Bill C-24, Strengthening Canadian Citizenship Act

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NATIONAL IMMIGRATION LAW SECTION CANADIAN BAR ASSOCIATION

April 2014

500-865 Carling Avenue, Ottawa, ON, Canada K1S 5S8 tel/tél : 613.237.2925 | toll free/sans frais : 1.800.267.8860 | fax/téléc : 613.237.0185 | [email protected] | www.cba.org

PREFACE

e ian n a n 00 e Th Canad Bar Associatio e is nationalent inassociatio e representing in e 37,5 jurists,n including lawyers, notaries, law teachers and students across Canada. Th Association's primary objectivesn includ improvem e th law and th administratio n eof justice. ian e e n This submissioate at ewas prepared by th eNational Immigrationn een Law Sectio of the n Canad Bar Association, itteewith assistanc from a th Legislatio entand Lawe Reform Director th Nationaln Office. e Th iansubmissio has b reviewed by th Legislatio and Law Reform Comm and approved as public statem of th National Immigration Law Sectio of th Canad Bar Association.

TABLE OF CONTENTS

Bill C-24, Strengthening Canadian Citizenship Act

EXECUTIVE SUMMARY ...... 1 I. INTRODUCTION ...... 9 II. GRANTS OF CITIZENSHIP (SECTION 5) ...... 9 A. Physical Residence: 1460 days in six years ...... 10 B. Physically present in Canada 183 days during each of four calendar years within six years ...... 13 C. Requirement to file a tax return ...... 14 D. Intent to Reside in Canada if Granted Citizenship ...... 14 E. Knowledge of Official Languages ...... 15 F. Authority to Grant Citizenship ...... 16 III. REVOCATION OF CITIZENSHIP ...... 16 A. Dual Nationals – Exile ...... 17 B. Expanded Grounds for Revocation ...... 19 C. Lack of Hearing, Equitable Considerations ...... 22 D. Apparent anomaly ...... 23 IV. SECTION 13.1 SUSPENSION OF PROCEEDING ...... 24 V. ELIMINATION OF RIGHT OF APPEAL ...... 24 VI. AUTHORIZED REPRESENTATIVES ...... 25 VII. BARS TO CITIZENSHIP ...... 26 VIII. CITIZENSHIP BY BIRTH ...... 27 A. Principles of Legislative Drafting ...... 27 B. Citizenship by Birth or under the 1946 Citizenship Act ...... 27 C. Exceptions to Section 3(1) Citizenship Rights ...... 27 D. First Generation Limitation ...... 28 E. Service Abroad Exception to First Generation Limitation ...... 28 F. Statelessness ...... 28 IX. CONCLUSION ...... 29 SUMMARY OF RECOMMENDATIONS ...... 29

Bill C-24, Strengthening Canadian Citizenship Act

EXECUTIVE SUMMARY

e al

Th Canadian Bar oAssociation’s Nation ,Immigration StrengtheningLaw CanadianSection Citizenship(CBA Section) Act appreciates the opportunity t comment on Bill C-24 which was introduced in February 2014. e f e

The CBA Section supportss the Government of Canada’s objectiv o clarifying th test for residency and commend, the retroactivee restoration of citizenship to additionalf e ll “lost Canadians.” However we hav serious concerns about other aspects o th Bi and recommend significant achanges. al Our mostesig nificant concerns relates t the lack of flexibility by reducing residency to physic residenc test, requiring applicant s to demonstrate intent to reside in Canada if granted citizenship and the expansion of ground to revoke citizenship. 1. Grants of Citizenship (Section 5)

s ” Citizenship Act

The CBA support, e ll clarifying the meaning e of “residencee f e under the (the Act). However th sBi achieve s clarity at th expens o th flexibility a required to address the circumstance of those who have a strong attachment to Canad but are unable to satisfy the proposed physical presence requirement. Physical residence: 1460 days in six years ” s y y ny

Defining “residence al exclusively. ea physical residence e givesal absolutele no flexibilit fore ma deserving potenti o citizens o Th exceptions to th physice residenca by erequirement ar narrow , ande limitedal t those wh intend to, be employede outside fCanad a e,th Canadian Armed Forces th feder a publice administration or th public servic o provinc or who intend to reside with spous or parent who is so employed. is s s

Th inflexibility. risk undermining, eCanada’ goal of attractinge the besto and brightest immigrants However we. recognize, thate clear rules ar benee ficial t the adjudication of citizenship applications Thereforal w recommendal that th test – 5 in Citizenship and t Immigrationle Canada’s Operation al Manu e,Citizenship e Policy (Residence) (CP-5), setting ou allowab exceptions to physic residenc b incorporated into the test for residency. e 2 Strengthening Canadian Citizenship Act Pag Submission on Bill C-24,

Permitting qualitative s decision -making bye independent e citizenship judges,. who coul take into account the factor in CP-5, is appropriat in th context of citizenship t ,

Although our preference is to adops the residency test in CP-5 other alternatives to Bill C-24’s residency• test would mitigatee it stringency: e e e f ee Maintain th current definition and exceptions but reduc th • requirement to th equivalent o thr out of six years; y by a f f Maintain the residencye requirement in Bill C-24, but add flexibilit Immigrationallowing applicants and Refugeeto benefit Protectionfrom Actlimited number. e o days abroad i they satisfy eth definitions in paragraphs 28(a)(ii) - (v) of the (IRPA) Th limit on days abroad • could be on year; or ” s g e a e f al Empower the Minister to recognizef e “residency on a discretionary basi for deserving situations, by expandin th criteri and scop o speci

grants under section 5(4) o th Act. e a f al e

We further recommend e that Bill C- 24 b clarifieda a to specify that day o physic residenc includes any tim spent physically in Canad in calendar day. Physically present in Canada 183 days during each of the 4 calendar years within six years e a n f

A requ irement that an applicant e b physically present ein Canad for at least 183 dayse i eeach eo four calendar years that ar fully or partially within th six years immediately. befor th dat of application will significantly e complicate the calculation of eligibility The CBA Section recommends that it b eliminated. Re quirement to file a tax return s

Embe dding income tax Incomerequirement Tax Act in citizenship slegislation raises significant concerns, given. the complexity of the s and the seriou consequences for misrepresentation h The requirementr may forcee applicant to delay filing application e for citizenship , whic could affect thei eligibility. W recommend that this requirement b eliminated. Intent to reside in Canada if granted citizenship s s n e a f

The CBA Section oppose requiring applicant sto demonstrate a intent to residn in Canad i granted citizenship. First, by creating two tier of citizenship ‒ natural bor Canadians w rwho could travel and live f abroad withoute restriction e anda naturalized Canadians who ould isk losing their status. i they ,wer ever to leav Canad ‒ the proposed requirement is likely unconstitutional Second the intent requirement will result in a significant drain on CIC

e 3 f e Submission of the Immigration Law Section Pag o th Canadian Bar Association ,

resources for both assessment andy enforcement and will not clarify or simplify the criteria or processing of citizenship, contrar to the Bill’s objective. Knowledge of official languages e e e e

Thee CBAf Section opposesal th requirement. that an applicant a must take th knowledg t test in on o Canada’s e offici languagese This amountsf to second language f test. I will not e necess arilye b an accurate assessment o an applicant’se a knowledg o Canada , nor an assuranc that thos who becom Canadian citizens hav greater connection to Canada. Authority to grant citizenship e

Under th current Act, independent citizenship judges exercise muche ofe the authority f in determining who will be granted citizenship. e, Bill C-24 would mak th processal o granting. e citizenship primarim ly a departmental on delegating authority to individu officerse a Th existing syste eshould be maintained. Decisi ons about who is entitlede to becom Canadian, , citizenee should b exercised by independent m decision -makers. Th CBA Section does however agr that the proposed transition e e fro cabinets to ministerial decision-making on special grants of citizenship will mak th proces more efficient. 2. Revocation of citizenship

24 o

BillnC -n would expand the scope of thoseim subject to citizenship revocation t include all those bor i .Canada presumed able toycla citizenship in another n state through one of etheir parents It would also significantl expand the grounds o which citizenship may b revoked. s e a e, e e e f

The revocation e proces will primarily a b paper s on wher th Minister gives notic o intent to revoke, th person responds and dec ision i made bys theeMinister. ll TheeM inister e a may hold a hearing in some instances, and. in limited o circumstance ther wio continu to b hearing ho before aeFederal Court judge There is n longer any recourse a t the Governor in Council, w e may a tak into f acecount equitable considerations after finding that revocation is warranted du to breach o th Act. s s s

The CBA Section ha seriou concern with these changes. Dual nationals – exile

Fundamentallye changinge the concept ofecitizenship to epermit a those born here to be exclu dede, becaus they hav committed an offenc and. may hav o claim to citizenshiple in anotheral stat fis of very serious concern to the CBA Section It appears t impose exi as an addition form o e 4 Strengthening Canadian Citizenship Act Pag Submission on Bill C-24,

. s s e e a.

punishment It introduces level of citizenship right for th first tim in Canad It is unfair and discriminatory. s s s

The CBA Section supports sCanada’ tradition of allowing dual citizenship. Thi tradition i undermined if dual citizen face the prospect of banishment. e ,

Sections10.4 states that th law would not authorizes any “decision action or declarationss that conflicta with any international. humane right instrument regardingal statelessne s to which Canad is signatory” The referenc al to undefined internatione treaties result e in uncertainty, e particularlys formcitizens with du nationality by marriag or descent who hav not taken activ step to confir or document their second nationality. s e e e f e f . f

Individual a should hav adequat notic o th consequences, o theire actionse I Parliamente sets precedent allowing for retrospectivee banishment citizens ar unabl a to determin with certainty whate conduct may eplac them atlerisk . The use of banishment as punishment and its retrospectiv application ar unacceptab and likely unconstitutional. Expanded grounds for revocation s . e ale e

The proposed ground for revoking e citizenship are broad Th rationa for th list of offences . subject to, revocation appears toe b connected f al to loyalty to Canad or certain o Canadian ideals However f it is not clear.why the loyaltye o du nationals should be put int alquestion more, than that o other Canadians e Onc th precedente is established for banishing du nationals other forms of conduct may b added to th list. e e e e ,

On a offenc that woulde permit eth CriminalMinister Codeto revok e citizenship under proposed s. 10(2)(b)e , is terrorism offence f undera,th e or th Canadian equivalent a for an offenc n committedny outsid, o Canad for which th citizen oreceived h at least five-year sentence. I ma countriess allegations ofs terrorism are used t . punis politicalsis opponents, facilitated byis lowe threshold forf a conviction and harshe senteances An analy, of whether e thee conviction f th equivalent o terrorism offenc in Canad is complex and would b at th discretion o an individual officer.

e 5 f e Submission of the Immigration Law Section Pag o th Canadian Bar Association e f a a f

Section 10.1 (2) makes membership in “an armed forc o country or as member o an organized a armed group and that country or group was engaged in an armed. conflict with Canada” ground for revokinge citizenship.e f e Theewording f e is problematic Fore example, it would not necessarily requir knowledg o th ”natur o th group with which th personn has associated is . “Armed conflict with Canada is nots defined and it is unclear whe it wnould apply. It also unclear whether membership include those conscripted and those not o active duty. e . . e

Th CBAe Sectiona recommends, f deleting s 10(2)(b), and s. 10.1(2) Alternatively,m “or san offenc outsid Canad that i committed in Canada would c onstitute a terroris offence a defined in that section” should be deleted from s. 10(2)(b) and “armede e conflict with Canada” . and membership in an “organized armed group” should b mor clearly defined in s 10.1(2). Lack of hearing, equitable considerations t o

Bill C-24 eliminate, s the righ to a Federal Court allhearing for those esubject t revocationll e ofe citizenship except in limited circumstances. a Inal other cases,. e th Minister wi mak th a decision without being erequired to holdf form ,hearing l Th CBA Sectione believes that for matter as serious as th revocation o citizenship a forma hearing befor an independent and impartial decision-maker must be maintained. f e e f f le . e

Another aspect o concern is th absenc o consideration o equitab factors Neither th n Minister nor the Federal Court woulde be able to do so. The, involvement e of the Governor i Council, which can consider thes factors under the Act would b eliminated. is s s s

Th stand in stark contrast e to the procedural f protectione given toepermanent eresident f in , similar circumstances.y eTh e CBA Section is o th view that given oth importanc o citizenship o a statutor tribunal lik th Immigration Appeal Division ought t have jurisdiction t sconsider not only the validity of the decision e to terminate citizenship if ministerial erevocation i maintained, f but also whether ther exist humanitarian and compassionat factors to warrant retention o permanent residence if not citizenship. Apparent anomaly . e e e

The purpose of proposed s 10.1(4) is uncleare and w recommend that it b deleted toe ensur e that citizenship revocation remainse rar and undertaken only in circumstances e wher it can b demonstrated that but for th misrepresentation, citizenship would not hav been granted.

e 6 Strengthening Canadian Citizenship Act Pag Submission on Bill C-24,

3. Section 13.1 Suspension of Proceeding

s s

The CBA Section oppose the introduction of a section 13.1s that permit the Minister to suspendecitizenship applications. and other proc eeding while additional information or evidenc issgathered Th is would permit the government to delay processing citizenship application indefinitely. 4. Elimination of the Right of Appeal

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Under th current Act, isther s is no app to th Feder Court of Appealic from a Federal Court citizenship appeal. Th ha led to lack of clarity in the law on bas citizenship questions, with the application of differente e testsalby different aljudges aof the Court. f Unfortunately,al . Bille C-24’sal solutions is to replac th Feder Court appe withs system o judici sreview Th Feder Court’ ability a to overturnl administrative decisione on judicial reviewal i very limitedeal and requires priors successfu application for leav to apply for judici review. App s and review mechanism relating to citizenship m should be robust al. The CBAe Sectional recommend f maintaining the existing syste and adding an appe to th Feder Court o Appeal. 5. Authorized Representatives

s s c

ThemC BA Section supportss the government’ s commitment to change that protect thee publi fro unscrupuloue or incompetent, advisor e and representatives. . If non-lawyers ar permitted to practic citizenship law they should b properly regulated Any regulation of non-lawyers in citizenship law shouldn be synchronizedy with the regulation of immigratione consultants, f a by tying the designatio of a bod under the proposed s. 21.1(5) to th designation o body under s. 91(5) of IRPA. e e

The CBAe Section also recomm ends that Bill C-24 b amended to defin "students -at -law" as thos designated as articled students or students -at-law by provincial or territorial law societies and to explicitly permit them to act as authorized representatives. e s s

Last, we opposeal allowinge any entity similar to visa application. centre e,oversea e (VACs) to provid leg e advic or representation related to citizenship Therefor w recommend that s. 21.1(4) b deleted.

e 7 f e Submission of the Immigration Law Section Pag o th Canadian Bar Association 6. Bars to Citizenship

e e f s ,

Th CBA Section has concerns about th expansion is o b ar to citizenship in Bill C- 24 specificallya. f the bar for foreign criminality f a that much, broader than for thee same conduct n in Canadss I foreign criminality is o serious natureee proceedings, availabl under IRPA ca e addre itsbefore thes Immigration and Refug Board and s. 22(4) barring citizenship for thes individual appear unnecessary. 7. Citizenship by Birth

Principles of legislative drafting s s

Bi ll C- 24 use fexcessive cross-referencing. withine the Act and to previoue citizenship f all legislation to the point o near incoherence Plain languag drafting is in th interest o parties. Citizenship by birth or under the 1946 Citizenship Act e

We support Bill C -24’s retroactive Citizenshiprecognition Actof many “losto Canadians” who wer excluded from citizenship when the 1946 came int force. Exceptions to section 3(1) citizenship rights al o ho

Bill C- 24 provides, addition exceptionss t those w s haves the right of citizenship unders s. 3(1) of the Act including individual who lost their fstatu a a British . subject or citizen a. a resultle ofe anothere person’s renunciation e , orerevocation oe their statusale (s s 3 (2.1)(a) ande (2.2)) Whi we tak no position on th matter w question th ration for extending th exclusions to thes individuals. First generation limitation r t

We support the retroactive e recognition of citizenship e under proposed s. 3(7) e fo those “los Canadians” who wer unjustifiably excluded e by th 2009e ofamendments to th Act through the broad first generation limitation for thos born outsid Canada. Service abroad exception to first generation limitation t s n

Sectione 3(3) ofathe aAc denie citizenship a to the seconde eand f subsequent. e generation s bor e outsid Canad to parent who was citizen at th tim o birth W support exempting th children of members of the Canadian Armed,Forces or federal or provincial government employeesd for the first generation limitation but question whether an exemption should exten to their grandchildren.

e 8 Strengthening Canadian Citizenship Act Pag Submission on Bill C-24,

Statelessness s ss s

Bill C-24 maintain the risk of statelessne e for some persons,al since many. e countrie restrict granting citizenships to a child e born ther of foreignll nation parentsal Th CBA Section recommend t hat Bill C-24 b drafted to fulfi Canada’s internation obligations to prevent statelessness. Conclusion s s

We support Bill C-24’ objectives of streamlining and simplifying f the citizenship” process, o and commend the government’ recognition of the citizensh ip o “lost Canadians . We d notn support eBill C-24’s stringent o requiremento s for physical residency and odemonstrat ing a intent to resid in Canada . We als d not support expanding the grounds t revoke citizenship and to bar citizenship. ll e a

Our recommended modifications, e to Bille C-24 wi ensur system that is ultimatelyle fairer, e easier to administer sand on that mor efficiently uses public resources whi providing th necessary safeguard to maintain the integrity of the Canadian citizenship process.

e 9 f e Submission of the Immigration Law Section Pag o th Canadian Bar Association

Bill C-24, Strengthening Canadian Citizenship Act

I. INTRODUCTION

e al f e e

Th Nations Immigration Lawo Section o th Canadian , eBar StrengtheAssociationning Canadian(th CBA CitizenshipSection) Act, welcome th ne opportunityy t comment on Bill C-24 th introduced i Februar 2014. t r

The CBA Section supports thee Governmente of Canada’s objective of clarifying the tes fo residency and” commends, th retroactive restoration of citizenship to additionalf e “lost Canadians. However we hav serious concerns about other aspectss o th Bill and recommend significant changes . Our most significant concern relate tos the lack of flexibility n by reducing residency toaa physicalf residence test, requiring e applicant f to demonstrate a intent to reside in Canad i granted citizenship and th expansion o grounds to revoke citizenship. is s

Citizenship precious. Iterepresent efull inclusion in. civil societye and participation in deliberations over how w should liv ass Canadians Thos fully integrated intot Canadian t society should not be unfairly denied thi privilege through bright line testss tha do no reasonably accounts for individual circumstances.s s s Conversely, Canadian should not be subject to proceeding a to remove their statu a citizen exceptnin the most exceptional circumstances, and in fair manner that respects Canada’s Constitutio and international obligations. II. GRANTS OF CITIZENSHIP (SECTION 5)

s ” Citizenship Act

TheisCBA support clarifying the meaning of “residence under the (the, Act). Th woulds give applicants greater certainty and result in shorter,processing a times nfewe r demand on Citizenship and Immigration, e ll Canada (CIC) resources e and reductione f e i the volume of litigation. s However th Bi s has achieved claritye a at th expens o tht flexibilitya required to addres thee circumstance ofalthose whoehav strong. attachm en to Canad but are unable to satisfy th proposed physic presenc requirement

e Strengthening Canadian Citizenship Act Pag 10 Submission on Bill C-24,

A. Physical Residence: 1460 days in six years

e e ” s s

Th proposed chang, in s. 5(1)(c) to define “residence a physical residence achieve both clarity and certainty e but lacks flexibilitye to recognize e many deserving, potential citizens . The exceptions to th physical residenc requirement ar narrow and limited to those applicants who intend to:e e f a e , e c (a) b employed a outsid o Canad with th Canadian Armed Forces th federal public administration, the publi service of a province, otherwise s , a than as locally engaged person; or e f (b) resideawith hi or here spouse or common -law ,partner e oralparent who is Canadian citizen or permanente residente f a and is employede, outside o a Canad in or with th Canadian Armed Forces th feder public administration or th public servic o provinc otherwis than as

locally engaged person. e e e 1 In previous submissions, th eCBA Section hass recommendeds s that residenc under al thf Act not beelimited to physical presenc in .Canada , a thi risk undermin e ing Canada’sal e go o attracting f th best and brightest immigrants e However,, clear rules ar benefici to th adjudication o citizenshipe applications. In larg fpart current. problems, withe residency determinations s are not du to any particular e definitionl , o residency e alR ather therf areealcompeting definition of residency in th Federa. e Courtee and th Federee fCourt o App iseunable to clarify the matter (discussed below) W agr that this degr o uncertainty in th law should not continue. y ny

A strict physicalle presence test at the four-in-six year levelama prevent ma individuals . with considerab, establishment in and ecommitment to Canad from ever becoming citizens For example recents immigrants mays b best suitedsto represent . Canadian businesses abroad duee to theire skillle and connection to theiral countriee f of origin Canadian businesses stand to los thes peop as assets in internation trad i appointments abroad will jeopardize or delay future citizenship applications. e d t t

W recommen tha the tes in Citizenship, and Immigration le Canada’s Operational al Manual e, e Citizenship Policyd (Residence)(CP -5) setting out allowab exceptions al to physic residenca be incorporate into the test for residency. CP-5 indicates that physic presence in Canad at th

ll Citizenship of Canada Act ; n r 1 Citizenship of Canada Act : Canadian Bar Association, Bi C-63 - ” (March 1999) Canadia Ba Association, “Bill C-18, ” (November 2002), online http://www.cba.org/CBA/submissions/pdf/02-46-eng.pdf. e f e Submission of the Immigration Law Section Pag 11 o th Canadian Bar Association el n n e

required lev (whether three years i four, or four years i six), ordinarily b demonstrated prior to citizenship being granted. , al

However CPe -5 setsalout additione consideratione s that would warrant a finding of residency in cases wher1. Wasphysic the individualpresenc physicallyfor th required presentperiod in Canadais not established: for a long period prior to recent absences which occurred immediately before the application for citizenship? le f e n e a f al . e Examp o an allowable exception:a an a applicant lived i Canada for three years befor leaving for period o sever months Th applicant then returns to 2.permanently Where areliv thein applicant’sCanad and immediatefiles citizenship family applicationand dependentsat that (andtime. extended family) resident? le f e a al t r n n Examp is o an allowabl exception: an applicant leaves Canad for sever days each month, bu he mother-in-law, husband and childre continue to live i Canada while she3. Doesoutside the patternof the country. of physical presence in Canada indicate a returning home or merely visiting the country? le f e a e e Exampe eo fan allowable eexception: ans applicant leaves Canad eachs months for seven or tenadays, a but stayse abroad at hotels where th applicant. conducts business or at th hom o someon th applicant i visiting. The applicant alway return to 4.Canad Whatat is thehom extentowned of theor rented physicalby thabsencesapplicant: if an applicant is only a few days short of the 1,095 total it is easier to find deemed residence than if those absences are extensive. le f e a e f e e, e . Examp o an allowabl exception: an applicant was physically present in Canad 5.th Isvast the majorityphysicalo absenceth tim causeddespit byrepeated a clearlyabsences temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad? le f e e e a a e. e, e Examp o an allowabl e exception: the applicant obtains epermanent residenc in Canad e.and eis offered job her After beginninge eemployment her sh is asked by her employer to serv abroada. for on year to help manag an important business ventur Th applicant then returns her after th assignment is completed to resume6. Whather is thework qualityin Canad of the connection with Canada: is it more substantial than that which exists with any other country? le f e a , , . , e Examp o an allowabl n exception: an applicant has been spending few months abroad each year to looks after his elderly parents Whens in Canada, howevers th applicant is involved i his work and business ventures. He also is involved with community organization and the vast majority of hi personal contact (professional

e Strengthening Canadian Citizenship Act Pag 12 Submission on Bill C-24,

e e e e a. , e e n n and social) ar peopl who liv her in Canad Finally th applicant pays incom tax 2 i Canada and i no other country. e by d

Permitting equalitativ n decision -makinge independente e citizenship f judges, who coul take into account th sfactors i CP -5, is mor appropriat s insth context o citizenship.n Canadian citizenship i something valuable that deserve thi careful attentio and consideration. n ,

Although our preference sis adopting the test i CP-5 other alternativesn would mitigate the risk that deserving applicant for citizenship with a significant connectio to Canada will be turned away: • e e e e f Maintain th current definition and exceptions but reduc th • requirement to th equivalent o three out of six years; y by a f f Maintain the residencye requirement in Bill C-24, but add flexibilit Immigrationallowing applicants and Refugeeto benefit Protectionfrom Actlimited number o days abroad i they satisfy th definitions in paragraphs 28(a)(ii)3 - (v) of the (IRPA). The limit for days • abroad could e be one year; or ze s g e a e f al Empower th Minister to recogni “residency” on a discretionary basi for deserving situations, by expandin th criteri and scop o speci

grants under section 5(4) of the Act. s

Finally,a Bill a C-24 does not. define a physical day a including any time spent physically y in Canade f in calendare daye Currently,e f the online residence. calculator gives credit onl for the h dat o departur or th data o return, not both An applicant could spend the majority of bot days physically in Canad or over Canadian airspace. t 2 A 13-14.s t 3 n ion ion Clause 28(2)(a)(ii)-(v) of the Ac read as follows: (2) The following provisionst t gover the residencyth obligat under subsect th (1):t , h t t t (a) a permanen residen complies wi the residency obligation wi respec to a five-year period if on eac of a total of a leas 730 days in tha five-year period, they are … o , , (ii) outside Canada accompanying a Canadian citizen wh is their spouse or common -law partner ora in the case of a child the ir parent, n

(iii) outside Canad employed on full-time basis by a Canadia business or in the federal public administration or the public servicet of a province,t , , t (iv) outside Canada accompanying a permanen residen who is theirionspouse or common -law partner or in the case of a child their paren and who is employed on a full-time basis by a Canadian business or in the federal public administrat or the public service of a province, in or (v) referred to regulations providing for other means of compliance; e f e Submission of the Immigration Law Section Pag 13 o th Canadian Bar Association RECOMMENDATIONS:

1. The CBA Section recommends that the residency test in Bill C-24 be amended to include additional considerations that would warrant a finding of residency even in cases where physical presence for the required period has not been met, in accordance with CIC’s Operational Manual Citizenship Policy (Residence) CP–5.

2. In the alternative, the CBA Section recommends one of the following amendments to the residency test in Bill C-24:

• Maintain the current definition and exceptions but reduce the requirement to the equivalent of three out of six years; • Maintain the residency requirement in Bill C-24, but add flexibility by allowing applicants to benefit from a limited number of days abroad if they satisfy the definitions in paragraphs 28(a)(ii) - (v) of the Immigration and Refugee Protection Act. The limit on days abroad could be one year; or • Empower the Minister to recognize “residency” on a discretionary basis for deserving situations, by broadening the criteria and scope of special grants under section 5(4). 3. The CBA Section recommends that Bill C-24 specify that a day includes any time spent physically in Canada in a calendar day.

B. Physically present in Canada 183 days during each of four calendar years within six years

e e a

Th requirement f that an applicant eb physically present in Canade for at least 183 days duringe eache o efour f calendar years that ar fully or partially f within th six. yearsis immediately befor th dat o application adds an unnecessary layer o complexity Th new requirement will significantly, complicate the calculation e of eligibility and in turn slows processingss and review of cases leading to backlogs and th need for greater CIC resource to proce cases. RECOMMENDATIONS:

4. The CBA Section recommends that the requirement of being physically present in Canada for at least 183 days during each of the four calendar years that are fully or partially within the six years immediately before the date of an application be eliminated.

e Strengthening Canadian Citizenship Act Pag 14 Submission on Bill C-24,

C. Requirement to file a tax return

y e Income Tax Act. , e

Everyone should e compl with their eobligations a undere th a alHowever ,thes e obligations ar sbest enforced by th Canad Revenu Agency.s As gener principle th CBA Section oppose using immigration ore citizenship law a an indirect way of enforcing other laws that already contain appropriat penalties and enforcement mechanisms. s n

Embedding income tax Incorequirementme Tax Act in citizenship slegislation raises s significant concerns , give the complexity of the e and the seriou. consequence for making a any f misrepresentation under th proposed Incomeprovisions Tax Act It is unclear whether minor breach o reporting e requirementse. under the could form the basis for a loss of citizenship in th futur a This isalof particular concern in a scheme where a single officer will decide what constitutes materi misrepresentation. s s t

Applicante may have to delay filings application for citizenship until they have proof tha they hav filed their tax return. Thi could impact their ability to meet the eligibility requirement of physical presence. RECOMMENDATION:

5. The CBA Section recommends that the requirement to meet any application requirement under the Income Tax Act to file a return of income in respect of four taxation years that are fully or partially within the six years immediately before the date of his or her application, be eliminated.

D. Intent to Reside in Canada if Granted Citizenship

is s e e. e

Th proposal i one of the most troubling in Bill C-24sand is highly vulnerabl to abus Th CBA Sectiona f strenuously opposes requiring applicant to demonstrate an intent to reside in Canad i granted citizenship. , e t

First th proposed requirement is likely unconstitutional .e I would distinguish t between 4 naturalizedo and other Canadian citizens,n and would violat mobility rights. I would create tw tierst of citizenship: natural bor Canadian,citizen s, who could travel and live abroad f e

withou restriction ; ando naturalized Canadians whot would risk losing their status i they wer 4 d There would als be an incidental impairmen of mobility for natural born Canadian citizens with naturalized children an spouses. e f e Submission of the Immigration Law Section Pag 15 o th Canadian Bar Association e a e

ever to leavn Canada . Naturalizede citizensa e coulde findf themselves, in situation where, despit having a intent to resid inal Canad at. th tim eo applicationl, a le need to go abroad etemporarily e for employment or person s reasons Under th Bil sing officer would decid whether is th original intent to reside wa a misrepresentation and potentially strip citizenship on th basis. e s t

Th intent requirement. P will result in a significant ydrain on CIC resource a for bothe assessmen f and enforcement rocessing h times will inevitabl be. longer with subjectiv review o each applicant’s intent along wit supporting documents The requirement will not clarify or simplify the criteria or processing of citizenship, contrary to the Bill’s objective. RECOMMENDATION:

6. The CBA Section recommends that the requirement that an applicant demonstrate an intent to reside in Canada if granted citizenship be eliminated.

E. Knowledge of Official Languages

g e e e e f

The CBAal Section oppose. s requirin aapplicant s to take th knowledg test in on o Canada’s e offici languages f This amounts to seconde f languaga. test and is not necessarily an accurat s assessmente o an is applicant’s knowledg o Canad Language competencye required toa. pas nya knowledg test signifi cantly differenty than thata required to liv and work in Canad Mae immigrants over theelast centur came to Canad ande worked ,in areas that did not requir , them to read or writ in English or French but hav paid taxes attended religious o institutions volunteered y in ytheir communities, e raised childrene a and havee little to no ties t their, countryt of birth. The e ma lacke th ability to complet e a knowledg test in English or Frenchf bu still possessis th languag skills needed to b long a -term, contributi ng member o Canadian society.e Th srequirement m would preclude those with s lower education and English or French languag skill fro qualifying for citizenship sand doee a not achieve the intended goal of ensuring that those who become Canadian citizen hav greater connection to Canada. RECOMMENDATION

7. The CBA Section recommends that the requirement that the applicant take the knowledge test in one of the official languages be eliminated.

e Strengthening Canadian Citizenship Act Pag 16 Submission on Bill C-24,

F. Authority to Grant Citizenship

Under th current Act, independent citizenship judges exercise muche ofe the authority in a determiningalwho e,will be granted citizenship. Bill C-24l would. mak th process primarily department eon delegatinge f authority to individua. officers This change does nothing eto a strengthen th valu o Canadiane citizenship f Decisions about, who is entitlede to becom Canadian citizen are at th foundation. s o our democracy and should b exercised by independent decision-makerse Thi independence should not be sacrificed in the name of cost saving or administrativ expedience. , , m

The CBA Section does however support f the proposed transition. , froe cabinete to ministeriale e decisional -making on special egrants o citizenship under s 5(4) as th chang may mak th speci grants process mor efficient. III. REVOCATION OF CITIZENSHIP

Under the Act , revocation of citizenship. nyis limitedn to naturalized s Canadians whos acquireds theirt citizenship by false representations A . citize who stand to lose isthe ir statu ha the righ to full hearing• beforesa Federal Court judge Bill C-24 would change th in the following ways: a e e le Citizen who may be subjectr to citizenship revocation include e those born in Canad e who ar presumed e to b ab to claim citizenship in another state through one of thei parents, notwithstanding that th Canadian • maye hav no ties with th other country eat all. e s s Criminal Code, e NationalTh grounds Defenceon which Act citizenship e Securitymay ofb Informatirevoked onar Actexpanded to include aenumber f ofacriminal 5 offence a afe defined in the 6 th e n , sand th , committed in or outsidg o Canad and for which lia. sentence (or a five-year sentenc i some instances), ha been imposed. They now will also include • engagine in armed e conflict with Canad e . , a e a e a Th grounds ar broad and may not b objectively serious in context For example five-year sentenc for terrorism offenc may not heavy Criminal Code ., 1985, 46, National Defence Act ., 5 e r r Section 2t of both the t d R.S.C c.t C- t and the R.S.C 1985, c. Nt- 5 defin a “terrorism offence” as including any “indictable toffence unde this oe anye othert Ac of Parliamen committe for the benefio of, a the directiont of or in association with a terroris group, to ” any “indictable offence under this or any tother Ac of Parliam ent wher th ac or omission constituting thedoffence o als constitutes a terroris activity”, and “conspiracy or an attempt commit, or being an accessory after the fac in relation to, or any counselling in relation to, and offence referre Security tof inInformationthe definition.” Act it 6 d d d Sections 16 an t17 of the m RSC, 1985, c. O-5 make an offence to communicate safeguarde information (or is believe by the accuse to be such), to a foreign state or terroris entity and carries a maximu penalty of life imprisonment. e f e Submission of the Immigration Law Section Pag 17 o th Canadian Bar Association , al . , a e y y penalty as most actu terrorist related a offences result ein lengthy asentences Similarly minorf offencn in another countr ma be characterized as terrorist and given five-year sentenc when it might be • relativelye benign act o opposll e aitio to government, e repression.e t e, e a e Th revocatione .process e wi b paper one wher th Minister gives n notice of the inten tosre vok th person responds and decision is mad by th Minister Th Minister may hold a hearing in some instances. I , limitede circumstancell e (emisrepresentation of association with a prescribed organization and engaging in armed conflict against Canada) • ther ewi continu to b a hearinge before e a Federal Court judge, . e le Ther is no longer any recours to th Governor in Council who may tak

into account equitab considerations. s s s y y l e

The CBA Section ha seriou concern with these changes. The signif a fundamenta chang to the concept and importance of citizenship. A. Dual Nationals – Exile

s s s

Canadian court have Charterlong recognized s that citizenship i notejust a statue but much. more. Section 6(1) of thef a , which e i not subject, to legislativ override under. s 33,e provides:e “Every citizen o Canadt e has thal right tof enter. remain in andleleav Canada” Th Supreme e f Court hass said tha “th centr thrust o s 6(1) is against exi and banishment, is th purpos mo 7 which i the exclusion of membership in the national communitys .” Exile a prohibited for 8 of punishment and may constitute grave human right breach. s y y s – a

Canada’ citizenship law currentl makes onls one distinction between citizen naturalized Canadianal canll lose theire a citizenship if it wa obtai ned by fraud – oreunder falsee pretenses. Thisle propos wi creat enew distinction e . between Canadians thos who ar subject to exi and banishment and thos who ar not Fundamentallye, e changing e the concept of citizenshipe to e permit thee exclusion of Unitedthose Statesborn herof Americabecaus v. Cotronithey hav committed an offenc a and Unitedmay hav 7 States of America v. Burns ; Canada v. Schmidt ; SeDivitofor v.example, Canada (Public Safety and Emergency Preparedness, [1989] 1, SCR 1469 at par 19; ; Sauvé v. Canada (Chief Electoral Officer), [2001] 1 SCR 283 at para. 41 , [1987] 1 SCR 500 2013 SCC 47 at para 28 International, [2002] Covenant3 SCR on519. Civil and Political Rights, . . 8 , 1 . . . , . SeetoArticle 12.4 of the o d G.A to res 2200A (XXI) 2 U.N GAOR Supp (No Universal16) at 52 DeclarationU.N Doc. A/of 6316Human(1966), Rights999 U.N.T.S. 171, entered, . in force Mar. 23, 1976 (“No one shall be arbitrarily todeprive of the right enter his own country”). See also Article General9, Comment 27, Freedom of movement, G.A. res. 217A, (II. I) U.N Doc A/810 at 71 (1948) ( “N one); shallNgalulabe subjectedMpandanjilaarbitrary et al. v. Zaire,arrest, detention or exile”); Human Rights Committee, (Art.12) U.N Doc CCPR/C/21/Rev.1/Add.9 (1999 Communication No. 138/1983, U.N. Doc. CCPR/C/OP/2 at 164 (1990) at para 10. e Strengthening Canadian Citizenship Act Pag 18 Submission on Bill C-24,

a e a e e, f

claim to citizenship ein another stat. through parent or more distant relatival is o veryf serious concern to th CBA Section It appears to impose exil as an addition form o punishmen t. s s s

The CBA Section supports sCanada’ tradition of allowing dual citizenship. Thi tradition i s undermined if dual scitizen face banishment. It wouldsnot matter undere what circumstance f an individual possessee dual citizenship. These provision eallow for th revocation of o citizenship. from someon born and raised in Canada, even someon im born to generations Canadians The only criteria would be that they can make a cla to citizenships in another country. Accordingly, the proposed legislation would e create four classe .of citizens:e s m a) Canadian born who do not hav another nationality Thes “true” citizenss woulds be most secureain their status. There i no mechanis proposed for revoking their citizenship, even if they commit the most egregiou . e e e crime against Canad or its people. f all . b) Naturalized citizens without another nationality sThes woulds b th equivalent byo naturalized citizen s under the current legislation The only way they could risk losing their citizenship i if it wa originally

obtained misrepresentation. t , e ll e c) Canadian born citizens with another nationality . Apart fromt t misrepresentation (tha would rarely apply to this group) th fu rang of revocation provisions would apply, including those tha migh be . proposed in the future. n d) Naturalized citizens with another e nationality eThese truly “third e class” citizens would face the full range of retrospective revocatio provisions

being proposed, including thos that might b proposed in th future. e e ,

Rather than set out explicitlye th Canadians subjectzeto th new revocation, provisions proposed s. 10.4 statess that th legislation would not authoris any “decision action or declarationss that conflicta with any international. humane right instrument regardingal statelessne to which Canad is signatoe ry” Thee referenc e to undefined a internation treaties creates, an e a interpretativ challeng e for th courts and resulting euncertainty. al Specifically there is question f about the application toe Canadians who hav du nationality by marriag or descent,. e even i they hav not takene f activ steps to confirm m or document their second nationality Th effect could also chang i Cabinet withdraws fro a treaty without consulting Parliament. e e n r

Th courts hav not yet address sed the government’s sability to strip a Canadias of thei citizenshipn , outside limited case in which individual obtained the statu through fraud. A perso who has obtained citizenship through fraud never truly became a citizen and should not e f e Submission of the Immigration Law Section Pag 19 o th Canadian Bar Association e e Convention on the Reduction of

havStatelessnessth protections associated with that status. s This isswhy the by makes an exception, , allowingf state partie to revokeal citizenship obtained, 9 misrepresentation or fraud evensi it woulds render an individu stateless . However revoking citizenship in other circumstance pose fundamental constitutional challenges. s s

Targeting dual nationalal for citizenship revocatione result in differential f e Chartertreatment. based on ethnicity or nation o origin and therefor implicates section 15 o th o Canadians from countries, that d not recognizee dual nationality e would not be subject t zethe provisions.al Howeverss Canadians whos ancestorss cam from countries that recogni du citizenship. e and pa citizenship to generation born abroad would face theo prospect of revoc ation Entir e ethnic orf national communities wouldf e either fbe subject t ethe provisions or not. Gradating f th rights is o Canadians on the basis o th laws o another stat creates different classes o citizens. I t unfair and discriminatory. s s s

Finally, banishment i one of thee moste serioue punishmente . ethat can be inflicted on a citizen and has nots beensin commons us sinc th Middl Ages Th retrospective naturee of the provision make thi fan even more. striking f concern. I ndividualsa should hav adequat e notice of the consequences o theire actionsle I Parliamente sets precedent allowing for retrospective m banishment, citizens ar unab s to determin with certaintys whateconduct may placee the at risk. The use of banishment y a a punishment and it retrospectiv application ar unacceptable and likel unconstitutional. RECOMMENDATION: 8. The CBA Section recommends that the Bill’s amendments to section 10 of the Act be deleted. Citizenship revocation should continue to be limited to those instances where naturalized citizens materially misrepresent.

B. Expanded Grounds for Revocation

e ale e

The proposed grounds for revoking e citizenship are broad . Th rationa for th list of offences . subject to, revocation appears toe b connected f al to loyalty to Canad e or certain Canadian idealse However it is not clear why th loyalty o sdu nationals should b put into question mor thanm that of other Canadians. The implication i insidious: an act of espionage, treason or terroris , Convention on the Reduction of Statelessness 0 9 3 Article 8 , 3 August 1961, 989 UNTS 175, art 7(3) (entered into force 1 December 1975). e Strengthening Canadian Citizenship Act Pag 20 Submission on Bill C-24,

by a e e

dual national s can sever their connection to Canad becaus they ar inherently less Canadian than their fellow citizens who do not hold another nationality. e e al f

Onc th precedent is established for banishing du nationals, other forms, o conduct, may be added to the list. A ranges of serious offence s such as organized criminality murders aggravated sexual assault or crime against children have attracted significante sentencee f and condemnations s from Canadian courts., e If thee five -year sentenc in som o the proposed section i a threshold for gravity th scop is very large indeed. e e e e

Proposed s. 10(2)(b) a includes ase on offenc that would permitf e Criminalth Minister Code —to revok citizenship,e “ aterrorism , f offenc as defined in, section 2 o th e a ore an offence outsidt Canad — that i committed in Canada e would fconstitut terrorism offenc as defined in tha section and sentenced to at least fiv years o imprisonment”. n ny ,

The definition of terrorism is often grounded in the political. context. I ma countries one side ofala conflict will frame the.other side as terrorismela This has beenf particularly e true for most a nation liberation movements CriminalNelson CodeMand was convicted o what could b considered terrorism offence under the and sentenced to life in prison in South Africa. Theg proposede section would f havee Criminalthe further Codeoddity of not including t conduct in Canada. pre-datins th relevant sections e o th e bute includinga tha leconduct f abroad Conviction resulting nfrom th FLQ crisis in th 1970s ar agood exampe o conduct that would, not leade to revocatio under Bill C-24,, even though aCanad was th direct, target. e However thate sam conduct occurring abroad even against dictatorial regime would b subject to th Bill. e is ,

Fiv yearsn ’ imprisonment an arbitrary threshold forn revocationy yof citizenship particularlyy for foreig convictions,. e f eas the length of imprisonmente cae var widele from one countr to another Soms o th most oppressivs e regimes f in th worldle ar most likely to imprison individual for lengthy period on th basis o questionab “terrorism” related offences. Including foreign convictions for terrorism offences is particularly troubling given the low threshold for these allegations. f e e f a e a

An analysis e o whether. th conviction , iseth equivalent f o terrorism a offenc ein Canad would a not b straightforward Under IRPA thf aanalysis o whethere foreigne offence committed by permanent resident is the equivalent o Canadian offenc is mad by th Immigration and e f e Submission of the Immigration Law Section Pag 21 o th Canadian Bar Association ee , al . al e

Refug Boarde not individu e officers The po tenti complexity and sever e consequences ar even mor serious in th proposed revocation provision. Thes scopes of discretion the Bill would grant to an individual officer to strip citizenship in such case i significant. s

Section 10.1(2)le provides anothe er ground a for, revokinge citizenship: e “If the Minister e haf reasonab groundsle eto believ that a person, befor or a after th comingf into force of thisa section a and whi f th person was citizen served as member o an armed forc o country or as member o an organized armed group and that country or group was engaged in an armed conflict with Canada”. ms e

In addition to the proble. with retrospectiv application discussed above , the wording of this provisione f iseproblematic For example, e it would not necessarily require knowledge of the” is 10 natur o th group with which th persone has associated. . “A isrmed conflict with Canada notf defined f eand it is unclear whene th a section woulde applya It also unclear whether, members o any o th armed forces e activ in regione wher f Canad, participatese f in UN NATO or othera allied activities e would f b subjecta to ath section.le I so what a scal o involvement, by Canad would bt required? I Canad s sent sing advisor on NATO mission would any engagement with tha mission qualify a “armed conflict with Canada”? s s s

Many countrie conscript f e large portion of the population n into the n armed force and they remain membersm o th armed forces e for a long time aeve if not o active duty.e Ifethere a is no . mechanis for withdrawi ng from th armed forces, person might continu to b “member” This would particularly problematica ine situations where there was little or no warning that an armed conflict with Canad might tak place. RECOMMENDATIONS:

9. The CBA Section recommends deleting s. 10(2)(b). An alternative if it is maintained is to delete the words “or an offence outside Canada that, if committed in Canada, would constitute a terrorism offence as defined in that section” from the provision.

e Kozonguizi v MCI ; 10 t d i Se for example, , [2010] F.C.J. No.d361 2010 FCt308, t at para 26 -28. The applican joine the Capriv dLiberation Army because she was inlelove with her fianc é who wast a member. She attended d aotfew meetings. She denie knowingt tha i sought the secession of a portion of Namibia by arme force. She was deemed inadmissib to Canada on the basis tha the membership bar di n require knowing suppor of the subversion by force of a government. Membership per se was sufficient. e Strengthening Canadian Citizenship Act Pag 22 Submission on Bill C-24,

10. The CBA Section recommends that s. 10.1(2) be deleted. An alternative if it is maintained is to more clearly delineate the concept of “armed conflict with Canada” and membership in an “organized armed group”.

C. Lack of Hearing, Equitable Considerations

The Bills would fundamentallys alter the process is of revocation of citizenship. Currently,t ther proces consist a of three steps. The first a report under s. 10 of, theeAct, tha thef Ministee is, satisfied that person obtained e citizenship e fraudulently. e Secondl onc notified a o th . report , f thee personalcan request that eth matter b referred toe th Federa, Court for hearing Third e i th Feder Court makes th finding requesteds by th Minister citizenships is revoked e by th Governor in Council, which can and doe consider equitable factor in addition to th breach itself. e e al e e

Th proposed process cuts out th Feder Court hearing, except wheric persons hav engaged in conflict against Canada. llor have misrepresented, in relation to specif inadmissibility a grounds under IRPA In a other s casess thes Minister will decide with ano requireal ment of e formal hearing. F or a matter a seriou a revocation e of citizenship. , form hearings befor an independent n andal impartial decisione -maker must b maintainede, Ae fair procese f for revocation, including a or hearing befor e anle independentf judg reflects th valu o Canadian citizenship and respect for th ru o law. f e f e e e f f le

Another. aspect o ,thes changes on grav concern y is th absenc o consideration o equitab factors Currently the Governor i Council – ema consider f thesee factors.al Under ethe proposed process , this wille no longer e be possible th decision o fth Federle Court judg eon revocation is determinativ e and ther is isno further consideration o equitab factors isby th Governor in Council.n Wher the Minister e responsible, e for revoking citizenship, there no discretion.al Eve if discretion could b implied th Minister is not an independent or imparti decision- maker . e PA w h

A permanent resident o alleged to hav misrepresented o to obtain status under IR oulde ave the opportunity t make written submissions t an officer before being referred to th m Immigrationle,Division e for an admissibility e a hearing. ealIf the eImmigration Division found the inadmissib th person would hav right to app th removal order to the Immigration Appeal Division. The Immigration Appeal Division could consider the validity of the decision to e f e Submission of the Immigration Law Section Pag 23 o th Canadian Bar Association e a al , e e . e

issu remov order and also equitabl or humanitarian and compassionat, factorse Onc becominge a citizen, theesame person coualld los a e their citizenship a lepermanent residenc and 11 becom an inadmissibl foreign nation on decision by sing officer. e e

Th end result. is thate Canadianse arf givene less consideration, a and fair process, e ethan permanent residents Given th importanc o th rights lost statutory tribunal lik th Immigration Appeal Division, ought to have theal jurisdiction to consider the validity l of the decision to terminate citizenship sif ministeri revocation isf maintained, as wel as humanit arian and compassionate factor that warrant retention o permanent residence if not citizenship. RECOMMENDATIONS:

11. The CBA Section recommends that a citizen facing revocation always have the right to a hearing before an independent and impartial decision-maker.

12. The CBA Section recommends that citizenship not be revoked without an assessment of humanitarian and compassionate factors by an independent and impartial decision-maker.

D. Apparent anomaly

t r e

Proposed s. 10.1(4) states tha fo the purposes of revocation proceedingss for fals representation , , fraud for knowingly concealing material circumstancey onn a fact described in section 34, 35 or 37 o IRPA , the Minister need prove onle that the perso has obtained, retained renounced or resumed their citizenship by fals representation is is or fraud or by knowingly concealing, materiale circumstances. Thee purpose of th unclear.e Read with the f e othernsections it may b intended to I empowerPA s , th government e toerevok citizenship even i th. perso was not inadmissible unde, r R . 34 35 or 37 at th tim theye applied for citizenship Historically, ands for good reasons e citizenship revocation has been rar and is undertakene in circumstance where , butis for th misrepresentation , citizenship s would not hav been granted. We recommend that th provision be deleted so that it remain so.

n r 11 The proposed s. 10.2 concerns a presumptio of false representation, fraud o knowingly concealing material circumstances in a citizenshipd application d if the individualal committed those acts to obtain permanentd resident status. Although this isal in substance already in s.10(2) of the current Act, when combine with the propose procedur changes, the Bill accords citizens accuse of misrepresentation fewer procedur safeguards than permanent residents facing the same allegations of misrepresentation. e Strengthening Canadian Citizenship Act Pag 24 Submission on Bill C-24,

RECOMMENDATION:

13. The CBA Section recommends that section 10.1(4) be deleted.

IV. SECTION 13.1 SUSPENSION OF PROCEEDING

The CBA Section opposes the introduction of sections 13.1, permit ting the Minister to suspend s citizenship. applications n and other proceeding whiles additional information or evidence i gatheredleA pplicante ie administrative e processe should have their application s processed in a reasonab tim and b given adequat notice of issues about their application so that they may respond. Section 13.1 would. permit the government to delays processing c itizenship applications indefinitely Recent Federal Court decisione demonstrate the need for a statutory 12 timeframe for decision-making to avoid inordinat and unexplained delays. RECOMMENDATION:

14. The CBA Section recommends that section 13.1 be deleted.

V. ELIMINATION OF RIGHT OF APPEAL

e e eal e al f l a al

Under th current Act, isther s is no app to th Feder Court o Appeac from Feder Court citizensh hip appeal . Th ha led to a lack of clarity in the law on basi s citizenshipy questions, y wit different judges of the Court applying different dtests t. Applicant ma e waste of energ and resources, tapply t ing andewait ing years , only to ebe tol tha they might hav been accepted but for the fac tha the judg assigned to their cas was from the “wrong” school of thought. s s e e al al

Unfortunately, Bill C -24’ . solution e i toal replac th Feder Court appe with judiciale review n modelled on that in IRPA. Th Feder, Court’se e ability to overturn administrativ a edecisions o judicial review is limited Further befor th matter is even heard by judge, the applicante must successfully apply for leave to commenceal a judiciale, a review application. , Th leav decision is rendered is without person appearance eal in summar y fashion and without reasons. Citizenship an important status, and th app and review mechanisms should be robust. e A s m n eal e

Th CB Section recommend maintaining the existing syste and adding a app to th Federal Court of Appeal . Asad Stanziai v. Canada (Minister of Citizenship and Immigration), ; Murad v 12 Canada (Minister of Citizenship and Immigration) 2014 FC 74 , 2013, FC 1089. e f e Submission of the Immigration Law Section Pag 25 o th Canadian Bar Association RECOMMENDATION:

15. The CBA Section recommends the existing system of permitting an appeal of citizenship decisions to the Federal Court be maintained, with the addition of an appeal to the Federal Court of Appeal.

VI. AUTHORIZED REPRESENTATIVES

s m

The CBA Sections supports the government’s commitment to protect the public fro unscrupulou or incompetent advisor and representatives., No federal statute or regulations addresses who may practicee . citize e nship lawe f includingl advising,or representingal individualal in proceedings under the Act Ineth f absenc o. federa legislations provinci and territori statutes regulating th practic o lawsapply This mean the practice of citizenship law is limited to licensed lawyers or notarie public, with certain prescribed exceptions. , al .

Nevertheless CIC accepts representations from non - lawyers in citizenship . leg matters e We oppose anyd unauthorized practice of immigration or citizenship law If non -lawyers ar permittes to practice citizenship law, they should be properly regulated. Regulation of non- lawyer in citizenship by law should be synchronized with the regulation of immigratione a e consultantss , tying proposed s. 21.1(5) (empowering the Minister to designat – body whos o o membero – a in good standing may represent or advise a person f for consideration. or offer o t d s in ecitizenship proceedi ng or application ) to s. 91(5) o IRPA This, would avoide tw separat organizations s designated for immigra tio n and citizenship law and reduc administrative step in designating a body under the new citizenship legislation. e . ,

Additional changes are required to Bill C-24 to protect th publice First e“s tudents-at- law” should be clearly defined in the proposed s. 21.1(3) to includ only. thos edesignated as articlede a studentsn or students -tat -law by provincial or territorial law society Ther also should b revisio toe clarify thae students-at -lawf a may act. as authorized representatives, directly, as long ase they ar under th supervision o lawyer Without s this clarification students -at-law could b interpreted as effectively in the same position a any other staff member, rendering the section meaningless. , e ny n

Second proposed s. 21.1(4)e al woulde allow th Minister to authorize a organizatio s (and their employeese) to provid leg advic or representation in citizenship matters e“ if it i acting in accordanc with an agreement or arrangement between that entity” and th Canadian e Strengthening Canadian Citizenship Act Pag 26 Submission on Bill C-24,

s s f ,

government a . Thi roughly mirror the wo rding of s. 91(4)e o IRPAe which. was intended to allow vis applications centress overseas (VACs) to provid intak services We see no role for anythinga. analogou A to VACn in citizenship applications, ny whichy are processed exclusively in Canad The CB, Sect fio opposes e allowing a suche entit to providee legal advice or representation even i they ar permitted to provid administrativ services such as application intake. RECOMMENDATION:

16. The CBA Section recommends that non-lawyers be properly regulated if they are permitted to practice citizenship law. Any regulation of non-lawyers in citizenship law should be synchronized with the regulation of immigration consultants, by tying the designation of a body under proposed s. 21.1(5) to the designation of a body under s. 91(5) of IRPA.

17. The CBA Section recommends that Bill C-24 be amended to define "students-at- law" as those designated as articled students or students-at-law by provincial or territorial law society and to explicitly permit them to act as authorized representatives.

18. The CBA Section recommends that proposed s. 21.1(4) be deleted.

VII. BARS TO CITIZENSHIP

e e s

Th CBA. Section has concerns about th substantial expansion of bar to citizenship in Bill r C-24e Proposed s. 22(1)(a.1)a. wou ld create is a bar for foreign criminality muchs widersthan fo the sam conduct in Canad The section not limiteds to indictable ssoffence or offences under an Act of Parliament. Even setting aside problem with trial fairnes in some countries and determining equivalence of foreigne criminality, difference , between jurisdiction s make the application inequitable. In some jurisdictions , ( the U.S. for example) , ita i not uncommon fora, a prohibition orders to last five to ten years andee the person, is “serving e sentence.”e In Canad prohibition order cannot b longer than thr years after which th sentenc is complete. f f a , e e

I foreign criminality is oe serious nature proceedings undere IRPA to address it befor th Immigration and Refuge. Board are better suiteds to mak such significant determinations for permanent residents The IRPA proceeding suspend the citizenship process until they are

e f e Submission of the Immigration Law Section Pag 27 o th Canadian Bar Association f e

resolved.e Asf any permanent residente, convicted o th listed offences woulds almost certainly fac loss o permanent residenc s. 22(4) barring their citizenship appear unnecessary. RECOMMENDATION:

19. The CBA Section recommends that clause 19 in Bill C-24 (amending ss. 22(1) and (2) of the Act) be deleted.

VIII. CITIZENSHIP BY BIRTH

A. Principles of Legislative Drafting

e o ,

Th government s has an opportunity t improve the poor t draftingd in thescurrent Act. However Bill C-e 24 use fexcessive cross-referencing withins the Ac an to previou citizenship legislation toellth point o near incoherence , . This result, the,leg islation being inaccessibd le to the publics as w as many public servantss npoliticians lawyers and judgesn , delaye processingn n time nfor citizenship. application e and a increaseis d backlog , and a increased burde o Canadia courts Plain languag drafting in the interest of all parties. B. Citizenship by Birth or under the 1946 Citizenship Act

s s s n

Sectiona, 3(1) of the a Act list person who have, a right to citizenship f e a a Citizenshipresult of being Act. born i Canad born s to Canadians citizen parent or by operation o th 1946 In othern words, e it list all path to citizenshipe other than through naturalization. d Some people t, know as th “lost Canadians” wer llinadvertently or inappropriately exclude from the righ to e citizenship under s. 3(1). Bi C-24 eretroactively Citizenshiprecognize Act s the citizenship of many of thA os excluded from citizenship when th 1946 came into force, which the CB Section fully supports. C. Exceptions to Section 3(1) Citizenship Rights

s c ” s

The Act provide sa “diplomati exceptionc to s. 3(1),n n which denie citizenship to children of foreign diplomat and diplomati employees bor i Canadar . Bill C- Citizenship24 provides Actadditional, e a exceptions, denyingf citizenshipe to a person who, prio to the 1946 mad declaration o alienag , (essentially, e took citizenshipCitizenship Actin another e country) , or had their British subject status revoked or after th .1946 cam into effect renounced or hade, their Canadian citizenship revoked Excluding persons who sought citizenship elsewher, e renounced, or had their status revoked (normally for fraud) is reasonable. However thes

e Strengthening Canadian Citizenship Act Pag 28 Submission on Bill C-24,

s also s s s

exclusion include individual whon lost their statu a arBritish subject or citizen as a . resultle ofeanother e person’s renunciatio e or, revocatione of ethei statusle (ss. 3 (2.1)(a) ande (2.2)) s Whi w tak no position on th matter w question th rationa for extending th exclusion to these individuals. D. First Generation Limitation

e e n

Th 2009e amendmentsa to th Act excluded persons of second ore subsequent generations bor outsidy Canad from any right to citizenship underm s. 3(1). Th first 24generation limitation y was overl broad, unj ustifiably exclud ing some fro ecitizenship. a aBill C- will no longer appl the first generation alimitation to a child bornee outsid eCanad Citizenshipto parent Actwho:

1. was (foreign born) adopt after th 1946 applied to e a a a n them; or a f e 2. was born outsid Canad to Canadian father in wedlock or Canadia mother out of wedlock and obtained Registration o Birth Abroad by ag

two. s e

These person will have citizenship recognized retroactively under s. 3(7), and w support these amendments. E. Service Abroad Exception to First Generation Limitation

t s

Sectione 3(3) ofathe aAc denie citizenship a to the seconde eand f subsequent. generation ll born outsid Canad to parent whoe was citizen at th tim oe birth However, Bi C-24 providese an exception, f recognizinge th citizenship of personsal whos parents or grandparents ar e members o th Canadiang Armed Forces m or feder or provincial government, employees. W support exemptin the se children fro the first generation limitation but question whether the exemption should extend to grandchildren. F. Statelessness

s ss s n

Bill C-24 maintain the riskm of statelessne for some persons. It i possibleim for a child bor abroadyto be excluded froe Canadian ny citizenships and yet have no cla to citizenship in the e countr where they werl born. Ma. A countrie n restrict giving citizenshipn to a childy e born therss who has foreign , nationa eparents childal bor abroads to Canadia parents ma b statele under Bill C-24 given th generation limitation on passing citizenship.

e f e Submission of the Immigration Law Section Pag 29 o th Canadian Bar Association RECOMMENDATION:

20. The CBA Section recommends that Bill C-24 be drafted to fulfill Canada’s international obligations to prevent statelessness.

IX. CONCLUSION

The CBA, Section supports Bill C-24’s objective s of streamliningn and simplifying the citizenship” process and we commend the governme nt’s recognitio e of the citizenship f of “losta Canadians who were unfairly excludeds e ain the past. It is in th best. interests o both o Canad and prospective citizen to hav clear test for residency However,s we d not support Bill C-24’s stringent” requi rement for physical residency , which doe not permit consideration of “human factors, and may affect. e the ability of some e most integrated and successful immigrantse fromt becoming n citizens W do not support th requirement s thatss applicants demonstrat inten to reside i Canada if granted e citizenship, which add needle complexity without necessarily ensuring applicants hav greater attachment to Canada. , e e f e e .

Further w soppos expansion o th s grounds to revoks and bar citizenship Removing citizenship i one of the mostssseriou consequence that a society may impose, and should remain an exceptional proce conducted with the highest degree of procedural fairness. e e s e is

W believ our recommended modification to Bill C -24swill ensuric a systems that ultima tely fairer and easier to administer,s and more efficiently use publ resource while providing the necessary safeguard to maintain the integrity of the Canadian citizenship process. SUMMARY OF RECOMMENDATIONS

2. In the alternative, the CBA Section recommends one of the following amendments to the residency test in Bill C-24:

• Maintain the current definition and exceptions but reduce the requirement to the equivalent of three out of six years;

e Strengthening Canadian Citizenship Act Pag 30 Submission on Bill C-24,

• Maintain the residency requirement in Bill C-24, but add flexibility by allowing applicants to benefit from a limited number of days abroad if they satisfy the definitions in paragraphs 28(a)(ii) - (v) of the Immigration and Refugee Protection Act. The limit on days abroad could be one year; or • Empower the Minister to recognize “residency” on a discretionary basis for deserving situations, by broadening the criteria and scope of special grants under section 5(4). 3. The CBA Section recommends that Bill C-24 specify that a day includes any time spent physically in Canada in a calendar day.

6. The CBA Section recommends that the requirement that an applicant demonstrate an intent to reside in Canada if granted citizenship be eliminated.

7. The CBA Section recommends that the requirement that the applicant take the knowledge test in one of the official languages be eliminated.

8. The CBA Section recommends that the Bill’s amendments to section 10 of the Act be deleted. Citizenship revocation should continue to be limited to those instances where naturalized citizens materially misrepresent.

11. The CBA Section recommends that a citizen facing revocation always have the right to a hearing before an independent and impartial decision-maker.

e f e Submission of the Immigration Law Section Pag 31 o th Canadian Bar Association 12. The CBA Section recommends that citizenship not be revoked without an assessment of humanitarian and compassionate factors by an independent and impartial decision-maker.

13. The CBA Section recommends that section 10.1(4) be deleted.

14. The CBA Section recommends that section 13.1 be deleted.

15. The CBA Section recommends the existing system of permitting an appeal of citizenship decisions to the Federal Court be maintained, with the addition of an appeal to the Federal Court of Appeal.

18. The CBA Section recommends that proposed s. 21.1(4) be deleted.

19. The CBA Section recommends that clause 19 in Bill C-24 (amending ss. 22(1) and (2) of the Act) be deleted.

20. The CBA Section recommends that Bill C-24 be drafted to fulfill Canada’s international obligations to prevent statelessness.