Government of Canada Response to the Standing Committee’s 11th ReportReview of the Subject Matter of Bill C-37, An Act to Amend the Citizenship Act, Enacted in Second Session of the 39th Parliament
Mr. David Tilson, Q.C., M.P.
On behalf of the Government of Canada, I am pleased to present the Government’s response to the Standing Committee on Citizenship and Immigration’s report entitled Review of the Subject Matter of Bill C-37, An Act to Amend the Citizenship Act, Enacted in Second Session of the 39th Parliament, which was tabled in the House of Commons on June 25, 2009.
I would like to thank the Committee members for their work on this report. I am pleased to respond comprehensively on behalf of the Government to the Committee’s comments and recommendations.
The Government appreciates the Committee’s work on citizenship. Moreover, it welcomes the Committee’s future consideration of citizenship issues.
Honourable Jason Kenney, PC, MP
Amendments to the Citizenship Act – Bill C-37
As a remedy to situations of loss of citizenship, a subject studied in the past by the Committee, the Government implemented Bill C-37 on April 17, 2009, which was passed a year earlier with unanimous support by Parliament. The Bill was a broad and generous legislative solution to resolve many problems that had arisen due to outdated provisions in current and former citizenship legislation. Citizenship was restored or given to:
A clear objective of Bill C-37 was to achieve greater simplicity and transparency in citizenship laws as well as to preserve the value of citizenship by ensuring it could not be passed on endlessly to generations of Canadians living outside of Canada. In order to achieve these objectives, Bill C-37 limits citizenship by descent to people born in the first generation outside Canada.
The Committee recommends that the Minister of Citizenship, Immigration and Multiculturalism, pursuant to subsection 5(4) of the Citizenship Act which authorizes him to grant citizenship, ensure that the consideration of cases that were not resolved by the implementation of Bill C-37 be completed as quickly as possible.
Bill C-37 was implemented on April 17th, 2009 and resolved most lost Canadian cases, automatically restoring or giving Canadian citizenship to many who lost or never had it.
Bill C-37 upholds January 1st, 1947 as the date Canadian citizenship began as a legal status. This date was therefore used to establish the timeline on the Bill’s retroactive legislative correction to loss of citizenship. Persons who did not become citizens when Canada’s first citizenship act came into force on January 1st, 1947 did not benefit from Bill C-37.
In seeking passage for Bill C-37, the Government indicated that, given the variety of circumstances, it would examine each case on its merits and, where warranted, use the discretionary authority to grant citizenship.
Under subsection 5(4) of the Citizenship Act, the Governor in Council (GIC) has the discretionary authority to direct the Minister to grant citizenship to any person to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada.
The Government responds positively to recommendation one and affirms its commitment to finalize cases where persons have applied for a discretionary review under subsection 5(4) of the Citizenship Act. The Government is processing these cases as quickly as possible.
Since 2007, 184 lost Canadian cases have been approved by the GIC for a discretionary grant of citizenship. This includes 104 in 2007, 69 in 2008 and 11 in 2009. As Bill C-37 resolved most cases of lost Canadians, this has reduced the need for persons to request consideration under subsection 5(4). The total number of subsection 5(4) grants for 2009 to date is 26 which include lost Canadians and others.
The Committee recommends that the Government of Canada grant children adopted abroad by Canadian parents ordinarily residing in Canada the same legal status as children born in Canada.
Recommendation two proposes to modify the application of the first generation limit on passing on citizenship by descent for children born abroad and adopted by Canadians. Currently, Bill C‑37 considers such children to be the first generation born abroad. Under this recommendation, the ability of such persons to pass on citizenship would mirror that of those born in Canada. This recommendation would require a legislative amendment, and would also include a residence test for an adoptive child’s parents, to determine whether they are ordinarily residing in Canada. Unfortunately, a residence requirement is difficult to administer and enforce in the absence of exit controls to verify residence.
If children born abroad and adopted by a Canadian parent have children outside Canada, those children would not be citizens at birth unless their other parent was born or naturalized in Canada or one of their parents is working overseas as a Crown servant. Likewise, if the child who was born abroad and adopted by Canadian parents wishes to adopt a child born outside Canada, their child would not be eligible for a grant of citizenship under the direct process for adopted persons unless the child is eligible through their other parent.
Children born abroad and adopted by Canadians have two possible paths to citizenship going forward. The first option is to obtain permanent resident status for the child and then apply for citizenship once the child is living in Canada. The second option would be to pursue a direct grant of citizenship on behalf of the adopted child so that the child obtains citizenship before moving to Canada. Under the first option the child would have the same ability as a child that was born in Canada to pass on their citizenship. Currently both options are available to parents and it is a choice that is best left to parents to address their unique circumstance. To disseminate information on options available, CIC, as part of the implementation efforts, used a wide variety of channels to spread the word on the new law, including building a new web landing page and reaching out to federal partners and provinces and territories to request that they use their channels to inform clientele of the citizenship changes.
The Minister of Citizenship, Immigration and Multiculturalism is seized with this matter and has requested that the Department review the implementation of Bill C-37 with regard to the concerns expressed by adoptive families on how best to address this matter.
The Committee calls upon the Government of Canada to allow the transmission of citizenship by descent to children born abroad to a Canadian parent, provided that the Canadian parent resided in Canada for a specific period of time, as established through legislation, before the child was born.
Recommendation three proposes to legislatively amend Bill C-37’s first generation limit on citizenship such that citizenship by descent would be permitted beyond the first generation in cases where the child’s parent had spent a minimum number of years in Canada. In other words, recommendation three proposes legislative criteria for determining eligibility to citizenship through a residence connection.
One of Bill C-37’s aims was to eliminate such criteria. The lost Canadian issue partly arose due to the complex and unintended consequences of applying connection-to-Canada criteria over time. Both the previous 1947 Canadian Citizenship Act, and the current 1977 Act (prior to Bill C-37’s amendments) included conditions that had to be satisfied by persons born abroad to Canadian parents, in order for those persons to become or to maintain their status as Canadian citizens. These conditions, for example, included the requirement to demonstrate an attachment to Canada, primarily through residence, and by way of an application. The retention rules were both difficult for impacted persons to understand and complicated to administer and enforce (in the absence of exit controls to verify residence), and stakeholders asked that these rules be replaced with a clear and transparent approach. Persons who failed to meet the retention rules lost their citizenship, some without even realizing it. Bill C-37’s solution was to replace these rules with one simple transparent rule that Canadians could easily self-assess; recommendation three contradicts this intent. Accordingly, the Government does not support this recommendation.