath.  In 2011, the Government of Canada also made it a requirement that citizenship judges be able to see the faces (specifically the lips) of people taking the oath.

The citizenship oath is:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.

Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors

In my experience, most people who are about to take the citizenship oath do so with great excitement at the prospect of finally becoming Canadian citizens.  However, they are unsure what to make of the oath’s references to Her Majesty Queen Elizabeth.  While the appellants in McAteer may have been uniquely outraged by the requirement to pledge loyalty to the queen, most find the requirement simply bemusing.  (One client even jokingly commented that he would bow to Kate Middleton any day.)

To paraphrase Justice Morgan, however, our “problem” might be that we are taking the oath literally.  As Justice Morgan noted, however, a purposive interpretation of the citizenship oath shows that the references to the queen are not literally to an elderly lady with a unique wave, but are  rather refer to loyalty to Canada’s constitutional monarchy / democracy.  As Justice Morgan noted:

Her Majesty the Queen in Right of Canada (or Her Majesty the Queen in Right of Ontario or the other provinces), as a governing institution, has long been distinguished from Elizabeth R. and her predecessors as individual people. Thus, for example, Canada has divided sovereignty, with both the federal and provincial Crowns represented by the Her Majesty.

Justice Morgan also noted that the Crown (as symbolized by Her Majesty Queen Elizabeth) sits at the sovereign apex of Canada’s legal and political system.  In our system of constitutional monarchy, the sovereign, like all institutions of state, exercises power within constitutional limitations.  However, there is no doubt that Her Majesty the Queen is Queen of Canada, the embodiment of the Crown in Canada, and the head of state.

Hence, on whether or not people are being forced to pledge loyalty to a foreign lady of privilege, Justice Morgan stated:

Not only is the Canadian sovereign not foreign, as alleged by the Applicants in identifying the Queen’s British origin, but the sovereign has come to represent the antithesis of status privilege.

Accordingly, when one is pledging loyalty to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, one is not literally pledging loyalty to the woman who appears on our currency.  Rather, to paraphrase Justice Morgan, oath takers are pledging loyalty to Canada’s domestic institutions that represent egalitarian governance and the rule of law.

A Summary on Freedom of Expression

In its Charter s. 2(b) analysis, the ONSC broadly summarized Supreme Court of Canada jurisprudence on freedom of expression.  I found it to be a helpful summary of how “freedom of speech” in Canada works, and have reproduced it below (removing case citations).

As the Supreme Court of Canada pointed out in one of its earliest judgments under section 2(b) of the Charter, “[t]he content of expression can be conveyed through an infinite variety of forms of expression: for example, the written or spoken word, the arts, and even physical gestures or acts.” Certain behaviours such as a labour strike, acts of criminal violence, and the display of commercial wares have been specifically excluded from the ambit of the constitutional right; otherwise, “s. 2(b) of the Charter embraces all content of expression irrespective of the particular meaning or message sought to be conveyed.”

Accordingly, “if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee”. Protected speech therefore includes not only the spoken word but the choice of language, and the right to receive or hear expressive content as much as the right to create it. Section 2(b) also guarantees the right to possess expressive material regardless of how repugnant it may be to others or to society at large.

Most significantly, “[f]reedom of expression encompasses the right not to express views.” As explained by Lamer J. (as he then was) in Slaight Communications Inc. v Davidson, “[t]here is no denying that freedom of expression necessarily entails the right to say nothing or the right not to say certain things. Silence is in itself a form of expression which in some circumstances can express something more clearly than words could do.” A statutory requirement whose effect is “to put a particular message into the mouth of the plaintiff” would run afoul of section 2(b) of the Charter

Indeed, the right not to express the government’s preferred point of view extends to those who oppose socially positive messages such as health warnings, and includes even the right to refrain from expressing objective, uncontested facts.  As Chief Justice Lamer explained in Committee for the Commonwealth of Canada v Canada, individuals are not only protected from having to articulate a message with which they disagree, but are also guaranteed the correlative right not to have to listen to such a message.


The Residency Test for Citizenship

Confusion exists regarding what the residency test for citizenship is. Bill C-37 provides that someone must be physically present in Canada for three out of the four years before applying for citizenship. However, this Bill is not yet in force. The Koo test therefore still applies.
Continue reading →


Limitations on Citizenship by Descent

There are two ways that a person can be born a Canadian citizen. The first is if a person is born in Canada. The second is if a person is born to a Canadian parent, also known as citizenship by descent.  However, it is important for Canadians abroad to note that as of 2009, citizenship by descent is effectively limited to one generation born outside Canada.

The Legislation

Section 3(3)(a) of the Citizenship Act (the “Act“) provides that:

(3) Subsection (1) does not apply to a person born outside Canada

(a) if, at the time of his or her birth or adoption, only one of the person’s parents is a citizen and that parent is a citizen under paragraph (1)(b), (c.1), (e), (g) or (h), or both of the person’s parents are citizens under any of those paragraphs;

Subsection 3(1)(b) of the Act provides that:

3. (1) Subject to this Act, a person is a citizen if

(b) the person was born outside Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen;

Subsection 3(1)(c.1) provides that:

3. (1) Subject to this Act, a person is a citizen if

(c.1) the person has been granted citizenship under section 5.1 (editor’s notes: this discusses permanent resident spouses of citizens working abroad essentially for the government);

Subsection 3(1)(e) provides that:

(3) Subsection (1) does not apply to a person born outside Canada

(e) the person was entitled, immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the former Act

Subsection 3(1)(g) provides that:

3. (1) Subject to this Act, a person is a citizen if

(g) the person was born outside Canada before February 15, 1977 to a parent who was a citizen at the time of the birth and the person did not, before the coming into force of this paragraph, become a citizen;

Subsection 3(1)(h) provides that:

3. (1) Subject to this Act, a person is a citizen if

(h) the person was granted citizenship under section 5, as it read before the coming into force of this paragraph, the person would have, but for that grant, been a citizen under paragraph (g) and, if it was required, he or she took the oath of citizenship;

Finally, regarding subsections 3(1)(g) and 3(1)(h), subsection 3(7)(e) provides that:

(7) Despite any provision of this Act or any Act respecting naturalization or citizenship that was in force in Canada at any time before the day on which this subsection comes into force

(e) a person referred to in paragraph (1)(g) or (h) is deemed to be a citizen from the time that he or she was born;

An Example

If all of that legislation seems confusing, then consider the following (slightly modified) scenario that was recently before the court in Rabin v. Canada (Citizenship and Immigration), 2010 FC 1094.

Abe Simpson was born in Belgium in 1938. In 1957, he became a naturalized Canadian citizen.  In 1960, he married Mona Olsen, an American. They moved to the United States. In 1963, Homer Simpson was born.  In 1973, Abe Simpson gave up his Canadian citizenship by becoming a citizen of the United States. (Dual Citizenship was prohibited in Canada from 1949-1977).

Marge Bouvier was born in Belgium in 1956.

In 1981, Marge Bouvier and Homer Simpson wed in Springfield, USA.

In 1983, Bart Simpson was born.

In 2010, both Homer Simpson and Bart Simpson applied for proof of their Canadian citizenship.

What do you think happened?

Homer Simpson is a citizen by virtue of s. 3(1)(g) of the Act.  He was born outside of Canada before 1977.  Even though his father, Abe Simpson, was born in Belgium, Canadian law deems Abe to be a citizen at the time of birth because of s. 3(7)(e) of the Act.

Bart Simpson, however, is not a citizen. This is because s. 3(3)(a) specifically provides that an individual is not a Canadian if their sole Canadian parent relied on s. 3(1)(g) to become a Canadian.

Implication

The implication of the 2009 amendment to the Act can be devastating for unsuspecting Canadians abroad. Those who are considering having children abroad should seek advice to understand the citizenship implications of doing so.



Bill C-37, the Strengthening the Value of Canadian Citizenship Act

On June 10, the Conservative government introduced Bill C-37, also known as the Strengthening the Value of Canadian Citizenship Act (“Bill C-37“).

The legislation will result in five changes if passed. These are:

  1. Regulate Citizenship Consultants
  2. Increases Penalties for Citizenship Fraud
  3. Strengthen Rules For Residence Requirement
  4. Expand Ban on Criminals Becoming Citizens
  5. Crown Exception to First Generation Limit
  6. Streamlining the Revocation Process

1) Regulate Citizenship Consultants

Citizenship consultants are not currently regulated or licensed.  Bill C-37 will change this.  The amendments will introduce a new s. 21.1 of the Citizenship Act, which will state:

21.1 (1) Every person commits an offense who knowingly represents or advises a person for consideration — or offers to do so — in connection with a proceeding or application under this Act.

The offense will be a hybrid offense. If the Crown elects to proceed by way of indictment, the maximum penalty would be a fine of $50,000 and/or two years imprisonment.

There will be exceptions for lawyers, members of a designated body, and other exceptions similar to those for immigration consultants. In fact, the language in Bill C-37 regarding the regulation of citizenship consultants largely mirrors that in Bill C-35, the Cracking Down on Crooked Consultants Act.

2) Increases Penalties for Citizenship Fraud

The Citizenship Act makes it an offense to make a false representation, commit fraud, knowingly conceal or misrepresent information, obtain or use a certificate of naturalization/renunciation of another person, knowingly permit another to use that person’s certificate, or traffic certificates. The penalty for doing so is currently a maximum fine of $1,000 and/or imprisonment to a term of one year.  A person who issues or alters a certificate, counterfeits a certificate, or attempts to cause a person to use an unlawfully issued certificate can face a penalty of a maximum of $5,000 and/or three years imprisonment.

Bill C-37 massively increases the penalties.  The offense for pretty much the same actions will now be a hybrid offense. If the Crown decides to proceed by way of a summary offense, then the maximum penalty will be a fine not more than $50,000 and/or two years imprisonment. If the Crown decides to proceed by way of an indictment, then the maximum penalty is a fine of not more than $100,000 and/or imprisonment of five years.

Continue reading “Bill C-37, the Strengthening the Value of Canadian Citizenship Act”


Revocation of Citizenship and Statelessness

I have received several questions about whether Jason Kenney is breaking international law by revoking peoples’ Canadian citizenship.  Specifically, many readers want to know whether international legal norms permit a country to render someone stateless.

For those who are not familiar with the term “statelessness,” it refers to individuals who are not a citizen of any country.

The question arises because presumably some of the people who are the subject of citizenship revocation proceedings are only citizens of Canada, and not of other nations.

The 1961 Convention on the Reduction of Statelessness is the treaty that governs statelessness in the case of non-refugees.  It articulates international legal principles governing the interaction between states and the conferral and revocation of citizenship to people residing within the state.  Canada ratified the treaty on July 17, 1978.

Article 8 of the 1961 Convention on the Reduction of Statelessness provides that:

Article 8

 

1. A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless.

2. Notwithstanding the provisions of paragraph 1 of this Article, a person may be deprived of the nationality of a Contracting State:
(a) [where a person resides abroad for a period of seven consecutive years and fails to declare an intention to retain nationality or if the person is born outside the state and does not reside within the state within 1 year of obtaining the age of majority];

(b) where the nationality has been obtained by misrepresentation or fraud.

3. Notwithstanding the provisions of paragraph 1 of this Article, a Contracting State may retain the right to deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its retention of such right on one or more of the following grounds, being grounds existing in its national law at that time:

(a) that, inconsistently with his duty of loyalty to the Contracting State, the person

(i) has, in disregard of an express prohibition by the Contracting State rendered or continued to render services to, or received or continued to receive emoluments from, another State, or

(ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State;

(b) that the person has taken an oath, or made a formal declaration, of allegiance to another State, or given definite evidence of his determination to repudiate his allegiance to the Contracting State.

The full text of the convention can be found here.

So in short, yes, international law permits a state to revoke the citizenship of a person, and render that person stateless, if the person obtained that citizenship through fraud or false representation.

Whether you agree with this principle of international law or not is another issue, but, Jason Kenney is acting legally by commencing revocation proceedings based on fraud that could lead to statelessness.


Changes to Language Requirements

New Language Requirements for Citizenship and PNP Applications

Citizenship and Immigration Canada (“CIC”) has introduced new language requirements for citizenship applications and certain provincial nominee applications.  For citizenship applications, the changes will introduce objective language requirements for most applicantions.  For certain provincial nominee program (“PNP”) applications, the changes will introduce mandatory language testing.

The Citizenship Langugage Requirements  

Applicants for Canadian citizenship are required to demonstrate that they have an adequate knowledge of either English or French.  Currently, this is done through a multiple choice written test known as the Citizenship Exam, which also tests knowledge of Canada and the responsibilities of citizenship.

On April 21, 2012, the Government of Canada introduced regulatory changes that when they take affect will require that citizenship applicants enclose proof that they meet the language requirement with their citizenship application.  Acceptable means of proof will include:

  • A language test result from an authorized testing agency;
  • Evidence of completion of secondary or post-secondary education in English or French; or
  • Evidence of completion and achievement of a certain level in a government-funded language training program.

Applicants submitting test results from an authorized testing agency will have to achieve a minimum standard of Canadian Language Benchmark (“CLB”) 4 in English or Niveaux de comeptence linguistique canadiens (“NCLC”) level 4 in French.  The areas that will be tested are speaking and listening.  For those familiar with the International English Language Testing System (“IELTS”), currently required for many permanent residence applications, this translates into a 4 in each category.

Applicants who provided mandatory language testing results as part of their permanence residence applications can submit those test results with their citizenship application, and will not be required to be re-tested.

The change will affect all adult citizenship applicants between the ages of 18 and 54.

More information about the change, and the other details of the regulatory changes, can be found at the Canada Gazette here: http://www.gazette.gc.ca/rp-pr/p1/2012/2012-04-21/html/reg1-eng.html  

The PNP Langugage Requirements  

On April 11, 2012, CIC announced that most PNP applicants for semi- and low-skilled professions that fall under Naitonal Occupational Classification (“NOC”) Skill Levels C and D  will have to take mandatory language testing of their listening, speaking, reading, and writing.  They will be required to meet a minimum standard across all four of these categories.

Acceptable tests will include the IELTS, the Canadian English Language Proficiency Index Program (“CELPIP-General”), and the Test d’evaluation de francais.  The minimum standard required will be CLB 4.  No other evidence of language profiency will be accepted.

The change will take effect on July 1, 2012.  However, CIC has announced that any temporary foreign worker who arrives in Canada on or before July 1, 2012, and who subsequently gets nominated no later than July 1, 2013, will be exempted from the requirement.  It is important to note that while CIC has allowed this exemption, it is still unknown whether provincial governments will nonetheless start requiring language testing sooner.

It should also be noted that in January, 2012, CIC indicated that intends to introduce language testing across all PNP streams by the end of 2012.

More information about the change, and the other requirements of the program, can be found at the WelcomeBC here: http://www.cic.gc.ca/english/department/media/backgrounders/2012/2012-04-11.asp