There is much for conservatives to celebrate about the death of the Liberals’ legislative agenda, which is one of the chief effects of proroguing Parliament: Every government bill in progress “cease(s) to exist,” as the House of Commons’ procedural website puts it, and would in theory have to start at square one once Parliament returns on March 24. In practice, of course, the only real order of business then will be bringing down the government. It is an ex-legislative agenda.
The death of Bill C-71, however, which would have amended the Citizenship Act with respect to so-called “second-generation-born-abroad” children of Canadian citizens, is potentially a serious problem. It’s at the very least a problem, and it’s one the Conservatives need a plan to solve starting on Day One.
I’ll try to explain the issue as simply as I can.
Once upon a time, Canadian citizenship could be passed down through the generations essentially forever: So long as you were a Canadian citizen, no matter how much time (if any) you had spent here, your children had an automatic birthright to citizenship. The Harper government changed the law in 2009: People who were born as Canadian citizens in other countries could no longer pass on citizenship to any of their children who were also born abroad.
The law has produced some maddening and very sad situations, which I have written about in the past. But most cases are probably more like my friends Tim and Emily’s — not disastrous, just arbitrary and pointless.
Tim and Emily were both born in Canada as Canadian citizens; both were raised and educated in Canada. They moved to Dubai for a few years to work, as tens of thousands of Canadians do, and had their daughter Tina there. Tina automatically became a Canadian citizen. They then moved back to Canada, where their son Mike was born. (These aren’t their real names.)
Were Mike to have a daughter in Dubai in the future, she would automatically be Canadian. Were Tina to have a daughter in Dubai in the future, she would not automatically be Canadian, because she would be the “second generation born abroad.”
(Bizarrely, Tina has lesser rights in this respect than a naturalized citizen. If you immigrate to Canada and become a citizen, the Citizenship Act considers you to have been born in Canada for the purposes of passing on citizenship.)
In December 2023, Justice Jasmine Akbarali of the Ontario Superior Court struck down this rule, which lives in a single section of the Citizenship Act, as unconstitutional. She gave the government six months to craft a legislative remedy.
That remedy was Bill C-71, which allowed people like Tina to pass on citizenship to children born abroad so long as they could demonstrate a “substantial connection” to Canada — namely having spent 1,095 days in the country over the previous five years. It’s exactly what we require immigrants to demonstrate before they can receive citizenship. It seemed reasonable enough to constitutional lawyer Sujit Choudhry, who represented the applicants at the Ontario Superior Court.
“We thought that was fair. It was simple, it was equitable. It’s a rule that (Immigration, Refugees and Citizenship Canada) administers every day in relation to permanent residents who are naturalizing,” says Choudhry.
For some reason the Liberals decided to go much further. Most notably, Bill C-71 grants “citizenship by descent (to) all persons who were born outside Canada … to a parent who was a citizen” before the new law took effect. That’s an awful lot of people with the stroke of a pen — no one really knows how many; last month, the Parliamentary Budget Officer estimated 115,000 — at a time when people want more control over immigration, not less. It also doesn’t cut off at the second generation: Third and fourth generations born abroad could receive citizenship if a parent could demonstrate this substantial connection.
The Liberals having lost any ability to govern, Justice Akbarali granted the government three extensions to her original six-month deadline. The third she granted “reluctantly,” emphasizing her displeasure at the government’s lack of “legislative diligence” but noting that “the interests of the public will be negatively affected if (her ruling) comes into force without replacement legislation in place.”
And there, for the Conservatives, is the rub. If the section of the Citizenship Act that Akbarali struck down simply disappears with nothing to replace it, we wouldn’t return to the status quo circa 2022. We would return to the status quo circa 2008: unlimited hereditary citizenship, which no one wants or is asking for.
“Allowing (my ruling) to take effect without replacement legislation would … result in … an unknowable number of people becoming automatic Canadian citizens,” Akbarali wrote.
That third extension expires on March 19, before Parliament could even theoretically get back to work on the file. In light of that, and of Akbarali’s previously stated concerns, odds are the government will ask for and receive another extension. But all that does is punt the ball to Pierre Poilievre’s first citizenship minister, who most certainly will not want to be seen opening the floodgates to any real or perceived “citizens of convenience.”
My impression of the Conservatives on this file is that they don’t want to be seen supporting what could be viewed as more generous citizenship laws. They want citizenship to have more value, not less, both practically and philosophically — and I’m all for that. But there is nothing remotely unpatriotic about working abroad for a few years, even if you happen to have been born abroad while your parents did the same. And it doesn’t bolster the value of citizenship to make life difficult for people who follow this very common life path.
The Liberals were most of the way to a perfectly reasonable remedy. The Conservatives should adopt the “substantial connection” test as their own, probably with a cutoff at the second generation, ditch the weird blanket citizenship-grant, pass it quickly and move on to tougher issues.
National Post
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