Citizenship Primer: Background and Issues
Citizenship Primer: Background and Issues
url: http://www.law.ualberta.ca/centres/ccs/issues/Citizenship_Primer.php
Author: Brent Thompson
Date: July, 2011
Introduction:
Citizenship is an ancient concept that countries use to organise their populations, and that people use to organise themselves. Citizens can participate in a country's legal framework, because they have certain rights and responsibilities to their country and each other.
The application of citizenship in Canada has been the source of many issues over time. This article explores different aspects of the definition of citizenship, and identifies certain difficulties that exist in the way Canadian law lays out citizenship. It also provides some background for understanding how the Canadian Constitution deals with citizenship.[1]
Defining citizenship:
1. The relationship between citizens and their country
a) Concepts of citizenship: formal citizenship and broader ideas
Citizenship establishes that a person has legal rights and responsibilities as a 'member' of a country. The breadth of this concept means that there are different ways in which people might talk about citizenship. “Formal citizenship”, for example, is conferred upon individuals according to a country's official and technical legal definition of citizenship. By virtue of the fact that the Canadian government has granted Stephen Harper Canadian citizenship, he possesses certain rights, including the right to run for political office. Formal citizenship will be the focus of this article and its companion.
In its broader conceptions, citizenship is viewed as a form of political membership within a community. For example, a recent immigrant from Brazil (as a refugee, permanent resident, or visitor) might have more rights and responsibilities in Canada than does a formal Canadian citizen who has never set foot in Canada.[2] The Brazilian immigrant will, in some ways, have a stronger relationship with Canada. By understanding citizenship in this broader way, one can better critique formal citizenship, as set out in Canada's citizenship laws.
b) Some history
The concept of citizenship dates back to ancient Greece and Rome.[3] In both of these societies, citizenship was used as a tool to exclude “others” from participating in political decision-making. In these times, others included foreigners, women, slaves, and so forth. Membership in the political order was determined by giving only “citizens” specific rights and responsibilities, and by denying the others the same. During the last 3000 years, the rights and obligations associated with citizenship have connstantly changed.[4]
c) Contemporary relationships between people and their countries
In today's world, countries still distinguish between citizens and non-citizens. Not every person living within a country's territory will be considered a citizen of that country. Canada's immigration system, for example, allows people to come to Canada as visitors or refugees. These newcomers can stay in Canada without being a citizen. Some newcomers will choose to retain their immigration status (and to remain as non-citizens), while others will choose to become Canadian citizens when they meet the requirements.
Similarly, countries do not require that a person live within their borders to be a citizen: in other words, you can be a Canadian citizen even if you do not live in Canada. This is because countries have placed value in establishing long-term legal relationships with certain people to whom they have historical connections, even if those people live elsewhere.[5]
Citizenship creates bonds between a country and its people by creating a system of mutual rights and responsibilities.[6] In some ways, modern citizenship resembles the feudalism of mediaeval England, where people held individualised legal status according to a complex network of personal bonds.
Personal bonds do play a role in formal citizenship today. For example, individuals acquire the right to citizenship if their parents are Canadian citizens. Also, when a person applies for a Canadian passport (a document that symbolises one's status a citizen), he or she is required to submit the name of a community member willing to vouch for him or her.
But Canadian citizenship is not granted and acquired on the basis of a person's connection with a decision-making official; indeed, this would be considered corruption. Rather, it is distributed by the government as a single package of rights and responsibilities according to a set of procedures.
Citizenship continues to be accepted by the international community, since it helps countries organise the people to whom their laws apply. Each country, of course, will use different rules for granting citizenship and for determining its associated rights and responsibilities. Also, countries might approach foreign citizenships differently; for example, some countries do not allow their citizens to hold citizenship in another country.
2. Citizenship and nationality
While the concept of citizenship is similar to nationality, citizenship and nationality are not the same. Citizenship is grounded in law. Even in its broadest conceptions, citizenship is a legal status derived from relationships between people and their country. Citizens owe certain duties to their country, and can usually expect certain protections in return.
Nationality is a more flexible concept.[7] For most purposes, nationality does not involve the law. Instead, nationality is based in culture and ethnicity, and so there are no authoritative rules for its determination. For example, a Canadian citizen might claim to belong to the Quebecois nation, but with no legal effect.
3. Rights and responsibilities of citizenship
In theory, every citizen of a country will receive the same package of legal rights and obligations. This means that citizenship unifies individuals within a country as a single group, as distinct from any other country. For example, French citizens possess a different array of rights, obligations, and expectations than do Australian citizens. Since citizenship can foster unity amongst people who share the status of citizen within a particular country, it can also be one way to express shared political and cultural identities.
Citizenship also creates a separation between the people of Canada and the government of Canada. Citizenship includes a set of rights, and these rights serve to limit certain types of government action. It is for this reason that citizenship is considered important in protecting individuals from the state.[8] Although many of the rights enjoyed by citizens are shared by non-citizens in Canada, citizens do possess more rights than non-citizens.[9]
4. Comparing citizenship laws
National identity and the role of the individual within a country both affect the way in which a country establishes its citizenship rules.
At international law, countries are free to decide which criteria they use to confer citizenship on individuals.[10] Some countries, such as the United States, set out citizenship rights in their constitutions.[11] Other countries, such as Canada, have created statutory rights to citizenship, using legislation to define the requirements for citizenship.[12]
A country might choose to empower local governments to confer citizenship to individuals. The Swiss constitution, for example, establishes that individuals must acquire citizenship both in their municipality and in their local district in order to become eligible for Swiss citizenship.[13] Canadian law prefers a centralised approach. Thus, provincial law or community membership, for example, in a First Nation, does not play a role in determining Canadian citizenship.[14]
Issues in Canadian citizenship:
1) Current rules for formal Canadian citizenship:
Formal citizenship in Canada has undergone several changes since its relatively recent introduction in 1947. The current rules for formal citizenship, as listed in the Citizenship Act, appear fairly straightforward.[15] Canadian citizenship may be acquired:
i. by birth in Canada;[16]
ii. by birth to at least one Canadian parent;[17] or,
iii. by naturalisation.[18]
The Canadian government may also lay out the rules for revoking formal citizenship.
These rules for formal citizenship, however, may oversimplify the political and social goals of various Canadians, and therefore may not match up with broader concepts of citizenship, as discussed below.
2) Some tensions behind formal Canadian citizenship:
In its current form, Canadian citizenship embodies tensions that have existed in the past and many others that have been left unresolved in the present. Some of these issues include the following.
a) Political and legal status of the founding nations of Canada
Canadian citizenship developed from the notion of subjecthood to the British Crown, and therefore from a concept similar to British nationality. Yet of the founding nations of Canada, only the English have historical cultural ties to the British Crown. As a result, there remains some uncertainty as to the inclusion of Quebec and certain First Nations within the political and social projects of Canadian citizenship.[19] English Canada is less likely to find the concept of Canadian citizenship problematic, but certain struggles are still evident elsewhere. Quebec's nationhood (and nationalism) shows that Canadian citizenship has struggled to unify Canadians into a single group.[20]
Furthermore, the status regime of the Indian Act singles out people with Aboriginal heritage. This is particularly interesting in the context of Canadian citizenship, since status Indians were incapable of holding the same “duties and responsibilities”[21] even through the 1950s. Increasingly, First Nations have taken membership issues into their own hands; the current Indian Act permits Indian Bands to determine their own membership.[22] However, it is not yet clear whether Indian Bands have a constitutional right to make membership rules.[23]
b) Multiculturalism
The Canadian multiculturalism project is reflected in our citizenship laws and even in the Charter.[24] Canada's past as a settler society has led to high immigration from all over the world. This, in turn, has occasionally created conflict centred around the interests and special status of the founding nations.[25]
c) Women's citizenship
Some view the details surrounding the initial exclusion of women as political agents as having undermined their capacity to contribute to Canadian citizenship in the same way as their male counterparts.[26] For example, the first women to vote in federal elections had to meet the requirement of being closely related to a male Canadian soldier during the First World War.[27] Also, the interpretation that women were “qualified Persons”[28], eligible to sit as Canadian senators, came from the British Judicial Committee of the Privy Council,[29] not the Supreme Court of Canada. This decision about women's role in Canadian citizenship was somewhat of a colonial imposition.
Contemporary evidence of continued inequality comes from the case Benner v Canada (Secretary of State).[30]In that case, the Supreme Court of Canada found the Citizenship Act to be unconstitutional because it was discriminatory (ultimately against women.) It limited the capacity of children born abroad before February 15, 1977 to obtain Canadian citizenship if their Canadian mothers married non-Canadian fathers.[31] As the Court noted, this legislative scheme suggested that “men and women are not equally capable of passing on whatever it takes to be a good Canadian citizen.”[32]
d) Canadian sovereignty
Canadian citizenship may be shifting our society's understanding of the appropriate roles for individuals, cultural and ethnic groups, and the state. It is generally understood that Canada's legal system is a constitutional monarchy where sovereignty exists in the Crown.[33] This means that the government holds the power to make legal decisions, a power it has taken centuries to wrest from the British (and Canadian) monarchy.
The concept of Canadian Crown sovereignty differs from the governmental structure of the United States, where sovereignty exists in the people. This is reinforced by the preamble to the US Constitution, which begins “We the people.”[34] In fact, the legal order of the US was specifically designed as a revolutionary alternative to the British monarchy.
The Charter has changed Canadians' perceptions of their own role in their country by adopting a system of individual rights which the state cannot violate. The idea of the constitutional protection of rights has been influenced by the US Constitution. The result is somewhat of a contradiction: while Canadians view legal decision-making is as the responsibility of the Canadian government, Canadians have increasingly taken an active role in telling the government what it can and cannot do as a result of the Charter.
These are just some of the questions that set the background for past, current, and future discussions of Canadian citizenship in a constitutional context.
Related topics:
Further reading:
Adamoski, Robert, Dorothy E Chunn, & Robert Menzies, Contesting Canadian Citizenship: Historical Readings (Peterborough, ON: Broadview Press Ltd, 2002).
Cardinal, Linda. “Citizenship Politics in Canada and the Legacy of Pierre Elliott Trudeau” in Pierre Boyer, Linda Cardinal, & David Headon, eds, From Subjects to Citizens: A Hundred Years of Citizenship in Australia and Canada (Ottawa, University of Ottawa Press, 2004) 163.
Harder, Lois. “'In Canada of all places': national belonging and the lost Canadians”, [2010] 14:2 Citizenship Studies 203.
Links:
[1] See the companion article: Brent Thompson, “Citizenship and the Canadian Constitution”, Centre for Constitutional Studies (June 2011).
[2] This is possible if a child is born abroad to a parent with Canadian citizenship—in many circumstances, the child can acquire Canadian citizenship, even without coming to Canada. See Citizenship Act, RSC 1985, c C-29, s 3(1)(b).
[3] Nan Berezowski & Benjamin Trister, Citizenship, (Scarborough, ON: Carswell, 1996) 2.
[4] Robert Adamoski, Dorothy E Chunn, & Robert Menzies, “Rethinking the Citizen in Canadian Social History” in Robert Adamoski, Dorothy E Chunn, & Robert Menzies, Contesting Canadian Citizenship: Historical Readings (Peterborough, ON: Broadview Press Ltd, 2002) 11 at 16 [Adamoski, “Rethinking the Citizen”].
[6] Adamoski, “Rethinking the Citizen”, supra note 4 at 16.
[7] One explanation for this is that nationality existed before the modern idea of citizenship. The Treaty of Westphalia established the modern international legal order by replacing nations with countries or states. Note that international law does include the law of nationality, which defines how countries agree to apply their laws to individuals. In fact, the international community has recognised that it is important for every person to have a nationality; see Universal Declaration of Human Rights, GA Res 217(III), UN GAOR, 3d Sess, Supp No 13, UN Doc A/810 (1948) 71, Art 15. Also note that the international law of nationality applies to corporations, whereas Canadian citizenship law does not.
[8] Adamoski, “Rethinking the Citizen”, supra note 4 at 17.
[9] Consider, for example, that section 6 of theCanadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the "Charter"] limits the removal of citizens from Canada; non-citizens may still face removal, unless the terms of their removal conflict with a different Charter held by the non-citizen. See R v Suresh (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3 at para 78.
[10] See It is for Liechtenstein, as it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality, and to confer that nationality by naturalization granted by its own organs in accordance with that legislation.”Nottebohm Case (Liechtenstein v Guatemala), [1955] ICJ Rep 4 at 20: “
[12] Citizenship Act, supra note 2.
[14] This might have the effect of encompassing minorities under a regime established by the majority, even though minority protection is a manifestly important feature of our federalist structure in Canada. See Reference re Secession of Quebec, [1998] 2 SCR 217 at paras 81 & 82.
[15] To read about these in fuller detail, see the companion article: Brent Thompson, “Citizenship and the Canadian Constitution”, Centre for Constitutional Studies (June 2011).
[16] Citizenship Act, supra note 2, s 3(1)(a).
[19] Adamoski, “Rethinking the Citizen”, supra note 4 at 24-25; & David E Smith, “Indices of Citizenship” in Pierre Boyer, Linda Cardinal, & David Headon, eds, From Subjects to Citizens: A Hundred Years of Citizenship in Australia and Canada (Ottawa, University of Ottawa Press, 2004) 19 at 28.
[20] Linda Cardinal, “Citizenship Politics in Canada and the Legacy of Pierre Elliott Trudeau” in Pierre Boyer, Linda Cardinal, & David Headon, eds, From Subjects to Citizens: A Hundred Years of Citizenship in Australia and Canada (Ottawa, University of Ottawa Press, 2004) 163 at 172 [Cardinal, “Citizenship Politics”].
[21] Indian Act, SC 1951, c 29, s 108(1)(b).
[22] Indian Act, RSC 1985, c I-5, s 10(1).
[23] Sawridge Band v Canada, 2006 FCA 228, [2006] FCJ No 956 at paras 43-44.
[25] Cardinal, “Citizenship Politics”, supra note 20 at164.
[26] Caroline Andrew, “Women as Citizens in Canada” in Pierre Boyer, Linda Cardinal, & David Headon, eds, From Subjects to Citizens: A Hundred Years of Citizenship in Australia and Canada (Ottawa, University of Ottawa Press, 2004) 95 at 102.
[27] Ibid.
[31] Ibid at para 37.
[32] Ibid at para 90.
[33] Linda Cardinal, “Citizenship Politics”, supra note 20, 173.