When an Administrative Delay is an Abuse of Process

The subject of an unreasonable delay often arises in the immigration context.  In one case that I was previously involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that he might be inadmissible to Canada for previous involvement in a group accused of terrorism.  In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago.  In both cases, the client asked whether the delay amounted to an abuse of process.

Blencoe v. British Columbia

The leading Supreme Court of Canada decision on this issue is Blencoe v. British Columbia, 2000 SCC 44.  There, three women filed complaints of sexual harassment to the British Columbia Human Rights Council.  Due to delays the tribunal hearings were not resolved for 30 months after the first filing.  The accused challenged that the 30 month delay was an abuse of process, an argument which the Supreme Court of Canada ultimately rejected, and also found that the Charter was not engaged.  Importantly, the Supreme Court found that a state caused delay, without more, does not warrant a stay as an abuse of process at common law, and that there must be significant prejudice to the individual as a result of the delay.

The following principles emerged from Blencoe:

  • The administrative process must be conducted in a manner entirely consistent with the principles of natural justice and procedural fairness.
  • Unreasonable delay is a possible basis on which to raise questions of natural justice, procedural fairness, abuse of process and abuse of discretion.
  • Delay, without more, will not warrant a stay of proceedings as an abuse of process.
  • Administrative delay may impugn the validity of the proceedings where it impairs a party’s ability to answer the complaint against him or her – where memories have faded, essential witnesses are unavailable, or evidence has been lost.
  • Where the fairness of the hearing has not been compromised, delay may nevertheless amount to an abuse of process, but few lengthy delays will meet this threshold.
  • The court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted.
  • If the delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the [administrative] system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.
  • Determination of whether the delay is unreasonable is, in part, a relative exercise in which one compares the length of delay in the case at bar with the length of time normally taken for processing in the same jurisdiction and in other jurisdictions in Canada.

Unreasonable Delays Immigration Context

Beltran v. Canada (2011 FC 516) provides an example of the application of Blencoe in the immigration context.  There, the Canadian Security Intelligence Services determined that an individual was not a threat to Canada’s national interest.  Fourteen years later, without any explanation, and without any explanation, a new security officer expressed concerns, causing further delays in inadmissibility proceedings being commenced.  The court also found that a new investigation caused undue prejudice to Mr. Blencoe.  The Court was also critical of the government’s decision not to reveal certain information that it had kept confidential for twenty years, only to use it later.

In Torre v Canada ( Citizenship and Immigration), 2015 FC 591, the applicant was a permanent resident in Canada, arrested for drug trafficking in 1996. Seventeen years later, in 2013, two inadmissibility reports were prepared and referred to the Immigration Division for an admissibility hearing, which could lead to his removal. The Immigration Division refused to hear the applicant’s motion for a stay of proceedings for unreasonable delay, holding that it lacked jurisdiction to do so.

Upon judicial review, the Federal Court found that the Immigration Division has little discretion to determine whether there was an abuse of process because the Immigration and Refugee Protection Act and jurisprudence provide that the Immigration Division hold an admissibility hearing quickly, and if it finds the person inadmissible, it must make a removal order.

In Hassouna v. Canada (Citizenship and Immigration), 2017 FC 473 the Federal Court determined that when applying Blencoe to citizenship revocation courts should consider (1) the time taken compared to inherent time requirements, (2) the causes of the delay beyond the inherent time requirements of a matter, and (3) the impact of the delay, including prejudice and other harms.  There, the strain on resources that a 700% increase in citizenship revocation proceedings caused resulted in a delay not being an abuse of process.

S. 11(b) of the Charter

Section 11 of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be tried within a reasonable time. The Federal Court has ruled, however, that this does not apply to immigration proceedings, and in Montoya v. Canada even ruled that it does not apply to citizenship revocation.


Suspending Citizenship Applications Due to Cessation Hearings

Until recently, the Government of Canada adopted a very aggressive approach regarding the initiation of cessation applications against permanent residents who are protected persons. The reason is because since 2012 people who lose their protected person status for any of the following reasons also lose their permanent resident status:

  1. the person has voluntarily re-availed himself or herself of the protection of their country of nationality;
  2. the person has voluntarily reacquired their nationality;
  3. the person has acquired a new nationality and enjoys the protection of that new nationality; and
  4. the person has voluntarily become re-established in the country that the person left before claiming refugee status in Canada.

Several permanent residents with citizenship applications in processing have been affected by cessation applications.  In Godinez Ovalle v. Canada (Citizenship and Immigration), the Federal Court rather bluntly told both Immigration, Refugees and Citizenship Canada (“IRCC“) and the Canada Border Services Agency (“CBSA“) that they were out of line, and even called their approach “inhumane.”

Ultimately, however, the Federal Court of Appeal in 2017 determined that IRCC can indeed suspend the processing of citizenship applications while cessation proceedings are underway.

Continue reading “Suspending Citizenship Applications Due to Cessation Hearings”


Bill C-6 – How the Liberals are Changing Canadian Citizenship Law

On February 25, 2016, the Liberal Government of Canada introduced Bill C-6, An Act to Amend the Citizenship Act and to make consequential amendments to another Act (“Bill C-6”).  Bill C-6 was highly anticipated as during the 2015 election campaign the Liberal Party of Canada (the “Liberals”) made repealing portions of the then Conservative Government of Canada’s Bill C-24, The Strengthening Canadian Citizenship Act, one of the key pillars of their election platform.  Specifically, the Liberals promised to repeal the provisions of Bill C-24 that provided the Canadian government the ability to revoke the citizenship of certain citizens for national security concerns, to re-allow international students to count as half-days the time that they spent in Canada studying towards the residency requirement to apply for citizenship, and to eliminate the requirement that new Canadian citizens declare that they intend to reside in Canada.  The overall theme that the Liberals stressed during the campaign was that they would make it easier for “hard-working” immigrants to become Canadian citizens.

Bill C-6 goes beyond the Liberals’ specific promises listed above while remaining true to their campaign theme.  Bill C-6 amends many additional aspects of Canada’s Citizenship Act, including reducing the time that it takes for permanent residents to become eligible to apply for citizenship and reinstating the language and knowledge test exemptions that existed prior to Bill C-24.  Ultimately, however, if Bill C-6 is the final change that the Liberal Government of Canada makes to Canadian citizenship legislation, then it cannot be said that the Liberals are repealing Bill C-24, let alone undoing all of the Conservative Party of Canada’s (the “Conservatives”) changes to Canadian citizenship law.

What Stays The Same

As is often the case the changes to legislation that impact the greatest number of people are often the least discussed.  Arguably the most significant Bill C-24 change that the Liberals are maintaining is the transfer of responsibility for decision making in routine citizenship applications from citizenship judges to bureaucrats.  When the Conservatives introduced Bill C-24 they noted that this transfer would increase the number of decision makers in citizenship applications from 30 to more than 450.  This reform, combined with the 2013 federal budget allocation of $44,000,000.00 to reduce citizenship processing times, has caused citizenship application processing times to plummet.  The Liberals in Bill C-6 have made it easier for permanent residents to become eligible to apply for citizenship.  If processing times do not skyrocket as more people apply, it will likely be because of this change.

As well, Bill C-6 maintains the “physical presence” standard for calculating residency when determining whether a permanent resident has spent sufficient time in Canada to apply for citizenship.  Prior to Bill C-24, the Citizenship Act required that permanent residents be resident in Canada for a prescribed period, but did not define residency.  While most citizenship judges assumed that residency required physical presence in Canada, some citizenship judges determined that it did not require actual presence in Canada, but that residency could rather be established by demonstrating substantial ties to Canada while abroad.  Under the Liberals, “physical presence” will remain the prescribed requirement for calculating residency, and prospective citizenship applicants will continue to be unable to request that their time spent outside Canada should count towards the residency requirement.

Bill C-6 also maintains Bill C-24’s introduction of a connection between the filing of Canadian income taxes and eligibility for citizenship.  Specifically, Bill C-6 mandates that to apply for Canadian citizenship permanent residents must have met any applicable requirement under Canada’s Income Tax Act to file a return of income in respect of three taxation years that are fully or partially within the five years immediately preceding the date of application.

Somewhat surprisingly, the Liberals are also maintaining the Conservative changes to how the Government of Canada revokes the citizenship of Canadians who obtained their citizenship through fraud.  Prior to Bill C-24, the Federal Court of Canada had to agree with what is now the Ministry of Immigration, Refugees and Citizenship Canada (“IRCC”) that a citizen had obtained their citizenship through fraud.  Then, the Governor in Council (which is the Governor General acting on the advice of the federal cabinet) was responsible for actually revoking the individual’s Canadian citizenship.  Bill C-24 streamlined the process so that a single IRCC bureaucrat would both determine whether there was fraud and whether citizenship would be revoked.  No hearing is required and citizenship revocation proceedings for fraud are generally now conducted by mail.  The only recourse for citizens who lose their citizenship is to apply for judicial review, where they may not submit any new evidence that they did not provide to IRCC.  Judicial review only occurs after they have already lost their citizenship.  There are currently over 10,000 revocation investigations and proceedings underway, and these provisions of Bill C-24 are the subject of numerous constitutional challenges under the Canadian Charter of Rights and Freedoms (the “Charter”).  Because the Liberals have maintained the revocation provisions they will presumably defend them in court, and own any Charter defeats, should they occur.

Finally, Bill C-6 maintains the one generation limitation on citizenship by descent.  Most people are aware that if they are born outside of Canada to a Canadian parent that they are a Canadian citizen.  What is less known, however, is that since 2009 citizenship by descent is limited to one generation born abroad, with the objective being to prevent the creation of a huge Canadian diaspora that has never lived in Canada and has minimal ties to Canada beyond passports.  Although the limitation was controversial when it was introduced, it appears to have survived the passage of time and the change in government.

What Changes

Bill C-6 fulfils all of the campaign promises that the Liberals made during the 2015 federal election.

It repeals the portions of Bill C-24 that created a ground of citizenship revocation for citizens who commit actions that are contrary to the national interest of Canada, including terrorism, high treason, certain treason or spying offences, or membership in an armed force or organized arm group engaged in armed conflict with Canada. Contrary to what both the Government of Canada and the media often stated, this revocation ground does not apply to only dual nationals, but to anyone who would not be rendered stateless by the revocation.  As well, under Bill C-24 it is not a court that revokes the citizenship of a Canadian, but an IRCC bureaucrat.  Bill C-6’s repeal of this revocation provision has generated considerable media attention, and the issue of whether citizenship should be revoked for those who commit terrorism is not limited to Canada. At the same time that the House of Commons will now be debating repealing this ability, Britain’s Conservative government and France’s Socialist government have both respectively passed and introduced legislation in their countries that would allow the government to strip dual citizens convicted of terrorism of their citizenship.   Indeed, Britain is considering extending its revocation provisions to include revocation for serious criminality, which will only affirm the concerns of Canadians who, while they have no love for terrorists, fear a slippery slope.

While Bill C-6’s repeal of Bill C-24’s national interest revocation provisions will in practice affect only a small number of people, other changes will impact all permanent residents who wish to apply for Canadian citizenship.  Arguably the most significant change in Bill C-6 is the reduction in time that it will take permanent residents to be eligible to apply for Canadian citizenship.  Prior to Bill C-24, permanent residents could apply for Canadian citizenship if they spent the three years out of the four years immediately prior to submitting their application resident in Canada.  Bill C-24 changed this to a “four years out of six” physical presence standard.  Some thought that the Bill C-24 standard was harder because more years were required.  Others thought that it was easier because the overall percentage of time that permanent residents had to spend in Canada was lower.  Bill C-6 introduces a “three years out of five” physical presence standard, which is both a lower number of total days and a lower percentage of time spent in Canada than what is currently required.

As well, Bill C-6 reinstates the half-day credit for the time that a permanent resident spent in Canada prior to becoming a permanent resident, up to a maximum credit of one-year.  As such, if a temporary foreign worker spends two years in Canada on a work permit, and then immediately after becomes a permanent resident, then he would be eligible to apply for Canadian citizenship after two years of being physically present in Canada as a permanent resident.

Bill C-6 also repeals the additional Bill C-24 residency requirement that in addition to permanent residents having to spend four years out of six during the six year period preceding their citizenship application present in Canada, that they also have to have been physically present in Canada for at least 183 days during each of four calendar years that were fully or partially within the six years immediately before the date of their application.  The Conservatives introduced this requirement to ensure that people who were eligible for Canadian citizenship were also tax residents of Canada.  However, it in effect penalized people who immigrated to Canada after June of a given calendar year, as they could not count any of that time towards meeting this requirement.

As also promised, the Liberals are repealing Bill C-24’s “intention to reside” provision.  This requires that all adult citizenship applicants declare in their citizenship applications that they intend to continue to reside in Canada if granted citizenship.  While the Conservatives presumably introduced this requirement to address the issue of some citizenship applicants leaving Canada for almost the entire duration of the processing of their citizenship applications, only returning to take the citizenship test and oath, and then permanently leaving Canada again once they get their Canadian passports, the intent to reside provision appeared contrary to the Charter’s mobility provisions, which provides as a constitutional right that all Canadian citizens can leave Canada.  A government asking future citizens to agree to not exercise a Charter right seems disquieting at best.

Bill C-6 will also reset the language and knowledge requirement so that all citizenship applicants who are aged 18-54, rather than 14-64 as required by the Conservatives, must pass a language exam and take the knowledge test.  Prior to the introduction of Bill C-6 some speculated that the Liberals might abolish the language test requirement altogether. This did not occur.

Finally, it should be noted that not all Bill C-24 changes will make it easier for permanent residents to acquire citizenship.  Currently, permanent residents who are either in jail or on probation are prohibited from both taking the citizenship oath and counting that time towards their residency requirement.  Bill C-6 extends this prohibition and restriction to those serving conditional sentences.

Conclusion

As noted at the outset of this article, Bill C-6 fulfils all of the Liberal 2015 election campaign promises regarding Canadian citizenship law.  They have achieved this mainly by tweaking many of the Conservative changes without actually repealing most of them.

Indeed, based on introduced legislation to date, on the issue of obtaining Canadian citizenship, the Liberals and the Conservatives do not appear to have fundamental differences.  Both agree that there should be a physical presence in Canada requirement in order to apply for Canadian citizenship, and the difference between a “three years out of five” standard instead of a “four years out of six” one is not very significant, especially when compared with many other countries.  Both parties also agree that there should be a connection between filing tax returns and eligibility for citizenship, and that the majority of citizenship applicants should demonstrate an ability to communicate in one of Canada’s two official languages, as well as pass a knowledge test.  As well, both the Conservatives, and apparently the Liberals, believe that bureaucrats rather than courts should be the decision makers in citizenship revocation for fraud, and that there should be limitations to citizenship by descent.

Where there is a fundamental difference between the Liberals and the Conservatives, however, is whether the citizenship of someone who commits an action contrary to Canada’s national security or interest should be revocable.  Bill C-24 provided IRCC bureaucrats with the ability to repeal the citizenship of Canadians for such reasons.    While the Liberals could have simply amended the Citizenship Act so that it was a court rather than a bureaucrat who made the revocation decision, the Liberals instead abolished the ability altogether.  By doing so, they have drawn a clear dividing line on a fundamental values issue that will likely become the focus point of Parliament’s consideration of Bill C-6.

As noted above, citizenship revocation for national interest and security concerns is an issue that is being debated in numerous countries. How one feels about this Bill C-6 change, and the other changes to Canada’s Citizenship Act, will depend on what one thinks being a Canadian citizen should mean in a globalized world where people often have multiple citizenships.  To some, being a Canadian citizen is a fundamental part of their identity, and to many immigrants becoming a Canadian citizen is a life changing event.  To others, Canadian citizenship is simply the ability to obtain a Canadian passport, which can serve as a quasi-insurance policy to those living abroad should they ever need to leave their countries on short notice and be guaranteed admittance to Canada.  To some, Canadian citizenship is a right. As Prime Minister Trudeau has said, “a Canadian is a Canadian is a Canadian,” and any laws that create the possibility for citizenship revocation other than for immigration and citizenship fraud would result in two-tier citizenship. To others, Canadian citizenship is a privilege.  Those who commit acts that threaten Canada have fundamentally severed the social contract between the citizen and country, and have even committed a de-facto renunciation of their citizenship.

What citizenship means has been a philosophical debate with real life implications that has existed since at least when Aristotle wrote The Politics.  In 2012, a whopping 83% of Canadians believed that the state should be able to revoke the citizenship of those who commit acts of treason and terrorism against Canada.  It will be interesting to see if and how much this changes as debate over Bill C-6 unfolds, and whether Canadians possibly redefine what they think citizenship is, what the requirements should be to get it, and how easy it should be to lose.


Citizenship Certificates

Any Canadian citizen may apply for a citizenship certificate.

The application package can be found on the Citizenship and Immigration Canada (“CIC“) website here.

The current standard processing time is 5 months.  If someone lives outside Canada or the United States, and has applied through a Canadian embassy, high commission or consulate, it may take  an additional 2 to 4 months beyond the estimated processing times to process your application.  The CIC website does list ways to expedite processing.

We have below reproduced CIC’s internal master checklist for citizenship certificate applications in the hopes that this will help you structure your application in a way that allows CIC to process it as fast as possible.

 

 


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.



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.