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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.
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.
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.