Canadian nationality law

History of British subject into Canadian citizenship

After Canadian Confederation was achieved in 1867, the new Dominion's "nationality law" initially closely mirrored that of the United Kingdom and all Canadians were classified as British subjects. Section 91(25) of the British North America Act, 1867, passed by the British Parliament in London (now referred to as the Constitution Act, 1867), however, gave the Parliament of Canada authority over "Naturalization and Aliens". The Immigration Act, 1910, for example, created the status of "Canadian citizen". This distinguished those "British subjects" who were born, naturalized, or domiciled in Canada from those who were not, but was only applied for the purpose of determining whether someone was free of immigration controls. The Naturalization Act, 1914, increased the period of residence required to qualify for naturalization in Canada as a "British subject" from three years to five years. A separate additional status of "Canadian national" was created under the Canadian Nationals Act, 1921, in order that Canada could participate in international forces or military expeditions separately from Britain.

Canadian independence from Britain was obtained incrementally between 1867 (confederation and Dominion status within the Empire) and 1982 (patriation of the Canadian constitution). In 1931, the Statute of Westminster provided that the United Kingdom would have no legislative authority over Dominions without the request and consent of that Dominion's government to have a British law become part of the law of the Dominion. The law also left the British North America Acts within the purview of the British parliament, because the federal government and the provinces could not agree on an amending formula for the Canadian constitution. (Similarly, the neighbouring Dominion of Newfoundland did not become independent because it never ratified the Statute.) When, in 1982, the British and Canadian parliaments produced the mutual Canada Act 1982 (UK) and Constitution Act 1982 (Canada), which included a constitutional amendment process, the UK ceased to have any legislative authority whatsoever over Canada.

By the 1930s and the outbreak of World War II, Canada's naturalization laws consisted of a hodgepodge of confusing acts, which still retained the term "British subject" as the designation for "Canadian nationals". This eventually conflicted with the nationalism that arose following the First and Second World Wars, and the accompanying desire to have the Dominion of Canada's sovereign status reflected in distinct national symbols (such as flags, anthem, seal, etc.). This, plus the muddled nature of existing nationality law, prompted the enactment of the Canadian Citizenship Act, 1946, which took effect on 1 January 1947. On that date, "Canadian citizenship" was conferred on most Canadians previously classified as "British subjects". Subsequently, on 1 April 1949, Canadian nationality law was extended to Newfoundland, upon the former British colony joining the Canadian confederation as the Province of Newfoundland.

Canadian nationality law was substantially revised again on 15 February 1977, when the new Citizenship Act came into force. From that date, multiple citizenship became legal. However, those who had lost Canadian citizenship before that date did not automatically have it restored until 17 April 2009, when Bill C-37 became law. The 2009 act also limited the issuance of citizenship to children born outside Canada to Canadian ancestors (jus sanguinis) to one generation abroad.

Current legislation

Under paragraph 3(1)(a) of the 1977 Citizenship Act, any person who was born in Canada after 14 February 1977 acquires Canadian citizenship at birth. The Interpretation Act states that the term "Canada" not only includes Canadian soil, but also "the internal waters" and "the territorial sea" of Canada, with the term "internal waters" being defined as including "the airspace above". Hence, Immigration, Refugees and Citizenship Canada considers all children who were born over Canadian airspace as Canadian citizens. In one 2008 case, a girl born to a Ugandan mother aboard a Northwest Airlines flight from Amsterdam to Boston was deemed a Canadian citizen because she was born over Canadian airspace.

In addition, the interpretation section of the Citizenship Act states that any person who was born on an aircraft registered in Canada, or a vessel registered in Canada, is considered to be born in Canada.

There are only three exceptions to this rule, which are listed below.

Exceptions

Paragraph 3(2) of the Citizenship Act states that Canadian citizenship by birth in Canada is not granted to a child born in Canada if neither parent is a Canadian citizen or permanent resident, and either parent had the following occupation at the time of the child's birth:

In a high-profile 2015 case, Deepan Budlakoti, a stateless man born in Ottawa, Ontario, was declared not to be a Canadian citizen because his parents were employed as domestic staffs by the High Commissioner of India in Canada and their contracts legally ended two months after his birth, despite the fact that they started to work for a non-diplomat well before their contracts ended and before Budlakoti was born.

Proposed abolishment

In 2012, Citizenship and Immigration Minister Jason Kenney proposed to modify the jus soli birthright citizenship recognised in Canadian law as a means of discouraging birth tourism. The move had drawn criticism from experts who said that the proposal was based on overhyped popular beliefs and nonexistent data. As of 2016, the incumbent Minister John McCallum said during an interview that there is no plan for the change to end birthright citizenship.

Retroactive acquisition of Canadian citizenship for persons born in Canada before 1947

The 2015 amendment (Bill C-24) of the Citizenship Act has retroactively granted Canadian citizenship for the first time to people who were born in Canada before 1 January 1947 (or 1 April 1949 if born in Newfoundland and Labrador), ceased to be British subjects before that day, and never became a Canadian citizen after 1947 (or 1949). Under previous legislations, most of these people were never considered to be Canadian citizens because they have lost their British subject status before the creation of Canadian citizenship. Persons who had voluntarily renounced British subject status and had their British subject status revoked are ineligible.

Current legislation

Under Bill C-37 which went into force on 17 April 2009, every person born outside of Canada in the first generation abroad (i.e. born to a parent who is not a Canadian citizen by descent) after 17 April 2009 is automatically a Canadian citizen by descent.

The first generation rule applies to those whose citizenship was restored or who has retroactively acquired citizenship by Bill C-37 and Bill C-24, so a person who was born on or after 15 February 1977 to a parent who has their citizenship restored under either Bill C-37 or C-24 is automatically a Canadian citizen by descent.

The exceptions to the first-generation rule are:

Previous legislations

Between 15 February 1977 and 17 April 2009, a child of a Canadian citizen who was born abroad acquires Canadian citizenship automatically at birth, regardless of whether the parent was a Canadian citizen by descent.

However, a Canadian citizen who was born outside Canada after the first generation between 15 February 1977 and 16 April 1981 is required to apply for a retention of Canadian citizenship before their 28th birthday.

Prior to Bill C-37 becoming law on 17 April 2009, this only applied to those people born after 15 February 1977 (those born prior to this date but who did not have citizenship reacquired it or gained it retroactive to their date of birth or date citizenship was lost). Every such person whose Canadian parent or parents were also not born in Canada and obtained their citizenship at birth by descent (second generation born abroad) must have successfully applied to maintain their Canadian citizenship before their 28th birthday, that is, if their 28th birthday took place before 17 April 2009. People falling into that category who did not take steps to maintain their citizenship lost their citizenship on that birthday.

With Bill C-37 coming into effect on 17 April 2009, there is no longer a requirement or any allowance to apply to maintain citizenship. Additionally, the first generation rule requires at least one parent to be born in Canada or be a naturalized Canadian citizen in order to pass citizenship to their children born outside of Canada (government and Canadian Forces employees are exempt from this rule).

On 4 December 2016 CBC Canada reported that some people born abroad to Canadian parents between 1977 and 1981 who have not filed an application to keep their citizenship before turning 28 have lost their Canadian nationality. An unknown number of individuals have been stripped of Canadian Nationality.

2009 amendments to the Citizenship Act

An Act to amend the Citizenship Act (S.C. 2008, c. 14) (previously Bill C-37) came into effect on 17 April 2009 and changed the rules for Canadian citizenship. Individuals born outside of Canada can now become Canadian citizens by descent if one of their parents is a citizen of Canada either by having been born in Canada or by naturalization. The new law limits citizenship by descent to one generation born outside Canada. One of the changes instituted by the Government of Canada is the "first generation limitation". Jason Kenney, Minister for Citizenship, Immigration and Multiculturalism, said the following in the House of Commons of Canada on 10 June 2010: "That's why we must protect the values of Canadian citizenship and must take steps against those who would cheapen it.... We will strengthen the new limitation on the ability to acquire citizenship for the second generation born abroad." The new rules would not confer a Canadian citizenship on children born outside of Canada to parents who were themselves Canadian citizens by birth but not born in Canada. Thus the new rule makes a distinction between Canadian citizens born in Canada and immigrants granted citizenship on the one hand and citizens by birth who were born outside Canada on the other who have attenuated rights to pass on citizenship to their children.

In a scenario, the new rules would apply like this: A child is born in Brazil in 2005 (before the new rules came in effect) to a Canadian citizen father, who himself is a born abroad citizen by descent, and a Brazilian mother who is only a Permanent Resident of Canada. Child automatically becomes a Canadian citizen at birth. Another child born after 17 April 2009 in the same scenario would not be considered a Canadian citizen. The child is considered born past "first generation limitation" and the parents (the father) would have to sponsor the child to Canada to become a Permanent Resident (a lengthy process which may take from one to four years). Once the Permanent Residency is granted, a Canadian parent can apply for Canadian citizenship on behalf of the child, without the required three-year-residency rule, however.

Every person born outside Canada but within one generation of the native-born or naturalized citizen parent is automatically a Canadian citizen by descent (retroactive to date of birth or date citizenship was lost). The second generation born abroad, however, is not a citizen of Canada at birth. Such an individual might even be stateless if without claim to any other citizenship. (This situation actually occurred to a child born in China to a father who is a Canadian citizen born outside Canada.) The second generation born abroad can gain Canadian citizenship only by immigrating to Canada; this can be done by the Canadian citizen's parents sponsoring as a dependent child, a category with fewer requirements, which would also take less time than most other immigration application categories.

Under new rules, introduced in 2009, foreign nationals being adopted by Canadian citizens can now acquire Canadian citizenship immediately upon completion of the adoption, without entering Canada as a permanent resident as under the previous rules.

Naturalization as a Canadian citizen

A person who is a permanent resident may apply for Canadian citizenship by naturalization (grant) subject to the following conditions.

The person:

Prior to 2014's Bill C-24, the Strengthening Canadian Citizenship Act, the requirement for time spent in Canada was 1095 days over four years including two as a permanent resident. The language and knowledge requirement is unchanged except it applies to persons aged 14 to 64.

Children aged under 18

The naturalization requirements for children under 18 are different from those for adults.

The residence and other requirements do not normally apply to those aged under 18.

Citizenship ceremonies

All applicants for Canadian citizenship aged 14 or over must attend a citizenship ceremony as the final stage of their application.

Canadian citizenship by adoption

In May 2006 the Canadian government introduced draft legislation, Bill C-14: An Act to Amend the Citizenship Act (Adoption), which is designed to allow adopted children the right to apply for immediate citizenship. This bill received Royal Assent on 22 June 2007.

Bill C-14 consists of only four clauses. Clause 1 amends section 3 of the Citizenship Act so that adopted children who attain citizenship without first obtaining permanent resident status are Canadian citizens. Clause 2 applies to adopted children who are minors and also to those who are at least 18 years of age; it amends section 5 of the Citizenship Act and provides that, subject to certain conditions, the Minister shall grant citizenship to children who are adopted abroad after 14 February 1977. Clause 2 also has a special provision for adoptions that are under the jurisdiction of Quebec.

Loss of Canadian citizenship

Under the current legislation, there is no provision for involuntary loss of Canadian citizenship except when naturalized Canadians can have their citizenship revoked if convicted of fraud in relation to their citizenship application, or their original admission to Canada as an immigrant.

Similar provisions also exist under the nationality laws of the UK, US, Israel, Australia, New Zealand and Spain.

However, Bill C-24 has added other conditions under which a Canadian with dual or multiple citizenship can lose his or her Canadian citizenship, including but not limited to:

Persons with sole Canadian citizenship are not affected.

Only citizens who have citizenship with another nation can renounce their Canadian citizenship. This is because Canada has agreed to comply with the UN’s 1961 Convention on the Reduction of Statelessness.

Before 17 April 2009, some Canadians lost their citizenship prior to 15 February 1977 through:

Most of these people have their Canadian citizenship automatically restored when Bill C-37 came into effect in 2009. The only exceptions to the automatic resumption are when the person acquired Canadian citizenship as second or subsequent generations born outside Canada and lost it as a minor, and when the person has lost his or her citizenship on his or her 28th birthday as second generation born abroad.

Lost Canadians

In February 2007, the House of Commons Standing Committee on Citizenship and Immigration held hearings on so-called Lost Canadians, who found out recently, on applying for passports, that for various reasons they may not be Canadian citizens as they thought. Don Chapman, a witness before the committee, estimated that 700,000 Canadians have either lost their citizenship or are at risk of having it stripped. However, Citizenship and Immigration Minister Diane Finley said her office has had just 881 calls on the subject. On 19 February 2007, she signed documents granting citizenship to 33 such individuals. Some of the reasons citizenship may have been lost is if the individual was born out of wedlock before 1977, or to a father who took a second citizenship. Another reason is if the child was born outside Canada, and failed to confirm their citizenship before turning 24 or 28. Some of the people affected reside in towns near the southern border, and hence were born in American hospitals. Others, particularly Mennonites, were born to Canadian parents in Mexico or Paraguay. An investigation by the CBC, based on Canadian census data, concluded that the problem could affect an estimated 10,000 to 20,000 individuals currently residing in Canada.

On 29 May 2007, Canadian Minister of Citizenship and Immigration Diane Finley announced her proposal to amend the Citizenship Act. Under the proposal, anyone naturalized in Canada since 1947 would have citizenship even if they lost it under the 1947 Act. Also, anyone born since 1947 outside the country to a Canadian mother or father, in or out of wedlock, would have citizenship if they are the first generation born abroad. Appearing before the Standing Committee on Citizenship and Immigration, Finley asserted that as of 24 May 2007, there were only 285 cases of individuals in Canada whose citizenship status needs to be resolved. Under the proposed legislation, anyone born before 1947 to a Canadian citizen abroad would be dealt with on a case-by-case basis; such individuals would have to apply for a ministerial permit.

Bill C-37, which received Royal Assent on 17 April 2009, amended the Citizenship Act to give Canadian citizenship to those who lost or never had it, due to outdated provisions in existing and former legislation. The law came into effect on 17 April 2009.

Bill C-24, which came into force on June 11, 2015, further extended citizenship to additional "Lost Canadians" on that date, who were born before 1947 and did not become citizens on January 1, 1947 when the first Canadian Citizenship Act came into effect. The extension also applies to their first generation children born outside of Canada.

Resumption of Canadian citizenship

Former Canadian citizens who renounced their citizenship are generally required to obtain landed immigrant (permanent resident) status under normal rules and live in Canada for one year in order to resume Canadian citizenship.

The 2009 Act resumed Canadian citizenship to all those who have obtained Canadian citizenship on or after 1 January 1947 but have subsequently lost it under the 1947 Act and their first generation descendents born abroad. The 2015 Act further resumed citizenship for Canadians who have lost British subject status before 1947 and those who were born to such parents outside Canada if they are the first generation born abroad.

On 22 September 1988, Prime Minister Brian Mulroney agreed to a redress package for Japanese-Canadians deported from Canada between 1941 and 1946 (about 4,000 in total) and their descendants. The package authorized a special grant of Canadian citizenship for any such person. All descendants of deported persons were also eligible for the grant of citizenship provided that they were living on 22 September 1988, regardless of whether the person actually deported from Canada was still alive.

The Royal Family

Though she resides predominantly in the United Kingdom and it is uncertain whether a monarch is subject to his or her own citizenship laws, the Queen of Canada is considered Canadian. She and those others in the Royal Family who do not meet the requirements of Canadian citizenship (there are five Canadian citizens within the Royal Family) are not classified by either the government or some constitutional experts as foreigners to Canada; in the Canadian context, members of the Royal Family are subjects specifically of the monarch of Canada. Members of the Royal Family have also, on occasion, declared themselves to be Canadian and called Canada "home".

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. In particular, the interpretation of the 3-year (1,095-day) residence requirement enacted by the 1977 Citizenship Act, which does not define the term "residence" and, further, prohibits an appeal of a Federal Court decision in a citizenship matter to the Federal Court of Appeal or the Supreme Court, has "led to a great deal of mischief and agony" and generated considerable judicial controversy.

Over the years two principal schools of thought with respect to residence have emerged from the Federal Court.

Early on, in 1978, Associate Chief Justice Arthur L. Thurlow in Papadogiorgakis (Re), [1978] 2 F.C. 208, opined that residency entails more than a mere counting of days. He held that residency is a matter of the degree to which a person, in mind or fact, settles into or maintains or centralizes his or her ordinary mode of living, including social relations, interests and conveniences. The question becomes whether an applicant's linkages suggest that Canada is his or her home, regardless of any absences from the country.

In Re Koo, Justice Barbara Reed further elaborated that in residency cases the question before the Court is whether Canada is the country in which an applicant has centralized his or her mode of existence. Resolving such a question involves consideration of several factors:

1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
2. Where are the applicant's immediate family and dependents (and extended family) resident?
3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
4. What is the extent of the physical absences – if an applicant is only a few days short of the 1095-day total it is easier to find deemed residence than if those absences are extensive?
5. Is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?
6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

The general principle is that the quality of residence in Canada must be more substantial than elsewhere.

In contrast, a line of jurisprudence flowing from the decision in Re Pourghasemi (1993), 62 F.T.R. 122, 19 Imm. L.R. (2d) 259, emphasized how important it is for a potential new citizen to be immersed in Canadian society and that a person cannot reside in a place where the person is not physically present. Thus, it is necessary for a potential citizen to establish that he or she has been physically present in Canada for the requisite period of time.

In the words of Justice Francis Muldoon:

It is clear that the purpose of paragraph 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become "Canadianized." This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples – in a word wherever one can meet and converse with Canadians – during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook... So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else.

The co-existence of such disparate, yet equally valid approaches has led some judges to comment that the citizenship "law is in a sorry state", that "there cannot be two correct interpretations of a statute", that "it does not engender confidence in the system for conferring citizenship if an applicant is, in the course of a single application, subjected to different legal tests because of the differing legal views of the Citizenship Court", that there's a "scandalous incertitude in the law", and that "there is no doubt that a review of the citizenship decisions of this Court, on that issue, demonstrates that the process of gaining citizenship in such circumstances is akin to a lottery".

In 2010 it seemed that a relative judicial consensus with respect to decision-making in residence cases might emerge. In several Federal Court decisions it was held that the citizenship judge must apply a hybrid two-test approach by firstly ascertaining whether, on the balance of probabilities, the applicant has accumulated 1,095 days of physical presence. If so, the residency requirement is considered to have been met. If not, then the judge must additionally assess the application under the "centralized mode of existence" approach, guided by the non-exhaustive factors set out in Koo (Re).

However, most recently, this compromise formula was rejected by Federal Court judges, who continued to plead for legislative intervention as the means to settle the residency requirement debacle.

A few of the other major decisions are:

Rights and responsibilities of citizens

According to Citizenship and Immigration Canada, citizens are:

In addition, only individuals who are Canadian citizens may petition to receive a grant of armorial bearings.

Citizens are responsible for:

Documentary proof of Canadian citizenship

For people who acquired citizenship by birth within Canada on or after 15 February 1977, a birth certificate issued by the province or territory concerned is adequate proof of the fact. Those born before that date must take note of the various rules concerning loss of citizenship that were previously in force, in order to confirm their status.

For people who acquired citizenship by birth outside Canada under the 1947 Act, a certificate of registration of birth abroad or a certificate of retention of Canadian citizenship issued before 15 February 1977 would also constitute proof of citizenship.

Otherwise, a certificate of Canadian citizenship (known under previous legislation as a "certificate of naturalization") is the only legal proof of such status. It is issued to permanent residents who have applied for Canadian citizenship and have sworn the required oath of citizenship. It is also issued at the request of any other Canadian citizen, but could take many months to be issued. It is illegal to be in possession of more than one certificate of citizenship or naturalization.

A Canadian passport, while more appropriately known as a travel or identity document, is assumed as proof of Canadian citizenship, but it is issued only after review of other documentary proof, as noted above. The passport itself, however, does not constitute the Canadian citizenship of the holder. Deepan Budlakoti, a stateless man born in Canada, was twice issued a valid Canadian passport before the Federal Government realized that he is not a Canadian citizen under Section 3(2) of the Citizenship Act and revoked his Canadian passport.

For decades, the Canadian Government issued both a commemorative certificate of Canadian citizenship and a credit card-sized certificate commonly called a Canadian Citizenship Card, which featured a photograph of the Canadian, along with biographical information, such as name, height and eye colour. Using these cards as photo identification was problematic. There was no legal requirement to periodically update the cards to take into account physical changes caused by aging, and the card lacked modern security features. Many Canadians who obtained citizenship as children continued to use cards issued to them as children as legal photo identification well into adulthood. Furthermore, obtaining a replacement photo card when the original was lost or stolen was time consuming, often taking many months, which could delay obtaining other forms of photo ID such as a passport. In 2012, the Government of Canada decided to discontinue the photo cards. The commemorative certificates have been redesigned and are now recognized as the legitimate proof of Canadian citizenship. In making this change, the government asserted that this change would make the document more secure, and ensure that proof of Canadian citizenship would no longer be used as an ID or travel document, and cited the prohibitive cost of replacing card making equipment and updating the photo ID cards with modern security features.

Visa requirements

Visa requirements for Canadian citizens are administrative entry restrictions by the authorities of other states placed on citizens of Canada. According to the 2016 Visa Restrictions Index, holders of a Canadian passport can visit 172 countries and territories visa-free or with visa on arrival, and the score of Canada is currently ranked 6th in terms of travel freedom.

Commonwealth citizenship

Because Canada is a member of the Commonwealth of Nations, Canadian citizens also have the status of "Commonwealth citizen", the functional meaning of which varies from one member state to another. Under British law, Canadians are entitled to certain rights in the United Kingdom, including:

The following right has also applied in other Commonwealth Realms, though it may not be current law in all of them: