History of Canadian nationality law

Canadian citizenship
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History of nationality law
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Canada established its own nationality law in 1946 with the enactment of the Canadian Citizenship Act 1946, which took effect on 1 January 1947. It was the second nation in the then British Commonwealth to establish its own nationality law; the first was the Irish Free State, which was a Commonwealth member until 1949 and established its own nationality law in 1935.

Under current Canadian law, Canada does not restrict multiple citizenship.

Imperial and federal legislation, 1868–1914

Under common law, a person born within Her Majesty's dominions became a British subject at birth. The various colonies of the British Empire passed their own laws determining how naturalization as a subject could take place, as well as what status aliens possessed, within their respective jurisdictions. Upon the passage of the Constitution Act, 1867, the Parliament of Canada was given authority over "Naturalization and Aliens", by virtue of section 91(25).

The Aliens and Naturalization Act, 1868[1] was the first federal Act to be passed, and it provided that persons that had been previously naturalized in any part of the Dominion possessed the same status as anyone naturalized under that Act. In addition:

The 1868 Act was replaced by the Naturalization and Aliens Act, 1881,[3] which came into force on 4 July 1883. It made the rules allowing aliens to hold property uniform throughout the Dominion, and otherwise standardized the law along the same lines as the Naturalization Act 1870 of the United Kingdom.[4]

Canadian citizens and Canadian nationals, 1910–1947

The status of "Canadian citizen" was first created under the Immigration Act, 1910,[5] which included anyone who was:

  1. a person born in Canada who had not become an alien;
  2. a British subject possessing Canadian domicile; and
  3. a person naturalized under the laws of Canada who had not subsequently become an alien or lost Canadian domicile.

Aliens, as well as all other British subjects, who wished to immigrate to Canada required permission to land. "Domicile" was declared to have been acquired by a person having his domicile in Canada for three years after having been landed therein, excluding any time spent in "any penitentiary, jail, reformatory, prison or asylum for the insane in Canada".[5]

Although the terms "Canadian citizen" and indeed "Canadian citizenship" were used in this Act, they did not create the legal status of Canadian citizen in a nationality sense. People who had the status of "Canadian citizen" were merely free from immigration controls.[6]

The status of all British subjects in the Empire (whether by birth or naturalization) was standardized by the British Nationality and Status of Aliens Act 1914,[7] which was adopted in Canada by the Naturalization Act, 1914.[8] As a result, the period of residence required to qualify for naturalization was increased from three years to five years.

A separate status of "Canadian national" was created under the Canadian Nationals Act, 1921,[9] which was defined as being any British subject who was a Canadian citizen as defined above, the wife of any such citizen, and any person born outside Canada whose father was a Canadian national at the time of that person's birth.

After the passage of the Statute of Westminster in 1931, whereby each self-governing dominion of the British Empire was henceforth considered equal in status to all the others, with the Crown becoming one that is shared and operating independently in each realm rather than as a unitary British Crown under which all the dominions were subordinate, the monarchy thus ceased to be an exclusively British institution. Because of this Canadians, and others living in countries that became known as Commonwealth realms, were known as subjects of the Crown. However in legal documents the term "British subject" continued to be used.

Prior to 1947, Canada issued two types of passports: those to British subjects by birth (coloured blue), and those to naturalized British subjects or citizens (coloured red).[10]

Eligibility of married women

There were complex rules for determining whether married women qualified as British subjects.

Until 14 January 1932, the rule was that the wife of a British subject was deemed to be a British subject, and the wife of an alien was deemed to be an alien. After that date, and until 31 December 1946, the rules were generally as follows:[11]

At time of marriage During the marriage
If husband was a British subject … … then wife automatically became a British subject on marriage. If husband naturalized as a British subject … … then wife must apply to become a British subject and obtain a Series H certificate.
If husband was an alien … … then wife only ceased to be a British subject if she automatically acquired her husband's alien nationality upon marriage. If husband naturalized in a foreign country … … then wife's status changed only if she was automatically included in her husband's alien naturalization. However, she could apply to retain British subject status and be issued a Series I certificate.

World War II-Era War Brides

By marrying a Canadian soldier, a woman, if not already British, acquired the status of British subject and Canadian national. If she then landed in Canada, she became a British subject of Canadian domicile.

In addition, Order in Council P.C. 7318 of 21 September 1944 – later replaced by P.C. 858 of February 9, 1945 – stated:

Every dependent applying for admission to Canada shall be permitted to enter Canada and upon such admission be deemed to have landed within the meaning of the said Act; and where the member of the Canadian Armed Forces is either a Canadian citizen or has Canadian domicile, the dependent shall, upon being landed, be deemed to have acquired the same status for the purposes of the said Act.[12]

Laws governing Canadian nationality

Canadian Citizenship Act, 1946

Creation of Canadian Citizenship, January 1947

First Canadian Citizenship ceremony on January 3, 1947 in Ottawa.

Canadian citizenship, as a status separate from British nationality, was created by the Canadian Citizenship Act, 1946,[13] which came into effect on 1 January 1947.

Canadian citizenship was generally conferred immediately on the following persons:[15]

In the latter two cases, a "Canadian" was a British subject who would have been considered a Canadian citizen if the 1947 Act had come into force immediately before the marriage or birth (as the case may be).

Where the child born outside Canada was not a minor (i.e. was not under 21 years in age) at the time the Act came into force, proof of landed immigrant status was required to confirm Canadian citizenship.

Acquisition and loss of citizenship under the Act

In addition to those people who became Canadian citizens upon the coming into force of the Act (popularly known as the "1947 Act" due to the year it came into force), citizenship afterwards was generally acquired as follows:

Loss of Canadian citizenship generally occurred in the following cases:

Although Canada restricted dual citizenship between 1947 and 1977, there were some situations where Canadians could nevertheless legally possess another citizenship. For example, migrants becoming Canadian citizens were not asked to formally prove that they had ceased to hold the nationality of their former country. Similarly children born in Canada to non-Canadian parents were not under any obligation to renounce a foreign citizenship they had acquired by descent. Holding a foreign passport did not in itself cause loss of Canadian citizenship.

Extensions of citizenship

1953 amendment

The Act was amended in 1953 to replace the provisions relating to Canadian citizenship by descent for minors. Section 4(2) was added, which read as follows:

(2) A person who is a Canadian citizen under paragraph (b) of subsection one and was a minor on the first day of January, 1947, ceases to be a Canadian citizen upon the date of the expiration of three years after the day on which he attains the age of twenty-one years or on the first day of January, 1954, whichever is the later date, unless he

(a) has his place of domicile in Canada at such date; or
(b) has, before such date and after attaining the age of twenty-one years, filed, in accordance with the regulations a declaration of retention of Canadian citizenship.

1967 amendment

The provision relating to loss of citizenship by naturalized Canadians living outside Canada for more than ten years was repealed on 7 July 1967.

Citizenship Act, 1976

Citizenship law was reformed by the Citizenship Act, 1976,[14] which came into force on 15 February 1977. Canada removed restrictions on dual citizenship, and many of the provisions to acquire or lose Canadian citizenship that existed under the 1947 Act were repealed.

Under the new Act (popularly known as the "1977 Act" due to the year it came into force), Canadian citizenship is acquired by:

Canadian citizens are in general no longer subject to involuntary loss of citizenship, barring revocation on the grounds of:

Section 8 of the Act provides that Canadians born outside Canada, to a Canadian parent who also acquired Canadian citizenship by birth outside Canada to a Canadian parent, will lose Canadian citizenship at age 28 unless they have established specific ties to Canada and applied to retain Canadian citizenship. Children born outside Canada to naturalized Canadian citizens are not subject to the section 8 provisions, nor is anyone born before 15 February 1977.[16]

2009 amendments

Effective 17 April 2009, the Act was significantly amended.

2014 amendments

On February 6, 2014, a bill was presented in the House of Commons to introduce several changes to the Act, which subsequently received royal assent on June 19, 2014.[21] Several provisions had retroactive effect to 17 April 2009, in order to correct certain situations that arose from the 2009 amendments, with the remainder coming into effect on August 1, 2014,[22] May 28, 2015[23] and June 11, 2015.[24] Among the Act's significant changes:

  • Citizenship is granted retroactively to those individuals who were born or naturalized in Canada as well as to those who were British subjects residing in Canada prior to 1947 (or prior to April 1949, in the case of Newfoundland) who were not eligible for Canadian citizenship when the first Canadian Citizenship Act took effect.
  • The required residence prior to application for citizenship is lengthened to four years (1,460 days) out of the previous six years, with 183 days minimum of physical presence in four out of six years. Residency is defined as physical presence.
  • Adult applicants must file Canadian income tax returns, as required under the Income Tax Act, to be eligible for citizenship.
  • Time spent in Canada before being granted Permanent Resident status does not apply towards the residency period
  • A fast-track mechanism for citizenship is established for permanent residents serving with—and individuals on exchange with—the Canadian Armed Forces to honour their service to Canada.
  • Knowledge and language requirements are unchanged except that the knowledge test must be taken in English or French.
  • Authority is provided for revoking or denying citizenship in specified circumstances.
  • Provision is to be made for the regulation of consultants, as well as for certain anti-fraud measures.

2017 amendments

On February 25, 2016, as a consequence of the Liberal victory in the 2015 election, a bill was presented to the House of Commons[25] to roll back certain changes brought in by the 2014 amendments:[26]

  • The period required for physical presence in Canada will be reduced from 1,460 days over six years to a total of 1,095 days over the five years immediately prior to submitting an application for citizenship.
  • The requirement that a person intend to reside in Canada if granted citizenship is to be repealed.
  • The adult maximum age limit applicable for the requirements to demonstrate adequate knowledge of one of the official languages is to be applicable to those under 55 years of age, rather than by those under 65.
  • The requirement to file income tax returns is clarified, so that persons must provide such returns for three years within the five-year period before applying for citizenship.
  • "Statelessness" is added to the available grounds for the Minister to exercise his or her discretion in granting citizenship to any person "to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada."
  • The prohibition on receiving a grant of citizenship, or taking the citizenship oath, while serving a term of imprisonment is broadened to include being held under any form of incarceration.
  • The power to revoke citizenship on grounds of national security is to be repealed.
  • The provision specifying that a person whose citizenship is revoked reverts to being a foreign national is amended to provide that the person's status reverts to that of a permanent resident.
  • The Minister is to be granted the power to seize or detain any document submitted for the purposes of the Act if there are reasonable grounds to believe the document was fraudulently or improperly obtained or used.
  • Transitional provisions will provide that certain of the 2014 amendments will be deemed to have never had effect.

Most amendments will take effect upon Royal Assent, but the following provisions will come into force on dates yet to be specified:

  • status and physical presence in Canada;
  • change in the required period of time in Canada of three years over five years;
  • the new age applicability for the citizenship grant requirements of demonstrating knowledge of an official language and knowledge of Canada; and
  • the new power of seizing documents.

Judicial review of provisions of current and previous Citizenship Acts

There have been a number of court decisions dealing with the subject of Canadian citizenship:

Significant cases relating to Canadian citizenship
Case Description
Glynos v. Canada, [1992] 3 FC 691 (FCA).[27] The Federal Court of Appeal ruled that the child of a Canadian mother had the right to be granted Canadian citizenship, despite the fact that the responsible parent of the child (i.e. the father) had naturalized as a U.S. citizen before 15 February 1977 and had thus lost his Canadian citizenship.
Benner v. Canada (Secretary of State) 1997 CanLII 376, [1997] 1 SCR 358 (27 February 1997), Supreme Court (Canada) The Supreme Court of Canada ruled that children born abroad before 15 February 1977 of Canadian mothers were to be treated the same as those of Canadian fathers (i.e. granted citizenship upon application without the requirements of a security check or taking a citizenship oath).
Canada (Attorney General) v. McKenna 1998 CanLII 9098, [1999] 1 FC 401 (19 October 1998), Federal Court of Appeal (Canada) The Federal Court of Appeal ruled that the Minister had to establish a bona fide justification pursuant to section 15(g) of the Canadian Human Rights Act for the discriminatory practice in the Act on adoptive parentage, where children born abroad to Canadian citizens obtain "automatic" citizenship while children adopted outside Canada must gain admission to Canada as permanent residents, as mandated by paragraph 5(2)(a ) of the Citizenship Act, which incorporates by reference the requirements imposed by the Immigration Act pertaining to permanent resident status. However, this case also declared that the Canadian Human Rights Tribunal had overreached itself in declaring that the granting of citizenship was a service customarily available to the general public, and had breached the rules of natural justice by failing to notify the Minister that the provisions of the Citizenship Act were being questioned.
Taylor v. Canada (Minister of Citizenship and Immigration) 2007 FCA 349, [2008] 3 FCR 324 (2 November 2007), Federal Court of Appeal (Canada) The Federal Court of Canada had ruled in September 2006 that an individual born abroad and out of wedlock to a Canadian serviceman father and a non-Canadian mother acquired citizenship upon arrival in Canada after World War II and did not subsequently lose Canadian citizenship while living abroad.[28] This was partially reversed by the Federal Court of Appeal in November 2007, which held that Taylor had lost his Canadian citizenship under section 20 of the 1947 Act (absence from Canada for ten consecutive years), and therefore the court could not grant his request. However, he was now able to request a grant of citizenship under section 5(4) of the current Act (special cases),and citizenship was subsequently granted in December 2007.[29]

Canadians and British nationality

While Canada created Canadian citizenship on 1 January 1947, the British Nationality and Status of Aliens Act 1914 continued to confer British subject status (the only nationality and citizenship status of the United Kingdom and its colonies and dominions before 1949) on Canadians until 31 December 1948.

On 1 January 1949, Canadian citizens continued to be British subjects under both countries' laws, but they legally ceased to hold a form of British citizenship as the UK created its own citizenship, Citizenship of the United Kingdom and Colonies (CUKC), for British subjects domiciled in the UK or a Crown Colony. CUKC status was not conferred on Canadians unless they had specific ties to the United Kingdom or one of its colonies (i.e., birth in the UK or a colony, or has a father born in the UK or a colony).

While every CUKC or a Canadian citizen was a British subject, the reverse was not true, and some people became British subjects without citizenship of any country under the British Nationality Act 1948. Hence, in the intervening period between 1 January 1947 and 1 January 1949, some people acquired British subject status under British law based on ties solely with Canada while not acquiring Canadian citizenship, making them British subjects without citizenship. These included:

The 1977 Act, which superseded the 1947 Act, replaced the term "British subject" with "Commonwealth citizen", but Canadians continued to be British subjects under British law until 1 January 1983, when the British Nationality Act 1981 went into effect and legally redefined the majority of British subjects as Commonwealth citizens.

As British subjects, Canadian citizens enjoyed the automatic right of abode in the United Kingdom until 1962, when the Commonwealth Immigrants Act 1962 went into effect. Canadian women, however, would acquire the right of abode in the UK upon marriage to a CUKC with right of abode in the UK if their marriage took place before 1 January 1983. Such women continue to have the right of abode under British law.

See also

References

  1. 1 2 An Act respecting Aliens and Naturalization, S.C. 1868, c. 66
  2. ↑ Colonization circular, Issues 30-32. Emigration Commission. Retrieved 2012-03-09., p. 80
  3. 1 2 S.C. 1881, c. 13
  4. ↑ Alfred Howell (1884). "Naturalization and Nationality in Canada". Carswell & Co. Retrieved 2012-03-09.
  5. 1 2 3 The Immigration Act, S.C. 1910, c. 27
  6. ↑ Immigration, Refugees and Citizenship Canada. History of citizenship legislation. Last modified 6 June 2015. Retrieved 12 May 2017.
  7. ↑ UK Parliament. British Nationality and Status of Aliens Act 1914 as amended (see also enacted form), from legislation.gov.uk.
  8. 1 2 The Naturalization Act, 1914, S.C. 1914, c. 44
  9. 1 2 An Act to define Canadian Nationals and to provide for the Renunciation of Canadian Nationality, S.C. 1921, c. 4
  10. ↑ as noted in Taylor, note 17 at p. 125
  11. ↑ "Operational Manual CP9 – Acquisition and Loss of Canadian Citizenship" (PDF). Citizenship and Immigration Canada. Retrieved 2012-03-09., at chapter 9, "Women and loss of British subject status before 1947"
  12. ↑ CIC inaccuracies
  13. 1 2 S.C. 1946, c. 15
  14. 1 2 S.C. 1974-75-76, c. 108 – now known as the Citizenship Act, R.S.C., 1985, c. C-29
  15. ↑ "Operational Manual CP10 - Proof of Citizenship" (PDF). Citizenship and Immigration Canada. Retrieved 2012-03-13., at 2.7, "Documents establishing citizenship"
  16. ↑ Retaining Citizenship
  17. ↑ "Citizenship Act creates a 'stateless' child". The Vancouver Sun. September 25, 2009. Archived from the original on June 4, 2011. Retrieved March 13, 2012.
  18. ↑ Branham, Daphne (October 9, 2010). "Rachel Chandler's status highlights a policy that could see thousands of stateless children born abroad to Canadians". The Vancouver Sun. LostCanadians.org. Retrieved March 13, 2012.
  19. ↑ http://ccrweb.ca/en/canadas-stateless-children
  20. ↑ CBC News http://www.cbc.ca/thecurrent/episode/2010/12/30/letters-being-single-god-sex-and-medical-marijuana/. Missing or empty |title= (help)
  21. ↑ Strengthening Canadian Citizenship Act, S.C. 2014, c. 22 (later amended by the Protection of Canada from Terrorists Act, S.C. 2015, c. 9, s. 10–11 )
  22. ↑ Order Fixing August 1, 2014 as the Day on which Certain Provisions of the Act came into Force, SI/2014-71
  23. ↑ Order Fixing the Day on which this Order is made as the Day on which Certain Provisions of the Act Come into Force, SI/2015-42
  24. ↑ Order Fixing June 11, 2015 as the Day on which Certain Provisions of the Act Come into Force, SI/2015-46
  25. ↑ "Bill C-6: An Act to amend the Citizenship Act and to make consequential amendments to another Act" (PDF). Parliament of Canada.
  26. ↑ Béchard, Julie; Elgersma, Sandra (8 March 2016). "Legislative Summary of Bill C-6: An Act to amend the Citizenship Act and to make consequential amendments to another Act". Library of Parliament.
  27. ↑ Glynos Decision Archived 2012-05-04 at the Wayback Machine.
  28. ↑ Taylor v. Canada (Minister of Citizenship and Immigration) 2006 FC 1053, 299 FTR 158 (1 September 2006)
  29. ↑ Who is Joe Taylor ?
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