The federal government is said to be preparing a bill to amend the Citizenship Act, but the details are still unclear – a concern for more than 3,500 stateless people who are in the country but have no access to critical services such as medical care.

They include former Canadians who had their citizenship revoked due to now-repealed provisions of the act. These nationless people are known as “Lost Canadians.”

The news comes after months of quiet on this issue. Last December, the Ontario Superior Court of Justice ruled the act unconstitutionally creates two classes of Canadians and gave the government until June 19 to amend the Citizenship Act. The government said it wouldn’t challenge the decision but shared nothing further on the work being done.

The court also found the act has uneven impacts on women, particularly under Section 3(3)(a) which prevents certain second-generation Canadian mothers who live abroad from passing citizenship to their children, unless they return to Canada to give birth.

On Saturday, The Globe and Mail reported that the government has drafted a new bill to respond to the court order amid frustrations over the lack of progress on Bill S-245, which attempts to achieve the same goals. NDP member Jenny Kwan blamed Conservative filibuster tactics for causing the delay.

A Commons committee completed its considerations of Bill S-245 nearly a year ago but an official website reports “no activity” on the file. Third and final reading of the bill in the Commons was scheduled in January but was cancelled, and there remains no new date for this.

If passed into law, Bill S-245 would reinstate citizenship for those born abroad to Canadian parents between 1977 and 1981, though critics have argued it doesn’t go far enough to help tens of thousands who fall outside of that category.

Making Citizenship “harder to get and easier to lose”

Finding a new balance in Canada’s citizenship system

Will changes to the Citizenship Act affect the naturalization rate?

Word that the government is preparing its own legislation on the issue should bring hope to the families torn apart by the act’s outdated provisions, but questions remain about the possible continued use of a “substantial connection test.”

The legislation may require the parents in these families to prove their ties to Canada to be able to pass down citizenship to children born abroad. The criteria for this test are not publicly known.

Meanwhile, Lost Canadians whose fates have rested on the passing of Bill S-245 or similar legislation continue to be denied access to health care, education and employment as they await more information.

The federal government should not delay in sharing the steps it intends to take to amend the Citizenship Act. A lack of transparency and communication about past changes to the legislation created this problem in the first place – and keeping the public in the dark will only prolong it.

How citizenship is lost

The Citizenship Act has been amended several times since it was enacted in 1947, including provisions introduced in 1977 and 2009 that stripped certain born-abroad Canadians of their citizenship.

Thousands lost their citizenship because they were born outside Canada or had lived abroad for six or more years. Dual citizenship holders at one point faced deportation, while those who possessed only Canadian citizenship became stateless. A 2007 CBC investigation revealed up to 200,000 people were impacted.

Other amendments to the act have consistently failed to help several categories of Lost Canadians, including children born out of wedlock to Canadian servicemen and a foreign mother during wartime, and citizens born abroad between 1977 and 1981.

Who “counts” as Canadian?

The definition of Canadian citizenship is complicated. The first iteration of the Citizenship Act created two classes of “natural-born Canadians” who could hold citizenship: people born in Canada or on a Canadian ship or aircraft, and children born abroad to a Canadian-born father before 1947.

When a 1977 amendment restored the legality of dual citizenship, those who had lost their Canadian status under the original legislation did not have it automatically reinstated.

That 1977 amendment also introduced a new provision: under Section 8, born-abroad Canadians would have to apply to keep their citizenship before turning 28 years old – and would also need to have resided in Canada for the year preceding their application. Most affected Canadians were not informed of these requirements.

In 2009, attempting to resolve these complications, the Stephen Harper government repealed Section 8 by passing Bill C-37. However, the amendment came with two caveats:

  • First, those who had lost citizenship under the now-repealed provisions would not have it restored automatically. These former Canadians could apply for citizenship, but with no guarantee of approval. (The repeal also did not apply to Lost Canadians born abroad between 1977 and 1981.)
  • Second, a born-abroad Canadian could pass down citizenship only to children born in Canada. Children born abroad to second- or subsequent-generation Canadians would need to apply for immigrant or refugee status to follow their parents back to Canada. If born in a country without a birthright citizenship law, the children would be stateless – a major human rights violation, according to the United Nations.

Lost Canadians claim they were informed of the conditionality of their citizenship only when it was too late, such as when, after age 28, they applied for government pensions, driver’s licences, passport renewals or health care.

That was the case for Pete Giesbrecht. Born in Mexico in 1979 to born-abroad Canadian parents, the family returned to Canada when he was seven years old. But when Giesbrecht applied to renew his passport in 2015 – after living nearly 30 years in Canada – he was told he faced possible deportation.

Giesbrecht was officially stateless, without citizenship in another country to which he could be deported. When he reapplied for Canadian citizenship, he was required to prove his long-time connection to the country. After two years of uncertainty, Giesbrecht found a community of Lost Canadians to help advocate on his behalf and was re-granted citizenship.

Ontario court highlights sex discrimination

The Ontario Superior Court of Justice ruling in December found the Citizenship Act confers “a lesser class of citizenship” to Canadians born outside the country and echoed criticisms of the second-generation cut-off rule’s unjust impact on women.

Adoptees of foreign-born children, and second-generation, born-abroad Canadian mothers who gave birth abroad, are among those who have faced an undue burden. If a woman moved abroad for work and became pregnant in another country, she was required to return to Canada to give birth to pass down her citizenship.

Victoria Maruyama, a Canadian who gave birth while working in Japan temporarily, was told she had to apply to sponsor her two children as immigrants to Canada. On both occasions, her applications were rejected.

A few high-profile cases have succeeded in catching the attention – and intervention – of the immigration minister. One example is 16-year-old Olympic hopeful Erin Brooks, whose bid for citizenship has been successful. However, most families have been left dangling in uncertainty.

What now?

It’s not known whether the government will release more information about how it intends to modify the act before the June deadline.

As far as we know, the latest news does not guarantee Canadian citizenship for all applicants. The expectation that families will be required to pass a substantial connection test to bring their children into Canada means there’s a possibility their applications will be denied.

The lack of clarity leaves a cloud of doubt looming over Lost Canadians. How much longer will they have to wait?

After so many years of confusion and oscillation, it seems imperative for the government to share in greater detail how it plans to move forward.

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Parisa Vafaie
Parisa Vafaie is a master of public policy and administration student at Carleton University, where she also completed a bachelor of journalism in 2018. Her research interests span a range of issues relating to education, cybersecurity and social policy. X: @ParisaVafaie
Anna Kopec
Anna Kopec is an assistant professor at the school of public policy and administration at Carleton University. Her research interests include public policy and inequality, homelessness and democratic participation. X: @anna_kopec1  

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