Citizenship Status

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

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CHA PTER 13

CITIZENSHIP STATUS

A. INTRODUC TION

This chapter outlines a brief history of the development of Canadian

citizenship law and t hen examines the criteria for obtaining citizen-

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

which one may lose the legal status th at signif‌ies full membership in

our nation al communit y.

B. THE EMERGENCE OF CANADI AN

CITIZENSHIP

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

the British empire determi ned that the basic legal status enjoyed by

Canadian s was that of British subject. In the nineteenth century, the

Dominion Pa rliament, acting under its constit utional author ity over

aliens and naturalization,1 had enacted various Naturalization Acts

which provided that individua ls who swore allegiance to the monarch

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

to identify a local citi zenry. Indeed, as Mervyn Jones ha s 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 Status 437

fore the enactment of the Statute of Westminste r2 in 1931, the Canadian

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

nationality th at accorded the status of British subject to individuals

born in a territor y of the British empire.3

Nevertheless, the Dominion Parlia ment introduced the concept

of citizenship into Can adian law in 1910. The Immigration Act of that

year made reference to citizens a s 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

Canadi an 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 naturali zed 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 ter m citi zen for its limited pur pose of identifying who had

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

the legislation to include the various subg roups without introducing

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

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

sert its authority to identif y individuals as Can adian citizens while not

threatening a confrontation with the Imperial Parlia ment 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 i n def‌ining Canadian n ationals was to allow

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

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

as judg es).

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

recognize more abstract and fundamental reasons for formali zing 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.

IMM IGRATIO N LAW438

was replaced by the underlying notion th at 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 t he sover-

eignty of the monarch.

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

force in 1947, maintained many of the di stinctions 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 citizen ship of the mother. In addition, the Act applied

retrospectively to individua ls who were born before it came into force.

It did not, however, make mention of the def‌inition of citize nshi p 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 Canadi an 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 citi zens only if their birth wa s

registered within two years. Such individuals would lose their st atus

unless they made a declaration of retention within a year of attaini ng

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

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

ship. Moreover, although holding multiple nationalities was initially

permitted, thi s rule was soon amended to strip Can adians of citizen-

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

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 a nomalies.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 n atur-

alized and native-born citizens equal in ter ms 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 int roduced 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.

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

11 Ibid.