Last updated on June 17th, 2021
Last Updated on June 17, 2021 by Steven Meurrens
Between 1977 and 2010 only 63 people had their citizenship revoked. In July, 2011, Jason Kenney, 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, with several Canadians receiving letters stating the following:
The potential citizenship revocation of 11,000 Canadians generated considerable media and political attention, including this Twitter exchange between Jason Kenney and Jinny Sims, the New Democratic Party Immigration Critic.
While what Minister Kenney said was at the time true, one of the consequences of Bill C-24, the Strengthening of Canadian Citizenship Act, is that there are no longer the same procedural safeguards for those who face citizenship revocation proceedings for misrepresentation.
Section 10 of the Citizenship Act – Then and Now
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 previously stated that:
Order in cases of fraud
10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be deemed to have had no effect,
as of such date as may be fixed by order of the Governor in Council with respect thereto.
Section 10 of the Citizenship Act now states that:
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.
Revocation for fraud — declaration of Court
10.1 (1) If the Minister has reasonable grounds to believe that a person obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances, with respect to a fact described in section 34, 35 or 37 of the Immigration and Refugee Protection Act other than a fact that is also described in paragraph 36(1)(a) or (b) or (2)(a) or (b) of that Act, the person’s citizenship or renunciation of citizenship may be revoked only if the Minister seeks a declaration, in an action that the Minister commences, that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances and the Court makes such a declaration.
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:
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).
The Role of Federal Court
As noted in the letter that the Government of Canada is sending people suspected of fraud, also known as a “Section 18 Letter”, individuals whose citizenship the Government of Canada intends to revoke have the ability to have their case reviewed by the Federal Court.
Section 18 of the Citizenship Act provides that certain procedures must be followed before the Government of Canada revokes a person’s citizenship. It states:
Notice to person in respect of revocation
18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and
(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or
(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
Nature of notice
(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.
(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
The role of the Federal Court in a citizenship revocation proceeding is not to determine whether an individual’s citizenship should be revoked. Rather, as the Federal Court noted in Canada (Minister of Citizenship and Immigration) v. Obodzinsky, it is to engage in an investigative proceeding to collect evidence of facts surrounding the acquisition of citizenship, so as to determine whether it was obtained by fraudulent means.
For example, in the high profile case of Canada (Citizenship and Immigration) v. Rogan, the first citizenship revocation case involving post World War II war crimes, the Federal Court’s role was to determine whether Mr. Rogan had either engaged in or was complicit in war crimes, and, if so, whether or not he misrepresented this information when he immigrated to Canada. The determination of whether the misrepresentation and fraud should lead to the revocation of citizenship remained with the Government of Canada.
The same will be true for individuals involved in the current investigation. The Federal Court will not state whether the Government of Canada should revoke the citizenship of someone encompassed by s. 10 of the Citizenship Act. It will simply determine whether there was fraud.
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,  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.