Canadian Citizenship Act and current issues(BP-445E)

Prior to 1947 and the introduction of the first Citizenship Act, there was legally no such thing as Canadian citizenship. Both native-born and naturalized citizens were British subjects. In 1977, the current Citizenship Act came into force, making extensive changes to the law. The effect was to make citizenship more widely available (for example, by reducing the period of residency required from five to three years), and to remove the special treatment for British nationals and the remaining discrimination between men and women.(1) The Act also provided that Canadians could hold dual citizenship, reversing the previous situation in which citizenship was lost upon the acquisition of the citizenship of another country. An important conceptual change also came about in 1977, when citizenship became a right for qualified applicants rather than a privilege as it had been in the past.

In early 1987, the government announced plans to bring in amendments to the Act. In June 1987, the Minister of the day issued a discussion paper entitled Proud to be Canadian, which outlined a number of issues and options for change and called for public comment. No further parliamentary action was taken at that time, however, apart from some minor amendments to the Act in the following years.

The Liberal government elected in 1993 announced its intention to overhaul the Act, and asked the Standing Committee on Citizenship and Immigration to provide its advice. This appeared in the report Canadian Citizenship: A Sense of Belonging, which was presented to the House of Commons in June 1994; however, no bill was forthcoming in the 35th Parliament.(2)

A Canadian citizen is a person who possesses Canadian citizenship by birth or through the naturalization process under the Canadian Citizenship Act.

The Citizenship Act specifically provides that a naturalized citizen is entitled to all the rights, powers and privileges, and is subject to all the obligations, duties and liabilities, of a citizen who was born in Canada. The Act further states that a Canadian citizen by naturalization has the same status as a Canadian citizen by birth.(4) Thus, a naturalized citizen gains the right to vote in and run as a candidate for federal and provincial elections, the right to enter, remain in and leave Canada, the right to certain minority educational language rights, and the right to apply for a Canadian passport.

Persons considered to be natural-born Canadian citizens can be born either in Canada (with exceptions for foreign diplomatic personnel), or outside Canada if, at the time of birth, one parent is a Canadian citizen. Such a parent cannot be an adoptive one.(5)

There has recently been some discussion and controversy in this country about whether or not Canada should modify the aspect of its current citizenship law that grants automatic citizenship to anyone born on Canadian soil.(6) In May 1994, Citizenship and Immigration Canada raised the issue for discussion in a paper entitled A Citizenship Strategy, prepared for the Standing Committee on Citizenship and Immigration.(7) The document posed the question:

In its June 1994 report Canadian Citizenship: A Sense of Belonging, the Standing Committee noted that the entitlement to citizenship arising from birth on Canadian territory could be subject to abuse. It noted particularly that some women appeared to be coming to Canada solely for the purpose of giving birth here and thereby assuring their babies of Canadian citizenship.(8) The Committee therefore recommended that children born in Canada should be Canadian citizens only if one or both of their parents is a permanent resident or Canadian citizen. As had the government, the Committee stated that this rule should not apply if its application would render a child stateless; it also recommended that there be an exception for children born to Convention refugees and refugee claimants whose claims are accepted.(9)

The Minister of Citizenship and Immigration, the Hon. Lucienne Robillard, was quoted in the press recently as saying that the issue was being studied for possible inclusion in a citizenship bill to be presented to Parliament. The Minister spoke of an additional factor to that mentioned by the Committee:

In response to the Minister’s comments, the Canadian Council for Refugees wrote her an open letter requesting that no change be made to the current law in this area. The letter put forward a number of arguments:

Appendix A contains information relating to the citizenship law on this issue in a number of other countries.

Unlike citizenship by birth, citizenship by naturalization is not acquired automatically. Thus, it is not possible to acquire citizenship merely by marrying a Canadian or by residing in Canada for a certain period of time. Citizenship by naturalization must be applied for and the requirements of the Citizenship Act must in the vast majority of cases be met; however, in order to alleviate cases of special or unusual hardship or to reward services of an exceptional value to Canada, the Act provides that the Governor in Council may direct the Minister to grant citizenship, even though the requirements of the Act are not met.(12)

The Minister must, according to the Act, grant citizenship to a person who makes an application therefor and

An applicant for Canadian citizenship must be 18 years or age or over.(14) The Act also sets out special procedures for the naturalization of children. For instance, a child under 18 who has been admitted for permanent residence may be granted citizenship at the same time as his or her parents.(15)

In order to qualify for citizenship, a person must have been lawfully admitted to Canada for permanent residence, (i.e., as a landed immigrant) and must have resided in Canada for a total of three years within the four years immediately preceding the date of the application for citizenship. Residence before becoming a permanent resident can be included in this time period. The three years of residence are calculated as follows:

A person cannot accumulate residence for any period during which he or she is under a probation order, is a parolled inmate, or is confined in a jail or reformatory.(16) As noted, the residence requirement does not apply to children who are being naturalized with their parents.

Despite the apparent clarity of the method of calculating the three-year period of residency, the word "residency" is not defined in the Act; consequently, judicial decisions with radically differing interpretations of the requirement have seriously complicated the law. The Act came into effect in 1977; in the following year, a case decided by the Federal Court held that actual physical presence in Canada was not necessary in order to fulfil the requirements. What the applicants needed was a significant attachment to Canada throughout the period, even if physically absent. Attachment might be evidenced by such indicators as a retained residence, accounts in Canadian banks, investments, club memberships, provincial driving licences, and so on. The result, in its extreme form, is that some applicants have been granted Canadian citizenship even though their total time actually in the country amounted to mere days or a few months.

Other judges of the Federal Court, however, have disagreed strongly with this approach and have been unwilling to excuse lengthy absences from the country. The contradictory caselaw that has developed around this issue has led to unpredictability and uncertainty in the law and, in the view of some, has seriously compromised the residency requirement, and the value of Canadian citizenship in the process.

The 1994 report of the Standing Committee recommended that the definition of residence in the Act should require a meaningful degree of physical presence. In this, the words of one Federal Court Judge were quoted with approval:

An applicant for citizenship must demonstrate an adequate knowledge of one of Canada’s two official languages.(18) Upon the recommendation of a citizenship judge, the Minister may waive this requirement on compassionate grounds,(19) and does so routinely for older persons. In its 1994 Report, the Standing Committee recommended that the Minister should continue to have the power to waive the language requirement, but should not exercise it routinely. Rather, it should be exercised on a case-by-case basis and only following a genuine effort on the part of the applicant to learn the language.(20)

An applicant for citizenship must display an adequate knowledge of Canada and of the rights and responsibilities of Canadian citizenship.(21) Applicants are asked questions with respect to Canada’s political system, geography and history which are based on information supplied free of charge by the government. Again, the knowledge requirement may be waived by the Minister on compassionate grounds.(22) As in the case of the language requirement, the Standing Committee recommended that the Minister should waive this requirement only on a case-by-case basis and only following a genuine effort on the part of the applicant to learn a sufficient amount about the country.(23)

An application for citizenship will be denied where the applicant is under an order of deportation or where the Governor in Council (i.e., federal Cabinet) has declared that there are reasonable grounds to believe that the person will engage in activity:

The Act sets out the process that must precede this decision. If the Minister is of the opinion that an individual is in the category described above, he or she may make a report to the Security and Intelligence Review Committee (SIRC).(25) The Minister must also inform the person of the report and of the possibility that, after an investigation, the Governor in Council will make the declaration referred to above. Administratively, the process is initiated by the Canadian Security Intelligence Service investigation that is conducted in relation to all applications for citizenship.

SIRC must send the person concerned a statement summarizing the relevant information so that he or she may be as fully informed as possible of the circumstances that gave rise to the report. After completing its investigation, SIRC reports to the Governor in Council and provides the individual with its conclusions.(26)

Should the Governor in Council make a declaration, the person’s citizenship application is deemed to be not approved, and any appeal to the court is deemed dismissed. The declaration expires after two years, but another declaration may be made should the person make a later application for citizenship.(27)

A major flaw in the foregoing provisions came to light recently, when Ernst Zundel made an application for Canada citizenship. The Minister reported to SIRC that in his opinion Mr. Zundel was a threat to the security of Canada. SIRC, had issued a report the previous year in which Mr. Zundel was described as a prolific publisher of hate literature, a holocaust denier, a member of the radical right, and an associate of groups labelled as aggressive racists and neo-Nazis. Mr. Zundel applied to the Federal Court for an order prohibiting SIRC from investigating the Minister’s report on the ground that there was a reasonable apprehension of bias on the part of SIRC such as to breach the duty of fairness he was owed. In its decision, the court agreed, stating that this was a case where legislative action might be called for.

In response, Parliament amended the Immigration Act and the Citizenship Act late in the 35th Parliament to provide that in a case where SIRC is unable to fulfil its investigatory duties under either Act, the Governor in Council can appoint a retired judge of a superior court to sit in its stead.(28) Interestingly, the Federal Court of Appeal later overturned the lower court ruling and found no impediment to SIRC's review of Mr. Zundel's application.

The Citizenship Act expressly provides that, notwithstanding anything in the Act, a person shall not be granted citizenship while he or she is on probation, on parole, imprisoned, or charged with, on trial for, or directly involved in an appeal relating to, an indictable offence under any Act of Parliament or an offence against the Citizenship Act.(29) Additional prohibitions added in 1987 preclude convicted or suspected war criminals from obtaining citizenship.

The Act further provides that an applicant cannot be granted citizenship if, in the three years immediately preceding the date of application, he or she has been convicted of an indictable offence under any Act of Parliament or an offence against the Citizenship Act.(30) The application for citizenship requires the applicant to state whether or not he or she is in any of these circumstances.

The Act provides that a person can lose Canadian citizenship in several ways. People who were born outside Canada after 1977, and who are citizens because one of their parents has Canadian citizenship also on such grounds, lose their citizenship when they turn 28 unless they make an application to retain it, have registered as a citizen, and have either lived in Canada for at least one year prior to the application or can establish that they have a substantial connection to Canada.(31) This is called derivative citizenship.

In its 1994 report, the Standing Committee criticized these derivative citizenship rules and called for citizenship to be restricted to the first generation born abroad.(32) The Committee concluded that affording citizenship to people who have minimal connections to Canada does nothing to enhance the value of Canadian citizenship or build a strong community in this country. The report also noted the difficult administrative and evidentiary issues that can arise with the current provisions.(33)

As noted above, the Governor in Council may make an order that a person ceases to be a citizen where the person obtained citizenship or permanent residence by false representation, fraud, or by knowingly concealing material circumstances.(34) The order can only be made following a report of the Minister; and the Act sets out the procedure the Minister must follow, beginning with notice to the individual. The person may request that the Minister refer the case to the Federal Court, which must agree that the person has obtained citizenship by fraud before the Minister may make the report.(35)

A person may also apply to renounce his or her citizenship under certain circumstances. The person must already be a citizen of another country or about to become one if the renunciation application is accepted. He or she must not be a minor, or the subject of a security declaration or reside in Canada and must not be prevented from understanding the significance of the act by reason of mental disability. The Minister may waive the requirements relating to residence and mental ability on compassionate grounds. A successful application results in a certificate of renunciation.(36)

A person who has ceased to be a citizen may apply to resume his or her citizenship, which the Minister will grant, provided the person is not the subject of a security declaration or an order revoking citizenship on the basis of fraud, is not under a deportation order, and has been a permanent resident in good standing for at least one year prior to the application.(37) The last requirement means that, unless the person is a member of the family class, he or she must pass the points test; this may prove problematic for some applicants.

As noted before, there are a number of offences under the Citizenship Act. These include making false or fraudulent statements or concealing information relating to citizenship, and improper use of Certificates of Citizenship. The Standing Committee noted that since the Act came into force in 1977 much has changed. Fines appropriate at that time have by now been eroded by inflation, and the offence provisions are now inadequate to respond to the advances in technology that threaten the integrity of citizenship documents. The Committee also noted that the provisions needed to be strengthened and harmonized with comparable provisions in the Criminal Code and the Immigration Act.(38)

As noted, changes introduced by the 1977 Act permit dual citizenship. Before that time, Canadians who voluntarily acquired another citizenship, except by marriage, lost their Canadian citizenship. Until 1973, the regulations had also required applicants for citizenship to renounce their former citizenship, although whether that renunciation was legally effective depended on the law of the former homeland. When the government asked the Standing Committee to provide advice to the government in 1994, it did not highlight the issue as one that needed addressing, nor has it done so since.

Nevertheless, during its hearings, the Committee agreed with a number of witnesses who questioned the meaning of loyalty and allegiance where people hold dual or multiple citizenships and suggested that such a policy devalues the meaning of Canadian citizenship. For this and other reasons, the Committee recommended that the government explore the possibility of reinstating the former rules, so that an adult Canadian citizen who voluntarily and formally acquired the citizenship of another country(39) would cease to be a Canadian citizen.(40) Appendix B contains list of major countries that do recognize dual citizenship and those that do not.

All adults granted citizenship, and all children 14 and older, must take the oath or affirmation of citizenship specified in the Schedule to the Act. It reads as follows:

In its 1994 hearings, the Standing Committee found a wide divergence of views on the oath. Though some witnesses argued strongly that it should be retained in its present form, more witnesses, while not necessarily opposed to mention of the monarchy, wished to see Canada given prominence. The Committee tried to satisfy the variety of viewpoints by proposing the following oath:

In 1994, following the Committee’s report, Citizenship and Immigration Canada asked a group of 10 noted Canadian writers to work as a team to draft a new oath.(41) This was the result:

Assuming that the oath may be changed in some way as part of a general revision of the Act, the inclinations of the government will likely be to avoid controversy as much as possible. In May 1996, the then, and current, Minister of Citizenship and Immigration stated:

Citizenship judges are appointed by the Governor in Council and are responsible under the Citizenship Act for considering applications for grants of citizenship (and other applications) to see if they meet the requirements of the Act and regulations and for advising the Minister if they do. The Minister then grants citizenship, a power delegated to officials. Applications that are not approved may be appealed to the Federal Court. Citizenship judges also administer the oath of allegiance and have certain ceremonial duties.

Soon after the general election of 1993, the Minister announced that these patronage positions would be eliminated and that no more citizenship judges would be appointed. At the time, there were some 50 judges across the country, who continued to perform their statutory duties until the law could be changed.

As noted above, however, no bill effecting a general revision of the Citizenship Act, has been introduced; in June 1996 the necessary amendments were included in an omnibus bill that would have amended a large number of statutes.(43) That bill, however, died on the Order Paper at the end of April 1997 when the 35th Parliament was dissolved and the election called.

Meanwhile, with no new appointments being made, the number of citizenship judges dwindled as their terms expired. By the spring of 1997, the number had reached 19, with only one judge to serve all of British Columbia. As the backlog in applications grew, the Minister has been required to appoint new judges so that the application process could continue.

Most people gain their citizenship at birth by means of one of two main legal systems. The first is the British common law system, under which citizenship is obtained by virtue of the place of birth -- jus soli -- regardless of the citizenship of the parents. The second is the tradition based on Roman law, which gives primacy to the citizenship of the parents -- jus sanguinis, regardless of where the child is born.(45) The two systems are not incompatible; some countries extend citizenship by both means, as does Canada. Nor are the rules uniform. On the contrary, because each country defines its own citizenship, there are variations on each concept. For example, although Canada accords full and automatic citizenship based on the jus soli rule, other countries may grant few rights, or none at all, merely by virtue of a person’s birth on their territories.

For each of the following countries, it will be assumed (rather than being repeated each time) that birth on that country’s territory conveys citizenship if one of the parents is a citizen. This is really jus sanguinis, and applies wherever the birth takes place.

German citizenship is acquired by jus sanguinis; birth on German soil to non-Germans does not convey any rights to citizenship. Further, naturalization is an exceptional process.

Britain removed automatic citizenship by reason only of birth on British soil in 1981.

A child born in the U.K. is a British citizen at birth, or may register as a citizen later, if:

Australia grants automatic citizenship to a child born in that country if one of the parents is ordinarily resident there.

From its earliest days, the United States followed the British rule of jus soli, supplemented by jus sanguinis where the father was American.

Following the American civil war, the United States adopted the 14th Amendment to the Constitution: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United states and the state wherein they reside." The amendment served to assure the primacy of federal citizenship and to secure the citizenship status of the newly-freed slaves.

Birth in Denmark confers no automatic right of citizenship on children. If a child born to foreigners lives in Denmark for ten years, and has lived there since the age of 16, he or she has the right to apply at the age of 21 to be naturalized; additional requirements would apply (such as knowledge of the language, no criminal record and so on).

Birth in Spain to non-Spanish parents does not confer citizenship, although individuals born there are given some additional privileges in the naturalization process.

Birth in Italy to non-Italian parents does not confer automatic citizenship. If a child born in Italy lives there legally and continually from birth, he or she may make a declaration at the age of 17 and become a citizen at the age of 18.

This note contains two lists: one of countries that do permit dual citizenship, and one of countries that do not recognize dual citizenship in the sense that nationals who voluntarily acquire the citizenship of another country lose citizenship. The word "voluntarily" is important, as exceptions are often made for acquisition of another citizenship by chance, by birth in Canada, for example, or by birth to two individuals who, by the laws of their own countries, each passes on his or her own citizenship. (Often the children will have to choose citizenship when they reach the age of majority.) It should also be noted that some countries that do not allow dual citizenship as a general rule, permit it when there is an agreement with a reciprocating state.

Countries That Permit Dual Citizenship
Canada France Italy Mexico	Netherlands Switzerland United States (usually) United Kingdom

Countries Whose Nationals Lose Citizenship Upon Voluntary Acquisition of Another Citizenship
Austria Australia China Denmark Germany(54) India	Japan Korea Norway Portugal(55) Spain(56) Sweden

(1) There remained a question of discrimination that was recently settled by the Supreme Court of Canada. Under the Act, children born abroad before 1977 of women who were Canadian citizens (children who formerly would not have qualified for citizenship) are required by the Act to make an application for citizenship, including a criminal and security check. Children born abroad before 1977 to a Canadian father, in contrast, need only register their births. In early 1997, the Supreme Court held this provision to be discriminatory and in violation of section 15 of the Canadian Charter of Rights and Freedoms. See Benner v. Canada [1997] 1 S.C.R. 358.

(2) House of Commons, Standing Committee on Citizenship and Immigration, Canadian Citizenship: A Sense of Belonging, June 1994 (hereafter, Standing Committee Report).

(5) Ibid., s. 3. In 1993 the Canadian Human Rights Commission held this to be a discriminatory practice following a complaint by the parents of two adopted children who wished to continue living abroad. The government applied for judicial review of the decision to the Federal Court which, in 1994, upheld the provision (Canada (Attorney General) v. McKenna [1994] 1 F.C. 694). The provision continues to be contentious among parents living abroad who adopt children and who wish them to have the same status as children born to them.

(6) The only exceptions are the children of people in Canada with diplomatic immunity, provided neither of the parents is a Canadian citizen or permanent resident. This is the international practice.

(7) The earlier discussion paper on citizenship, Proud to be Canadian, did not raise the issue at all.

(8) These children cannot sponsor their parents for permanent residence in Canada until they are 19, but can do so at that time; in the meantime, or when they are ready for university, they have access to the school system on the same basis as other Canadians; that is, foreign tuition fees do not apply.

(11) In 1994, a spokesperson for the Department was quoted as saying that there had been approximately 400 foreign births in Canada in the previous year (Toronto Sun, 9 January 1994, p. 20).

(21) Citizenship Act, s. 5(1)(e). The Federal Court has held that applicants may take this test in their own language, through an interpreter.

(28) An Act to amend the Citizenship Act and the Immigration Act, S.C. 1997, Chap. 22, assented to 15 April 1997, in force 20 May 1997.

(29) Citizenship Act, s. 22(1). Offences under the Act include making false or fraudulent statements or knowingly concealing any material circumstances for any purpose related to citizenship, using another’s Certificate of Citizenship, giving a Certificate of Citizenship to someone else to use, and trafficking in Certificates of Citizenship (s. 29).

(32) An exception would be made where a persons would be stateless as a result of the operation of the rule.

(41) According to an Angus Reid Survey for Citizenship and Immigration Canada conducted in January 1996, 51% of respondents felt that a new oath of allegiance should remove any reference to the monarchy and 38% felt that allegiance should be pledged to both Canada and the monarchy. Only 5% favoured swearing allegiance only to the monarchy ("Drop Oath to Queen, 51% Tell Poll," Toronto Star, 16 August 1996, p. A2).

(44) The information relating to the first six countries in this section is drawn from a paper written by William Kaplan for Multiculturalism and Citizenship Canada entitled Canadian Legislation: A Comparative Study of France, Germany, Switzerland, the United Kingdom, the United States and Australia (July 1991, hereinafter, Kaplan). The information for the remaining countries was received from officials at the embassies in Ottawa.

(45) Jus soli ("law of the soil") and jus sanguinis ("law of the blood") transmit citizenship (normally) at birth. Other ways of obtaining citizenship include by marriage, adoption, and through naturalization.

(53) The information regarding Denmark and for the countries that follow was gained by contacting officials of the embassies in Ottawa.

(54) German nationals may hold dual citizenship with the express permission of the state.

(56) Spain allows dual citizenship for those who acquire the nationality of a Latin American country, Andorra, the Philippines, Equatorial Guinea or Portugal. The citizenship law of Spain has been somewhat unclear since a court decision holding that Spanish citizenship is not lost upon acquiring the citizenship of a non-exempt country unless there has been a formal renunciation.