THE DILEMMAS OF CANADIAN CITIZENSHIP LAW
By J. DONALD GALLOWAY *
13 Geo. Immigr. L.J. 201
II. CANADIAN CITIZENSHIP LAW
Canadian citizenship law is multifunctional. It recognizes the status of citizenship, defines the qualifications required for obtaining it, stipulates the means through which the status can be lost or renounced and, most significantly, attaches to the status a package of rights, privileges and burdens generally not available to others, although each part of the package may have a wider distribution. Citizenship laws are also frequently accompanied by political programs which encourage those identified as citizens to behave in particular ways, such as publicly celebrating their status, and even to conceive of their legal status as an integral aspect of their identity.
Citizenship law does more than distinguish those who belong to a legal community and the terms of membership. It also has a diachronic dimension. Citizenship law is the mechanism whereby a society achieves regeneration, retaining its identity while its constituent members born and die, arrive and depart. Citizenship law provides the strands which connect the future to the past, by identifying the characteristics of those who will be recognized as worthy of special attention from the law.
The Citizenship Act is the primary source of citizenship law. n4 It recognizes three principal ways by which one may gain the [*203] status. n5 First, a person who is born in Canada is automatically a Canadian citizen, n6 unless he or she is the child of a foreign diplomat. n7 This rule maintains and modernizes the English common law of jus soli. As summarized by Mervyn Jones,
Under the common law a person became a British subject, as a rule, by being born within the allegiance of the Crown, and the usual source of this allegiance was birth within His Majesty's dominions. The common law, as modified or amended by statutes of the Parliament of the United Kingdom was regarded as applying in all parts of His Majesty's dominions . . . . n8
Second, a strand of jus sanguinis is also recognized in the Citizenship Act, in that a person automatically becomes a citizen by being born to a Canadian citizen outside Canada. n9 However, a qualification is attached: if the parent had also gained citizenship through this provision, the child will lose the status unless, before the age of twenty-eight, he or she applies to retain the status, registers as a citizen, and either resides in Canada for at least a year before applying or establishes a substantial connection with Canada. n10 These rules do not apply to children adopted by a citizen outside Canada, who must be sponsored as immigrants if they are to gain status in Canada. Should the sponsorship be permitted, the child will be admitted to Canada as a permanent resident and may later seek naturalization. n11 Similarly, the rules do not apply to the children of permanent residents who are born outside Canada.
[*204] The third principal method of gaining citizenship is outlined in section 5(1) of the Citizenship Act, which sets out the qualifications for citizenship by naturalization. It provides that:
The Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) has been lawfully admitted to Canada for permanent residence, has not ceased to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of the application, accumulated at least three years of residence in Canada . . .;
(d) has an adequate knowledge of one of the official languages of Canada;
(e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
(f) is not under a deportation order. . . . n12
Section 3(1) of the Citizenship Act also stipulates that a person who meets these requirements is a citizen only when he or she takes the oath of citizenship, a requirement which can be waived only in the case of a minor or a person with a mental disability. n13 Moreover, section 24 of the Immigration Act, to which reference is made, provides that a person ceases to be a permanent resident when he leaves Canada or remains outside Canada with the intention of abandoning Canada as his place of permanent residence, and that a person who has been outside the country for six months in a one year period shall be deemed to have abandoned Canada unless he proves that he did not have that intent. n14 The Citizenship Regulations flesh out these statutory requirements. For example, they provide that knowledge of Canada and of the responsibilities and rights of citizens is to be tested by questions relating to such matters as the election process, social and cultural history, political history, or physical and political geography. n15
The Citizenship Act and the Citizenship Regulations also provide for loss and renunciation of citizenship. Section 10 of the Citizenship Act provides that where the Governor in Council (i.e., the Federal Cabinet) is satisfied that a person has obtained citizenship "by false representation, or fraud or by knowingly concealing circumstances," the person ceases to be a citizen. n16 Moreover, where a person has gained permanent resident status through such means, he or she is deemed to have obtained citizenship also by such means. These provisions have been used by the Federal Government in recent years, [*205] with mixed results, against individuals who have concealed alleged war crimes when applying for permanent resident status. To find such individuals guilty of the offenses would require proof beyond a reasonable doubt. To strip them of their citizenship, and therefore qualify them for deportation, requires only proof on the balance of probabilities.
While the Citizenship Act identifies the formal criteria for gaining and losing citizenship, its silence on a number of issues is quite deafening. For example, the issue of whether a person may retain multiple nationalities is dealt with only by implication. There is no provision in the Citizenship Act which prevents a person from taking out citizenship in another country. Nor is there any provision to compel a naturalized Canadian to renounce his or her previous citizenship.
Perhaps the most significant omission is the failure of the Citizenship Act to identify the responsibilities and rights which attach to the status. Consequently, it does not offer any hint on how the life of a citizen will differ from that of other persons who may participate in the political, cultural, and social life of Canada. Such matters are dealt with elsewhere, both in other federal statutes and in the Constitution. For example, section 3 of the Charter recognizes that every citizen has the right to vote in federal and provincial elections and to be qualified for membership in the relevant legislature. n17 Section 6(1) of the Charter recognizes that every citizen has the right to enter, remain in, and leave Canada. n18 And section 23(1) of the Charter vests in citizens who meet certain qualifications the right to have their children educated in one of the two official languages. n19 However, as I point out below, the equality provisions in the Charter have rendered the status of citizenship a suspect ground for positive discrimination, and accordingly citizens and permanent residents receive equal access to social benefits, such as medical care, and welfare. The rare case in which citizenship has been used as a criterion for preferential treatment has proved problematic and has attracted judicial attention. n20