Revocation and Statelessness after Budlakoti

Some of the more controversial sections of Bill C-24, The Strengthening Canadian Citizenship Act (“Bill C-24”), are its revocation provisions.

Bill C-24 will create a new s. 10(2) of the Citizenship Act which will state that:

Revocation by Minister — convictions relating to national security

(2) The Minister may revoke a person’s citizenship if the person, before or after the coming into force of this subsection and while the person was a citizen,(a) was convicted under section 47 of the Criminal Code of treason and sentenced to imprisonment for life or was convicted of high treason under that section;

(b) was convicted of a terrorism offence as defined in section 2 of the Criminal Code — or an offence outside Canada that, if committed in Canada, would constitute a terrorism offence as defined in that section — and sentenced to at least five years of imprisonment;

(c) was convicted of an offence under any of sections 73 to 76 of the National Defence Act and sentenced to imprisonment for life because the person acted traitorously;

(d) was convicted of an offence under section 78 of the National Defence Act and sentenced to imprisonment for life;

(e) was convicted of an offence under section 130 of the National Defence Act in respect of an act or omission that is punishable under section 47 of theCriminal Code and sentenced to imprisonment for life;

(f) was convicted under the National Defence Act of a terrorism offence as defined in subsection 2(1) of that Act and sentenced to at least five years of imprisonment;

(g) was convicted of an offence described in section 16 or 17 of the Security of Information Act and sentenced to imprisonment for life; or

(h) was convicted of an offence under section 130 of the National Defence Act in respect of an act or omission that is punishable under section 16 or 17 of the Security of Information Act and sentenced to imprisonment for life.

In order to comply with international conventions regarding the prevention of statelessness, Bill C-24 also introduces to the Citizenship Act a new section 10.4 which states:

Restriction

10.4 (1) Subsections 10(2) and 10.1(2) do not operate so as to authorize any decision, action or declaration that conflicts with any international human rights instrument regarding statelessness to which Canada is signatory.

(2) If an instrument referred to in subsection (1) prohibits the deprivation of citizenship that would render a person stateless, a person who claims that subsection 10(2) or 10.1(2) would operate in the manner described in subsection (1) must prove, on a balance of probabilities, that the person is not a citizen of any country of which the Minister has reasonable grounds to believe the person is a citizen.

The idea of revoking citizenship is a controversial one, and there are certainly strong arguments that can be made for and against.  What is interesting, however, is how the Government of Canada and Citizenship and Immigration Canada (“CIC“) have gone to great lengths to say that it is only “dual citizens” who risk having their citizenship revoked.  Despite Bill C-24 mentioning that revocation will not apply where statelessness occurs, the phrase “stateless” rarely appears in CIC press releases.  “Dual citizen” does.

The cynic in me would suspect that this is because the notion of “dual citizenship” applies to a small percentage of the Canadian population (some 863,000 out of 32,000,000 people, according to the 2006 census) who voluntarily hold multiple citizenships.  By stating repeatedly that Bill C-24’s revocation provisions only apply to dual nationals, the Government of Canada and CIC can thus assure the overwhelming majority of Canadians that they do not have to worry that the revocation provisions of Bill C-24 will ever apply to them.

But should they worry?

The Jews and Israel, as an Example

After Bill C-24 was introduced into the House of Commons, several people expressed concerns that the number of people who could face revocation of their citizenship might be much broader than what the Government of Canada was asserting.  Several lawyers, for example, expressed concern that the revocation provisions could technically apply to most Jewish Canadians because of Israel’s Law of Return.

Robin Seligman, an immigration lawyer in Ontario, for example, told the House of Common’s Standing Committee on Citizenship and Immigration (the “Committee”) that:

Looking around at the names in this room, I can tell you that most people here probably have a claim. It affects people that have Italian parents, British parents, U.K. parents, Chinese parents, and of particular concern is that every Jewish person in Canada has the right to move to Israel and claim Israeli citizenship. In effect—and I’ve provided materials on the right of the law of return—every Jewish person in Canada can be impacted by this legislation, because they could claim status in Israel.

Ms. Seligman’s opinion was not unanimously shared.  Addressing what Ms. Seligman stated, Simon Fogel, the Chief Executive Officer for the Centre for Israel and Jewish Affairs, said before the same committee that Bill C-24’s revocation provisions would not apply to most Jewish Canadians, and stated:

This is not the case.

According to the UN 1954 Convention relating to the Status of Stateless Persons, a stateless person is defined as someone who is not considered as a national by any state under the operation of its law. The UN High Commissioner for Refugees has clarified that the convention does not ask whether a person should or could be a national of a particular state based on its legislation, but rather whether the person is a national of another state. Israel does not consider Jews in Canada to be nationals of the state under the Law of Return; rather, they have a legal right to become naturalized as Israeli citizens through a voluntary immigration process subject to certain restrictions

For a Canadian Jew to be considered an Israeli national, they would first have to immigrate to that country and be certified as a new immigrant.

The possibility to become an Israeli citizen does not equate to dual nationality for Canadian Jews, according to the UN convention on statelessness, or according to Bill C-24. Were the minister to seek the revocation of a Jewish Canadian citizenship, the individual facing revocation, you’d only prove they are not a citizen of another state—be it Israel, the United States, the U.K., or anywhere else—in order to prevent the revocation due to Canada’s international obligations regarding statelessness. This is no different for Jews than for any other Canadian citizen. As long as Jewish Canadians are not dual citizens and do not commit one of the prescribed offences, there would be no ability for the minister to revoke their citizenship.

However, while it’s a right, it’s not an obligation. For example, I’m a Canadian-born, Montreal-born Jew. I’ve been to Israel more than a few times in my life. I carry a Canadian passport because I was born in Canada. I do not carry an Israeli passport. I’m not a citizen of Israel, because I haven’t made application to be a citizen of Israel. So there are no circumstances under which I as a Jew, as a Canadian citizen, could have my citizenship revoked by virtue of being a national of another country, be it Israel or any other country.

For the purpose of this blog piece, it is interesting to note that Mr. Fogel felt that it was necessary to reassure the Committee, and indirectly Canadian Jews, that they would not be potentially encompassed by Bill C-24’s revocation provisions.  However, is he right?

The Budlakoti Decision

On June 8, 2015, the Federal Court of Appeal issued its decision in Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139 (“Budlakoti“).  Although the decision does not pertain directly to Bill C-24, the Federal Court of Appeal’s pronouncements on what “statelessness” means support the assertion that Bill C-24 will encompass a much broader range of the Canadian population than what the Government of Canada has been saying.

Mr. Budlakoti was born in Canada to parents who were employees of the Indian High Commission.  As a result of his parents’ employment, he could not be conferred citizenship under Canada’s Citizenship Act.  Mr. Budlakoti never applied for Indian citizenship, and India does not consider him to be a citizen.  Mr. Budlakoti argued at the Federal Court of Appeal that the Canadian government not considering him to be a citizen rendered him stateless.

Despite Mr. Budlakoti not having citizenship in any country, the Federal Court of Appeal disagreed that he was stateless.  The court stated:

It is true that as a result of the facts described above, the appellant is not recognized as a citizen of any country at the present time.

However, the Federal Court of Appeal then went on to state that:

But that is not statelessness in the international law sense. Under Article 1 of the 1961 Convention on the Reduction of Statelessness (acceded to by Canada on July 17, 1978), a person is stateless only where the person does not have national status or citizenship in Canada and the person is “otherwise stateless”—i.e., as a legal or practical matter the person cannot get citizenship or national status elsewhere.

On the state of the evidence before us, India is an adequate and effective forum for the appellant. The appellant has considerable connection with India. The Board found he was born to two Indian nationals while they were working for officials with the Indian High Commission. This raises the apprehension that the appellant could be a national of India by birth and that he may apply for Indian national status or citizenship. Many states grant national status or citizenship in circumstances such as these. If Indian authorities grant the appellant national status or citizenship, any alleged statelessness would disappear.

On the record before us, the appellant has not shown any legal or practical obstacle to acquiring national status or citizenship in India. Nothing has been placed before us that would suggest that a person born in Canada to two Indian nationals working for officials with the Indian High Commission cannot apply for Indian national status or citizenship or that, as a legal matter, India would deny the appellant national status or citizenship.

In attempting to prove statelessness for later administrative or legal proceedings, the appellant conceded at the hearing of the appeal that the best proof that India will not grant national status or citizenship is for him to apply to the Indian authorities and be refused. But the appellant has never applied to those authorities.

To briefly summarize the above, the Federal Court of Appeal found that Mr. Budlakoti was not stateless because it was reasonable to believe that he could acquire Indian citizenship, and he had not shown that he could not through a refused Indian citizenship application.

The Implication

If the Federal Court of Appeal’s interpretation of statelessness as articulated in Budlakoti apply to Bill C-24’s revocation proceedings, then the implications are clear.  Most Canadian Jews could be encompassed by Bill C-24’s revocation provisions given Israel’s Law of Return.  As Ms. Segilman stated before the Committee, the same could be true for people that have Italian parents, British parents, U.K. parents, Chinese parents, etc.

My point is not to argue that Bill C-24’s revocation provisions are bad, or that people who commit acts of terrorism or other significant breaches of national security should not have their citizenship revoked.  Rather, it is to stress that it is important that the debate occur within the proper context, and that in light of Budlakoti it is disingenuous to continue saying that the revocation provisions definitely only affect dual nationals. It is easy to support legislation that only affects “the other.”  It becomes a much more interesting and genuine analysis when you realize that the legislation could potentially apply to you.


Canada to Change Citizenship Requirements

On February 6, 2014 the Government of Canada introduced Bill C-24, The Strengthening Canadian Citizenship Act. If passed, Bill C-24 will significantly change the requirements for Canadian citizenship.  Prospective citizenship applicants who may not meet the new requirements once Bill C-24 passes are encouraged to apply for Canadian citizenship as soon as possible.  The new residency provisions described below will come into effect on June 11, 2015.

The following is a summary of the main changes that the Government of Canada is introducing.

Residence and other Basic Requirements

Under Canada’s current system, a permanent resident can apply for Canadian citizenship if he/she has resided in Canada for three out of the four years preceding the citizenship application.  Because the definition of “residence” is not defined, it has been possible for permanent residents who have not been physically present in Canada for three out of four years to obtain citizenship if they could show substantial ties to Canada.

As well, each day that an applicant lawfully resides in Canada before becoming a permanent resident counts as a half-day towards the residency requirement.   This means that many people can apply for citizenship 2 years after obtaining permanent resident status.

Finally, Canada’s current citizenship requirements do not require permanent residents to have an “intention to reside in Canada” once they are granted citizenship.  Indeed, it is not uncommon for citizenship applicants to apply for citizenship and then leave Canada during the entirety of the processing of their application.

Under the proposed system, a permanent resident will be able to apply for Canadian citizenship if he/she has been physically present in Canada for four out of the six years preceding the citizenship application, rather than three out of four.  Applicants will also be required to have a minimum of 183 days of physical presence per year in four out of the six years preceding the application. Only the time that someone is physically present in Canada will count towards both residency requirements.

As well, time spent in Canada as a non-permanent resident will no longer count towards the residency requirement.

Bill C-24 will also introduce the requirement that citizenship applicants demonstrate an “intention to reside in Canada” after they are granted citizenship.  Applicants must maintain this intention during the processing of their citizenship applications.

Finally, permanent residents must have filed Canadian income taxes as required under the Income Tax Act to be eligible for citizenship.

Fees

Citizenship and Immigration Canada is increasing the adult application from $100.00 to $300.00.  As well, there will be a $100.00 right of citizenship fee.

Citizenship and Language Test

Under the current system, adults aged 18-54 must meet language requirements and pass a knowledge test.  Applicants can use an interpreter for the knowledge test.

Under the proposed system, applicants aged 14-64 will be required to meet the language requirements and pass a knowledge test. As well, applicants may no longer use an interpreter for the knowledge test.

Bars to Citizenship 

Under Canada’s current system, people cannot be granted citizenship if:

  • they are under a probation order, a paroled inmate, or imprisoned in Canada;
  • during the three year period immediately preceding the date of a person’s citizenship application, or during the processing of a citizenship application, they are convicted of an indictable offence under any Canadian Act of Parliament; or
  • they are charged with an offence, on trial for, or are party to an appeal, relating to an indictable offence under any Act of Parliament in Canada.

Under the proposed system, people cannot be granted citizenship if:

  • they are under a probation order, a paroled inmate, or imprisoned in Canada, or, in most cases, if they are serving a sentence outside of Canada;
  • during the four year period immediately preceding the date of a person’s citizenship application, or during the processing of a citizenship application, they are convicted of any offence under a Canadian Act of Parliament, or for most offences outside of Canada;
  • they are charged with an offence, on trial for, or are party to an appeal relating to any any offence under an Act of Parliament or for most offences outside of Canada;
  • they have been convicted of certain terrorism and military offences, or were members of an armed force or organized armed group that was engaged in armed conflict with Canada.

Citizenship Fraud

Currently, the fines and penalties for citizenship fraud are a maximum of $1,000 and/or one year in prison.

Under the proposed system, the fines and penalties for citizenship fraud will be a maximum $100,000 and/or five years in prison.

Revocation

In most situations, the current process to revoke citizenship takes three steps.  First, Citizenship and Immigration Canada (“CIC”) indicates an intention to revoke citizenship.  If the citizen challenges CIC, then Canada’s Federal Court will determine whether the government’s allegation is correct.  If the Federal Court affirms the government’s allegation, then the Governor in Council will decide whether to revoke citizenship.

Under the proposed system, the Minister of Citizenship and Immigration Canada may now unilaterally decide on routine revocation cases involving fraud and misrepresentation. Complex revocation cases involving war crimes, crimes against humanity, security, international human rights violations, and organized criminality will be decided by Federal Court.

As well, Bill C-24 establishes the legal authority for the government to revoke the citizenship of dual citizens who have:

  • served as a member of an armed force or organized arm group that was engaged in an armed conflict with Canada;
  • been convicted of treason or spying offences and sentenced to imprisonment for life; or
  • been convicted of a terrorism offence and sentenced to five years or more imprisonment.

Armed Forces

The residency requirement will be reduced by one year for individuals on exchange who are serving in the Canadian Armed Forces.

Consultants

There is currently no requirement that citizenship consultants be licensed.  Under the proposed system, consultants will be required to be registered with and regulated by a designated organization.

Lost Canadians 

Bill C-24 will give Canadian citizenship to individuals who were born or naturalized in Canada, as well as to those who were British subjects residing in Canada, prior to January 1, 1947, but who were previously not eligible for Canadian citizenship.  Their citizenship will be retroactive.

The children of these “Lost Canadians” who were born abroad in the first generation will also be given retroactive citizenship.

More information about Bill C-24 can be found here.

Bill C-24 can be found in its entirety here.


CIC to Begin Sharing Information on Citizenship Applicants with the Canada Revenue Agency

On February 28, 2015, the Government of Canada announced in the Canada Gazette that it would begin enhanced information sharing between Citizenship and Immigration Canada (“CIC”) and the Canada Revenue Agency (“CRA“).  To many representatives who have been stunned at how many people can seemingly get away with reporting different information to the two government departments this is welcome news.

Continue reading “CIC to Begin Sharing Information on Citizenship Applicants with the Canada Revenue Agency”



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.



Sample Citizenship Exam Questions (Updated May 16, 2013)

The Citizenship Exam consists of 20 multiple choice questions. 

Some sample questions are:

A) What are three responsibilities of citizenship?

  1. Being loyal to Canada, recycling newspapers, serving in the navy, army or air force?
  2. Obeying the law, taking responsibility for oneself and one’s family, serving on a jury.
  3. Learning both official languages, voting in elections, belonging to a union.
  4. Buying Canadian products, owning your own business, using less water.

B) What is the meaning of the Remembrance Day poppy?

  1. To remember our Sovereign, Queen Elizabeth II.
  2. To celebrate Confederation.
  3. To honour prime ministers who have died.
  4. To remember the sacrifice of Canadians who have served or died in wars up to the present day.

C) How are Members of Parliament chosen?

  1. They are appointed by the United Nations.
  2. They are chosen by the provincial premiers.
  3. They are elected by voters in their local constituency (riding).
  4. They are elected by landowners and police chiefs.

D) How does a bill become a law?

  1. The Lieutenant Governor must approve the bill.
  2. Approval by a majority in the House of Commons and Senate and finally the Governor General.
  3. The Queen must sign the bill.
  4. Approval by the Members of the Legislative Assembly.

E) What was the Women’s Suffrage Movement?

  1. The effort by women to achieve the right to vote.
  2. The effort by women to participate in military service.
  3. An unsuccessful movement to get husbands to do housework.
  4. The effort by women to be in Parliament.

The pass rate for the citizenship exam has fluctuated dramatically in the last several years.  Prior to the introduction of the new exam based on the Discover Canada manual, it was around 96%.  Immediately after the introduction of Discover Canada it plunged to around 70%.  Several difficult questions were pulled, and the pass rate currently sits at around 83%.  Statistics show that there is not a great variation in the pass rate based on age, however, education level is a strong indicator.  Counter-intuitively, the longer someone has been a permanent resident at the time they write the test the less likely it is that the person will pass.

Applicants who fail the written test are referred to a hearing with a citizenship judge.

 


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.