This is cross-posted from citizenshipsolutions.ca

NB:Reminder that the “dual citizen exemption” is available ONLY if one has met the “Five Year Tax Compliance Test
 
Introduction:

This is the 2nd of seven posts analyzing the “dual citizen exemption” to the S. 877A Exit Tax which is found in § 877A(g)(1)(B) of the Internal Revenue Code. Please remember that the “dual citizen exemption” is available ONLY to those who meet the “five year tax compliance test”.

1. What is the S. 877A(g)(1)(B) “dual citizen exemption”and why does it encourage those “born dual citizens” to not renounce U.S. citizenship?

2. The history of Canada’s citizenship laws: Did the 1947 Canada Citizenship Act affirm citizenship or “strip” citizenship and create @LostCanadians?

3. The S. 877A “dual citizen” exemption – I was born before the first ever Canada Citizenship Act? Could I have been “born a Canadian citizen”?

4. The S. 877A “Dual Citizen” exemption: The 1947 Canada Citizenship Act – Am I still a Canadian or did I lose Canadian citizenship? (The “Sins Of The Father”)

5. The S. 877A “Dual Citizen” exemption: The 1947 Canada Citizenship Act and the requirements to be “born Canadian”

6. The S. 877A “Dual Citizen” exemption: I was born a dual citizen! Am I still “taxed as a resident” of Canada?”

7. The S. 877A “Dual Citizen” exemption: “MUST certify tax compliance for the five years prior to relinquishment ”

Did the 1947 Canada Citizenship Act affirm citizenship or "strip" Canadians of citizenship creating @LostCanadians? https://t.co/O14HA2XLLl

— Citizenship Lawyer (@ExpatriationLaw) February 4, 2016

Last Friday I was in Ottawa. I walked into a bookstore and saw the book:

“The Lost Canadians” by Don Chapman.

It is a fascinating book. Once again, see how important citizenship is.
Citizenship is “invisible” until your citizenship or lack thereof
creates problems in your life. Don Chapman’s book “The Lost Canadians”
is a history of the problems caused by Canada’s first citizenship act –
the 1947 Canada Citizenship Act. Many (but not all) of the problems were
caused by situations where, according to the 1947 Canada Citizenship
Act:

1. According to S. 16 of the 1947 Canada Citizenship Act, a
   minor would lose his/her Canadian citizenship
   if the responsible parent became a citizen of another nation and
   in so doing lost her/her Canadian citizenship; and

 

2. According to S. 5 of the 1947 Canada Citizenship Act, a
   person born in wedlock outside of Canada to a father who was NOT
   a Canadian citizen and a mother who WAS a Canadian citizen never
   acquired Canadian citizenship by birth. (Note that in the
   Benner case the Supreme Court of Canada
   ruled that this distinction violated S. 15 of the Canadian
   Charter Of Rights And Freedoms.) This injustice, which meant
   that those born in the U.S. did NOT acquire dual citizenship at
   birth (think of the definition of“covered expatriate of the § 877A
   “Exit Tax” Rules) was “fixed in the 2009 changes to the Canada Citizenship Act.

 

3. According to S. 6 of the Canada Citizenship Act, some Canadians born outside
   of Canada had to reside in Canada on their 24th birthday. The failure to meet this residency requirement meant that they “lost” their Canadian citizenship.

These injustices were the reason for the 2009 changes to the Canada Citizenship Act.

 

 
Those who are interested can read the 1947 Canada Citizenship here:

Canada Citizenship Act 1947

In addition to the discussion in Mr. Chapman’s book (I recommend it – you can get the electronic version (Kobo) for $9.63).

Here are excerpts from:

RECLAIMING citizenship for Canadians — a Report on the loss of Canadian Citizenship

INTRODUCTION

 
      
1. War brides

 
Some lost Canadians are the wives of Canadian servicemen who fought for Canada in World War II. During and immediately following the war, thousands of European women immigrated to Canada to join their new Canadian husbands. Dr. Barry Edmonston, a demographer, estimates that between 25,000 and 30,000 war brides still reside in Canada.[6]

By way of the 1945 Order in Council re-entry into Canada of dependents of members of the Canadian Armed Forces,[7] special allowance was made for the dependants (brides, widows and minor children) of members of the Canadian Armed Forces who served in World War II. The order provided that, upon being permitted to enter Canada, these dependants either became Canadian citizens or they enjoyed Canadian domicile, depending on the status of the member of the Canadian Forces upon whom they were dependent. However, with the passage of the Canadian Citizenship Act in 1947, individuals, including war brides,[8] ceased to be Canadian citizens if they resided outside of Canada for a period of at least six consecutive years, subject to certain exceptions.[9] This period was increased to ten years during the 1950s, and repealed altogether in 1967. However, some war brides and other Canadian immigrants had already lost their Canadian citizenship, and in many cases unknowingly.

Even if a war bride never resided outside Canada following her entry into Canada in the 1940s, she may still mistakenly perceive that her
Canadian citizenship status is in question today if she applies for a passport or other government service that requires proof of Canadian citizenship. While such women are entitled to receive a certificate of Canadian citizenship upon application, they may find it onerous to
produce documents needed to prove their citizenship, and CIC officials processing their applications may not necessarily immediately recognize the basis of their entitlement. The cost, delays and complications of the administrative process associated with proving existing citizenship are undoubtedly frustrating for any longstanding citizen.

 
2. People born abroad to a Canadian parent before the currentCitizenship Act came into effect in February 1977

 
A large number of lost Canadians were born (a) outside of Canada; (b) before the current Citizenship Act came into effect in 1977;
and (c) to a Canadian parent. They believed that they were Canadian citizens on account of their parent’s citizenship. Such people may have
lost Canadian citizenship, or never had it in the first place, due to three separate provisions of the pre-1977 citizenship legislation.

(i) Registration of births

Starting in 1947 when the Canadian Citizenship Act came into effect, the birth of a child outside Canada to a Canadian parent had to
be registered within two years in order for the child to be a “natural-born Canadian citizen.”[10] Some births were never registered. To provide relief, government extended the registration deadline over the years. The final registration deadline for all births abroad that occurred before 1977 was August 14, 2004.[11] Still, some births were never registered, with the result that such people are not Canadian citizens today.

A person born in wedlock abroad to a Canadian mother and a foreign father was not entitled to register to obtain citizenship, but the 1977 Act provided a special streamlined procedure for them to obtain citizenship without first becoming a permanent resident.[12] However, that provision was also in effect only up to August 14, 2004; therefore, those who missed the deadline missed the opportunity.

Although the registration requirement and the streamlined procedure, discussed above, applied to all children born abroad to a Canadian parent [13] before the current Citizenship Act came into effect in 1977, one group of people especially affected by this provision has been dubbed “U.S. border babies.” In many cases, these people were born in U.S. hospitals that were closer to their parents’ homes than the nearest Canadian hospitals. Other children were born elsewhere in the U.S. to Canadian parents who returned to Canada after the birth. Dr. Edmonston estimates that there were around 10,000 babies born in the U.S. between 1947 and 1977 to one or two Canadian parents.[14]

Before moving to the next provision of the pre-1977 legislation that has caused enforcement issues, it is worthwhile noting that the documentation associated with registering the foreign birth of a Canadian citizen has also posed a problem for some people. Under the 1947 Act, a document called the Registration of Birth Abroad, or RBA, was issued upon registration. The RBA has been, and continues to be, adequate proof of Canadian citizenship for a number of services, including a passport application. However, not all provincial and territorial governments recognize the RBA as sufficient proof of citizenship to receive benefits. Accordingly, an RBA holder who applies for provincial or territorial benefits may find their citizenship status in question unless they turn in their RBA and pay the $75 fee for a certificate of Canadian citizenship, which is the current document issued as proof of citizenship. One witness commented that valid RBA holders should not be required to pay a fee for proof that they are Canadians. “When is a birth certificate not a birth certificate?” he asked the Committee.[15]

Since no new RBAs are being issued, people with lost or damaged RBAs also must apply for certificates of Canadian citizenship as replacement documentation of Canadian citizenship. The Committee heard evidence that certain RBA holders were erroneously told that they are not Canadian citizens. Others perceived that their citizenship was in question when they were directed to apply for the current certificate of Canadian citizenship.

Another piece of documentation that has proved more problematic than the RBA is known as the “DND419.” It is a form of birth certificate that the Department of National Defence issued in respect of children born abroad to Canadian military personnel. The DND419 is not, and never has been, recognized as proof of Canadian citizenship for passport and some other purposes. Accordingly, a person who tries to apply for a passport or other federal or provincial/territorial service with only a DND419 may be frustrated when they are turned away and directed to apply for a certificate of Canadian citizenship. Worse still, some may perceive that rejection of the DND419 implies denial of their citizenship.

The Committee is of the opinion that this problem could be greatly ameliorated or perhaps solved by, at a minimum, more effective and sensitive communication to ensure people holding these documents fully understand their situation and to help them obtain a certificate of Canadian citizenship expeditiously.

(ii) Declaration of retention

A second problematic provision of the 1947 Canadian Citizenship Act[16] required those who acquired Canadian citizenship by descent to assert their Canadian citizenship by registering a declaration of retention between their 21st and 22nd birthdays. Failure to do so resulted in the person ceasing to be a Canadian citizen. Later, this requirement was amended to provide that such a person could retain their Canadian citizenship either (a) by registering the declaration between their 21st and 24th birthdays, or (b) by living in Canada on their 24th birthday. With the passage of the current Citizenship Act in 1977, the requirement was repealed altogether. People who otherwise would have been subject to the requirement but had not yet turned 24 when the Act came into force, were relieved from complying.[17] However, those born earlier who had failed to retain, and did not reside in the country on their 24th birthday, lost their Canadian citizenship.

Dr. Edmonston estimates that about 32,000 people who were born abroad to Canadian parents before 1977 currently reside in Canada.[18] The number of such people who are living outside Canada is unknown. Many may have lost their Canadian citizenship if they were not aware of the requirement set out above.

(iii) The wedlock issue

A third feature of the 1947 Canadian Citizenship Act and prior legislation that has had the effect of denying Canadian citizenship to many people who would otherwise be Canadian citizens was the distinction between children born in and out of wedlock. A person born abroad prior to 1977 could acquire Canadian citizenship from their Canadian father if the child was born in wedlock, and from their Canadian mother if the child was born out of wedlock.[19] This anachronistic rule had the effect of denying Canadian citizenship to children born in wedlock to Canadian mothers and foreign fathers, and children born out of wedlock to Canadian fathers and foreign mothers.

One group particularly affected by this distinction is commonly referred to as “war babies.” These are the children of Canadian servicemen and European women born during and just after World War II. Many of these couples were not permitted or were not able to marry before their child or children were born, or they chose not to do so. Under the 1945 Order in Council referred to above and for the purpose of Canadian immigration law, all children of members of the Canadian Armed Forces were deemed to be Canadian citizens or to have Canadian domicile upon entry into Canada, whether or not their parents were married at the time of their births. However, that order was arguably [20] superseded by the enactment of the Canadian Citizenship Act in 1947, which introduced the rule that children born out of wedlock derived citizenship from their mother. On that basis, Canadian citizenship was stripped from war babies who were born out of wedlock to European mothers. Dr. Edmonston estimates that about 6,000 war babies currently live in Canada, some of whom were born out of wedlock.[21] One prominent war baby is Mr. Joe Taylor, whose case is discussed below.

A second group particularly affected by the wedlock distinction is descendants of Mennonites. This category includes persons whose Canadian ancestors moved to Mexico in the 1920s and had church marriages instead of civil marriages.[22] For decades Canada accepted these marriages as valid and issued citizenship documents to children of Canadian fathers. Much later, Canada stopped recognizing those church marriages as valid because Mexico did not recognize them. As a result, children born of such unions were deemed to have been born out of wedlock, with the further result that prior to 1977 Canadian citizenship was not passed down through generations from father to child.[23] The government took the position that citizenship documents that had previously been issued to these descendants had been issued in error.[24]

 
3. People who lost their citizenship between January 1947 and February 1977 because they or their parent acquired the nationality or citizenship of another country

 
A third group of lost Canadians ceased to be citizens between 1947 and 1977 because, in general, dual citizenship was not permitted during this period. Roughly speaking, under the 1947 Canadian Citizenship Act, a Canadian citizen who voluntarily acquired the nationality or citizenship of another country lost their Canadian citizenship.[25] In addition, the minor child of such a person also could lose their citizenship if that child was, or also became, a citizen of another country.[26] The Act provided a mechanism for minors who lost their citizenship due to their parent’s action to regain Canadian citizenship by making a declaration to resume Canadian citizenship between their 21st and 22nd birthdays.[27] Nevertheless, many did not make the necessary declaration and therefore ceased to be Canadians.

Dr. Edmonston estimates that there are some 95,000 to 105,000 persons who were born in Canada between 1947 and 1977, who moved to the United States with their parents prior to 1977, and who became naturalized U.S. citizens. He estimates that perhaps 10,000 to 20,000 returned to Canada, where they currently live. Dr. Edmonston’s estimates do not represent all the people who may have lost their Canadian citizenship as minors, however, as people have acquired foreign citizenships other than American. However, Dr. Edmonston states that most Canadian-born persons who leave Canada move to the United States.[28]

In 2005, the current Citizenship Act was amended to relieve such people, who lost their citizenship as minors, from the requirement of becoming a permanent resident of Canada in order to resume citizenship.[29] However, resumption of citizenship for such people is not automatic upon applying, and for those whose applications to resume citizenship are approved, the status of being a Canadian citizen is not retroactive. Accordingly, if such a person had a child during the period after losing Canadian citizenship and before resuming citizenship, the person would not have been able to pass on Canadian citizenship to the child.

 
4. Second and subsequent generation Canadians born abroad since the current Citizenship Act came into effect in February 1977

 
The last broad group of lost Canadians is distinct from the other three groups because they are people who have lost, or are in danger of losing, Canadian citizenship under a provision of the Act currently in force.[30] The current Citizenship Act states that a person who was born outside Canada after February 14, 1977 and who derived Canadian citizenship from a parent, who was also born outside of Canada and derived Canadian citizenship from their parent, ceases to be a citizen on their 28th birthday unless the person has (a) applied to retain citizenship; and (b) either resided in Canada for a year before applying or established a substantial connection with Canada. In short, a Canadian citizen born abroad who derived his or her citizenship from a Canadian parent who was also born abroad must take steps before his or her 28th birthday to retain Canadian citizenship.[31]

There is no way to determine how many people belong to this group and are at risk of losing their citizenship, as they could be living anywhere in the world. However, the number of such people who have actually lost citizenship due to this requirement is much smaller than the number who are at risk of losing it in the future, since the first time anyone could have lost citizenship under the rule was February 15, 2005, which is 28 years after the current Citizenship Act came into force. The Committee heard evidence that a number of people in this group are aware of the requirement but are reluctant to submit applications to retain for fear that review of their status may result in a determination that they never were a citizen in the first place, due to the wedlock issue.[32]

STORIES OF LOST CANADIANS

During the course of its study, the Committee heard from dozens of witnesses who either told their own personal stories, or who represented organizations whose members are affected by the lost Canadians issue. Committee members were moved by the accounts they heard of lives thrown into disarray when people, having lived their entire lives believing that they were Canadian citizens, were suddenly informed that they were not, and in some cases, never had been. Witnesses told the Committee of the anger and disappointment they felt upon hearing the news, which they reported was often delivered abruptly or offhandedly, and without adequate explanation. They related their frustrations in receiving inconsistent and incorrect advice on how to navigate the maze of bureaucracy to have citizenship granted or restored. And they informed the Committee of the legal, financial and emotional toll the issue has taken on their lives.

The Committee is of the view that every lost Canadian case is important and worthy of attention. A small number of such cases are summarized below as representative of various groups of people affected. The final case of Mr. Joe Taylor, a “war baby” born out of wedlock, has been considered by the Federal Court of Appeal and therefore is discussed in this report in its own section.

Mr. William Smith,[33] whose U.S. birth was not registered in Canada
The Committee heard from Mr. William Smith, who was born in the United States in 1949. At the time of his birth, Mr. Smith’s parents were married and his father was Canadian. Three weeks after the birth, the family returned to Canada to live. Mr. Smith testified:

When we arrived at the border, on the train, Immigration’s only comment was, “Oh, you have a new Canadian”. There was no documentation of my entry into Canada. Somebody was representing Immigration at a border point during the entry of a child into the country, and something should have happened. Nothing did.

Apparently Mr. Smith’s birth abroad was never registered in Canada, which at the time was a requirement in order for him to be a “natural-born Canadian citizen.”[34]

Mr. Smith completed all of his schooling in Canada and went on to live as a Canadian — working, paying taxes, voting in elections and being summoned to serve on the jury of a murder trial. He testified that throughout his life he believed that he had dual citizenship.

The news that he was not a Canadian citizen came as a terrible shock to Mr. Smith:

When I finally received a letter I was so blown away, it was like somebody shot the light out in a room and all I could see was red…

In addition, he lost his employment security because proof of Canadian citizenship is a requirement for the positions he seeks to hold. Mr. Smith told the Committee that the repercussions of not being a Canadian citizen have left him “financially destitute.”

Ms. Barbara Porteous,[35] who was born in the U.S. and was not aware of the requirement to retain her citizenship before age 24
Ms. Barbara Porteous describes herself as a Canadian even while, in her view, Canada says she is “a 70-year-old woman without a country.”

She was born to a Canadian father in Oroville, Washington in 1936. She moved to Canada in 1955 when she married her husband, a Canadian born in Canada. Upon entry into Canada, she received a letter and an immigration card identifying her status as a Canadian citizen. She told the Committee that the letter welcomed her and said, “Enjoy your new life in Canada,” but did not provide any information about the possibility of her losing citizenship.

In 1959, the Porteouses moved back to Washington State to work. At that time, the American consul issued a loss of nationality certificate to Ms. Porteous on the ground that she had taken an oath to Canada when she performed poll clerk duties in the 1957 Canadian federal election.

The family lived in the United States for six years before returning to Canada and settling in the Osoyoos region in 1965. For the past 42 years, she contributed to her community and her country. She was a census taker in 1995. She worked for Elections Canada as recently as 2003. She voted in every municipal, provincial, and federal election, as she felt that was her responsibility as a citizen. She and her husband have been married almost 52 years. They have three children, eight grandchildren, and one great-grandchild, all born and living in Canada.

In 2006, Ms. Porteous applied for a replacement citizenship card to facilitate applying for a passport. Several months later, she received a letter from Citizenship and Immigration that stated:

You ceased to be a citizen June 14, 1960, the day following your 24th birthday, as you were not residing in Canada on that date nor had you applied to retain your citizenship prior to that date.

As a consequence, she can no longer visit her extended family — sisters, brothers and friends, all in their seventies — to go golfing and do all the other things she did freely believing that she was a Canadian citizen these past 42 years. She stated:

Between Oroville and Osoyoos, my life has been 25 miles over the last 50 years… You have made me without a country. I have lived here illegally for 42 years? Are you going to want my pension back?… I have never been so disappointed in my country. I can’t believe it. I don’t know what the problem is… .

Mr. Johan Teichroeb,[36] who was denied citizenship due to an historical application of the wedlock issue
Mr. Johan Teichroeb was born in Mexico in 1980. Soon after his birth, his parents applied for, and received, a certificate of Canadian citizenship on his behalf based on the ground that his mother is Canadian.[37] His family moved to Manitoba when he was six months old.

Mr. Teichroeb grew up in Canada and realized his dream to become a truck driver at age 16. Mindful of the requirement that he apply to retain citizenship before his 28th birthday,[38] he did so to retain his citizenship in 2002. One year later, he received a letter stating that he had never been a Canadian in the first place. This determination was based on his great-grandparents’ 75-year-old marriage certificate, which Canada does not recognize as valid because Mexico did not recognize church weddings at that time. Consequently, it was deemed that Mr. Teichroeb’s grandfather was born out of wedlock, with the further result that Canadian citizenship did not flow from Mr. Teichroeb’s great grandfather to his grandfather in accordance with Canadian law in force at the time. Because his grandfather was never a Canadian, Mr. Teichroeb’s mother did not derive Canadian citizenship, and in turn, Mr. Teichroeb did not derive Canadian citizenship. The 1980 citizenship document was issued in error, he was told.

Mr. Teichroeb told the Committee that he was shocked by the news that he had never been a Canadian as he has been in Canada for over 20 years. He was married here and has two Canadian-born children. In his case, the consequences of discovering that he is not a Canadian citizen have been particularly grave because of his job as a truck driver. In his words:

I lost my job. I couldn’t cross the border, and the company couldn’t supply me with Canadian runs, so I was out of a job… Because of all this, I lost everything, including the house. I was down to renting a house. Money-wise, I was borrowing money to buy groceries for the kids. I couldn’t see how this could keep going. My wife was depressed about it, and started taking antidepressants. There was no news of getting anything back. So I went from job to job, trying to support the family, trying to keep everything I had. My father owned a construction company, and he offered me a job. He had an opening, so I started working for him. A year later, I’m still here, trying to pay off what I borrowed four years ago.

Mr. Teichroeb sought a solution with CIC for four years without success. After his story was published in the newspaper, he received his citizenship within four weeks in February 2007. He told the Committee:

I’m grateful for it, but everything that has happened has cost me dearly. I would just be grateful if nobody else had to go through what I did.

Mr. Don Chapman,[39] who lost Canadian citizenship as a minor when his parents took out American citizenship
Mr. Don Chapman appeared before the Committee on numerous occasions to speak about the issues and his Lost Canadian Organization. He was born a seventh generation Canadian in Canada to two Canadian parents.

In the media, Mr. Chapman has been described as “Canadian as you can get. His great-grandfather was one of the Fathers of Confederation. Don Chapman’s father fought with the Canadian military, and collectively, his family has donated millions of dollars to Canadian universities and charities. The Chapman Library at UBC is named after [Mr.] Chapman’s father, Dr. Lloyd Chapman.”[40]

Mr. Chapman lost his Canadian citizenship against his will and unknowingly as a child when his father moved to the United States to work and was required to take out U.S. citizenship. Although this law was repealed with the enactment of the current Citizenship Act in 1977, which allows dual citizenship, people who had lost their citizenship as minors under the prior Act did not have their citizenship restored. Mr. Chapman told the Committee how he felt about this fact:[41]

Now, what happened is that Canada made a grotesque error in the 1700s and again in 1977. In the 1700s Canada abolished slavery, but they did it with this sort of language. Upper Canada said that if you were already enslaved, you would remain a slave until you die, but for anybody new, slavery would now be illegal in Canada. That’s what they did in 1977. They came in with a new Citizenship Act. … They talked about children like me, but it was the bureaucracy that stood opposed to it. … So Canada changed the law, but they kind of changed it only for people going forward. They left behind children like me.

Mr. Chapman has been fighting to return to Canada as a citizen since 1972, when he was 18 years old and was told at the Canadian border that he was not a citizen. He could have applied to become a landed immigrant, but he argues that his citizenship, and that of other people like him, should be recognized retroactively.[42] He has formed the Lost Canadian Organization and maintains a website providing the public with information about the lost Canadians problem.

THE CASE OF MR. JOE TAYLOR

One “war baby” story that has received particular attention is the case of Mr. Joe Taylor.

Background Facts
 
Mr. Taylor was born abroad out of wedlock in 1944 to a British mother and a Canadian father after the Canadian military denied his father permission to marry. Mr. Taylor’s parents married as soon as they could, three days before the end of the war, but Mr. Taylor was already four months old by then. Mr. Taylor arrived with his mother in Canada to join his father in 1946. Under the 1945 Order in Council, both were deemed to be Canadian citizens upon being permitted to enter Canada.[43] However, “[i]t would appear that after having experienced the severe horrors of war, [Mr. Taylor’s] father was not the same man. His personality had changed.”[44] The Taylor marriage only lasted a few months. When Joe Taylor’s mother returned to England to live in November 1946, she took her son with her. Six weeks later, the Canadian Citizenship Act came into force. Under a provision of that Act, children in Mr. Taylor’s position who were born abroad out of wedlock derived their citizenship from their mothers rather than their fathers.

In 2003, Mr. Taylor applied for a certificate of Canadian citizenship, but was told that his application was denied because he had lost his citizenship when he failed to register a declaration of retention by his 24th birthday. He submitted a second application for proof of citizenship, which was denied 18 months later. This time the ground for denial was that because he was born out of wedlock, he could derive citizenship only from his British mother. He wrote letters to various immigration officials and politicians to no avail.

Court Case
Mr. Taylor turned to the courts for judicial review of the second decision. There were two questions before the Federal Court:

Can a person who was born out of wedlock and outside Canada before February 15, 1977 derive Canadian citizenship only from the person’s mother? (The wedlock issue)
Did a person, who was born outside Canada before February 15, 1977, automatically lose citizenship if the person failed to register a declaration of retention of citizenship between the person’s 21st and 24th birthdays? (Declaration of retention requirement)
In response to the first question, the Court responded in the negative. Dependants of a member of the Canadian Armed Forces during World War II, including Mr. Taylor, are members of “a special group of persons.”[45] Such people, including war babies born in or out of wedlock, derived their Canadian citizenship through their father under the Order in Council, which the citizenship official had failed to consider before denying Mr. Taylor’s application for a certificate of citizenship. Further, the Court stated that “[t]his result was achieved notwithstanding the fact that … the 1947 [Canadian] Citizenship Act provided that in case of a child born out of wedlock outside Canada prior to January 1, 1947, citizenship could only be derived from the natural mother.”[46]

The Court went on to state that even if the Order in Council did not have the effect the Court attributed to it, the distinction made between children born in and out of wedlock by the relevant provision of the 1947 Canadian Citizenship Act infringes the equality rights set out in section 15[47] of the Canadian Charter of Rights and Freedoms,[48] and is not justified under section 1 of the Charter.[49]

In response to the second question regarding the fact that Mr. Taylor had failed to register a declaration of retention by his 24th birthday, the Court found that that particular requirement did not apply to Mr. Taylor. He derived his citizenship from the Order in Council, and not from the 1947 Canadian Citizenship Act. Thus he was not required to register a declaration of retention of citizenship under that Act.

The Court went on to conclude that even if the requirement had applied, when construed with the current legislative scheme, it is contrary to due process and procedural fairness.[50] “There should be some form of proper notice given to the individual, provided for in the statute or regulations… [T]he claimed automatic loss of citizenship was and is unenforceable against [Mr. Taylor] because it was and is contrary to due process and infringes the rights guaranteed by paragraphs 1(a) and 2(e) of the Bill of Rights,[51] and section 7[52] of the Charter.”[53] Additionally, the Court found that the violation of section 7 of the Charter was not justified under section 1.[54]

In relation to the apparent retroactive application of the Charter and the Bill of Rights, the Court concluded that the current case “involves a contemporary refusal (in 2005) to issue a certificate of citizenship to [Mr. Taylor] based on the requirement found in … the current Citizenship Act that he be a citizen immediately before February 15, 1977. The legality of his exclusion can be examined today under the Charter and the Bill of Rights (despite the fact that [earlier citizenship legislation upon which the decision was based has] been repealed and do[es] not exist anymore).”[55]

Accordingly, the Court declared that Mr. Taylor is a Canadian citizen and directed the Minister to issue a certificate of Canadian citizenship to him. In addition, it declared the impugned legislative provisions to be inoperative.

The Government’s Appeal
The government appealed the Taylor decision to the Federal Court of Appeal. When she appeared before the Committee in February 2007, the Minister said:[56]

Although the Government of Canada is appealing the Federal Court decision on Mr. Taylor, I want to assure members that I’m not unsympathetic to his plight. …We are prepared to expedite an application for permanent resident status. This will allow him to apply for citizenship once he’s satisfied certain requirements, which would include living in the country for a period of time. I wish to emphasize that we’re appealing the Federal Court ruling because we believe it is wrong in law. It reinterprets citizenship and extends it to a time prior to Canada’s having its own Citizenship Act in 1947. It applies to the Charter retroactively, meaning that it applies to the Charter at a point in time before the Charter even existed. These and other factors have implications for all legal matters that go well beyond Mr. Taylor.

The Court of Appeal heard the appeal in September and handed down its decision overturning the lower court ruling in November 2007. In its reasons for judgment, a panel of three judges stated that the terms used in the Order in Council indicate that it was made “for the sole purpose of facilitating the entry into Canada of dependents of members of the Canadian Armed Forces, within the meaning of the 1910 Immigration Act”[57] (emphasis added.) Upon being landed in Canada, the Court explained, Mr. Taylor became subject to Canadian laws, including the 1947 Canadian Citizenship Act that came into force a few months later. Under that Act, a person could only be a Canadian citizen if they met the requirements of the Act, which Mr. Taylor did not. Further, the distinction the 1947 Act drew against Mr. Taylor, on account of his being born out of wedlock, was not subject to a retrospective Charter application.

In summing up its reasons for concluding that Mr. Taylor did not become a Canadian citizen on January 1, 1947, the Court stated: “Had his parents obtained permission to marry before his father’s deployment to France, he would have qualified. As unfortunate as this result may be, this is a situation which is not within the domain of the Courts to redress.”[58]

The Court went on to state that, in any event, even if Mr. Taylor had been a Canadian citizen under the 1947 Canadian Citizenship Act, he would have lost his citizenship under two separate loss provisions. First, he did not assert his Canadian citizenship by registering a declaration of retention before his 24th birthday. Second, the 1947 Act provided that a non-natural-born Canadian citizen ceased to be a Canadian citizen if he resided outside of Canada for ten consecutive years, which Mr. Taylor did.

Finally, the Court stated that even if the Bill of Rights and the Charter applied to the two relevant loss provisions, they did not impose a duty on government officials to notify people that they might lose their citizenship under legislation.

In conclusion, the Court stated that it could not satisfy Mr. Taylor’s desire to be recognized as a Canadian citizen. Mr. Taylor may still apply for a discretionary grant under the current Act, as counsel for the Minister encouraged him to do at the beginning of the hearing. However, it has been reported in the media that Mr. Taylor plans to appeal to the Supreme Court of Canada.[59]

Mr. Taylor has expended significant personal resources to fund his legal challenges. When he appeared before the Committee in February 2007,[60] he commented on the government’s recent cancellation of the Court Challenges Program. That Program provided financial assistance for important court cases that advanced language and equality rights guaranteed under Canada’s Constitution. Mr. Taylor stated:

Having removed the only source of possible funding for me, they were effectively saying that if I wished to continue to fight for my birthright, I must be prepared to bankrupt myself while the government could use vast resources paid for by taxpayers’ money.

Without the Court Challenges Program, Mr. Taylor’s intended appeal, as well as other cases brought by individuals in the general interest, will require private funding in order to be pursued.

SYSTEMIC ISSUES

In addition to the legal issues relating to their citizenship, witnesses who appeared before the Committee also related troubles in interacting with CIC in their search for solutions. Concerns raised before the Committee include citizenship officials’ insensitivity in delivering news regarding loss of citizenship, inconsistent information about how to resolve the problem, and excessive delays and costs in dealing with citizenship problems.

For example, when Ms. Lisa Cochrane appeared before the Committee on behalf of her mother, Ms. Marion Galbraith, she stated:[61]

We made a trip to the Citizenship and Immigration office in Halifax, and it was a nightmare. I never had such poor customer service in my whole life, I’m ashamed to say. … We approached the commissionaire behind the glassed-in enclosure. My mother proceeded to say, “I’ve just been to the passport office and they tell me I’m not Canadian. I have all of these papers. Help me. Who do I need to talk to and what do I need to do?” He didn’t warm up to my mother’s situation, and I became a little frustrated. I spoke up and said, “Look, this is what we need. We need to speak to somebody. This is what we have and this is what we’ve been told, so how do we fix the problem?” He said, “See that phone?” and pointed. … “Go to it. … Press line 1, press line 2, speak.”

Ms. Cochrane told the Committee that four different inquiries about how to proceed resulted in four different sets of papers to complete, would have cost $430 in application fees, and would not necessarily have yielded the desired results. In the end, she determined that an application for a citizenship card was all that was required “but nobody took the time to listen or understand,” she said.

Ms. Gail E. Forrest told the Committee that after she learned that she was not a Canadian citizen, she worked for years trying to get her citizenship back. She told the Committee that she was thrilled when Mr. Don Chapman (Lost Canadian Organization) contacted her because before that, she was “alone in [her] struggles, fighting the Canadian bureaucracy.” [62] Further, she stated:

When I say “fighting the bureaucracy”, I mean that each time I contacted the Canadian citizenship offices in Canada or an embassy or a consulate in the U.S., I was told many different stories about my status. … Your citizenship offices did not know or understand my status. Some of the offices told me that if you were born in Canada you were a Canadian citizen, period.

Ms. Sheila Walshe also had a bad experience dealing with CIC. She told the Committee about the lack of communication from CIC she has had since submitting an application for a certificate of Canadian citizenship.

I got my forms, I sent them off, and within 11 days I had a reply from CIC, Citizenship and Immigration Canada, saying that I should receive my certificate within five to seven months unless there was anything further they needed to ask me. That was okay. … In October 2005, I received another letter from CIC saying it was taking longer than they had anticipated, and thanking me for my patience. Zilch since; I haven’t heard anything since. Oh, I ring up periodically. … I just ask every few months. I go in to my CIC office and ask there. … The last time I went down into Kelowna, she checked it out for me and said, “I’m really sorry, but you’re on hold”, basically. So I said to her, “Do you think CIC will award me my citizenship posthumously?”[63]

Mr. Johan Teichroeb also experienced a long delay in getting his citizenship granted, although he finally found a way to have his matter dealt with:[64]

[I]t’s been four years they worked with it. But then, all of a sudden, when we started publishing this in the paper, I had it — in a matter of four weeks. I received it on February 28, 2007.

Ms. Magali Castro-Gyr is a tenth-generation Canadian and a teacher. She lost her citizenship as a child when her father took out U.S. citizenship. She brought before the Committee a copy of the letter she received from CIC informing her that she was no longer Canadian. It states:[65]

When your father acquired U.S. citizenship in 1958, you were a dual national (Canadian and French).

Ms. Castro-Gyr told the Committee: [66]

It’s interesting, because first of all it was not in 1958, it was in 1975. And I was not even born then. I was born in 1959, so I could not have been a dual citizen in 1958; I was not even born yet.

…

There are also spelling mistakes in this letter. One of the first ones is that the woman who signed this… spelled Canada as “Camada”. She spelled my children’s names wrong. She spelled our family name wrong. This is the kind of bureaucracy I’ve dealt with — sloppy.

…

When I received that letter, I took on a lawyer. I spent $27,000 of my money bringing this case… I had a judicial review going on for two years. I then was sent an “offer”, and I have to put that in quotes, in May of 2003 that stated nine different points of things that I needed to do if I wanted to stay here.

…

I left, and two months after leaving — unsettling my family again — the government turned around and granted me and my boys citizenship. But it does not recognize the fact that I’m born here of a French-Canadian mom and am Canadian.

Mr. Charles Bosdet related to the Committee a particularly disturbing experience he had in dealing with CIC’s Sydney office:[67]

[I]t got to the point that what I was receiving in letter after letter from my evaluator didn’t acknowledge the stuff that I was sending in and also didn’t really match the content of what was in some of these things. It didn’t acknowledge, in some cases, secondary evidence that the citizenship policy manual plainly states is acceptable and will be accepted in lieu of primary evidence.

In my case, I believe the evaluator thoroughly violated the proscription against placing an undue burden on an applicant, which says you can’t place somebody at an extraordinary financial burden to try to meet the proof requirements that the evaluator is placing on them.

There was also a certain lack of professionalism. This evaluator sought to disprove my own citizenship by applying a foreign nationality law to one of my ancestors. In a subsequent discussion, it was very clear that this evaluator did not understand — was completely ignorant of — the fact that there was a difference between this foreign nationality law and Canada’s.

…

What bothered me wasn’t that she was ignorant of the law; what bothered me more than anything was a complete lack of interest in learning anything new. …

Mr. Bosdet told the Committee that after his case was taken over by an evaluator in Ottawa, the Sydney representative misrepresented his case to the Ottawa evaluator and did not inform her of a significant number of key documents. He said that when this came to light, he faxed the information to the Ottawa evaluator himself so that she would have the information relevant to make a determination.

Mr. Bosdet’s experience may have been exceptional; however, time and again witnesses who appeared before us related less extraordinary stories of poor customer service in general from CIC. Accordingly, we conclude that such experiences are not isolated incidents, but are representative of a Department with many agents who lack knowledge of the law and sensitivity to respond appropriately in some cases. The Committee appreciates that CIC officials have a substantial task in interpreting and applying complicated citizenship laws; however, the systemic problems and poor attitudes at CIC exacerbate the problem.

When CIC officials appeared before the Committee in June 2007,[68] they spoke of various measures that had been put in place to address concerns such as those discussed above. The Committee was told that CIC has set up a dedicated line in their call centre so that people with citizenship questions will be served by operators trained to address those types of questions. Cases that require further investigation are to be given prompt and individual attention. As an additional measure, CIC launched a public awareness advertising campaign, which has resulted in an increase in the number of calls to the call centre.[69]

With regard to the issue of staff insensitivity, CIC officials stated that a protocol has been developed for dealing with cases of loss of citizenship, including scripts to guide agents in using sensitive language. Ms. Janet Siddall told the Committee that she has met with other federal government offices that may be the first point of contact, including the chief executive officer of the Passport Office, who has circulated reminders to passport officials to be very sensitive when dealing with people who do not have proof of their Canadian citizenship. She stated that she has also met with the Canada Border Services Agency and the Consular Affairs Bureau of Foreign Affairs to discuss the same issue.[70]

CITIZENSHIP AND CRIMINALITY

The Committee wishes to comment on the use of citizenship law as an instrument to supplement criminal proceedings brought against lost Canadians. The Committee heard testimony from a lawyer, Mr. Christopher Veeman, who acted as legal counsel for Mr. Robert Clark.[71]

Mr. Clark and his siblings were border babies, born to two Canadian parents in a North Dakota medical facility that was close to their southern Manitoba home. Immediately after each birth, including Mr. Clark’s in 1947, the Clark family returned to their home in Canada. All their lives, the Clarks have considered themselves to be Canadians.

In 2006, Mr. Clark was convicted of a criminal offence. After someone discovered that he had been born in the United States, an immigration inquiry was commenced. Ultimately Mr. Clark was told that he is a foreign national in Canada and has no status here. Because of the conviction, he was ordered deported.

For now, the Federal Court has ordered an interim stay of the deportation order on the basis that there is an argument that Mr. Clark is a citizen under the Citizenship Act. In the meantime, Mr. Clark’s two brothers have been granted citizenship, effective February 2007, under the Minister’s discretionary power to grant citizenship in special cases.[72] Mr. Clark has not been granted citizenship, presumably because of his criminal conviction.

Mr. Clark’s lawyer, Mr. Veeman, stated:

I submit to you that something is wrong with the system that permits people to live in Canada for 59 years, openly professing themselves to be Canadians, and then be issued a deportation order after a summary hearing in front of a bureaucrat of the Canada Border Services Agency.

The points I wish to make to the committee are if you’re considering revisiting the Citizenship Act, limit as much as possible the use of discretion in the act and consider also the establishment of an independent decision-maker for these types of questions… .

In the Committee’s view, deporting lost Canadians who commit criminal offences does not accord with the supposed purpose of such deportations, which is to rid the country of foreign criminals. Mr. Clark, and others like him, are Canadians in every sense other than the purely legal. The Committee believes that it is unfair for the government to take advantage of a legal anomaly, which denied him citizenship. It is unfair to Mr. Clark, who is suffering twice for his crime — punished by the criminal court in proportion to his crime, and now facing indefinite banishment from his home of 60 years. And it is unfair to the United States, whose connection with Mr. Clark was random, fleeting and should remain inconsequential. In summary, the Committee is of the view that lost Canadians with a substantial connection to Canada who commit criminal offences should receive the same treatment as Canadians whose citizenship has never been in issue.

Related to this point is the issue of lost Canadians being subjected to background checks by the RCMP and CSIS prior to having their Canadian citizenship granted, either for the first time or as a resumption. The Committee heard contradictory information regarding whether such background checks take up to 120 days, or whether they are being completed for lost Canadian cases within a two-week timeframe.[73]

Regardless of the time taken for such checks, which no doubt has varied, the Committee is of the view that lost Canadians who have a significant attachment to Canada should not be subjected to such checks at all as a precondition to being granted citizenship. Not performing such checks would expedite the process of fixing the lost Canadian problem on an individual basis. More fundamentally, however, it would be consistent with the idea that granting citizenship to lost Canadians is about correcting their status to reflect that these people have been Canadians all along, as opposed to looking at them as new candidates for citizenship. If any lost Canadian with a significant connection to Canada is a criminal or a security threat, that person should be viewed, morally speaking, as a Canadian criminal or security threat.

THE GOVERNMENT’S VIEW

When she appeared before the Committee for the first time on this issue,[74] the Minister of Citizenship and Immigration stated that, “[w]hile the problem is real and deserves immediate attention, there is no evidence that it’s as massive as has been reported in the media or portrayed by some Honourable Members.”[75] She went on to state that only approximately 450 individual cases of lost citizenship had come to the Department’s attention that deserved further consideration, and that she was using the discretionary powers available to her as Minister under the Citizenship Act to resolve cases as quickly as possible. She informed the Committee that, at that point, she had obtained approval, through the Governor in Council, for a special grant of citizenship for 33 individuals.[76]

With respect to the problem more generally, the Minister listed five steps CIC was taking to deal with the situation:[77]

We have assigned additional staff to handle these cases and have created a dedicated unit in our call centre, so that people with questions about their citizenship can speak directly with someone who can help them.

In most cases, where it is a question of the loss of citizenship, a program officer is being assigned to each case.

We are working with our partners to ensure that while cases are under review, nobody is removed from the country, and benefits such as health care and old age security continue.

We’re working with the passport office to refer people to our call centre to speak directly with our citizenship agents.

We are also helping to expedite the process for people who have not lost their citizenship, but rather have lost their proof of citizenship and need to apply to replace it.

When the Minister appeared before the Committee for the second time, she reported that, as of May 24, 2007, the 450 known cases of lost citizenship had been reduced to 285 known cases remaining to be resolved, of which 250 were being held in abeyance because of the appeal of the Taylor case, and that she had obtained approval through the Governor in Council for a special grant of citizenship to 49 individuals.[78]

In addition, the Minister stated that the department had launched a public information campaign directed at those who may have lost, or are at risk of losing, their citizenship, or wish to regain it. The campaign included advertisements in major daily and regional newspapers. The public notices included information on how to contact the department for help with lost citizenship issues.

The Minister also announced that in the fall she would table a bill proposing a series of amendments to the Citizenship Act designed to address “the most pressing circumstances that the Committee has been considering.” She outlined the amendments to be included in the bill:

First, nothing in these proposals will take away citizenship from anyone who is now a citizen of Canada… . This is … about correcting past problems and protecting citizenship for the future.

Second, anyone born in Canada on or after January 1, 1947, will have their citizenship confirmed even if they lost it under a provision of the 1947 Act. The only exceptions would be those born in Canada to an accredited foreign diplomat, or who have personally renounced their citizenship as an adult.

Third, anyone naturalized in Canada on or after January 1, 1947 will have their citizenship confirmed even if they lost it under a provision of the 1947 Act. The only exceptions would be those, as above, who renounced their citizenship as an adult or whose citizenship was revoked by the government because it was obtained by fraud.

Fourth, anyone born to a Canadian citizen abroad — mother or father, in or out-of-wedlock — on or after January 1, 1947, is a Canadian citizen and will have their citizenship confirmed if they are the first generation born abroad. But no further.

The Minister stated that the proposals will resolve the issue of citizenship for most of the people whose status is currently in question, will eliminate onerous and confusing retention requirements, and will provide assurance that this situation will not be repeated in the future. However, she admitted that the proposals would not resolve all of the situations that have arisen. Cases of people born outside Canada prior to January 1, 1947 where citizenship is in doubt will remain unsettled.

RECOMMENDATIONS

The Committee makes the following recommendations to be incorporated in the promised bill, to provide immediate relief before the bill is adopted, to support the enactment of a new citizenship act, and to address some of the systemic issues CIC faces. In addition, the Committee has included recommendations regarding the Taylor case.

Recommendations related to drafting the promised bill
The Committee is of the view that the bill should make the Citizenship Act consistent with several fundamental principles of citizenship, and that it should do so through a minimal number of rules that are easy to understand and apply.

Recommendation 1:

The Committee recommends that the Government of Canada amend the Citizenship Act to reflect several fundamental principles.

In the 1940s when Parliament enacted the Canadian Citizenship Act, it was thought appropriate that citizenship be derived from one parent, but not the other. It was believed advisable to have different levels of citizenship (natural born versus other than natural born) with different rules applicable to each. It was deemed acceptable for a person to lose their citizenship, or in some cases never gain it, for reasons the person might have been unaware of, and in some cases, that were out of the person’s control completely.

As our Canadian society evolved, so too did our values relating to citizenship. When our current Citizenship Act came into effect in 1977, it reflected our modern belief that citizenship should be derived from one’s mother or father, and that whether a person’s parents were married or not at the time of their birth should not be determinative of their right to be Canadian — but only for future generations. With the enactment of our current Act, most, but not all, of the registration and retention requirements were also eliminated — again, only for future generations.

Our notion of citizenship, and the rights and responsibilities it entails, has continued to evolve during the past 30 years. Today in 2007 we generally share a collective view that is not necessarily reflected by the 1977 legislation in force. In particular, we support the following principles, which we believe should be reflected in our citizenship laws.

Recommendation 2:

The Committee recommends that amendments to the Citizenship Act be consistent with the following fundamental principles:

Citizenship should be a permanent status, lost only by renunciation as an adult or by revocation because it was obtained by false representation or fraud or by knowingly concealing material circumstances.
The rules for determining who is a citizen should be few, and they should be clear and easy to apply so that people may determine for themselves whether or not they are a citizen without having to consult Citizenship and Immigration Canada or resort to legal action.
People need to be able to rely on the certainty of their citizenship. Once a prescribed time has elapsed after the issue of a certificate of Canadian citizenship, the government should not be able to revoke the certificate on the ground that it was issued in error. The only exception should be for certificates issued based on a false representation or fraud or by the holder knowingly concealing material circumstances.
The above principles should apply to all people, not just those born after a specific date or those who lost citizenship under a certain Act. Accordingly, those who have lost citizenship should have their citizenship resumed retroactive to the date it was lost. Those who have never been citizens under the current law but would be citizens under a new law should have that status retroactive to birth.
Background checks are only appropriate for candidates seeking a grant of citizenship as opposed to those for whom citizenship is a birthright. Along with the principle that citizenship should be permanent, this implies that lost Canadians should not be subjected to background checks as a precondition for having their citizenship resumed.
Other countries have experienced problems similar to Canada’s with citizenship laws. The Committee notes that the Republic of Trinidad and Tobago effected a simple solution to a similar problem. That country provided that “a person who… ceased to be a citizen of Trinidad and Tobago… is deemed to have re-acquired citizenship of Trinidad and Tobago on the date he ceased to be a citizen of Trinidad and Tobago.”[79]

Recommendation 3:

The Committee recommends that amendments to the Citizenship Act provide that anyone who ever was a citizen and lost citizenship is once again a citizen, retroactive to the date that citizenship was lost. This includes people holding citizenship cards issued in error or issued with an expiry date, and people who at one time were deemed Canadian citizens within the meaning of the 1945 Order in Council. The only exceptions are in respect of those whose citizenship was revoked because it was obtained by a false representation or fraud or by the holder knowingly concealing material circumstances, and those who renounced their citizenship as an adult. The solution effected in Trinidad and Tobago in 2000 may serve as a model for Canada.

Recommendation 4:

The Committee recommends that the amendments to the Citizenship Act provide that the following people are Canadian citizens:

Anyone who was born in Canada at any time, retroactive to birth. The only exceptions are for those born in Canada to an accredited foreign diplomat, and those who renounced their citizenship as an adult;
Anyone who was born abroad at any time to a Canadian mother or a Canadian father, retroactive to birth, if they are the first generation born abroad. The only exceptions are those who renounced their citizenship as an adult; and
Anyone who was naturalized to Canada at any time. The only exceptions are those who renounced their citizenship as an adult, and those who obtained their citizenship by false representation or fraud or by knowingly concealing material circumstances.

Recommendation 5:

The Committee recommends that the Government of Canada introduce the recommended bill amending the Citizenship Act in the House of Commons before February 15, 2008.

Recommendation to provide immediate relief before the bill is adopted
The Committee believes that lost Canadians need and deserve solutions as soon as possible. While our recommendations would resolve cases of lost citizenship once enacted, we are concerned that such resolution may come too late for many lost Canadians, a number of whom are older in years. During every day that goes by without such people being recognized as Canadian citizens, they face difficulties in traveling and receiving certain benefits to which they would otherwise be entitled. For those who have not yet retired, they may be unable to work in their chosen occupations to support themselves and their families. In addition, the Committee heard testimony of the anger, disappointment and emotional upset many lost Canadians experienced and continue to feel every day that they are excluded from the community of Canadian citizens.

Recommendation 6:

The Committee recommends that the Minister consider using the discretionary power under the Citizenship Act to implement the above recommendations before the bill is drafted and introduced in the House of Commons. Priority should be given in respect of any person who is currently stateless.[80]

Considerations in support of enacting a new citizenship act
In 2005, the Committee presented a report responding to six questions from then-Minister of Citizenship and Immigration, the Honourable Joseph Volpe. In that report we stated our hope “that a new citizenship act will be tabled at the earliest possible opportunity.”[81] We continue to emphasize the pressing need for a new citizenship act that will reflect our modern values and simplify the task of determining who is a citizen.

Specifically with regards to simplification, we advise that determining citizenship should be as easy as possible. References to a former law should not be embedded into the new law. A person should not be required to prove facts about his or her ancestors, other than parents, in order to determine the person’s own citizenship status.

Recommendations to address some of the systemic issues CIC faces

Canada’s current citizenship laws are complicated and in some cases, arguably unfair. Therefore, CIC representatives, who have the role of implementing these laws, face a challenge in carrying out their duties. The Committee is confident that most CIC agents perform their duties with high levels of competence, professionalism and dedication. However, the Committee heard evidence of a number of instances where CIC officials gave incorrect information and advice to people seeking clarification about their status; where people seeking information from CIC did not fully understand the information they received; or where the life-altering news that someone is not, or might possibly not be a Canadian citizen was communicated in an insensitive or off-hand manner. In each case, the legal, financial or emotional consequences to the member of the public receiving the information was, or could have been, grave.

The Committee would like to stress the importance that all CIC representatives communicate correct information to members of the public clearly, promptly and sensitively, and that at all times they interact in a polite and helpful manner. In support of these requirements, the Committee makes the following recommendations:

Recommendation 7:

The Committee recommends that Citizenship and Immigration Canada put together an information package for all Members of Parliament and their constituency offices to assist them in helping members of the public get the right answers to their citizenship queries.

Recommendation 8:

The Committee recommends that letters Citizenship and Immigration Canada sends to members of the public, either informing a person that they are not a citizen, or denying an application to become a citizen, include practical steps the person may take to correct any error, or to receive further information and explanation.

Recommendation 9:

The Committee recommends that Citizenship and Immigration Canada seek feedback from members of the public who used their services to help CIC identify problem areas. A dedicated e-mail and paper mail address should be established where members of the public may send their complaints and suggestions, as well as their compliments, on the services they received from CIC. A few lines of text notifying the public about the feedback process should be included in letters that CIC sends out to members of the public, on posters put up in CIC waiting areas, as well as on the CIC website.

Recommendation 10:

The Committee recommends that Citizenship and Immigration Canada take steps to address repeated complaints received concerning any specific CIC agent.

Recommendation 11:

The Committee recommends that Citizenship and Immigration Canada reassess whether there is any pressing and substantial reason for continuing not to recognize the DND419,[82] as proof of Canadian citizenship. CIC should encourage Passport Canada as well as other government agencies and departments, both at the federal and provincial/territorial level, to accept the DND419, as well as the Registration of Birth Abroad (RBA), as proof of Canadian citizenship.

Recommendation 12:

The Committee recommends that Citizenship and Immigration Canada produce a straight-forward information sheet about each of the DND419 and the Registration of Birth Abroad (RBA) that explains what each of these documents is and what they do and do not represent. The information sheets should be made available to holders of these documents at convenient opportunities, and should also be available to front-line workers to help them communicate to the holders that their citizenship is not being denied.

Epilogue: The Taylor Case

The Committee notes that Mr. Taylor has borne a great personal burden, both financial and emotional, and served as a catalyst for improvement of Canada’s citizenship laws.

Recommendation 13:

The Committee recommends that, pending enactment of the recommended bill, the Minister consider seeking approval through the Governor in Council for a special grant of citizenship for Mr. Taylor as well as for the approximately 250 other people similarly situated, on a case by case basis. The Minister is requested to appear before the Committee to advise on her intended course of action in response to this recommendation.

CONCLUSION

Citizenship is a fundamental aspect of belonging in our Canadian society. It transcends our many differences to be the basic common denominator that unites us as a nation. Canada should be the club in which we are all members.

Citizenship legislation from 1947 and 1977 was a product of its time, reflecting societal attitudes and beliefs of the era during which it was enacted. As our society has evolved, so too has our understanding of the principles of fairness upon which citizenship must be based. Unfortunately, Canadian citizenship law has not kept pace.

It is not appropriate for us to be confined by anachronistic laws that continue to affect citizenship determinations, even today. The government now has an opportunity to address some of the features of past citizenship legislation. The Committee urges the government to fully implement all its recommendations, as soon as possible, to achieve the kind of responsible, fair, compassionate and inclusive outcome that is suitable for Canada.

[1] R.S.C. 1985, c. C-29.

[2] Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358 at para. 68 [“Benner”].

[3] S.C. 1946, c. 15.

[4] Some people may fit into both the second and third groups.

[5] Second generation Canadians are Canadians born abroad to a Canadian parent who was also born abroad. This group also includes subsequent generations of Canadians born abroad.

[6] Dr. Barry Edmonston, “Brief Submitted to the Standing Committee on Citizenship and Immigration,” presented at meeting no. 44, March 26, 2007, pp. 3-4. Dr. Edmonston’s figures represent the total number of European women who immigrated to Canada with a Canadian husband between 1946 and 1955 (not just those who came over immediately after the war) and who still reside in Canada. The number of such women who may be experiencing problems with their Canadian citizenship is a small subset of this large group.

[7] P.C. 1945-858 (February 9, 1945).

[8] The law did not single out war brides. It applied to all Canadian citizens who were not “natural-born” Canadian citizens. Other citizens who were not “natural-born” and therefore were at risk of losing their Canadian citizenship under the same provision included naturalized Canadians, as well as British subjects who had Canadian domicile on January 1, 1947.

[9] As an example of an exception to the rule, years during which such a person served outside of Canada while in the public service of Canada, or any province of Canada did not count towards the six years. Other exceptions also applied. See section 20 of the 1947 Canadian Citizenship Act.

[10] The Canadian parent had to be the father in the case of a child born in wedlock, and the mother in the case of a child born out of wedlock. See the subsection below headed “The Wedlock Issue.” Also see 5(b)(ii) of the 1947 Canadian Citizenship Act.

[11] There is no registration requirement for any births abroad occurring after February 1977.

[12] When the current Act came into effect in 1977, it provided some relief to people who were born abroad before 1977 in wedlock to a Canadian mother and foreign father. Since such a person’s “responsible parent” was their father, previously they were treated like strangers to Canada. Section 5(2)(b) of the 1977 Act provided a “limited time offer” for such people to become Canadian citizens without first becoming permanent residents. There were several problems associated with this opportunity, however. First, it applied only to children of Canadian mothers, so children born out of wedlock to Canadian fathers were out of luck. (The Federal Court found this infringed Charter equality rights (s. 15) in Augier v. Minister of Citizenship and Immigration, 2004 FC 613.) Second, it did not confer citizenship automatically upon application. A candidate still had to undergo background checks, and could be denied citizenship if he or she had committed an offence. (The Supreme Court found this infringed Charter equality rights (s. 15) in Benner, supra note 2.) Third, when citizenship was conferred, it was not retroactive to the time of birth. Finally, as a limited time offer, it ended August 14, 2004 and is no longer available.

[13] To be eligible for registration, the child’s Canadian parent had to be the father for a child born in wedlock or the mother, for a child born out of wedlock. To be eligible for the streamlined procedure, the child’s Canadian parent had to be the mother (and it would have been used only by children born in wedlock.) A child born out of wedlock to a Canadian father and a foreign mother was treated as a stranger to Canada.

[14] Edmonston, supra note 6, pp. 4-5. This represents the total “border baby” population, and not the total number of such people who may be experiencing problems with their Canadian citizenship, which is a subset of this group.

[15] Mr. Erl Kish, Dominion Vice-President, Royal Canadian Legion, meeting no. 41, March 19, 2007 at 12:25 p.m.

[16] The relevant provision was added to the Canadian Citizenship Act after its enactment in 1947.

[17] In other words, people born after February 1953 were not affected by the requirement because they had not yet reached their 24th birthdays when the requirement was repealed in February 1977.

[18] Edmonston, supra note 6, p. 5. Dr. Edmonston estimates that about 10,000 of these children were born in the United States. Only a subset of the people born abroad to Canadian parents before 1977 are experiencing citizenship problems now.

[19] As noted earlier, there were other requirements to fulfil as well, such as registering the birth and registering a declaration of retention, per the requirements in effect at the relevant time.

[20] According to the Federal Court of Appeal in Minister of Citizenship and Immigration v. Taylor, 2007 FCA 349 [the “Taylor appeal”], the type of citizenship conveyed by the Order in Council was distinct from Canadian citizenship as we know it today. As a result, the enactment of the Canadian Citizenship Act in 1947 resulted in certain war babies who had obtained citizenship under the Order in Council no longer being recognized as citizens. However, it has been reported that the appellant plans to appeal the decision to the Supreme Court of Canada: infra note 59.

[21] Edmonston, supra note 6, p. 4. 6,000 is an estimate of the total number of people who were born in Europe between 1939 and 1955 who report that they were Canadian citizens at birth and who currently live in Canada. It does not represent the number of people likely to be affected by the wedlock distinction, as many war babies were born in wedlock.

[22] Mennonite Central Committee Canada, per Bill Janzen, “Two Problem Areas For Some Born-Abroad Canadians”, written brief, meeting no. 38, February 26, 2007: “In the 1920s over 7000 Mennonites from Manitoba and Saskatchewan moved to Latin America, largely because the governments in these provinces forced them, with sustained fining, to send their children to the new public schools… . A few smaller groups followed in the 1940s… . Over the last half-century many of their descendants have moved back to Canada mainly to avoid poverty.”

[23] In cases where children were deemed to have been born out of wedlock prior to 1977, Canadian citizenship was passed down through generations from mother to child, if the mother was Canadian.

[24] Mennonite Central Committee Canada, supra note 22.

[25] See s. 16 of the Canadian Citizenship Act.

[26] The child ceased to be a Canadian citizen at the same time as their “responsible” parent if the child either became a citizen of the other country at the same time as the “responsible” parent, or was already a citizen of another country at the time the “responsible” parent became a citizen of another country. Presumably, this rule was put in place to ensure that minor children who ceased to be Canadian citizens did not become stateless. The “responsible” parent was deemed to be the father of a child born in wedlock, and the mother of a child born out of wedlock.

[27] See section 18(2) of the 1947 Canadian Citizenship Act.

[28] Edmonston, supra note 6, pp. 2-3. This estimate does not represent the number of people who are currently experiencing citizenship problems.

[29] See section 11(1.1) of the current Citizenship Act.

[30] See section 8 of the current Citizenship Act.

[31] Note that even if such people never register to retain citizenship beyond their 28th birthdays, as long as each successive Canadian by descent has a child before his or her 28th birthday, Canadian citizenship may be passed down indefinitely through multiple generations born abroad.

[32] Mennonite Central Committee Canada, supra note 22, p. 7.

[33] Meeting no. 44, March 26, 2007 starting at 11:25 a.m.

[34] Canadian Citizenship Act, s. 5(b)(ii).

[35] Meeting no. 38, February 26, 2007 starting at 12:05 p.m.

[36] Meeting no. 41, March 19, 2007 starting at 11:10 a.m.

[37] By the time Mr. Teichroeb was born in 1980, the law allowed Canadian citizenship to flow from either parent to child regardless of whether the child was born in or out of wedlock.

[38] Mr. Teichroeb, who was born after the current Citizenship Act came into effect, believed himself to be a second or subsequent generation Canadian born abroad and therefore subject to the current retention requirement discussed above.

[39] Meeting nos. 36, February 19, 2007; 38, February 26, 2007; 41, March 19, 2007; 44, March 26, 2007; and 60, May 29, 2007.

[40] CBC Investigation, “Lost Canadians,” March 2007, http://www.cbc.ca/news/background/lostcanadians/.

[41] Meeting no. 36, February 19, 2007 at 1:05 p.m.

[42] CBC Investigation, supra note 40.

[43] Order in Council, supra note 7, para. 3: “Every dependent [wife, widow or minor child of a member of the Canadian Armed Forces who served abroad in WW II] who is permitted to enter Canada pursuant to section two of this Order shall, for the purposes of Canadian immigration law, be deemed to be a Canadian citizen if the member of the forces upon whom he is dependent is a Canadian citizen and shall be deemed to have Canadian domicile if the said member has Canadian domicile.”

[44] Taylor v. Minister of Citizenship and Immigration, 2006 FC 1053 [“Taylor”], para. 16.

[45] Ibid., para. 253.

[46] Ibid.

[47] Subsection 15(1) states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

[48] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the Charter].

[49] Section 1 states: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

[50] Taylor, supra note 44, para. 224.

[51] Canadian Bill of Rights, S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. III [the “Bill of Rights”]. Sections 1(a) states: “It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;” Section 2(e) states, in part: “[N]o law of Canada shall be construed or applied so as to … (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;”

[52] Section 7 states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[53] Taylor, supra note 44, para. 249.

[54] Ibid., para. 252.

[55] Ibid., para. 218. This may be compared to a relatively recent unanimous Supreme Court ruling. In Benner, supra note 2, the Supreme Court found that in applying section 15 of the Charter “to questions of status, the critical time is not when the individual acquires the status in question but when that status is held against the person or disentitles the person to a benefit” (headnote.)

[56] Meeting no. 36, February 19, 2007 at 11:15 a.m.

[57] Taylor appeal, supra note 20, para. 37.

[58] Ibid., para. 72.

[59] Curt Petrovich, CBC Radio — World Report, November 3, 2007, 8:00 a.m. EDT.

[60] Meeting no. 38, February 26, 2007 at 11:50 a.m.

[61] Meeting no. 60, May 29, 2007 at 11:10 a.m.

[62] Meeting no. 41, March 19, 2007 starting at 11:15 a.m.

[63] Note that Ms. Walshe finally did become a Canadian citizen again in October 2007.

[64] Meeting no. 41, March 19, 2007 at 11:15 a.m.

[65] Meeting no. 38, February 26, 2007 at 12:00 p.m.

[66] Ibid.

[67] Meeting no. 44, March 26, 2007 starting at 11:05 a.m.

[68] Meeting no. 62, June 5, 2007.

[69] Ibid., per Ms. Janet Siddall, Associate Assistant Deputy Minister, Operations, Department of Citizenship and Immigration at 11:10 a.m. Note that when the Minister first appeared before the Committee in February 2007, she indicated that the Department had made use of newspaper advertising to inform potentially affected Canadians of the retention rule. In a subsequent letter to the Committee, the Deputy Minister corrected the Minister’s remarks to clarify that no commercial advertisements had been placed as of that date. The letter is appended to this report.

[70] Meeting no. 62, June 5, 2007 at 11:40 a.m.

[71] Meeting no. 44, March 26, 2007 at 11:35 a.m.

[72] Citizenship Act, s. 5(4).

[73] The Honourable Jim Karygiannis, Committee member, and Ms. Janet Siddall, Associate Assistant Deputy Minister, Operations, Department of Citizenship and Immigration, meeting no. 62, June 5, 2007 at 12:15 p.m.

[74] Meeting no. 36, February 19, 2007.

[75] Ibid. at 11:05 a.m.

[76] Ibid. at 11:10 a.m.

[77] Ibid.

[78] Meeting no. 61, May 29, 2007 at 3:35 p.m.

[79] An Act to amend the Citizenship of the Republic of Trinidad and Tobago Act, Act. No. 63 of 2000, clause 2 adding section 11(2E) to the Act.

[80] Note that Canada is a Contracting State to the Convention on the Reduction of Statelessness, UN OHCHR, adopted on August 30, 1961, in force December 13, 1975.

[81] Standing Committee on Citizenship and Immigration, Updating Canada’s Citizenship Laws: It’s Time, Report 12, adopted by the Committee on October 4, 2005 and presented to the House on October 6, 2005, p. 4.

[82] A certificate of birth issued by the Department of National Defence for dependants of members of the Forces born outside Canada
 
John Richardson
 

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