Canada is the black sheep of the Americas, a constitutional monarchy located in two-conjoined continents packed with republics. That means our political evolution – unlike the revolutionary history of most of the countries of North, Central, and South America – has given us a history with no definitive break from what is still symbolically our sovereign: Queen Elizabeth II. So, if you find our immigration laws a little confusing and always evolving, you can chalk at least part of it up to our unique history.
Does it ever get a little tricky defining what a Canadian citizen is? Sometimes it gets downright ridiculous. Let’s look at 3 hypothetical cases that could happen (and sometimes did) to a resident of Canada who discovers their identity is not what they might have thought it was.
A warning to all: we’re pushing the envelope here to try and test just how crazy immigration rules and regulations can get. Even sometimes for people who thought that they were Canadians and who were raised in Canada.
1: The Twin Who Came Too Early
Let’s say it’s 11:56 PM on April 16, 1981 in a Taipei, Taiwan Hospital, and your mother, who’s a Chinese national married to a Canadian who was born in mainland China in 1948 to Canadian missionary parents, is about to give birth to you and your twin sister. You’re born first, on April 16 at 11:58 PM local time, but your twin sister takes just a couple of minutes longer and is born on April 17 at 12:04 AM local time.
Your father moves the four of you back to Vancouver in the fall of 1984, before you and your sister have even started kindergarten. You grow up in the greater Vancouver area, and attend local schools and then Vancouver Community College where you graduate with a diploma in Architectural drafting in 2004 after working a couple of years in construction. Your sister attends UBC and gets a degree in physiotherapy.
In 2010 you need to renew your passport for a trip abroad. Guess what? You find out that you’re no longer a Canadian citizen! But your twin sister, born 6 minutes after you, is a Canadian citizen. What the hell is going on?! It’s all about the concept of retention. Follow the bullet points to see why:
- The Canadian Citizenship Act of 1946 took effect on January 1, 1947 and among other things required Canadians by descent (those born abroad of at least one Canadian parent) to renounce all foreign citizenships when they turned 21 years old and retain their Canadian citizenship by so doing. It was a short declaration one made. This was a way of recognizing that Canadians by descent had two citizenships by virtue of being born abroad and being Canadian citizens at the same time and obligating them to actively choose to be Canadian thereby prohibiting dual citizenship beyond the age of 21. In 1970 the age was extended to 22 years old.
- The 1977 Citizenship Act extended the period before having to retain your Canadian citizenship and renounce your foreign citizenship to the age of 28 years old. It also formalized the process of retention and made it necessary to apply for retention to a citizenship judge who would decide based on whether:
- You had resided in Canada for 1 year prior to applying before turning 28 years old, OR
- You had substantial connections with Canada between the ages of 14 and 28, like attending school.
- Bill C 37 enacted on April 17, 2009 repealed the necessity of retention because it changed the law regarding Canadian citizenship by descent, only allowing 1 generation born abroad to a Canadian parent to be granted citizenship. That meant that if you turned 28 years old on April 17, 2009 or later, you did not have to worry about whether you had complied with the requirements of retention.
- Because you forgot to apply for retention of citizenship before you turned 28 on April 16, 2009, you automatically lost your Canadian citizenship.
- Because your sister turned 28 on April 17, the requirements for applying for retention no longer were in effect.
The result is that you have to take active steps under section 11 of the Citizenship Act to restore your status as a Canadian citizen while your sister does not. And all that because of 6 minutes between your births.
Ok, so yes this is a theoretical, which immigration lawyers would surely argue over, but similar cases have happened, and it shows how complex Canada’s citizenship laws can be.
2: The Soldiers Who Fought for Canada and Weren’t Citizens
Say you are a direct descendant of one of the Huron chiefs who signed a peace treaty with Brigadier General James Murray on September 5, 1760 shortly before Montreal fell to the English. Say you were born in 1920 and fought in the Second World War in the liberation of Italy. You dreamed of joining Canada’s navy but, until 1943, you had to be of “European descent” and so you had to settle for infantry and the Italian campaign where you fought with distinction.
When you returned to Canada it was as a Status Indian, one who did not have Canadian citizenship having been born before January 1, 1947. It would take almost another decade for Status Indians to be awarded Canadian citizenship with an amendment to the 1947 Act in 1956 when they were finally eligible for Canadian citizenship if:
- They had a Canadian domicile on January 1, 1947, and
- They had resided in Canada for over 10 years on January 1, 1956 when the amendment went into effect.
- However, they were only considered Canadian citizens from January 1, 1947 onward, not from birth unlike Status Indians born on or after January 1, 1947 who were and of course are considered Canadian from birth like other Canadians.
Imagine, you just got back from fighting to liberate Europe along with the rest of the Canadian military in the European theatre and you discover that you weren’t a true Canadian until they changed the legislation, over a decade after the war ended. Welcome back to Canada, soldier.
3: The Baby Born in the Sky on New Year’s Eve
Our third and final tale is a specific incident and not a theoretical case. It happened a decade ago. Imagine. You’re an expecting Ugandan mother on a flight from Amsterdam to Boston. It’s New Year’s Eve 2008 and you are flying on a Northwest Airlines flight. Suddenly, you realize you’re about to give birth. Fortunately, there are a couple of doctors on the flight and the delivery goes smoothly and you deliver a beautiful, healthy little girl you name Sasha.
While you were delivering Sasha, your flight was over Halifax, Nova Scotia, given that trans-Atlantic flights fly closer to the North Pole in order to shorten the distance and save time and fuel. So, what nationality is your baby?
Within a week’s time, Canada had laid claim to Sasha’s birthright. Here’s what Alykhan Velshi – spokesman for the Canadian Minister of Immigration at the time, Jason Kenney – said:
Our government believes that Canadian territory -- and, as a result, the full reach of Canadian sovereignty -- extends to our airspace. This means that a child born in Canadian airspace is a Canadian citizen.
So, we have a non-Canadian parent on a U.S. airliner flying from Europe to the USA who gives birth to a baby girl. What the Canadian government is saying is that the child is considered to have been born in Canadian territory because the flight was in Canadian airspace at the time. That means they are granted Canadian citizenship by right of what is legally called Jus Soli.
Jus Soli and Birthright Citizenship
We started this article talking about how Canada’s constitutional monarchy makes us a bit of an odd man out in the Americas. But in another regard, Canada is very typical of the republics of North, Central, and South America: we award citizenship to almost anyone born on Canadian soil. This is what Jus Soli means: the right of citizenship is granted to those born in a nation’s territory, or on its soil. Hence, Jus Soli.
The only exceptions to birthright citizenship in Canada are for those born in Canada when either parent is recognized by Global Affairs Canada as:
- Being an employee of a foreign government in Canada, or
- Being employed by the employee of foreign government in Canada, or
- Being employed by a foreign organization which enjoys diplomatic immunity in Canada, like the UN for example.
The reason for having Jus Soli rather than Jus Sanguinis – which is citizenship by blood or in other words by descent – is because the nations of the Americas sought immigrants to populate their countries and be able to develop and grow and so adapted Jus Soli. In parts of Europe and much of Asia, Jus Sanguinis is still the main guiding principle behind how a newborn acquires citizenship.
A Modest Proposal by Our Writer
You are at this site and reading this article because you’re likely interested in the details about Canada’s naturalization process. Naturalization is essentially comprised of the steps you take as an immigrant to Canada to be accepted to Canada on a permanent resident visa and then a citizen. To obtain permanent residence you have to be eligible and you have to meet many requirements along with your family members who will be accompanying you to Canada. The process of naturalization also involves a period of several years of residence in Canada with some combination of work experience and often includes studies at a Canadian educational institution.
As Canada continues to choose the brightest and best from around the world to come to work and live in Canada, it may be time for another look at Jus Soli – the right of citizenship for Canadians born on Canadian soil. While it would hardly be right or possible to eliminate Jus Soli and make every child born in Canada submit to the naturalization process to prove they are worthy of Canadian citizenship, it may be necessary to start imposing some modest requirements on native-born Canadians in order for them to retain their citizenship.
- Impose an obligatory service to the community. This could take several forms:
- Military Service of 6 months to 1 year, OR
- 750 hours of unpaid work at an NGO or community organization, OR
- 750 hours of volunteer work in Canada’s First Nations communities, OR
- 500 hours of unpaid volunteer work for the government at election time or in some other forms
- Impose an obligatory Citizenship Test on all native-born Canadians which must be taken before they turn 22 years old. They would be given 3 opportunities to pass the test, otherwise they would lose their citizenship.
- Repeat felons would lose rights as citizens. For example, the right to vote or to obtain a passport.
Native-born Canadians will not be happy about this type of requirements but if Canada is to truly be a world-class nation then those who have had the privilege of being born on its soil need to show they are worthy of that privilege through a limited set of requirements which are still far less onerous than what any immigrant who goes through the naturalization process faces.
Note: This proposal is the opinion of the author of this article and not of Immigroup or its Regulated Canadian Immigration Consultants (RCICs)