Citizenship and the Canadian Constitution
Citizenship and the Canadian Constitution[1]
Author: Brent Thompson
Date: July, 2011
Introduction:
Before 1947, people born in Canada were not formal Canadian citizens in law. When the Citizenship
Act came into force in 1947, Parliament created Canadian citizenship as a widely applicable legal concept. Since then, citizenship laws have changed several times. For better or worse, these surprising facts reveal that Canadian citizenship is perhaps a more flexible concept than most Canadians might realise.
The present article will discuss the history of citizenship in Canada, current citizenship laws in Canada, and the impact of the Canadian Charter of Rights and Freedoms on our understanding of Canadian citizenship. It is important to recognise the content of Canadian citizenship laws as an active choice of our government, since courts have not yet found the Constitution to impose limitations on the way our government confers and revokes citizenship.
Canadian citizenship laws over time:
1) History of Canadian citizenship:
Naturalisation is the process by which foreigners gain the ability to legally participate in the governance of Canada. Through section 91(25) of the Constitution Act, 1867, the Federal Government has control over “Naturalization and Aliens.”[2] This has been an important power since Canada is a land of many immigrants, so the Federal Government has had to decide how these immigrants can become citizens.
However, Canadian citizenship did not exist until 1947, when the Canadian Citizenship Act came into force.[3] Before 1947, the Canadian government relied on s 91(25) to grant British subjecthood, both upon people born in Canada and upon those immigrants who had naturalised according to federal rules. Through the Canadian Citizenship Act of 1947, the Federal Government relied on s 91(25) to introduce the first laws of Canadian citizenship. At the time, Canadian citizens were also British subjects. The Federal Government stopped conferring British subjecthood in 1977, when the current Citizenship Act came into force.
2) Current citizenship laws & the Citizenship Act:
a) Conferring citizenship
The Federal Government presently has considerable flexibility in defining the way it confers citizenship to people. The current Citizenship Act lists several manners in which citizenship may be acquired:
i. by birth in Canada;[4]
ii. by birth to at least one Canadian parent;[5] or,
iii. by naturalisation.[6]
i. Citizenship by birth in Canada
People born in Canada will generally receive Canadian citizenship. There are some exceptions; for example, children of foreign diplomats will not receive Canadian citizenship even if born in Canada.[7]
Past amendments of citizenship law have created legislative gaps that have left certain people born in Canada without Canadian citizenship. This came into the public conscience with the “Lost Canadians” issue of 2007, where a group of people who thought they had acquired citizenship through birthright (either through birth on Canadian soil or through birth to citizen parents) found out that they had never been granted Canadian citizenship at all.[8] Both the problem itself and the speed with which the Federal Government resolved the situation expose how flexible (and occasionally uncertain) the statutory regime of citizenship truly is.
ii. Citizenship by birth to at least one Canadian parent
When a parent who holds Canadian citizenship has a child abroad, that child is granted Canadian citizenship.[9]
The Canadian government has prevented Canadian citizenship from being passed down from generation to generation by individuals who have never lived in Canada.[10] The concern is that people who have never been to Canada might rely on the Canadian government to protect certain rights they hold as citizens. The government has therefore limited how many such individuals can qualify as citizens.
iii. Citizenship by naturalisation
Foreigners can become Canadian citizens according to naturalisation laws. Current rules of naturalisation, for example, require that an individual reside in Canada as a permanent resident for a total of three of the previous four years.[11]
b) Revoking citizenship
Just as it can confer citizenship, the Canadian government has the power to take citizenship away. Currently, the government may strip a person of his or her Canadian citizenship when it has been obtained through fraud.[12] For example, people who lied in order to become permanent residents of Canada and who subsequently became citizens of Canada may lose their Canadian citizenship.[13]
The flexibility of citizenship laws in Canada might allow the Federal Government to redefine the way in which citizenship is lost. If this occurs in a drastic way in the future, it could become a constitutional issue. For example, some Canadians have discussed the idea of revoking citizenship as punishment for treason.[14]
c) The constitutional dimension
As will be evident from the above, the Charter can impact the way in which the Federal Government defines citizenship. The Citizenship Act, like any piece of legislation, is subject to Charter scrutiny. There may be an argument that the revocation of an individual's formal citizenship might violate the right to “security of the person” as protected under section 7 of the Charter.[15]
Due to the operation of section 15(1) of the Charter, the Federal Government cannot pass discriminatory citizenship laws.[16] Section 15(1) has been used to challenge the Citizenship Act in Benner v Canada (Secretary of State).[17] In this case, the Supreme Court of Canada found provisions in the Citizenship Act to be discriminatory, since for the purposes of granting citizenship, those provisions distinguished amongst children born abroad on the basis of the sex of their Canadian parent.[18]
Charter rights formally guaranteed to citizens:
Certain Charter rights are accessible only to Canadian citizens.[19] In this way, the Charter recognises that citizenship has an important role to play in the relationship between individuals and their country.
However, most rights contained within the Canadian Charter of Rights and Freedomsare granted to all individuals “physically present in Canada”.[20] For example, s 7 applies to “everyone”, meaning that both citizens and non-citizens have equal access to the rights it guarantees. Similarly, a woman facing discrimination from the Federal Government will be entitled to protection through section 15 equality rights regardless of whether or not she is a Canadian citizen.
1) Context of citizens' rights in the Charter:
By the time the Charter came into force in 1982, Canadian citizenship had already become a fundamental legal concept.[21] The Charter gives citizens a somewhat elevated status by affording them special rights, i.e., democratic rights, mobility rights, and minority language education rights.[22]
Interestingly, citizens' Charter rights often require the government to do something (positive rights), while most other Charter rights require the government to refrain from acting in certain ways (negative rights). In other words, the government has certain “hands on” obligations to Canadian citizens and these can only be satisfied by constant government action.
The “notwithstanding clause” in section 33 of the Charter enables a government to opt out of providing certain constitutional rights.[23] The notwithstanding clause calls into question the extent to which many Charter rights are actually guaranteed, since the government can invoke it in order to continue its violation of them. However, the clause does not apply to the special rights granted to Canadian citizens. Citizens' special rights under the Charter are therefore relatively sound, indicating that the Charter grants a certain inalienable value to formal citizenship.
2) What rights are held only by citizens?
a) Section 3: Democratic rights
Section 3 of the Charter grants citizens the constitutional right to vote in both federal and provincial elections, and to hold office in the House of Commons and the provincial legislatures.[24] This requires the Federal Government to facilitate voting and other forms of participation in the democratic process. Because only citizens hold s 3 rights, the government may exclude non-citizens from participating in basic processes of political decision-making.
The Federal Government has decided that some limits should be placed on citizens' democratic rights. Under the Elections Act, citizens lose the right to vote after living abroad for five consecutive years.[25] This law might violate s 3 of the Charter, but the Federal Government could try to justify it as an acceptable limit under section 1.[26] The rule also highlights questions of Canadian national identity: it indicates that a person's value as a Canadian citizen might depend on his or her mere presence within Canada.[27]
b) Section 6: Mobility rights
Under section 6 of the Charter, citizens are free to move into, out of, and throughout Canada;[28] they are also permitted to take up residence in any province.[29] These are called “mobility rights”. The international community has recognised that mobility rights are important to the preservation of human dignity.[30]
Furthermore, mobility rights are an essential ingredient to the inclusionary and exclusionary role of citizenship in Canada. Indeed, Canadian immigration law is structured around the requirement that Canadian citizens always have a right to enter Canada, whereas non-citizens have only conditional privileges to do so according to legislated rules.
The Canadian government has at times been called on to protect citizens' mobility rights by taking steps to bring them back to Canada, as in the case of Abousfian Abdelrazik.[31]
c) Section 23: Minority education rights
Stemming from Canada's traditional struggle to balance the interests of distinct ethnic groups, the Charter protects the rights of French and English minorities to receive education up to high school in their own language, so long as there are sufficiently high numbers of students in a school district.[32] However, the text of the Charter only guarantees these rights for Canadian citizens.
When a government fails to provide educational instruction in a minority language under s 23, courts may order that government to fund and administer the constitutionally-guaranteed education programme. Furthermore, courts have required the government to issue progress reports for the courts' scrutiny.[33]
3) Conclusion: what does “citizen” mean in the Charter?
The Charter specifically grants rights to Canadian citizens, but in its text, does not define citizenship. There may, however, be a core unwritten definition of citizenship located in the Charter, which courts may at some point be called upon to determine. For example, the Citizenship Act or its future amendments might be challenged. If this were to occur, courts might turn to citizens' special Charter rights in order to develop an unwritten constitutional definition of citizenship.
It would certainly not be the first time in Canadian law that an unwritten definition for a term was discovered within the text of the Constitution. In the famous Persons case, the Judicial Committee of the Privy Council examined the use of the word “persons”, used in section 24 of the Constitution Act, 1867. Even though there was no explicit definition for a “person”, the JCPC found that the term included women.[34] Similarly, the JCPC found that “Indians”, as used in section 91(24) of the Constitution Act, 1867, included “Eskimos” (now Inuit) even though the Constitution contains no explicit definition of Indians.[35]
If a similar approach were used to find a constitutional definition for “citizen”, such a definition could play a crucial role in preventing arbitrary or drastic changes to the processes by which citizenship is granted and taken away.
It would be particularly controversial if a government were to deny people citizenship in order to prevent them from claiming citizens' Charter rights. The “Khadr Resolution” discussed at the 2011 Conservative Party convention is an example of a failed proposal that would have impacted citizenship law in a way that might have been challenged as defying the constitutional concept of citizenship.[36]
Equality rights and citizenship – citizenship status as grounds for discrimination:
The Supreme Court of Canada has found that it is a violation of a person's Charter rights for the government to pass legislation that discriminates against that person on the basis of his or her citizenship status. This rule comes from the Court's interpretation of section 15(1) of the Charter, which protects equality rights.
a) Grounds protected against discrimination under section 15(1)
In section 15(1), the Charter contains a list of human characteristics and features that the government cannot target for discriminatory purposes, including race, religion, sex, and age.[37] Courts have noted that this list was not intended to include everything. They have recognised certain other characteristics (analogous grounds) which are equally off-limits from discrimination by the government, such as sexual orientation.[38]
b) Citizenship status as a protected ground
In Andrews v Law Society of British Columbia, the Supreme Court of Canada recognised formal citizenship as the first unlisted characteristic (analogous ground) to deserve s 15(1) protection.[39] The Supreme Court found that citizenship was a “personal characteristic” and that non-citizens were “lacking in political power,” in part due to the fact that they have fewer Charter rights than citizens do. The Supreme Court also noted that the cost for a foreign national to obtain Canadian citizenship is often the sacrifice of his or her native citizenship.[40] This is a hardship onerous enough to warrant protection for non-citizens against discriminatory legislation.
Formal citizenship is, nevertheless, more of a legislated characteristic than a personal characteristic. [41] So, while the government cannot discriminate between citizens and non-citizens, it can change the definition of citizenship, including by granting or revoking it in new ways. The right to be free from discrimination on the basis of citizenship status could therefore mean that different protection depending on when the s 15(1) challenge is brought.
c) Citizens' Charter rights and discrimination
Citizens enjoy particular constitutional rights that non-citizens do not, specifically democratic rights, mobility rights, and minority education rights. Thus, for example, federal legislation may grant voting rights only to Canadian citizens, honouring their democratic rights under s 3 of the Charter.[42] This is not discrimination under s 15(1).
This means the government can (and does) exclude non-citizens from voting or even deny them re-entry into Canada, even if they have lived in Canada for decades. On the one hand, perhaps such people should go through the established processes to become a Canadian citizen, since it theoretically reflects Canadians' democratic will. On the other hand, why is citizenship the key requirement for guaranteeing these rights, when many non-citizens have established families in Canada and paid taxes here?
d) Finding and justifying discrimination on the basis of citizenship status
In other situations where legislation distinguishes between citizens and non-citizens, the legislation will be discriminatory if it unfairly burdens non-citizens. This is a concern because of non-citizens' historical position of disadvantage.[43]
However, the government can justify discrimination under section 1 of the Charter, which has been interpreted to require that the government prove a pressing and substantial objective to which its legislation is rationally connected.
i) Pressing and substantial objective
In Lavoie v Canada, the Supreme Court held that it is a pressing and substantial objective for the government to promote the value of Canadian citizenship.[44] The case dealt with legislation that gave preference to citizens when hiring for jobs with the Federal Government. The Supreme Court upheld the legislation because it encouraged people to become Canadian citizens.
The Supreme Court's finding that it is a pressing and substantial objective to promote the value of citizenship is somewhat unconvincing.[45] The ruling holds that the government should not be able to discriminate against non-citizens because of their historical disadvantages in society; at the same time, it says that citizens can be given special benefits in order to encourage non-citizens to become citizens. To what extent should we disadvantage non-citizens simply to encourage them to become citizens?
ii) Rational connection
In their dissenting opinion in Lavoie, Chief Justice McLachlin and Justice L'Heureux-Dubé argued that legislative incentives for permanent residents to become Canadian citizens will actually impair the value of citizenship.[46] Therefore, such incentives are not rationally connected to the pressing and substantial objective of promoting the value of citizenship.
The advantages offered to citizens by the hiring preference are minimal, yet they symbolise a sort of coercion of non-citizens for the purposes of making them want to obtain citizenship status. People should consent to formal citizenship on the basis of their un-coerced choice to become members of the political community, especially since our citizenship laws are based on the “principles of inclusion and acceptance.”[47] In the words of the dissent, “[t]he notion that a trivial advantage, secured at the cost of violating s. 15(1)’s equality guarantee, could enhance citizenship, is difficult for us to fathom.”[48]
Conclusion:
Formal citizenship in Canada has undergone several changes since its relatively recent introduction in 1947. It remains to be seen how the Charter might affect our notions of citizenship, through the granting of certain rights specifically to formal Canadian citizens.
In our other publications:
Further reading:
Harder, Lois. “'In Canada of all places': national belonging and the lost Canadians”, [2010] 14:2 Citizenship Studies 203.
Links:
[1] For an overview of the general concept of citizenship, and the tensions underlying its formal application in Canadian law, see Brent Thompson, “Citizenship Primer: Background and Issues”, Centre for Constitutional Studies (July 2011).
[3] Canadian Citizenship Act, SC 1946, c 15.
[4] Citizenship Act, RSC 1985, c C-29, s 3(1)(a).
[9] Citizenship Act, supra note 4, s 3(1)(b).
[11] Ibid, s 5(1)(c). Note the meaning of 'residence' is somewhat unclear, since the Federal Court of Canada has applied different interpretations respecting the meaning of 'resident' in two separate cases, and there is no right of appeal to the Federal Court of Appeal in ibid, s 14(6). See Chen v Canada (Minister of Citizenship and Immigration), 2001 FC 1229, Imm LR (3d) 222; and, Canada (Minister of Citizenship and Immigration) v Xia, 2002 FC 453.
[12] Citizenship Act, ibid, s 10(1)(a). For example, see “Ottawa targets 1,800 in citizenship crackdown” CBC News Online (20 July 2011).
[19] Charter, supra note 15, ss 3, 6, & 23.
[20] Singh v Canada (Minister of Employment and Immigration), [1985] 1 SCR 177, 202 per Wilson J.
[21] Consider, again, Canadian Citizenship Act, supra note 3.
[22] Charter, supra note 15, ss 3, 6, & 23. These sections include democratic rights, mobility rights, and minority language education rights, respectively.
[23] Ibid, s 33. Specifically, governments can opt out of sections 2 & 7-15 of the Charter.
[25] Elections Act, SC 2000, c 9, s 226(f).
[26] Charter, supra note 15, s 1, which allows the government infringe Charter rights if it can characterise the infringements as reasonable and justifiable in a free and democratic society.
[30] Universal Declaration of Human Rights, GA Res 217(III), UN GAOR, 3d Sess, Supp No 13, UN Doc A/810 (1948) 71, Art 13. This is noteworthy because the Universal Declaration of Human Rights was a source of inspiration in the drafting of our Charter.
[35] Re Eskimos, [1939] SCR 104.
[38] Andrews v Law Society of British Columbia, [1989] 1 SCR 143 [Andrews] at 151 per Wilson J.
[41] Certain other protected grounds are also heavily influenced by legislation, including race, religion, and marital status. The last of these is recognised as an analogous ground in Miron v Trudel, [1995] 2 SCR 418.
[42] Despite the operation of s 15(1), government policy directed at accommodating citizens' special rights can distinguish between citizens and non-citizens, since the Charter itself makes the same distinction. See Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 SCR 711.
[43] Lavoie v Canada, 2002 SCC 23, [2002] 1 SCR 769 at para 45.