Understanding the Citizenship Revocation Process

Meurrens LawCitizenship Applications and Revocations

Between 1977 and 2010 only 63 people had their citizenship revoked.  In July, 2011, Jason Kenney, then the Minister of Citizenship and Immigration (“Minister Kenney“), announced that as many as 1,800  Canadians could be stripped of their citizenship because they obtained their citizenship fraudulently. The 1,800 individuals were identified following a three-year investigation by the RCMP, other police forces and Citizenship and Immigration Canada.

On September 9, 2012, Minister Kenney announced that the number of people who would likely have their citizenship revoked had risen to 3,100, with an additional 11,000 people under investigation.  An Access to Information Act request revealed that most of the Canadian citizens who were the subject of investigations were originally from the following countries.

By the end of 2012, the process of revoking these peoples’ citizenship has already begun.

Section 10 of the Citizenship Act

The authority of the Government of Canada to strip people of their citizenship is legally provided for by s. 10 of the Citizenship Act, which states:

Revocation by Minister — fraud, false representation, etc.

10 (1) Subject to subsection 10.1(1), the Minister may revoke a person’s citizenship or renunciation of citizenship if the Minister is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances.

Notice

(3) Before a person’s citizenship or renunciation of citizenship may be revoked, the Minister shall provide the person with a written notice that

(a) advises the person of his or her right to make written representations;

(b) specifies the form and manner in which the representations must be made;

(c) sets out the specific grounds and reasons, including reference to materials, on which the Minister is relying to make his or her decision; and

(d) advises the person that the case will be referred to the Court unless the person requests that the case be decided by the Minister.

Representations and request for decision by Minister

(3.1) The person may, within 60 days after the day on which the notice is sent, or within any extended time that the Minister may allow for special reasons,

(a) make written representations with respect to the matters set out in the notice, including any considerations respecting his or her personal circumstances — such as the best interests of a child directly affected — that warrant special relief in light of all the circumstances of the case and whether the decision will render the person stateless; and

(b) request that the case be decided by the Minister.

Consideration of representations

(3.2) The Minister shall consider any representations received from the person pursuant to paragraph (3.1)(a) before making a decision.

Some individuals think that they can misrepresent their way to permanent residency, tell the truth when applying for citizenship, obtain citizenship, and then never have to worry about the consequences of the misrepresentations that led to them obtaining permanent residence.  Section 10.2 of the Citizenship Act makes it clear that this is not the case, and states that:

Presumption

10.2 For the purposes of subsections 10(1) and 10.1(1), a person has obtained or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances if the person became a permanent resident, within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, by false representation or fraud or by knowingly concealing material circumstances and, because of having acquired that status, the person subsequently obtained or resumed citizenship.

The burden of proof on the Government of Canada to establish fraud under s. 10 of the Citizenship Act is a “high degree of probability.”  In other words, it is higher than the “balance of probabilities” standard in civil cases, but lower than the “beyond a reasonable doubt” standard in criminal law.

The test for establishing fraud under s. 10 of the Citizenship Act is similar to that of misrepresentation for permanent residency.  The Government of Canada does not have to prove that had an individual been truthful during the application process then his citizenship application would have been rejected.  Rather, as the Supreme Court of Canada confirmed in Brooks, 1974 S.C.R. 850, the government only has to show that an individual gained entry to Canada or obtained Canadian citizenship by knowingly concealing material circumstances which had the affect of foreclosing further inquiry.

A misrepresentation of a material fact amounting to fraud under the Citizenship Act includes stating an untruth, withholding of material information, or providing a misleading answer.  In assessing the materiality of the information concealed, regard is held to the significance of the undisclosed information.  Unlike with misrepresentations in acquiring permanent residency, fraud will not result where there is merely a technical transgression of Canada’s immigration laws.  Furthermore, innocent misrepresentations will not result in the revocation of citizenship (unlike in permanent residency, a hotly contested area).  Willful blindness, however, can result in fraud under the Citizenship Act (Phan, 2003 FC 1194).

Evidence

In Canada (Citizenship and Immigration) v. Jozepovic, 2021 FC 536, the Federal Court of Canada ruled that the disclosure rules of the Supreme Court of Canada in Stinchcombe apply in citizenship revocation proceedings.

The Court stated:

It is plain from these statements that the application of the Stinchcombe principles is not limited to criminal proceedings or proceedings in which section 7 of the Charter applies. It is further apparent from the reasoning of the Federal Court of Appeal that the determining factor as to whether or not the Stinchcombe standard of disclosure applies is not to be found in arbitrary characterization of the proceedings as “criminal”, “administrative” or “professional disciplinary”, but on the seriousness of the consequences of the proceedings on the personal rights, reputation, career and status in the community of the accused. It is unarguable that the consequences of the declarations sought by the Plaintiffs in this matter are grave indeed. While they may not engage the Defendant’s section 7 rights, the accusations against him are far more serious than any of the acts of professional misconduct alleged against the accused in Sheriff, Law Society of Upper Canada v Savone, 2016 ONSC 3378, Re Pope 2011 IIROC 23 and Howe v Institute of Chartered Accountants of Ontario, [1994] O.J. No 1803, and in which it was held that the Stinchcombe principles were triggered. The consequences of being declared a war criminal or of having committed crimes against humanity would, in and of themselves, be devastating to anyone’s personal reputation and standing in the community. The loss of Canadian citizenship is far more consequential to a person’s ability to work and pursue a career in Canada than the loss of a professional accreditation. To the extent, the declarations sought are a prelude to potential deportation proceedings, the consequences are even closer to those of criminal proceedings than to disciplinary proceedings. The Court cannot see how the reasoning of the Federal Court of Appeal in Sheriff would not apply in the present circumstances.

Then What Happens?

The revocation of Canadian citizenship does not lead to automatic deportation.  If an individual’s entry to Canada was lawful, but the person obtained citizenship unlawfully, then revocation causes the person to revert to permanent resident status .  It does not specifically jeopardize the right of the person to remain in Canada.

However, if a person’s citizenship is revoked because the person entered Canada by false representation, fraud, or knowingly concealing material circumstances, then the individual will be reportable under section 44(1) of the Immigration and Refugee Protection Act and may be removed from Canada without a right of appeal to the Immigration Appeal Division.

In Gucake v. Canada (Citizenship and Immigration), 2022 FC 123, Madam Justice Elliott ruled that because removal is not automatic, then citizenship revocation officers do not need to consider the consequence of removal when determining whether to revoke someone’s citizenship.