THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Wednesday, December 4, 2024
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 4:15 p.m. [ET] to study the subject matter of Bill C-71, An Act to amend the Citizenship Act (2024).
Senator Rosemary Moodie (Chair) in the chair.
[English]
The Chair: My name is Rosemary Moodie. I am a senator from Ontario and the chair of this committee. Before we begin, I would like to do a round table and have senators introduce themselves.
Senator Arnot: My name is David Arnot. I’m a senator from Saskatchewan.
[Translation]
Senator Youance: Good afternoon. Suze Youance from Quebec.
[English]
Senator Senior: Good afternoon. Paulette Senior, Ontario.
Senator Osler: Flordeliz (Gigi) Osler, Manitoba.
Senator Kutcher: Stan Kutcher, Nova Scotia.
[Translation]
Senator Cormier: Good afternoon. René Cormier from New Brunswick.
Senator Dagenais: Jean-Guy Dagenais from Quebec.
[English]
Senator Cuzner: Rodger Cuzner, Nova Scotia.
[Translation]
Senator Petitclerc: Good afternoon. Chantal Petitclerc from Quebec.
[English]
Senator Harder: Peter Harder, Ontario.
[Translation]
Senator Brazeau: Good afternoon, everyone. Patrick Brazeau from Quebec.
Senator Seidman: Judith Seidman from Quebec.
[English]
Senator Muggli: Tracy Muggli, Treaty 6 territory, Saskatchewan.
Senator Bernard: Welcome. Wanda Thomas Bernard, Mi’kmaw territory, Nova Scotia.
[Translation]
Senator Mégie: Marie-Françoise Mégie from Quebec.
[English]
The Chair: Today, we are beginning our study on the subject matter of Bill C-71, An Act to amend the Citizenship Act (2024).
Joining us today for the first panel, we welcome the following witnesses in person: Don Chapman, Founder and Head, Lost Canadians; J. Randall Emery, Immigration Consultant; Kathryn Burton; and Carol Sutherland-Brown. Thank you for joining us today.
We will begin with opening remarks from Mr. Chapman, followed by Mr. Emery, Ms. Burton and Ms. Sutherland-Brown. You will have four minutes each for your opening statements. Mr. Chapman, the floor is yours. We hope you will respect the time because everybody wants to ask questions in this crowded room. Thank you.
Don Chapman, Founder and Head, Lost Canadians, as an individual: I have testified before the House and Senate about 20 times. So why am I here? It is because you have not fixed the issue.
To reiterate what I said two decades ago, Canada is a human rights-violating country for not upholding the Universal Declaration of Human Rights, the UN Convention on the Rights of the Child, the UN Convention on the Reduction of Statelessness and the UN Convention on the Elimination of All Forms of Discrimination against Women.
Did you know this? If so, why didn’t you do anything about it? If you knew, then I guess you’re okay that women have fewer rights than men in citizenship law or that Canada is an offending country — highlighted by the UN human rights magazine Refugees — for making people stateless or that Canada is still active in forced family separation?
Why did the Senate ignore its own recommendation from 16 years ago on making the Citizenship Act Charter-compliant? In your study The Shame is Ours about forced adoptions, why didn’t you say anything about the children of Canadians who were stripped of their citizenship? Why were you silent when babies lost their citizenship in the Catholic Church’s for-profit baby-selling ring out of Montreal?
I assume you didn’t know, but it’s not for my lack of trying to educate you. Now it’s on the record that you do know, so what are you going to do about it? How can you fix the issue when you don’t know all the nuances? It’s impossible to explain this in just four minutes.
If that worked, the issue would have been fixed decades ago. Your studies are woefully inadequate, as you never get to the root problem. Remember Boeing’s 737 MAX fiasco? I was a captain on that plane. Would it be appropriate to give the lead expert in the accident investigation just four minutes to explain the problem? The dangers and people in harm’s way would continue and be ongoing. It’s the same for “Lost Canadians” who’ve suffered from suicides, forced family separation and other human rights abuses.
We’re here today not because it’s the long-overdue right thing to do, but because we won a Charter challenge a year ago confirming my statements that the Citizenship Act is not Charter-compliant. The government was forced to introduce corrective legislation, which is Bill C-71.
For the good of the country and Canadians, pass the bill. Of the six current deficiencies in the Citizenship Act, Bill C-71 corrects four; two major deficiencies continue. Canada desperately needs a mint-fresh, Charter-compliant Citizenship Act, which won’t happen if you don’t fully understand the issue and you don’t have the willpower.
Don’t settle for the status quo of tiered citizenship rights, children and women being targets of unconstitutional legislation and the booting out of Canada’s 111,000 World War I and World War II dead, who are the very people you say you cherish on Remembrance Day.
Be further advised that the Citizenship Act is an autocrat’s dream, as citizenship is not a right; it’s a privilege. Literally, the government could come in and cancel your citizenship, your children’s citizenship or your grandchildren’s citizenship. With citizenship being the right to have rights, you couldn’t get married or obtain a driver’s licence, and there would be no passport, no medical, no insurance, no airline travel and no voting, as all are dependent on your citizenship. Think you’re immune? Senator Roméo Dallaire was stripped of his citizenship.
The antidote — your antidote — is knowledge, which I doubt you’ll get much of in these hearings. “Lost Canadians” is also about correcting the false narrative of Canada’s history, which particularly affects Indigenous, Chinese, Japanese and Jewish Canadians.
Senators, you and the MPs in the other place have an incredible opportunity to right a historic wrong. Pass Bill C-71; do it quickly and with pride. Afterwards, in what could become your defining moment as parliamentarians and Canadians, make Canada a beacon of light to the world: Pass a new and inclusive Canadian Citizenship Act.
Thank you.
The Chair: Mr. Emery, the floor is yours.
J. Randall Emery, Immigration Consultant, as an individual: I was born here. For most of my life, the government denied me the right to vote. It denied my children equal citizenship, as it did their Canadian grandfather, great‑grandmother and great-great-grandparents before them.
I’m here as a member of a large family with pre-Confederation roots, whose blood was spilled on behalf of this country during the Great War, who served in the Canadian Women’s Auxiliary Air Force in World War II and who earned a place in the Order of Canada for humanitarian work. I’m also a professional in the field with lived experience. That’s why I was invited here today on this study of Bill C-71.
I wish I could speak in favour of it, but fairness matters, especially for a bill tabled to address unconstitutional inequality.
There are two broad categories of citizens: natural-born and naturalized. Natural-born citizens are born in Canada or born to a Canadian parent abroad. Canada is part of their national origin and identity. They are born Canadians. Naturalized citizens are foreign nationals who go through a process to become Canadians. But at the end of the day, a citizen is a citizen. Yet, with this bill, apparently not all citizens are created equal.
The following categories of citizens can pass on their citizenship to their children, with no questions asked: natural‑born citizens born in Canada, which can include citizens born to foreign nationals who leave Canada after their parents are deported, citizens born to tourists, citizens born to spies — as protected by the Canada v. Vavilov case — and let’s not forget about citizens who naturalize as children without actually living in Canada and leave after their citizenship ceremony.
This bill asserts that my children are less Canadian than these other children and must pass a test to prove a connection in order to pass on citizenship to the next generation. In other words, my exercise of mobility rights has eroded the value of my children’s citizenship, while foreign nationals entering Canada irregularly, entering as birth tourists or even entering as spies get a pass.
How is that fair?
Was Aunt Jean, who served abroad in World War II, less of a Canadian for having children abroad? Was Cousin Dot, a member of the Order of Canada for her work as a surgeon in India, less of a Canadian because she was a Canadian born there?
That’s absurd. The Citizenship Act is a mess. After years of legislating in response to individual cases, usually trading the rights of future generations for the past, but with the same unspoken bias, it has an astonishing number of exceptions to exceptions.
It does such a good job of confusing everyone that it makes it easy for people to conflate natural-born citizens with immigrants before they become naturalized citizens.
The Immigration and Refugee Protection Act defines three classes of non-citizens: foreign nationals, temporary residents and permanent residents. All have mobility restrictions.
This makes sense. Temporary residents are granted a temporary stay. Adult permanent residents need to live in the country to build a new connection before naturalizing. But permanent residents who are children can be exempt, and once they’re citizens, they don’t need to stay. They can grow up with no knowledge of the country. The same goes for citizens born in Canada, including natural-born children by virtue of birth in Canada to a foreign national.
This bill takes a residency requirement for adults who wish to naturalize and applies it arbitrarily to a decision on whether or not to recognize the children of Canadians born abroad. Canadians born abroad are the very definition of a group defined by national origin. There is simply no reason why there should be any restriction on how their citizenship passes on to future generations.
Some may not see much gain in splitting hairs on fairness, especially for a small number of affected people. This in itself is not a new problem. I just hope the committee will take very seriously its obligation to consider the constitutionality of this bill. Even if its shortcomings apply to a relatively small group, it affects them in a manner that is serious and seriously unfair.
You can take a more open or restrictive approach to citizenship, but the Constitution demands equality. This is where Bill C-71 fails.
The Chair: Thank you, Mr. Emery. Ms. Burton, you have the floor.
Kathryn Burton, as an individual: Kwé. Telusi Kathryn Burton. Hello. My name is Kathryn Burton.
Wela’lioq. Thank you to the esteemed committee for your time as I lay out the implications of denying citizenship to my two Mi’kmaw sons, Miles and Graydon. They are status by law, but not recognized as citizens by Canada.
My mother, Connie Pictou Sark Burton, told me never to allow the federal government to define me. So what does a stubborn daughter do? That’s right, join the federal government. But here is the real kicker: I started my service in government working for the formerly named Citizenship and Immigration Canada. Here I am, informing you that my family, along with so many other First Nations families, does not fit into a neat application.
My parents met and had me in Wichita, Kansas. Although I was born in the United States, you couldn’t deem me more Canadian. Canada is where I was raised, attended university, currently serve on the Board of Governors of the University of King’s College in Halifax — from where Chairman Ruck sends his regards — serve on the Canadian American Business Council board of directors, invest in Canadian start-up companies via our family venture capital office, received an honorary degree and where I very much intend to move back when the right opportunity arises and this beautiful country welcomes my boys.
As First Nations people, here is a brief explanation of the limitations and restrictions imposed upon non-citizens of Canada. There are restrictions to political participation: If you believe for one second that my children — who live and breathe politics and understand the fundamental nature of democracy and governing — being told the country they want to live in one day would not permit them to politically participate, send me a list of your enemies, and I will have a candidate to run against them in 8 to 10 years. That also includes restrictions to educational opportunities, restrictions to social benefits eligibility and restrictions in the workplace.
Here is where we are going to pivot very quickly to the implications of the Jay Treaty, which I know many of you senators are very aware of. For members of recognized First Nations, the Jay Treaty may impact an individual’s experiences in Canada as a non-citizen. However, it is not a guarantee and is often granted on a case-by-case basis within administrative processes.
In the end, the Jay Treaty does not guarantee rights or protections to Indigenous non-citizens in Canada. For this reason, it is not advisable for an Indigenous non-citizen to rely on the treaty to extend protections, rights or liberties in Canada.
While my mother told me not to define who we are as a family, she did push me to fight principled fights. This one is personal, and my boys keep pushing me to continue not just for them, but also for many others who will realize this is an unintended consequence for many First Nations families.
I stand before you as someone who knows and understands how to navigate bureaucracies. I ran the Massachusetts Office of the State Treasurer, and I ran the City of Boston with former Boston mayor Martin J. Walsh, who now runs the National Hockey League Players’ Association, so even my old boss became an honorary Canadian in service.
But, most importantly, as a proud Canadian, my traditional yet uniquely untraditional family thanks you in advance for weighing it all out and seeing that the people seeking this change are far from doing anything egregious, but rather got caught in situations that most lawmakers never foresaw, and here is an opportunity to fix it. Thank you for considering a favourable hearing, and thank you again for your time and commitment to this country and our nation.
The Chair: Thank you, Ms. Burton. Ms. Sutherland-Brown, the floor is yours.
Carol Sutherland-Brown, as an individual: Honourable senators, thank you for the invitation to tell my story of how this cruel and retroactive provision of the Citizenship Act has affected my family. I am but one voice among many, as you can read in our brief to the committee.
I am a mother, a grandmother and a proud fourth-generation Canadian. I was born in Canada in Kingston, Ontario, as the daughter of a Canadian artillery officer and a mother who fled Europe during the Second World War. I have lived in Canada much of my life.
My father was born in Innisfail, Alberta, as the son of an Anglican minister. He attended the Royal Military College of Canada and served during World War II in Italy, in the liberation of Holland as well as in the Korean War.
However, my own daughter, Marisa, through no fault of her own, does not have the ability to pass her Canadian citizenship to her children, despite having lived in this great country for 22 consecutive years. Why? Marisa was born in Saudi Arabia in 1985, where her Canadian father and I lived temporarily when we worked for an eye hospital in Riyadh. With only six weeks of maternity leave, I couldn’t return to Canada for the birth. I had no Ontario Health Insurance Plan, or OHIP, and no Canadian doctor. I had a job in Saudi Arabia as the director of a medical library, with maternity leave and health care in Saudi Arabia.
Marisa received her first Canadian passport from our embassy in Riyadh at five weeks of age. Prior to 2009, you didn’t need to be born in Canada to receive Canadian citizenship. I had no reason to worry then. But the law passed in 2009 created two tiers of Canadian citizenship: first-class citizenship for naturalized immigrant Canadians or those born in Canada who could pass on their Canadian citizenship to their child born abroad, unlike those with second-class citizenship, like my own daughter, who are Canadian by descent.
We moved back to Canada when Marisa was two years of age. I became a Canadian federal civil servant, working for Health Canada and developing national health programs such as tobacco control measures.
Marisa went through all her primary school, high school and college here in Ottawa. She was raised as a typical Canadian child enjoying summer camps, skiing, canoeing and swimming, and she didn’t feel any less Canadian than her Ottawa friends.
She moved to Europe at age 24, met her British husband and completed a master’s degree in the U.K., where they now live and where her two children were born. Like me, she couldn’t return to Canada for the birth of her babies. She had no OHIP and no Canadian doctor. Her job at the University of Cambridge, her prenatal and postnatal health care and her maternity leave were all in the U.K.
Because Marisa’s children were born abroad, she was not eligible to apply for their Canadian citizenship, as I was able to do. This uprooted her sense of identity as a proud Canadian, and it pains me that we cannot pass our citizenship and identity to her children. My dad would be devastated to discover that his great‑grandchildren, now six and five years old, are not Canadian, thus ending five generations of my Canadian family.
Marisa visits regularly and maintains strong ties with her family and friends in Canada. She has consistently maintained a valid Canadian passport, and she hopes to move to Canada with her young family one day.
The court has ruled clearly in the Bjorkquist case, and this unconstitutional law that deepens gender inequality will be struck down on December 19.
Bill C-71 proposes a practical solution that allows citizenship to be passed down by descent only where a substantial connection can be met. In this way, Canadians like Marisa, who have genuine connections and deep roots in Canada, would have the same rights to pass on their citizenship as naturalized Canadians or Canadians born in Canada.
In closing, I welcome your thorough review of the provisions of Bill C-71, building on the more than 30 hours of study of Bill S-245 at the House of Commons Standing Committee on Citizenship and Immigration.
I implore honourable senators to pass Bill C-71 and fix, once and for all, this cruel, unfair and retroactive situation. My grandchildren are still too young to know that they’re not Canadian. I want this fixed before they understand.
The Chair: Thank you, Ms. Sutherland-Brown.
Thank you all for your opening remarks. We will proceed to questions from committee members. For this panel, senators will have three minutes for questions, and that includes the answers. Please indicate if your question is directed to a particular witness or all witnesses and whom you would like to answer first.
The first question will be from Senator Bernard, our deputy chair.
Senator Bernard: Thank you all for being here today and for your very candid testimony. As a social worker who has done work in international adoption, I will use my limited time to ask specifically about that.
We have had advocates raise concerns that Bill C-71 discriminates against internationally adopted children due to birth, nationality and country of origin. How does Bill C-71 impact internationally adopted children and their adoptive families? I would ask any of the witnesses who are able to speak to that to respond, please.
Mr. Chapman: The children who are adopted internationally would have the same rights as any other child in that they would have to move to Canada in order to pass on citizenship to their children. They would have to have 1,095 days of residency in Canada. That’s true whether you are a Canadian adopting a child outside of Canada or you’re a Canadian family that lives, say, in the United States and then adopts a child in the United States and brings that child to Canada. The requirement is exactly the same: 1,095 days of residency for that child. That child will then have fulfilled the same requirement that an immigrant family has.
Immigrants have to live here for 1,095 days and theirs is consecutive. When they fulfill that, they can become naturalized Canadians. From that point, they can pass on citizenship. As the law is now, immigrants have more rights than Ms. Sutherland-Brown’s daughter.
Senator Bernard: Here is my second question. How would the adoption of Bill C-71 impact different identity groups at various intersections of race, gender, age, religion and 2SLGBTQQIA+ people? Are there some groups who will benefit more than others? Perhaps, Ms. Burton, you could respond to that? I know you’ve spoken about Indigeneity. If you have anything further to add, that would be helpful.
Ms. Burton: Thank you. The quandary is very clear and obvious, which is how the federal government can define my boys as status and then, simultaneously, deny them citizenship. Again, many First Nations families do not know that they are not citizens because of the flow of First Nations families, particularly across Canada but also via the U.S. and Canada. This has always been such a strength for both countries. They have worked, travelled and served in the military.
The quandary is here, and there’s an opportunity to fix it. When those First Nations families go to apply for, say, citizenship or a passport, et cetera, what happens is that they suddenly realize they are not deemed citizens.
We held a press conference with Minister Miller, and on that day, one of my elders, Katherine Sorbey, was passing. The family called me. She had always told me, “It’s your job. Because you know how to navigate these things, it’s your job to continue the fight.” She passed on that day.
The Chair: Ms. Burton, thank you so much.
Senator Seidman: Thank you all for being with us today and for sharing your personal stories.
I will address you, Mr. Emery, if I might. It concerns the process and procedures that the legislation will entail. There are confirmation documents that will be required to prove the connection to Canada. There are also renunciation processes as well that will again require a certain kind of documentation. There may be lots of other documentation required that I’m not aware of yet.
Given your experience as an immigration consultant, to what extent do you think that Immigration, Refugees and Citizenship Canada, or IRCC, has the capacity to oversee this new category of citizenship status?
Mr. Emery: Thank you for that question. It’s an excellent one, and it really highlights a huge problem with this test. First of all, IRCC has no records of how long citizens have been in the country or left the country, except for some very recent passport tracking by the Canada Border Services Agency. If you’re talking about where you were 20 years ago, there’s no record. Maybe you have something to prove that, but in representing clients, this is a problem that comes up a lot. You have to have something that would be recognized — not just you saying it, but some actual proof. How do you prove where you were 10 or 20 years ago? It is very difficult. What happens when people can’t prove it, but they actually lived here? Do they have status in court, because you need to be a citizen to actually sue?
This is a very problematic thing. As I said earlier, it doesn’t exist for any other group. This is very specifically singling out one group of people to prove this test when others don’t. The big difference for citizens born abroad is that they are numerically smaller. If we applied the same kind of test to everyone born in Canada, there would be a national outcry.
Senator Seidman: Mr. Chapman, do you have anything to add on that?
Mr. Chapman: This goes back to between the future and the past. In the past, Bill C-37 retroactively took away rights. If you look to the 1985 Interpretation Act, that’s unconstitutional. You can’t undo somebody’s rights, but this bill did. This bill is retroactively giving back citizenship. It is not just for immigrants. In my passport in the United States, it shows that I come from the hardest country in the world to get into Canada from. I come from Canada, and there is a picture of me being an immigrant in my own country. I was stripped of my citizenship 63 years ago, and it took me 47 years to get it back. Yes, there are going to be requirements to prove that you are Canadian. I think that’s fair.
The Chair: Thank you.
Senator Osler: Thank you to all the witnesses who are here today. My question is directed first to Ms. Burton and then to Ms. Sutherland-Brown. Ms. Burton, it follows up on a comment in your answer to Senator Bernard. Many people may be unaware of their citizenship status, as you had said. After Bill C-71, many “Lost Canadians” may still be unaware of their eligibility for citizenship under Bill C-71.
What steps should the federal government take to effectively reach out and inform individuals?
Ms. Burton: That’s a wonderful question. As somebody who strategizes day in and day out, I do believe that for some it will be organic, where they will go and suddenly realize that they are, in fact, citizens.
In terms of informing people, that’s going to come from people who desire Canadian citizenship. Again, I don’t see a flood of people coming. I don’t want to conflate immigration with citizenship. I want to make this very clear. To your question, I think it is the role of Immigration, Refugees and Citizenship Canada, or IRCC, to be very transparent, so when people type, “Am I a Canadian citizen?” as you go through the various mazes, lines and graphs, there should be — I recently looked at the IRCC website — a process that’s specific to First Nations families. It must be very clear — not delineated for any intentional reason other than this — so that they can see what path they need to take and what they need to do to prove their citizenship.
Senator Osler: Thank you. How about you, Ms. Sutherland-Brown?
Ms. Sutherland-Brown: I like the organic aspect that Ms. Burton just mentioned. The IRCC website is difficult to navigate. I know they made some attempt to update it. Since I’ve been doing this work, it is interesting just how many people contact me. I found out that there are so many “Lost Canadians” everywhere. I know that’s what Mr. Chapman has been finding through decades of work. I do my best to inform them of that.
I suppose that IRCC should use all the social media channels at its disposal to get the message out once Bill C-71 changes. People don’t know. Babies are continuing to be born, and the parents don’t know.
Mr. Chapman: They need a citizenship ombudsman. Citizenship is the bastard child of it. Look at the name: Immigration, Refugees and Citizenship. They need a dedicated citizenship ombudsman, because no one understands this portfolio, and they certainly don’t under the current act.
Senator Arnot: Thank you, witnesses. I think this question is for Mr. Chapman and, perhaps, Mr. Emery. Given your experience with citizenship injustices, are you concerned — as I am — that Bill C-71 may intentionally leave some “Lost Canadians” lost again? In the situation where Canadian parents adopt children who are born abroad and become Canadian citizens, they become Canadian citizens minus because when they then have children and are parents — who were born abroad — they cannot pass on their Canadian citizenship to their offspring. This is a cause that Kat Lanteigne has raised many times. You are familiar with her. She is unable to give evidence to this committee — shamefully, in my opinion — but that’s another issue.
I would like you to comment on that problem, because it seems to me that it is a breach of section 15 of the Charter quite clearly, with elements of xenophobia and racism, and it needs to be addressed by an amendment to this act before it leaves the Senate.
Mr. Emery: Thank you for letting me answer first. These are excellent points. The thing that people should recognize with adoption — which is different from when your child is born to you — is that when your child is adopted, you have the choice of going through a process to have them considered to be natural‑born or naturalized. That’s where this obvious inequity comes out. But it is the same inequity that’s there for children otherwise. Yes, absolutely, it’s unfair to treat some adopted children differently than others. It is also unfair to treat some children who are born to citizens differently than others as well. It is the same issue, and this is an attempt to fix it, but it hasn’t done the job. It needs to go further.
Senator Arnot: I agree. It certainly is not cured by this act, and it needs to be cured.
Mr. Chapman: The citizenship of children, whether adopted or not, is dependent on the parents’ substantial connection to Canada. What you are saying is that if the parents don’t have a substantial connection and they adopted a child, then the child is not Canadian. In a way, that’s very fair because — now this is where the bureaucrats didn’t do what they were supposed to — in Bill C-37, it was agreed that any child born to a Canadian citizen parent would have the right to come to Canada with permanent resident status from birth to age 23, which eliminates that problem because then the child amasses their own connection. But right now, it’s not just adopted children. This little baby back here has no legal rights whatsoever in Canada, but was born to a Canadian citizen father, not adopted. The issue is that all children should have the right to come to Canada when born to a Canadian citizen parent. That’s a violation of the United Nations Convention on the Rights of the Child. Parents and children have the legal right to be together.
Senator Arnot: Would you agree that the distinction of having an adopted child is —
The Chair: Senator Arnot, unfortunately, you have run out of time. We will put you on the second round.
[Translation]
Senator Petitclerc: Thank you for being here. I’m going to ask you about the 1,095 days. It’s a fairly simple question, do you believe that this substantial connection to Canada, which is determined by being present for at least 1,095 days before the birth of the child, is realistic and reasonable? Do you think that 1,095 days should be cumulative or consecutive?
I’d like to hear from Mr. Chapman and other witnesses, if you have an opinion on this.
[English]
Mr. Chapman: For Canadian citizens, I would say “no” because it makes it very difficult. I was an airline pilot, and there was no way I could get consecutive. For immigrants, it’s consecutive. But for the substantial connection test, even for immigrants, there are more avenues. There’s the Koo, So and — I’ll never pronounce it correctly — Papadogiorgakis decision in the courts, if you can prove that your life is centred in Canada. If you wanted to make that, that’s not even part of it, but, yes, I do think it’s fair.
Mr. Emery: I have to disagree with Mr. Chapman. First of all, it’s like comparing apples to oranges. You’re comparing citizens who already have a connection — and who are born with a connection — to people who have no connection and the rules for them when they’re adults. But it’s not even like comparing apples to oranges because children are exempt from this. It’s like comparing apples to orange soda. And it isn’t consecutive for people who are naturalizing. It’s to keep it —
Senator Petitclerc: I apologize; I don’t want to interrupt. I’m trying to get a sense of if it’s fair, but is it even realistic?
Mr. Emery: My niece would fail this. She’s from the same family, same family history, very connected to Canada and lives a couple of hours away, closer to the capital than most Canadians do.
My sister was thinking about moving to Canada, and then housing prices shot up. She can’t afford to live here. This is a huge problem in Canada today. Are you going to punish my niece because my sister can’t afford to live here? That doesn’t mean she’s not connected.
Senator Petitclerc: This is helpful.
[Translation]
Senator Mégie: I’d like to thank the witnesses for being here; I will ask my question in French. My first question is for Mr. Chapman. Do you feel that the fight you’ve waged — and continue wage for lost Canadians inspired by your personal story — has been successful with Bill C-71? Are there other categories of people, according to the criteria of this reform, who are being deprived of their citizenship, but who are not part of Bill C-71?
[English]
Mr. Chapman: Bill C-71 doesn’t just correct the second-generation issue, which is what we’re talking about. Bill C-71 retroactively gives women the same rights as men for the first time in Canadian history.
I lost my citizenship because the law said married women, minors, lunatics and idiots will be classified under the same disability. That law is still being applied to some people. Now, it would help very much to have the permanent resident status for all children. That would help a great deal, including for Mr. Emery’s niece. But it also corrects the age 28 rule that we are dealing with.
This is a retroactive bill, but then there’s the Supreme Court of the United Kingdom case that was won about this very issue regarding gender discrimination, and they absolutely said that the language of Bill C-71, if you will, is exactly the only way you can correct this.
And by the way, one last thing, touching on Indigenous rights, you are right; they have been hammered in a lot of areas in citizenship. But what I found interesting is in the Senate, you passed Bill S-3, giving Indigenous women the right to confer status but not citizenship. That was always kind of “Huh?”
Senator Brazeau: Thank you to all of you for being here. I have two questions. My first question is for Ms. Burton specifically. It’s unfortunate that you’re in that situation. My four oldest children have status, but my two youngest ones don’t have status, but they have citizenship, and they’ve been waiting four and a half years to get their status. So it’s a different situation.
I would like to know from you specifically, if passed, what will that do specifically for you and your family in practical terms?
Ms. Burton: Thank you, senator, for that question because my boys very much want to live, reside and participate in Canada. As I stated in my remarks, my intention is to come here, but without citizenship, it’s just not feasible for a multitude of reasons, many of which have been laid out.
But I also want to briefly touch on what Mr. Chapman just said. My mother was a fighter in the Bill C-31 fight. Here I am in her honour, using her strength now to fight another bill, but it’s a principled fight. They are not in fact “Lost Canadians,” no disrespect to Mr. Chapman. I’m just going to state that since time immemorial, my boys and my family have never been lost. They want to come here. They want to go to school here. They want to be pages here. If you see a photo of my son, his school photo, in fact, has two Canadian pins because he’s convinced he’s Canadian.
Chair, may I? No. Thank you.
This is who I’m fighting for because our intention is to come back here to live, to reside and to participate. And I am looking forward to that opportunity and that chance because in their minds, they are Canadians. In my opinion, they are. It’s just the law states otherwise. Thank you for that question, senator.
Senator Brazeau: You tell them I say, “Hi and keep fighting.” My second question is to all the panellists. If this bill is passed, do we have an estimate or an approximation of how many individuals may be affected by this? Obviously, that can change over the course of time.
Mr. Chapman: Bill C-37 captured well over a million people. But the real question to answer is how many people came back? How many people registered? It was 20,000. The same thing is true here. It will capture a million people. If I give you citizenship in any country, such as Trinidad, would you move tomorrow? Probably not. People aren’t going to be moving just to get to Canada. The people who will move here or take it out will be people like her family. They will come back to Canada, and we should have the open-door welcome.
For Bill C-37, it was a million people, at least. How many came? It was 20,000. How many were already here? I bet you half of them.
Senator Brazeau: Let’s just hope we don’t become the fifty‑first state of the United States.
Mr. Emery: And like Bill C-37, there will be other new “Lost Canadians” who may be created from this. We talked about the inequities that exist between the different groups of citizens. There are some people who, under the current law that’s unconstitutional, came back naturalized, but don’t have the 1,095 days. Suddenly, they’re now a different class of citizen when they were a first-class citizen before. There are revocations that are possible out of this as well. It’s another flaw.
[Translation]
Senator Cormier: Welcome and thank you for your presentations. I’m going to come back to the 1,095 days. I’m trying to understand the feasibility of this issue. Mr. Chapman, I understand that for one category, the number of days can be spread over a long period. How will that be quantified? How will the government ensure that those 1,095 days have been covered? More importantly, shouldn’t the eligibility period be reduced to five years? We know that it’s a five-year period for permanent residence. I want more clarification on the 1,095 days, because I don’t understand the feasibility. This is a question for you and Mr. Emery.
[English]
Mr. Chapman: On the 1,095 days, IRCC has been doing this for immigrants, so they have that well down, and you do have to prove. We’ve done a lot of this over the years, where we have to prove.
We don’t want to turn Canadian citizens into immigrants, but I’ve already shown you that. The idea is to turn immigrants into good Canadian citizens, not doing it the other way around.
We should not have the same rules as immigrants. We are citizens. Again, a very good answer is allowing families to have immediate permanent resident status for their children who were born outside, and the 1,095 days is what immigrants get, so why should we have a higher plateau, if you will?
Ms. Sutherland-Brown: In the case of my daughter, she would meet that seven times over. We could collect school records and transcripts to prove the 1,095 days.
There are also categories of people whose children come every summer to spend a month or more with their grandparents. Those records could be kept as well.
Mr. Emery: There are two issues. First, people would have to know that this exists. They won’t know that they would have to meet this. That’s very different from the situation with permanent residents, even if you buy into the comparison.
Second, you have to consider when people have the ability to make choices for themselves. We’re talking about the choices of their parents. There is not a lot of time between the time when you’re the age of majority and when you normally have children. That’s a small window. Maybe you’re going to university somewhere. You don’t have the option to pick up and move. But it doesn’t mean you won’t later.
That has been my family history for five generations: Move at different times but not always at the time when you’re having children.
The Chair: Senator Cormier, we must move on; you have run out of time. We will come back to you, if you wish.
Senator Harder: Thank you to the panel.
I want to zero in on the appropriateness of the attachment to Canada test. Is there agreement among the panel that there should at least be an attachment to Canada test? If you don’t agree on the numerical test — cumulative — which is being suggested, what would be other test criteria, in your view?
Mr. Chapman: Going backwards, you really can’t do it because you were denying people the right to live in their own country. Now you’re saying they have to prove that they have it.
Going backwards, no. It’s just Bill C-71 that covers. Going forward, yes, it is 1,095 days. If somebody really wants to be a Canadian, I know; I’ve been following the laws for a lot of years. You know you’ve got 1,095 days, and you prove it. The other way to do it is, again, through the Koo and Papadogiorgakis decisions of the Supreme Court that say these are ways to have substantial connections.
Overall, it is exactly the same as an immigrant Canadian, and they, too, have to document their time in and out. That is fair. Going forward, yes. Going backwards, no.
Ms. Burton: When dealing with these situations, you have to decide what hill you’re going to die on. As a bureaucrat, I understand that and I honour that. For me and my family, luckily or sadly, we never had enough money to go on our family vacation until I was 17. My dad promised me a trip to Disneyland. It wasn’t until my first year in university that we finally had enough money to go.
So for all that time and long before, those types of things are, I think, reasonable. I think we’ve all shared how we are connected and how our intention is very much not egregious, as I stated. It is not a race to the bottom. It is not a citizenship of convenience. You are going to hear all of those things. This is just about righting a wrong.
Mr. Chapman: When you mentioned going to Disneyland, Walt Disney was a “Lost Canadian.” His mother could not pass citizenship.
Ms. Sutherland-Brown: I absolutely agree that there should be a connection test. It is my understanding that, as of December 19, if there is no extension, the law will fall. Then it will just pass in perpetuity without an attachment. I think that’s dangerous.
Senator Petitclerc: If I heard you properly, Mr. Chapman, in your opening remarks, you very quickly mentioned that you see six challenges, obstacles or loopholes existing now, and this bill fixes four out of the six. I was curious to know which two this bill is not dealing with.
Mr. Chapman: Citizenship being a privilege versus a right. That is one of the scariest things you can get. If Donald Trump could have cancelled Joe Biden’s citizenship or Kamala Harris’s citizenship, would he do that? Yes. In Canada, it can be done. Every time we have a court case, the government says that citizenship is a product of statute and has no meaning apart from statute. Canada has a long history of stripping not just individuals but also entire groups. Indigenous people were bounced around, in and out. They didn’t get their citizenship until the early 1960s. As for the Japanese, everyone knows they were interned, but few people know that 3,997 were stripped of citizenship in 1945 and deported out of Canada.
So that’s one of the issues.
The second is when did citizenship begin? Canada is saying it began in 1947 with Mackenzie King, but if you do that, what were our war dead? They wouldn’t be Canadian. Go scratch the maple leaves off of their tombstones.
Citizenship began with Confederation, and it has evolved to the point where there are several pre-1947 citizenship decisions of the Supreme Court.
Also, how could you cancel citizenship for the Japanese in 1945 if it didn’t exist?
Finally, for Indigenous people, the Nicholas case in the Supreme Court of British Columbia is about the fact that you can only save your child from going to a residential school in three ways: First, leave Canada, but to go where; second, don’t register the birth of your child — so we still have stateless Indigenous people who were never registered — and third, give up your Indian status in exchange for citizenship. They have been doing that since Confederation, so the question is this: How can you give citizenship if it didn’t exist?
It is a totally false narrative that Mackenzie King was Canada’s first citizen. They have had a lot of people, including the 45,000 war brides and 22,000 of their children, put on trial to be booted out of Canada based on that false narrative of citizenship beginning.
What I want to do is make citizenship a right so that nobody can come in here and say, “Look, I’m a member of political party X, and I’m cancelling everybody’s citizenship.” Second, the Chinese were told that they were nothing more than stateless registered aliens before 1947. We have to correct that.
[Translation]
Senator Mégie: My question is for Mr. Emery, but I think he’s answered part of it.
I wanted to know if there were any potential challenges to implementing Bill C-71. I know we talked about the 1,095 days and how hard that is to calculate, but are there any other challenges to implementing the bill?
[English]
Mr. Emery: Yes. I also mentioned the standing in court. I will say that this will be litigated immediately if it’s passed. Kat and I are ready to sue, separately.
I just want to say something about this idea that it’s somehow dangerous. For the study of Bill S-245, I did an analysis of all the countries in North America and South America, the G7 partners, Australia, New Zealand and all European trading partners. I found that three quarters of the world do exactly what everybody is talking about as dangerous. They exist and everything is fine. I think that’s because — exactly as Mr. Chapman was talking about before — where people might have a right to something, they may not exercise it.
It is not going to end up being big numbers. It is no more dangerous than letting people come to the country without status and allowing their children to be citizens. It is something else that is small in numbers. It is the same kind of thing. Thank you for the question.
[Translation]
Senator Mégie: If you’re saying that it could be dangerous, that it could be contentious, then you don’t really agree with passing Bill C-71 as is. Do I understand your point of view correctly?
[English]
Mr. Emery: That is correct. I do not agree with passing it in its present state. I do not support it in its current state.
[Translation]
Senator Mégie: Thank you.
[English]
Senator Cormier: My question will be a follow-up to that. If you were able to fix Bill C-71, what would you change or add? What would be your main recommendation?
Mr. Emery: If you want to have some kind of test that’s fair, have a registry like other countries do, where you register your citizenship to enable that connection. That works for lots of countries. It’s not as free and open, but it’s more equal. Have it apply to everyone the same way.
Mr. Chapman: We had a real problem with that after World War II when you had Holocaust survivors who came and were afraid of registering. We still can have that with certain people being in a registry of the government. People will avoid that. And by the way, Canada did deport Holocaust survivors over that issue.
Senator Cormier: Thank you.
[Translation]
So if I may summarize, all of you are in favour of Bill C-71, except you, actually. You agree with Bill C-71 in its current form and with the way it is drafted.
Is there anyone who’s been left out? You were asked this question, but are there people left out? Are there people who won’t be taken into account in Bill C-71?
[English]
Mr. Chapman: There will always be people unaccounted for, and that is why you do special section 5(4) grants in the Citizenship Act. The problem is they haven’t worked because so often there are roadblocks thrown out all over the place, like this young lady here who is covered by Bill C-71 and the Bjorkquist decision. She has permanent resident status here and is going to be a citizen, but she still has problems getting work because of this. Yes, there are always problems.
What we’re doing is we are going for a section 5(4) grant for her, but that hasn’t been very effective over the years. You will never ever fix the law so that everybody is covered and everybody is equal. It doesn’t work. You will have exceptions, and that’s why you have the section 5(4) grants.
Instead of being the citizenship minister who really oversees immigration and refugees, have a dedicated citizenship ombudsman where that is his or her entire portfolio.
Mr. Emery: From my perspective, the people who would be left out — let’s look at addressing gender discrimination. That’s why my grandmother lost her citizenship, I believe. She was a woman and got married to someone who wasn’t a citizen, and that is how the law worked then.
I have a lot of aunts and uncles. Would any of them be covered? No, because my grandmother died 30 years ago. She can’t become a citizen and sponsor them. My aunts and uncles would not qualify for the section 5(4) grants. They don’t meet the criteria for that.
Mr. Chapman: But they do qualify under Bill C-37 because you are righting the wrong under the gender discrimination, and that is the court case that was won in England. If you don’t pass the bill, I’m ready to file the lawsuit on “Lost Canadians.” The only way we have ever really won and gone forward with this is we have to take our own government to task.
The Chair: This really does bring us to the end of the first panel. I would like to thank the witnesses for their testimony today.
For our next panel, we welcome the following witnesses joining us in person: Amandeep S. Hayer, Lawyer, Hayer Law, and Vice-Chair, Overseas Lawyers Group, Immigration Law Section, Canadian Bar Association, British Columbia Branch; and Andrew Griffith. Thank you for joining us today. We will begin with opening remarks from Mr. Hayer, followed by Mr. Griffith. You will each have four minutes for your opening statements. Mr. Hayer, the floor is yours.
[Translation]
Mr. Amandeep S. Hayer, Lawyer, Hayer Law, Vice Chair, Overseas Lawyer Group, Immigration Law Section, Canadian Bar Association – British Columbia, As an individual: Thank you, Madam Chair. Honourable senators, thank you for inviting me here today.
[English]
My name is Amandeep Hayer, and I am an immigration lawyer practising at Hayer Law, a boutique immigration and citizenship law firm located in Metro Vancouver on the traditional and unceded territories of the Musqueam, Squamish, Tsleil-Waututh and Coast Salish First Nations.
I appear today on behalf of the National Immigration Law Section of the Canadian Bar Association, or CBA. We have over 40,000 members of lawyers, judges, notaries, academics and law students, with a 120-year-old mandate to seek improvements in the law and the administration of justice in Canada.
Senators, we are once again addressing a familiar issue: “Lost Canadians.” Bill C-71 seeks to restore citizenship to “Lost Canadians” beyond the first-generation limit, which the CBA section supports, particularly in cases where a substantial connection to Canada can be demonstrated. However, the section has identified three issues which we raise today for your attention.
The first issue is the three-consecutive-year residency requirement as proposed in an amendment in the House of Commons. The CBA section is of the view that citizenship by descent law should recognize that there are situations where a child could be born outside of Canada in the second or subsequent generations and still have significant ties to Canada.
We are pleased to note that the bill is consistent with our recommendations from March of 2023 to use a residency-based test like the one used in the United States. However, we oppose the amendment to the bill that requires those who were born abroad to be in Canada for three consecutive years before they can pass on their citizenship to their children. A cross-border shopping trip or a trip to Mexico — all very frequent events in a family’s life — would easily break the three-consecutive-year requirement.
The second issue we would like to address is adoptees. In our view, this is a major oversight of the current legislation. To be a natural-born Canadian citizen while being born outside of Canada, one or both parents must be a Canadian citizen on the child’s date of birth. For those children, though, who are natural-born, their citizenship begins on the day they are born. However, adoptees only gain Canadian citizenship once their application for Canadian citizenship through adoption is approved.
We believe that this framework is inconsistent with section 15 of the Canadian Charter of Rights and Freedoms, as it treats adopted children differently from those who are natural-born. That is the only difference between the two individuals.
The CBA section recommends that citizenship by adoption use the approach used in both the United States and the United Kingdom, where the effective date of citizenship by adoption is the adopted child’s date of birth.
The third issue is adopting clear language. Reading section 3(1) of the Citizenship Act is best described as a 32x32 Rubik’s cube. It is difficult for even educated professionals to understand, let alone laypersons. Parliament should make this law more accessible by adopting clear and simple language.
Determining your eligibility for Canadian citizenship should not be a puzzle. As much as I enjoy solving puzzles myself, understanding one’s eligibility should be straightforward and accessible to everyone.
Thank you for the opportunity to raise our concerns, and I would be happy to take questions.
The Chair: Thank you, Mr. Hayer. Mr. Griffith, you have four minutes.
Andrew Griffith, as an individual: Thank you, Madam Chair. By way of introduction, I previously served as the director general of citizenship and multiculturalism at Immigration, Refugees and Citizenship Canada, or IRCC, and many of the same faces I was dealing with 10 to 15 years ago are here today, so it is kind of funny to come back to that.
Since then, I have written a lot on citizenship, multiculturalism and immigration, and I wanted to discuss two aspects with respect to Bill C-71.
The first one is the rationale for imposing a five-year residency limit for those covered by Bill C-71, comparable to that of permanent residents. The second one is given the lack of numbers, I have prepared some estimates of how many people will be affected and the likely operational impacts.
First of all, on the rationale for a five-year residency limit, I do not see any justification for not applying the same five-year limit used for permanent residents. All the family cases that were cited in the court case would have met that, and I think most of the cases that have been discussed today also would meet that requirement. This would actually ensure compliance with the court decision, although somebody might challenge it.
In my submission, I prepared some scenarios illustrating the bill’s impact with a residency requirement. A personal one is my grandson who was born in Germany. If he decides to have offspring and doesn’t do university education in Canada, he won’t become a citizen, and that, of course, will be his decision.
Other cases are more complex when you try to meet residency requirements over different periods. To do that, they are very challenging to administer in a consistent way and to track. Given IRCC’s existing operational challenges, it’s unclear why, in fact, the government opted for such an open-ended requirement.
In terms of the estimated numbers, neither the minister nor IRCC has provided those numbers to date. As a data geek, in a way, I always find it a bit irresponsible when government proposals do not include some numbers and some estimated costs and the like. Hopefully, tomorrow the minister will provide those numbers. I developed some estimates based upon Statistics Canada’s analysis of Canadian expatriates and the number of active passports issued to Canadians abroad. I used Canadian passport holders abroad as a proxy for a connection to Canada test. It’s not perfect, but it actually demonstrates that they have an impact, and they are retaining their citizenship in a meaningful way.
If you look at the numbers, if you look at the Statistics Canada analysis and if you do the manipulation, you have about 40,000 people affected. With a more conservative approach, looking at Canadian passport holders, you have about 5,000.
I make three recommendations. First, amend Bill C-71 to require the 1,095-day residency requirement to be met within five years comparable to permanent residents. Second, direct IRCC to prepare and share estimates of the affected number of persons, including the operational impacts and associated costs. Third, require IRCC to publish, on Open Data, the number of citizenship proofs issued by country of residence because that will actually allow us to measure the impact of this measure.
[Translation]
Thank you very much for your attention. I welcome your questions.
[English]
The Chair: Thank you to our witnesses. For this panel, senators, I will be very generous. Senators will have four minutes for questions, and that includes the answers. Please indicate if your question is directed to a particular witness or all witnesses.
Senator Bernard: Thank you, chair, for your generosity.
The Chair: You are welcome.
Senator Bernard: Thank you both for being here and for your testimony. I’d like to start with you, Mr. Hayer. I’d like to hear more about the differential treatment of adoptees. If you could, please say a bit more about that. Also, if you were going to make an amendment to this bill because of those concerns, what would that be?
Mr. Hayer: The issue is this: When somebody becomes a Canadian citizen by birth, it is by operation of law. Under the law today, if a baby were born, let’s say, in Washington — to use an easy example for me — that baby would be a Canadian citizen under section 3(1)(b) of the Citizenship Act, assuming both parents were born in Canada or naturalized in Canada.
If they, at the same time, adopted a sibling, that sibling would not immediately become a Canadian citizen. Instead, what they will have to do is, obviously, go through the adoption process and — assuming that is perfected — then make an application to Immigration, Refugees and Citizenship Canada, or IRCC, for naturalization. This is under section 5.
It is a distinct legal distinction, but it has one fundamental impact: The effective date of citizenship becomes the date that section 5(4) is approved; whereas, for the baby who was born naturally in Canada, the effective date of citizenship is their date of birth.
What I’ve seen happen in my practice is this: Some people decide to take advantage of this later in life, so I might have those two siblings come to me. They are now 30 years old. They both have one child each. In that case, assuming this bill becomes law and assuming that they have the three years, what would end up happening is, on one side, for the natural-born child, their child would become a Canadian citizen, because the effective date of citizenship goes back to their date of birth. But for the other side with the adopted child, their child would not be a Canadian citizen.
It also works in another more interesting way under the current law with the first-generation limit. It would be as the law is proposed — let’s say hypothetically they don’t have that three‑year requirement. The first-generation limit and the requirement for 1,095 days would not apply to the adopted child because, technically, they are naturalized and, therefore, are first generation.
This is, actually, very similar to the decision in Benner v. Canada, which the Supreme Court of Canada already ruled on. There used to be a process fairly long ago, but what it did was it was trying to rectify historic gender discrimination. If you had the wrong parent qualify for Canadian citizenship, their citizenship was effective to the date that the application for naturalization was approved; whereas, if it was the right parent, then it went under section 3(1), and it was effective at the date of birth.
I have several clients who went through the latter process, and just because it was the wrong parent and wrong marital status, they were not able to pass on their citizenship to their children. This is an ongoing issue which exists.
I think if it ever did come up before the courts, the courts would look at it and say this is discrimination based on adoption versus natural-born.
Senator Bernard: If there were a recommended amendment, what would it be?
Mr. Hayer: I would say take a look at the legislation in both the United Kingdom as well as the United States. Both of them state that the moment the adoption is perfected, the child is a Canadian citizen, and, for our purposes, it would move the adoption into section 3(1)(b), underneath that, and we just simply include adoptees.
I know one of the concerns that exists in the department is that we also have to confirm that the adoption is consistent with the Hague convention principles. We can easily include an amendment which says that it’s pending confirmation with the Hague principles and give the minister the authority to say, “No, this was not consistent with the Hague principles” and then reject the adoption on that basis.
Senator Seidman: Thank you very much to both of you for your very clear testimony. It’s much appreciated.
Mr. Griffith, if I might ask you for some further clarification. In fact, I might be one of those people whom you encountered 15 years ago on this committee. You never know. I will just put it out there for you. We might recognize each other.
You wrote an article in Policy Options this year, and you titled it “Bill C-71 opens up a possible never-ending chain of citizenship.” You made some reference today to the issue about the fact that there is no set time frame within which those 1,095 days have to be spent in Canada, so it’s very open-ended. You were very clear that there should be a five-year time frame.
I guess my question is this: Why do you think the government would choose to differentiate and not propose the same residency requirement of five years for new Canadians?
Mr. Griffith: It is a good question, and you will have the opportunity, obviously, to ask the government that tomorrow.
In speaking to Mr. Chapman earlier on, my guess is that he uses his experience of being an airline pilot, and he said that if it is within a five-year period, he might not have been able to accumulate that period of time. I still think for an overall perspective, most people would be able to meet the three years within the five-year period.
I think, again, with legislation and looking at it from the public servant point of view, you want to make sure that you do something that’s fairly easy to implement in a way that doesn’t become overly complex.
Senator Seidman: In fact, my question to the previous panel was about the process and procedures and the operational impact on IRCC and whether they have the capacity to carry out the demands of this legislation.
You do discuss the potential impact with us now. What would you say about that?
Mr. Griffith: You have to prove residency. People will submit documentation trying to prove that, and, hopefully, in the next number of years, we will have the automatic ability to do that through tracking people coming in. That’s one burden — if we get to the stage where we can automatically track entry and exit data, it would make it easier for people. I think that will make a big difference.
The other question, which has been raised elsewhere, is that we don’t really know these people, unless they have spent the three-in-five period. There may be some issues related to security vetting. I think there wouldn’t be issues in terms of language, considering they spent three out of five years in Canada. They should be okay. You could argue they should do the citizenship test, but that would be optional. I think that’s the main one.
In terms of IRCC, it is that verification of the residency requirement that is probably the biggest burden, unless you want to add other tests, but I think that’s the main one.
Senator Osler: My question is for Mr. Griffith, and it follows along the lines of Senator Seidman.
In that July 2024 article that you wrote in Policy Options, you wrote, “It is fraught with potential unintended consequences,” which I believe you started to explain to Senator Seidman. Could you please, for the committee, elaborate more specifically, again, on those potential unintended consequences?
Mr. Griffith: This is one of the challenges whenever you do these kinds of things: It is no fault of the policy-makers — they try to think of all the possibilities that happen there — but whenever we have done legislation, we always find that there are things we have missed. It is just inevitable.
In terms of the consequences, I think the one thing that I am interested in is that when I look at the Statistics Canada data, we see that, traditionally, the expatriates have lived in basically the Organisation for Economic Co-operation and Development, or OECD, countries, with a few exceptions. Now it is much more diverse, and, of course, with that diversity, there may be more security concerns, if you look at what is happening with the demonstrations in terms of Gaza, Hamas and Israel.
That’s the one aspect that I think might create some further issues. It may not, but you have to see where the ball is going, in a way.
It was a bit of a lazy comment I made in my article. I said that there might be something else out there, and I don’t really know it yet, but I think it’s something that we have to always think about.
The bill as drafted, with the addition of the five-year residency, would address a lot of those concerns because, at least, we would have a period of time that’s a consistent period of time, and if there are any issues that come up, they would probably come up.
Senator Osler: Mr. Hayer, I believe in your opening statement, you said — and let me know if I am wrong — that Bill C-71 should be more accessible to lay people and contain clear and simple language.
Are you recommending amendments, or can you give some examples of the language that you would recommend be clearer and simpler?
Mr. Hayer: Yes, if you take a look at some of the previous submissions both by the Senate as well as by the Canadian Bar Association, or CBA, we have actually talked about the fact that if you look, in particular, at section 3, it makes references to acts which are no longer in effect. It takes at least an hour to two hours just to go through the act to try to figure out if somebody born before February 15, 1977, qualifies for Canadian citizenship.
You have to look at acts which are no longer in force, which are not easy to access as well. It is easy for me. I have them all saved up, but not everyone does.
Whether it is with this bill or a future bill, this body needs to look at section 3 and say that we need clear definitions of who is a Canadian, who qualifies and from which date the body used, as well as the recommendations in 2009 and the recommendations that the CBA made. That’s where our biggest concerns are.
The other thing I will mention is that the current Citizenship Act was passed in 1977. It has been in effect longer than any other act. In fact, it is 10 years older than me. That says something. Maybe it is time to look at that entire act altogether.
Senator Osler: Thank you.
Senator Arnot: Mr. Hayer, thank you for the brief that the Canadian Bar Association gave us. Your brief states that the framework treats adopted children differently from those born as Canadian citizens, pursuant to the Bjorkquist case, which found that differential treatment by descent based on arbitrary factors is impermissible. That’s the fundamental problem. You say that this is a major oversight in this bill, and section 15 of the Canadian Charter of Rights and Freedoms clearly promotes the same thinking.
The CBA is asking for amendments so that adoptees are granted Canadian citizenship retroactively to the date of birth, and in this way, adopted children will be treated equally as other Canadians who are born by descent. Is that correct?
Mr. Hayer: Correct.
Senator Arnot: You are absolutely right. I agree with that because this discrimination of adoption is really arbitrary. I can tell you that I have had no policy-maker tell me why it is valid. There is no reason they have been able to give, and I asked some time ago.
I commend the CBA for intervening on this matter and for making your case so clearly. I hope the Senate doesn’t countenance this kind of clear breach of the Charter, forcing citizens like Mr. Emery or Ms. Lanteigne to litigate to make their case, because litigation would be so costly and so redundant, really.
Thank you for your contribution.
[Translation]
Senator Cormier: My question is for you, Mr. Griffith. Many of us have read your article in Policy Options with great interest. You say that Bill C-71 is full of possible unintended consequences. You talk about the 1,095-day issue, but you raise concerns that the legislation would open the door to a never‑ending chain of citizenship. Can you clarify this concept of the chain of citizenship in the context of people who might, for instance, accumulate those 1,095 days as students or during summers spent in Canada?
Second, is there a real risk of increasing the number of so‑called “convenience” Canadians who receive citizenship benefits without maintaining a substantial connection to Canada?
Mr. Griffith: That’s a good question.
[English]
To start with the first one in terms of the citizenship — this was prompted by looking at some of the media outside of Canada, in particular Indian media, and that was their assessment. They said, “Given that, we can almost strategize on how we can do that.” Now, how many would do that? We don’t know. I think it is a possibility.
I’m not sure how realistic this is because it requires a lot of focus and strategy for an individual family to do that, but I think the possibility is there.
Sorry, I forgot your second question.
[Translation]
Senator Cormier: Is there a real risk of increasing the number of so-called “convenience” Canadians?
[English]
Mr. Griffith: I think we have to be honest. People are more mobile, and people pursue opportunities. There is already a tendency toward citizenship of convenience in the sense that it’s a useful passport to travel, and people pursue their opportunities, and we can’t blame them. It’s natural.
It will make it more possible, but I don’t think that this approach — again, if we have the five-year limit — will make much of a difference. Unfortunately, the old days of citizenship having so much more meaning and so much more commitment are passing us by.
Senator Cormier: I don’t know how to ask this question because it is a bit sensitive.
[Translation]
What relationship will Canada have with those Canadians who live outside of Canada and acquire Canadian citizenship? Is that a false question? We know the Canadians who are in Canada because they are part of it, but what is Canada’s responsibility to second-generation Canadians who receive Canadian citizenship, but who actually live most of the time outside the country?
Mr. Griffith: That’s another great question.
[English]
That is a real challenge because, in many cases, we have this large number of Canadian expatriates. Probably, for the most part, they are just living their lives. Some have a greater connection. Some have a greater commitment to Canada. Some are more active in terms of the various international associations in Canada. Certainly, when I was serving abroad, there is that range between those who are very committed and very helpful to Canadian interests and others who are just living their lives.
The other indicator that I look at is Canadians can now vote abroad. Canadians who live abroad can vote in Canadian elections. There is no limit, as there was previously. The government removed that limit, and it was affirmed by the Supreme Court, I believe. But the number of people who actually voted was less than 30,000, and not many more people registered.
I’m not blaming them. In one sense, I think it is better they don’t vote, because they are not affected by Canadian health care, Canadian taxes and things such as that.
It is a hard question: In terms of today’s world where people are mobile, where we have social media and where people form communities that are outside, necessarily, of citizenship, how do you actually maintain a connection? How do you maintain relevance? I don’t have any answers there, but it is an interesting longer-term question, because that seems to be the direction we are going in.
Senator Petitclerc: I have one small question for you, Mr. Hayer. It is following up on Senator Arnot, just to help me.
You and other witnesses have clarified the difference in the treatment of children, if they are adopted or not; I understand that. I understand there is a difference in treatment, so then there is a difference in how they become Canadian. That’s where I need more clarity.
What are the consequences for them and possibly for their children?
Mr. Hayer: The consequences mostly come up for their children. In most cases, yes, parents adopt a child, they bring them to Canada, they are Canadian, and it would be retroactive to whatever date the application is approved.
Senator Petitclerc: I want to go step by step to really get it. So then the two siblings would have a different date on their Canadian citizenship. That’s one thing.
Mr. Hayer: How about I give you a scenario to make a bit more sense? Let’s say my spouse and I go to the United States, and we adopt a child, but while we are there, we also simultaneously get lucky and get pregnant. In that same period, let’s say the date that the adoption is approved in the U.S. is the same date we have our second child who is born naturally. Let’s say we decide to come back to Canada 20 years later, and in that time, both of those children have somehow managed to have children of their own. If they came up with us, what we would do is make an application for Canadian citizenship for the adopted child, and we would make an application for proof of Canadian citizenship, as we call it, for the natural-born child. The natural‑born child would be issued a certificate saying that on their date of birth, they were a Canadian citizen. For the adopted child, it would say their Canadian citizenship was approved as the date they were issued the certificate.
When you start doing lineage assessments, the natural-born child’s children will also be Canadians under this law, assuming they had met the three-year residency obligation. But if you go further down, with the adopted child, no, that’s not the case. With the adopted child, they are not able to pass on their citizenship at all. What happens in their case is that their children are denied access to Canadian citizenship. That’s where I think the challenge will come from section 15 of the Charter.
Senator Petitclerc: If I understand this well, in the same family, having the same journey, both children come to Canada, but for the cousins, one would be Canadian and the other wouldn’t?
Mr. Hayer: Of the siblings, one is adopted, one is natural-born and their children.
Senator Petitclerc: Yes. Thank you. This is helpful.
Senator Harder: Thank you to our witnesses. I just have a comment, Mr. Griffith, on your Canadians living abroad. The Foreign Affairs Committee is contemplating a study of Canadians living abroad because they would actually be the sixth province. You can make the argument that in the world of tomorrow, we are not harnessing — if I can put it that way — that Canadian resource. I appreciate your sense that the notion of the attachment to Canada is meaningful.
This bill is designed to respond to the Supreme Court. Are you both satisfied that in the very narrow sense — I am not saying there should not be amendments — the Supreme Court judgment is being dealt with effectively?
Mr. Hayer: In my opinion, yes. But to put a caveat on it, one of the things we discover as we practise law is we often find new issues. In fact, that was something we said last —
Senator Harder: That’s the unintended consequences of the policy guys.
Mr. Hayer: Last time, most people looked at the attempt to give Canadian citizenship by descent to everybody who was a “Lost Canadian,” and suddenly we discovered there was this issue with the wrong parent in section 5(2) versus section 3(1)(g), and that only came up last year when we did a submission on it from the CBA. This is an ongoing issue. Something may come up, but at the moment, most likely this is probably the first time we fully remove gender and marital status from the act.
Senator Harder: I agree. Do you agree?
Mr. Griffith: I would agree with that. The other point is that I think it has gone beyond what the court required, because they didn’t have to make it unlimited without any consequences. I think that’s —
Senator Harder: That’s your suggested amendment —
Mr. Griffith: The amendment would actually bring it —
Senator Harder: That’s a policy choice, absolutely, yes.
Mr. Griffith: Yes.
Senator Harder: The other point I want to confirm — and it was implied in your testimony — is that you both agree that there ought to be a substantial connection test. We had panellists before you, one of whom did not agree with that. Is that the position that you would hold?
Mr. Hayer: Yes. That’s our position. Again, our initial submissions were last year on Bill S-245. We said there should be a substantial connection test. We used the American example. What they do is five years and cumulative, but at least two of those years had to be after the baby’s fourteenth birthday. It is pretty much in line with what we recommended.
Senator Harder: Mr. Griffith, I want to use your background as a policy guy to answer another question, if I could. We have had the discussion about adopted versus natural-born siblings and the different treatment. From your experience as the policy guy in the department, how do you mesh the desire to have equal treatment with the obligations of the Hague convention? I know Mr. Hayer had a suggestion. I would like to hear what you would say.
Mr. Griffith: I think on those questions, Mr. Hayer is better qualified to answer that. I never got into that amount of detail. The general thing we tried to make sure of —
Senator Harder: Presumably tomorrow as well —
Mr. Griffith: We tried to make sure adopted children are treated the same as natural-born —
Senator Harder: I want to make sure that we are well aware of the implementation of equality not causing other issues, like with the Hague convention.
Mr. Hayer: First of all, the U.K. and the U.S. have both signed on to the Hague convention, and they do go retroactively to the date of birth. They say the adoption has to be consistent with their law for it to work. That’s a better solution than what we’ve done currently, which is to say it is effective the date that we approve the application. There is nothing wrong with saying an adoption is not consistent with our laws and we won’t accept it. That would meet the requirements of the Hague convention. That is what the U.S. and the U.K. have done.
Senator Harder: Did they do that retroactively?
Mr. Hayer: Yes, it goes retroactively to the date of birth.
Senator Senior: Thank you both for being here. Mr. Griffith, I wasn’t sure if I heard you correctly in response to Senator Seidman. I think you made a comment about security concerns, and I think it was in reference to — we are now working with countries that are outside of the OECD countries. Could you elaborate a bit more about that, please?
Mr. Griffith: In one sense, it is easier to deal with the OECD countries in terms of the language, the information and the nature of the societies that they come from. It is not perfect. We have lots of problems with individuals in all countries. But as our mix becomes more diverse, issues like foreign interference become more apparent and how foreign governments may want to look at using those immigrants or second-generation citizens of Canada in terms of their own interests.
That was my thinking. It was very preliminary, saying that there are some issues out there that we are seeing with foreign interference and other issues in terms of how it is playing out in the streets with various demonstrations and things like that. Those are the factors that led me to make that sort of general comment. How will it play out? I don’t know. It is something we have to consider. It doesn’t mean that we don’t do it — we want to treat people equally and fairly — but when I talk to some of my friends in the security space, they worry about these things.
Senator Senior: Is there anything that you would recommend to address or alleviate some of those concerns within the bill?
Mr. Griffith: Maybe it is not much of an issue, because if you have to come to Canada to spend three to five years, you are probably coming as an international student or on a work permit or something else, so you will go through some security vetting anyway. That may be adequate. All I was saying was that maybe there is something more that needs to be considered. I don’t have a definitive answer there, but I think it is a question that needs to be asked and answered to some extent.
Senator Senior: Mr. Hayer, do you have anything to add?
Mr. Hayer: The United States, more or less, uses a similar test. There hasn’t been a lot of stories, as normal evidence from our practice tells us.
I imagine if we looked at the actual numbers, the majority of Canadians — if they are going anywhere — are going to the United States. We have noticed the majority of the applicants have been going to the United States. In my practice in the last 10 years, I have had a handful outside of the United States. All have been in Europe, except one. For me, I’m not sure if this is a legitimate concern. The section doesn’t really say anything, but that has been our experience practising in this area.
[Translation]
Senator Youance: My question is for Mr. Hayer, but Mr. Griffith can answer as well.
Earlier, you referred to following U.S. regulations. If I’m not mistaken, when Americans have their children abroad, they have an obligation to declare that child within a specific time frame. At that point, the transfer of citizenship is automatic. Otherwise, when they don’t do it at the right time, the process can be very difficult.
Is there a similar regulation in Canada on mandatory reporting? How would a similar regulation have changed the situation? This declaration becomes a kind of willingness to accept U.S. citizenship and transfer it to the children.
Would adding such regulations help to implement Bill C-17?
[English]
Mr. Hayer: I don’t want to go too in depth with the U.S. law, but that was once true. Currently, it is the same as what we do, which is you make an application for proof of U.S. citizenship. You are issued a U.S. citizenship certificate.
We used to also do that process where we said that within a two-year period — it’s from the 1947 act and the 1952 act; I also believe for British subjects, it began with the 1914 act — within the first two years of the child’s birth, you have to make an application to the government for what’s called registration for birth abroad. There was a little line there until such extended period as the minister allowed it. That came to an end in August 2004.
That was one of the reasons why we had the “Lost Canadian” problem to begin with. I don’t know about you, but if you have a baby, the first thing you think about isn’t citizenship law. It’s the following: Where are the diapers? The baby won’t stop crying. How do I make the baby stop crying? And how do I feed them? You are not thinking about citizenship law.
The other one I will mention is this house passed a bill last year, which was Bill S-245, to deal with another group, where we said that by the twenty-eighth birthday, they had to make a citizenship for retention. For many of those people, again, it’s the same thing. No one thought about this. They were living here. On their twenty-eighth birthday, they found out they were not Canadian anymore.
There are millions who are here and have not been rectified by legislation. The section’s position on this would be to caution doing anything like that because it would likely end up leading to a situation where 20 years down the road, a person has lived their whole life in Canada, but they discover “I am not Canadian.” That does have a detrimental impact.
[Translation]
Senator Mégie: My first question is for Mr. Griffith.
You mentioned the associated costs in your opening remarks. Are there any costs associated with the citizenship application process? Are they affordable?
Mr. Griffith: That’s a good question.
[English]
The issue is that unless we have good estimates from IRCC on the numbers, it is hard to know the cost. IRCC is actually quite good at costing their operational impact, because I sometimes read some of their operational bulletins and their Canada Gazette notices. They have that capacity. I don’t know if they have done that yet. I would assume there are people in the bureaucracy who are working on it. That is the issue we need.
I know there will be costs and implications. I provided numbers to illustrate an order of magnitude. That is really for IRCC to answer that question.
[Translation]
Senator Mégie: I was simply talking about the cost per person. For one person applying, how much could it cost? I’ll ask IRCC, thank you.
My other question is for Mr. Hayer. You were talking about children born naturally, and I would like to come back to the example that Senator Petitclerc gave, but not quite.
Take the example of a child born naturally in January 2023 and another adopted in January 2023, but who was born before January 2023. That child’s citizenship date will be the date of adoption, not the date of birth. What is the consequence for that child in his or her daily life?
Whether it’s the child’s birth date or adoption date, once the child is a citizen, he or she is a citizen. Is there a possibility of different treatment in that child’s life?
Thank you very much.
[English]
Mr. Hayer: I would caution using the date of adoption as the proper date. I have had a number of clients who lived with a Canadian parent in the U.S. their whole life, but that parent never formally adopted them. There are various reasons. It could be a stepchild or a child who was a foster child. For the most part, there is that parent-child relationship; it’s never legally been established.
With most U.S. states, you can do an adult adoption. We could go through that process. It complies with the Hague convention. They would never be able to claim that citizenship because, again, for their own children who were born before that, they would also be excluded again. You end up creating the inequality in the lineage because they had children of their own. They did the adult adoption later in life. Those children are excluded.
That is why I say that for both options, they should go back to the date of birth. That is the approach we’ve used. That is consistent with international standards: The date of birth is what has been used, regardless of adoption or born naturally.
The Chair: Thank you.
Senators, effectively this brings us to the end of this panel.
I would like to thank the witnesses for their testimony today.
Colleagues, we will continue our study on the subject matter of Bill C-71 at our meeting tomorrow. We will plan to go in camera for the last 15 minutes of our meeting tomorrow to discuss drafting instructions. I ask that you come prepared with specific suggestions, observations and/or content you would like to see in this report.
(The committee adjourned.)