Harper government criticized for lack of understanding of citizenship laws

Citizenship Minister Jason Kenney and the Harper government are giving conflicting information about Canadian citizenship, NDP Veterans Affairs critic Peter Stoffer and Lost Canadians advocate Don Chapman say.

Kenney stated recently that Canadian citizenship was non-existent prior to 1947, and that all soldiers at the time were "British subjects". At the same time, however, the government continues to use the term "Canadian soldiers" in its press communications relating to military history. 

“The right hand doesn't know what the left hand is doing,” said Chapman, an outspoken advocate for the “Lost Canadians” -- a group of Canadians who have been denied citizenship due to legal loopholes, despite having a Canadian parent and spending much of their life in Canada. While the marjority of Lost Canadians were granted citizenship in 2009 through Bill C-37, An Act to Amend the Citizenship Act, older individuals born before 1947 remain excluded to this day.

Stoffer pointed out that such Canadians need to be recognized for their contributions to the country.

"Without them (Canadian soldiers who served prior to 1947), you wouldn't have the country that you have today," he said.  

Take the case of Jackie Scott, a 67-year-old daughter of a Canadian war veteran father and a British war bride mother who came to Canada at age two. Citizenship Minister Jason Kenney her told her in June that her father and his fellow soldiers may have been "heroes", but they were "obviously not" citizens at the time. 

Kenney's explanation was puzzling for Scott, who says her father was given materials stating that he was a "citizen" fighting for his country during the war. 

The question of whether citizenship existed prior to 1947 is a vital one for people like Scott. Authorities rejected her citizenship application this year  -- for the fourth time -- based on the premise that her father was a “British subject” when she was born. It also said that she was ineligible because her parents were unmarried at the time, even though they wed shortly after.

The Harper government – while claiming that all Canadians were legally British subjects prior to 1947 – seems to often omit this fact in its communications. As part of its $30 million PR blitz about the war of 1812, the government clearly makes reference to “Canadian militiamen” who helped repel American invadors over 100 years before the Citizenship Act came into effect. Foreign Minister John Baird paid his respects to “Canadian soldiers” in the Battle of Hong Kong on Tuesday, with no mention of their British subject status.  

"How can you talk about the war of 1812 and those 'brave Canadians', how can you talk about the battle of Hong Kong, about the Canadians who died in Dieppe or Vimy Ridge?...Were they not Canadians?" Stoffer asked.

He questions the government's use of the term "Canadian" and believes that people like Scott who have grown up in Canada and have a Canadian parent should be recognized as a citizen. 

"If I were the Citizenship and Immigration Minister, every single one of those [Lost Canadians] would be declared Canadian citizens," he said. 

Citizenship and Immigration Canada maintained its line that despite the references to citizenship by both government and the Supreme Court, no one was "legally" a citizen at the time. 

"While Canadian citizenship didn’t exist prior to 1947, it is common usage to refer to people who were living there then as citizens, even though in law they would have been considered British subjects," Citizenship and Immigration Canada media advisor Nancy Caron commented. 

Chapman, however, feels that the argument is flawed because Canada's "British subject" status didn't end in 1947.

“The Citizenship Minister doesn't know or understand Canada's citizenship laws, because British subject status didn't go away until 1977 or 1978,” he said.

"If it really is one or the other, it means no one was a Canadian citizen until 1977 (or 1978)...If, however, Canadian citizenship and British subject can co-exist, then why are the people born from 1947 through 1977 Canadian citizens today while the pre-1947 folks are being told they're not?"

The Citizenship Minister's spokesperson, Alexis Pavlich, issued the following statement on the issue:

"After 13 years of Liberals ignoring this important issue, in 2009, our government passed legislation that restored or gave citizenship to the vast majority of 'Lost Canadians' who never had it because of outdated provisions in previous legislation.

We have committed to bringing in new legislation to address the remaining few that are not already covered."

Lost Canadians, however, are baffled why the Conservatives went through the effort of fixing legislation and granting citizenship while excluding people born before 1947. Stoffer said the only plausible reason for the continued denial was money, a claim which Kenney's Parliamentary secretary, Rick Dykstra, has denied in the past.  

1946 Supreme Court case on deporting Japanese Canadian “citizens”

Another piece of history affected by this is the effort to deport Japanese Canadians (many of whom were born in Canada) during the Second World War. The question of citizenship came up in Supreme Court while the federal government was trying to deport thousands of Japanese Canadians to Japan. From the Supreme Court judgment in February 1946:

( Kellock J.:—The consideration of the word "deportation" as the equivalent of "to remove into exile" or "to banish" involves the idea of penal consequences. Such a meaning is not apt in the case of citizens who have committed no offence nor, in modern times, in application to a national born citizen of a country on the assumption that some other country is under some obligation to receive him by reason of some previous connection of the citizen with that country.)

By the Canadian Nationals Act, chapter 21 of the Revised Statutes (1927) a Canadian national is a British subject who is a Canadian citizen within the definition of the Immigration Act.

If there was 'no such thing' as a Canadian citizen prior to 1947, why was the Supreme Court at the time discussing whether they were "citizens" of the country? 

Photo of Japanese Canadian men sourced from Sans voix sans visage 

Order of Canada recipient Roy Miki, who was instrumental in gaining redress for Japanese Canadians, said that while Kenney was "technically correct", there were practical problems with his claim: 

"Even the federal government, including its Prime Minister, referred to Japanese Canadians as citizens," he wrote in an email.

"Canadians never referred to themselves as British subjects, but as citizens of Canada, long before the citizenship act made this official, which is why it's disingenuous of Kenney to invoke the term 'British subject' in the context in which he did."

Examples of pre-1947 people restored "Canadian citizenship"

If Canadians born before 1947 are still excluded from citizenship solely because of the date or circumstances of their birth, this calls into question the discriminatory provisions of the pre-1977 citizenship law and how they  have been interpreted and applied over the years.

For citizenship cases, the applicable law is the law of the day. Several provisions of the Canadian Citizenship Act applied retrospectively to people born, in or out of Canada, before the Act came into force. 

John Frederick James McKough, for example, was born out of wedlock in Champlain, New York, in November 1946 to a Canadian father and U.S. mother.

On a strict reading of section 4 of the Citizenship Act, he would have been excluded from citizenship, but the Registrar of Canadian Citizenship in 1948, J.E. Duggan, ruled that the child could be a Canadian citizen because  his parents later married. McKough was deemed born in wedlock and became a natural-born Canadian citizen as a result. 

His case is the same as that of Jackie Scott, yet she remains excluded. If on similar facts, another child was ruled ot be a Canadian citizen, how can the government justify shutting her out for so long?

Chapman questioned what "public good" was being served by denying lifelong Canadians their right to citizenship. 

In light of U.S. President Barack Obama welcoming over 800,000 illegal aliens living and working in America, he wondered why people who have "worked, voted, paid taxes and established families in Canada" have yet to be accepted by their government.

• Lost Canadians angered by ongoing age and gender discrimination