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| Don Chapman |
In her December 2023 ruling, Justice Jasmine Akbarali mandated the government correct the offending legislation within six months. June 19, 2024, is Parliament’s drop-dead date.
The bill is not, as some naysayers have suggested, a Liberal giveaway; rather, it corrects many historical wrongs. Everyone from Indigenous Peoples to our newest Canadians are affected: We’re either equal or we’re not.
A common mischaracterization is that “Lost Canadians” are “Canadians of convenience.” No, we’re not. Critics obviously don’t understand the issue. Another emerging misconception, as was intimated in a Law360 Canada column by immigration lawyer Sergio Karas, is C-71 possibly giving citizenship rights “ad infinitum” to children of Canadians born abroad.
It does not. All Canadians will have some sort of litmus test to prove their “substantial connection”; only then will they be able to confer citizenship to their children born abroad. For instance, if a person born in Canada has a baby born overseas, and that child never lived in Canada for 1,095 days, they would not be able to confer citizenship to their children.
This substantial connection assessment has been tested in the courts, and to date, it’s only applied to immigrant Canadians, who, interestingly, have had two other immigrant court decisions to help them prove their “substantial connection”: Koo (Re) (T.D.), [1993] 1 F.C. 286, and In re Citizenship Act and in re Antonios E. Papadogiorgakis (appellant), [1978] 2 F.C. 208. Bill C-71 levels the playing field to give every Canadian born abroad the same rights that naturalized Canadians enjoy.
Is Mr. Karas aware that C-71 helps end forced family separation and helps eliminate statelessness to babies born of Canadian-citizen parent(s)?
Mr. Karas quoted a Globe and Mail article (May 23, 2024) written by McGill Professor Daniel Béland: “Canadians living abroad sometimes can be a burden for the government in the sense that if we need to evacuate them during an armed conflict, or if they come back to the country to seek healthcare and so forth.”
This statement is reasonable. However, it applies to all Canadians travelling, working or living elsewhere, not just those addressed by C-71. Hundreds of thousands of Canadian citizens hold positions — temporary or in some cases permanent — in countries on every single continent, as researchers, teachers, consultants, students studying abroad or serving in military or government service overseas.
Another Karas statement: “Canada is already struggling with a prohibitive cost of living and a severe housing crisis. Introducing tens of thousands of new citizens without a robust integration plan is reckless. Our social infrastructure is buckling, and health care is under severe pressure.”
“Lost Canadians” benefitting from Bill C-71 are not “new citizens”; rather, they have been wrongly denied or had their citizenship cancelled due to unconstitutional legislation. Many have lived in Canada for decades. When they discover, to their astonishment, that they’re not Canadian, they can be deported and lose their passports, pensions, medical coverage and driver's licences.
As for Mr. Karas’s other arguments, the courts have largely addressed them.
For decades the government has spent a fortune fighting those who have lost their Canadian citizenship. In one such decision, the Conservative government admitted their judicial loss would cost Canadians “tens of billions.” It would have been far more humane and less costly if Parliamentarians had simply followed the urging of Federal judge Paul S. Crampton, the then Chief Justice of the Federal Court, who 11 years ago made an unusually direct and public appeal imploring Ottawa to legislate clearer citizenship rules.
Instead, Parliamentarians did little other than admit there’s a colossal problem with the Citizenship Act via Senate Social Affairs, Science and Technology (SOCI) and House Citizenship and Immigration (CIMM) committee studies.
For 15 years, for the unwilling lost Canadian victims of the discriminatory and now declared “unconstitutional” legislation, the abuse, denials and sometimes deportations have continued, much to their financial detriment.
For me, it’s personal. When I was 6, Canada cancelled my citizenship. Why? Because, in law, I was chattel of my father. When my Canadian father became a U.S. citizen, Canada automatically cancelled my citizenship. In previous citizenship legislation, if a Canadian father took out another citizenship, Canada often cancelled the status of their wives and children as well, even if they did not wish to lose their Canadian status. Thousands of women and children became stateless. In fact, in 2007, the UN magazine Refugees featured Canada as one of the leading countries (and only industrialized country), making its own people stateless.
In many ways, over the last 60+ years, Canada seemed to have a split personality — publicly welcoming immigrants and refugees from around the world but turning away long-standing Canadians, including many Canadian Second World War vets. Mr. Karas says, “C-71 depreciates Canadian citizenship.” No, it does not. C-71 strengthens what it means to be Canadian.
In my case, if I’d been born outside of Canada, been adopted or born out of wedlock, I would have remained Canadian. (Benner v. Canada (Secretary of State), [1997] 1 SCR 358; Augier v. Canada (Minister of Citizenship and Immigration), 2004 FC 613). It took 47 years for my citizenship to be restored, and eventually, I had to immigrate to my own country. The citizenship law made no sense then, and many parts of it still do not.
During our decades of research into Canadian citizenship law, my team uncovered at least 15 ways to be stripped of citizenship and that the history of Canadian citizenship has not been fully told. C-71 corrects four of the remaining six deficiencies. Women will finally have the same rights as men to confer citizenship. It will be the first time the Citizenship Act will actually be Charter-compliant. Finally, there will be clarity in the legislation, just as directed by the Chief Justice of the Federal Court.
It took several Charter challenges spanning several decades to get the Parliamentarians to act. Why did so few people speak out in the legal profession, Parliament, media and bureaucracy? Maybe it’s because the arcane, opaque and continually changing laws are almost impossible to understand. But going forward, knowing the law is “unconstitutional” means being against C-71 is to be against the equal rights enshrined in the Charter. This is why the government didn’t appeal.
Why would anyone be against a Charter-compliant Citizenship Act?
Aren’t Canadians supposed to “stand on guard?” Shouldn’t people in the legal profession be especially concerned when legislative injustices occur?
C-71 welcomes back longstanding Canadian families who are victims of Canada’s antiquated citizenship laws. Welcoming family members back home is far better than keeping them estranged. “A Canadian is a Canadian is a Canadian” must be more than just a slogan. Upholding Canada’s obligations to several UN human rights conventions must be a reality. All this happens only when the Canadian Citizenship Act becomes Charter-compliant. Just 42 years after its passage, C-71 will do just that.
Don Chapman is the head of the Lost Canadians (he coined the term). He advocates for changes in the law and those disenfranchised by Canada’s discriminatory citizenship legislation. He’s been the force behind eleven Parliamentary bills on citizenship; he’s been involved with several court and Charter challenges; he’s been a guest speaker at two Canadian law schools, among other places; he’s written a book on lost Canadians titled, The Lost Canadians: A Struggle for Citizenship Rights, Equality, and Identity. He’s in The Canadian Encyclopedia; he has expertise on the history of Canadian citizenship, he was blanketed for his work on resolving citizenship issues for Indigenous Canadians and he was recently awarded the Meritorious Service Cross by Canada’s Governor General. Chapman retired as a Captain for United Airlines. You can read his blog here.
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