Citizenship Status

• Author: Jamie Chai Yun Liew; Donald Galloway
• Pages: 436-467

436

CHAPTER 13

CITIZENSHIP STATUS

A. INTRODUCTION

This chapter outlines a brief history of the development of Canadian

citizenship law and then examines the criteria for obtaining citizen-

ship, the rights and responsibilities that attach, and the processes by

which one may lose the legal status that signif‌ies full membership in

our national community.

B. THE EMERGENCE OF CANADIAN

CITIZENSHIP

As explained in Chapter 1, until 1947, the position of Canada within

the British empire determined that the basic legal status enjoyed by

Canadians was that of British subject. In the nineteenth century, the

Dominion Parliament, acting under its constitutional authority over

aliens and naturalization,1 had enacted various Naturalization Acts

which provided that individuals who swore allegiance to the monarch

could become “local” British subjects; it had not, however, undertaken

to identify a local citizenry. Indeed, as Mervyn Jones has argued, be-

1 Constitution Ac t, 1867 (UK), 30 & 31 Vict, c 3, s 91(25), reprinted in RSC 1985,

Appendix II, No 5.

Citizenship Status437

fore the enactment of the Statute of Westminster2 in 1931, the Canadian

government probably did not have the authority to amend the law of

nationality that accorded the status of British subject to individuals

born in a territory of the British empire.3

Nevertheless, the Dominion Parliament introduced the concept

of citizenship into Canadian law in 1910. The Immigration Act of that

year made reference to citizens as one group of individuals who were

entitled to enter and remain in Canada even if they belonged to a pro-

hibited class. The other group with the entitlement was those with

Canadian domicile.4

The Act def‌ined a citizen as (a) a person born in Canada who had

not become an alien; (b) a British subject domiciled in Canada; or (c) a

person naturalized in Canada not having lost domicile or become an

alien.5 There was no need for the drafters of the legislation to have

used the term citizen for its limited purpose of identifying who had

rights to enter and remain in Canada. They could easily have framed

the legislation to include the various subgroups without introducing

the more generic term citizen. Clive Parry, however, has suggested that

one can discern an underlying intent of the Canadian Parliament to as-

sert its authority to identify individuals as Canadian citizens while not

threatening a confrontation with the Imperial Parliament in London.6

This was, in other words, an early intimation of what was to follow. Al-

though it did not displace the status of British subject, citizenship had

entered the legal lexicon.

The Immigration Act was later supplemented by the Canadian Nationals

Act,7 but again, the legislation was not a grandiose assertion of sover-

eignty; the sole purpose in def‌ining Canadian nationals was to allow

Canada to be represented at the International Court of Justice (the rule

of the Court was that a country could nominate only its own nationals

as judges).

Not until after the Second World War, did the Canadian Parliament

recognize more abstract and fundamental reasons for formalizing the

status of citizenship. Redef‌ining the relationship between the state and

the people came to be regarded as a way of promoting national unity

and social cohesion. The idea of personal allegiance to the monarch

2 Statute of Westminster,(1931) (UK), 22 & 23 Geo V, c 4.

3 J Mervyn Jone s, British Nationalit y Law (Oxford: Clarendon Press, 1956) at 87.

4 Immigration Act, SC 1910, c 27, s 3.

5 Ibid, s 2.

6 Cl ive Parry, Nationality and Citizenship Laws of the Commo nwealth and of the

Republic of Ireland (London: St evens and Sons, 1957) at 451.

7 Canadian Nationals Act, SC 1910, c 4.

IMMIGRATION LAW438

was replaced by the underlying notion that a set of common bonds

united each individual with others who held the same status. In the

legal imagination, the sovereignty of the citizenry replaced the sover-

eignty of the monarch.

The Canadian Citizenship Act, enacted in 1946 but which came into

force in 1947, maintained many of the distinctions that had been rec-

ognized at common law.8 Thus, a person born outside Canada took the

citizenship of the father unless he was born out of wedlock in which

case he took the citizenship of the mother. In addition, the Act applied

retrospectively to individuals who were born before it came into force.

It did not, however, make mention of the def‌inition of citizenship found

in the 1910 Immigration Act. Many of those whom it made citizens al-

ready had that status. The earlier def‌inition began to lose its relevance

as, from this point onwards, immigration legislation used the 1947 Act

as its reference point.

Signif‌icant complexities resulted from the 1947 Act. For example,

an illegitimate child born overseas to a Canadian father serving in the

military forces during the Second World War and coming to Canada

shortly after the war was not recognized as a Canadian citizen even

though he became domiciled in Canad a.9 Persons born outside Canada

after the Act came into force became citizens only if their birth was

registered within two years. Such individuals would lose their status

unless they made a declaration of retention within a year of attaining

the age of twenty-one. These and similar measures created room for

many to slip between cracks and unwittingly lose or not gain citizen-

ship. Moreover, although holding multiple nationalities was initially

permitted, this rule was soon amended to strip Canadians of citizen-

ship if they (or their father, if they were children) acquired citizenship

elsewhere. A generation of what came to be known as “lost Canadians”

was created.

Eventually, a new Citizenship Act was passed in 1977, which ad-

dressed some of these anomalies.10 This Act has remained the corner-

stone of today’s law and has undergone a number of revisions. One

major change was to consolidate citizen classes and declare natur-

alized and native-born citizens equal in terms of their entitlements,

powers, rights, and privileges, as well as their obligations, duties, and

liabilities.11 In the last decade, we have seen a number of amendments

to this Act, many introduced to remedy past unfairness. In 2009, the

8 Canadian Citizenship Act , SC 1946, c 15 [1947 Act].

9 Taylor v Canada (Minister of Citizenship an d Immigration),2007 FCA 349.

10Citizenship Act,SC 1974-75-76, c 108; RSC 1985, cC-29.

11Ibid.