The history of Canadian nationality law dates back over three centuries, and has evolved considerably over that time. During the early colonial period, residents of the French colonies were French subjects, governed by French nationality law, while residents of British colonies were British subjects, governed by British law. Prior to Confederation in 1867, the residents of the various provinces of British North America were British subjects, governed primarily by British law. After Confederation, as Canada evolved to full nationhood, it gradually enacted laws relating to rights of domicile and entry to Canada, although Canadians continued to be British subjects under British law. In 1946, the federal Parliament enacted the Canadian Citizenship Act, 1946, which created fully independent Canadian citizenship, separate from British law and status as British subjects. That Act came into force on January 1, 1947, and remained in force for thirty years. It conferred citizenship in different ways, by birth in Canada, birth to a Canadian parent, and by naturalisation. Since 1977, Canadian nationality has been regulated by the Citizenship Act, enacted in 1976 and brought into force in 1977. The Canadian Citizenship Act, 1946 imposed restrictions on multiple citizenship. The current Canadian Citizenship Act does not restrict multiple citizenship.

Background

Canada became a French possession in 1663 and Louis XIV established that the laws and ordinances of France governed the territory. The Ancien Régime of France developed a system of feudal allegiance in which subjects were bound together by a scheme of protection and service tied to land ownership. Possession of land was typically tied to military and court service and omitted women because they could not perform those obligations. Thus, French nationality also derived from place of birth in French territory, until the nineteenth century, but under feudal law married women were subjugated to the authority of their husbands under coverture. In 1763, at the end of the Seven Years' War under the terms of the Treaty of Paris, Canada was transferred to British control and converted to the laws of Britain. For a decade, English Common Law defined civil status in the territory. In Britain, allegiance, in which subjects pledged to support a monarch, was the precursor to the modern concept of nationality. The crown recognised from 1350 that all persons born within the territories of the British Empire were British subjects. Those born outside the realm — except children of those serving in an official post abroad, children of the monarch, and children born on a British sailing vessel — were considered by common law to be foreigners. Marriage did not affect the status of a subject of the realm, except that under common law, single women, including divorcées, were not allowed to be parents thus their children could not derive nationality maternally and were stateless unless legitimated by their father. Nationality acts passed in Britain did not extend beyond the bounds of the United Kingdom of Great Britain and Ireland. Other than common law, there was no standard statutory law which applied for subjects throughout the realm, meaning different jurisdictions created their own legislation for local conditions, which often conflicted with the laws in other jurisdictions in the empire. Thus, a person who was naturalised in Canada, for example, would be considered a foreigner, rather than a British national, in Australia or South Africa. In 1774, the Quebec Act restored French civil law in the territory of Quebec. The Constitution of 1791, divided Canada into two provinces and reaffirmed that Quebec, known as Lower Canada, was to retain French law as it existed up to 1763, while English law would be applicable in Upper Canada. In 1849, Upper Canada passed a statute to bring its law into line with the British Naturalisation Act of 1844, requiring foreign women to automatically derive their nationality from their spouse. In 1866, the Civil Code of Lower Canada was drafted to modernize and codify the legal system in place for Lower Canada, creating a coherent compilation of the various laws in effect in the territory in both English and French. Under the terms of the Code, foreign women automatically acquired the nationality of their spouse upon marriage. Married women were legally incapacitated and subject to their husband's authority. They were also required to share his domicile, which under French law is tied to the place from which one derives their civil rights.

Imperial and federal legislation, 1868–1914

Upon passage of the British North America Act, 1867, the Parliament of Canada was given authority over "Naturalization and Aliens", by virtue of section 91(25). The Aliens and Naturalization Act, 1868 was the first federal Act to be passed, and it provided that persons who had been previously naturalized in any part of the Dominion possessed the same status as anyone naturalized under that Act. In addition: The 1868 Act was replaced by the Naturalization and Aliens Act, 1881, which came into force on 4 July 1883. It made the rules allowing aliens to hold property uniform throughout the Dominion, and otherwise standardized the law along the same lines as the Naturalization Act 1870 of the United Kingdom. It also provided that Canadian women automatically derived their nationality upon marriage from their husbands. From the late nineteenth century, English or Anglo-Canadians viewed their nation as a white, British society; whereas, those in Quebec identified as nationals of Canada, with unique ties to French culture and Catholicism. The policies adopted for immigrants, and indigenous peoples, were aimed to include those who could quickly assimilate into the mainstream culture and exclude those who could not. In 1885, the government passed the Chinese Immigration Act, requiring payment of a $50 head tax for all Chinese immigrants. In 1907, an agreement was reached with Japan to restrict emigration to 400 persons per year and only allow contract labourers who had been government-approved, domestic workers for Japanese families, and persons who had been previous residents to enter Canada. With increasing Indian/South Asian (primarily Punjabi Sikh) immigration to Canada between 1897 and 1907, the Continuous journey regulation was passed in 1908 to prevent Asian immigrants from entering Canada unless they arrived from their birth country; since there was no direct route to Canada from India, the law effectively barred Indian immigration. From 1869 to 1985, First Nations women in Canada who were Status Indians under the Indian Act were required to follow the status of their husband. This meant primarily that if they married a person who was not a Status Indian, they lost their Indian status. Likewise, being a Status Indian person was described in law until 1951, as a male person who had native blood with a tribal affiliation. His children or legal wife derived their Indian status from their father or husband.

Canadian citizens and Canadian nationals, 1910–1947

The status of "Canadian citizen" was first created under the Immigration Act, 1910, which included anyone who was: Aliens, as well as all other British subjects, who wished to immigrate to Canada required permission to land. "Domicile" was declared to have been acquired by a person having his domicile in Canada for three years after having been landed therein, excluding any time spent in "any penitentiary, jail, reformatory, prison, or asylum for the insane in Canada." Although the terms "Canadian citizen" and indeed "Canadian citizenship" were used in this Act, they did not create the legal status of Canadian citizen in a nationality sense. People who had the status of "Canadian citizen" were merely free from immigration controls. In 1911, at the Imperial Conference a decision was made to draft a common nationality code defining British nationals for use across the empire. The status of all British subjects in the Empire (whether by birth or naturalization) was standardized by the British Nationality and Status of Aliens Act 1914, which was adopted in Canada by the Naturalization Act, 1914. The uniform law, which went into effect on 1 January 1915, required a married woman to derive her nationality from her spouse, meaning if he was British, she was also, and if he was foreign, so was she. It stipulated that upon loss of nationality of a husband, a wife could declare that she wished to remain British and provided that if a marriage had terminated, through death or divorce, a British-born national who had lost her status through marriage could reacquire British nationality through naturalisation without meeting a residency requirement. The statute reiterated common law provisions for natural-born persons born within the realm on or after the effective date. By using the word person, the statute nullified legitimacy requirements for jus soli nationals. For those born abroad on or after the effective date, legitimacy was still required, and could only be derived by a child from a British father (one generation), who was natural-born or naturalised. Naturalisations required five years residence or service to the crown. By 1918, the rise of women's suffrage motivated new federal interest in the question of women's nationality, but the country's legislative ability to change its nationality laws was limited by the common code for Dominions of Britain that required legal changes to be unanimous among all member countries. In 1919, women were successful in lobbying for foreign women to be able to naturalise independently of their spouse in Canada, but by law they were still required to have the same nationality as their husband in the empire. A separate status of "Canadian national" was created under the Canadian Nationals Act, 1921, which was defined as being any British subject who was a Canadian citizen as defined above, the wife of any such citizen, and any person born outside Canada whose father was a Canadian national at the time of that person's birth. Canada later passed the Chinese Immigration Act, 1923 on June 30, 1923, which barred Chinese immigration except for a very restricted group of diplomats, merchants, missionaries, students and returning residents. In 1928, the Japanese government agreed to amend their emigration agreement, limiting immigration to Canada to 150 persons annually. After the World Conference on the Codification of International Law held in The Hague in 1930, Canada became the first Commonwealth country to modify its laws to conform with the provisions to prevent statelessness in the Convention on Certain Questions Relating to the Conflict of Nationality Laws. In 1931, under the government of R. B. Bennett the Nationality Act was reformed to prevent women from losing their nationality through marriage if they would be rendered stateless. The amendment also introduced the concept of consent, meaning that alien women did not automatically derive the nationality of a spouse, but could obtain his nationality if they requested it within six months of his change of status. Once ratified, the 1931 Statute of Westminster gave the Dominions the ability to govern independently on behalf of their constituents, rather than implementing governance on behalf of the British crown. This allowed Commonwealth members to define members of their own communities separately from that which defined British subjects, opening the door to nationality in member states of the realm. Because of this Canadians, and others living in countries that became known as Commonwealth realms, were known as subjects of the Crown. However in legal documents the term "British subject" continued to be used. Prior to 1947, Canada issued two types of passports:

Eligibility of married women

There were complex rules for determining whether married women qualified as British subjects. Until 14 January 1932, the rule was that the wife of a British subject was deemed to be a British subject as well, and the wife of an alien was deemed to be an alien. After that date, and until 31 December 1946, the rules were generally as follows:

World War II-era war brides

By marrying a Canadian soldier, a woman, if not already British, acquired the status of British subject and Canadian national. If she then landed in Canada, she became a British subject of Canadian domicile. In addition, Order in Council P.C. 7318 of 21 September 1944 stated: "2. Every dependent applying for admission to Canada shall be permitted to enter Canada and upon such admission be deemed to have landed within the meaning of the said Act; and where the member of the Canadian Armed Forces is either a Canadian citizen or has Canadian domicile, the dependent shall, upon being landed, be deemed to have acquired the same status for the purposes of the said Act." This was later replaced by P.C. 858 of February 9, 1945, which declared: "2. Every dependent applying for admission to Canada shall be permitted to enter Canada and upon such admission shall be deemed to have landed within the meaning of Canadian immigration law. 3. Every dependent who is permitted to enter Canada pursuant to section two of this Order shall for the purpose of Canadian immigration law be deemed to be a Canadian citizen if the member of the forces upon whom he is dependent is a Canadian citizen and shall be deemed to have Canadian domicile if the said member has Canadian domicile." On May 15, 1947, P.C. 858 was replaced with an amendment to the Immigration Act, which provided that, subject to medical examination, war brides and children of Canadian servicemen, who were still in Europe, were automatically entitled to admission and landing in Canada.

Canadian Citizenship Act, 1946

Canadian citizenship, as a status separate from British nationality, was created by the Canadian Citizenship Act, 1946 (popularly known as the 1947 Act), which came into effect on 1 January 1947. The Act meant that nationals in Canada were finally described as Canadian, rather than British, and it also granted married women greater choice over their own nationality status. The law redefined the order of nationality, stipulating that Canadians were nationals of Canada first and only secondarily nationals of Britain. This served as a catalyst to restructure the nationality laws throughout Britain. Under its terms, anyone born in Canada would now automatically be granted Canadian nationality, and marriage to a non-Canadian spouse would no longer strip a Canadian woman of her nationality. The Act permitted Canadian men to have Canadian nationality granted to children born outside the country, but Canadian women could only apply to do the same if their children had been born out of wedlock. Canadian citizenship was generally conferred immediately on the following persons: In the latter two cases, a "Canadian" was a British subject who would have been considered a Canadian citizen if the 1947 Act had come into force immediately before the marriage or birth (as the case may be). Where the child born outside Canada was not a minor (i.e. was not under 21 years in age) at the time the Act came into force, proof of landed immigrant status was required to confirm Canadian citizenship.

Acquisition and loss of citizenship

In addition to those people who became Canadian citizens upon the coming into force of the Act, citizenship afterwards was generally acquired as follows: Loss of Canadian citizenship generally occurred in the following cases: Although Canada restricted dual citizenship between 1947 and 1977, there were some situations where Canadians could nevertheless legally possess another citizenship. For example, migrants becoming Canadian citizens were not asked to formally prove that they had ceased to hold the nationality of their former country. Similarly children born in Canada to non-Canadian parents were not under any obligation to renounce a foreign citizenship they had acquired by descent. Holding a foreign passport did not in itself cause loss of Canadian citizenship.

Impact

The Canadian Citizenship Act replaced the following phrases throughout all federal legislation: The Citizenship Act of 1946 did not contain provisions to automatically repatriate Canadian women who had lost their nationality before 1 January 1947. This meant that between two and three thousand women, who married allies of Britain during the Second World War, in Canada or overseas, were still deprived of their original nationality. To recover their nationality, women were required to obtain permanent residency through family sponsorship, meet medical and suitability requirements, and apply to be naturalised after living in Canada for a year. They were also required to take an oath of allegiance if they were approved. The Citizenship Act of 1946 also made no mention of First Nations people. An Act passed later in 1946 amended the Immigration Act, in order to specify that a "Canadian citizen" was one as defined in The Canadian Citizenship Act. These amendments would lead to later jurisprudence that addressed a transition that was problematic in certain cases. Although the 1946 Act did not deprive any Canadian national of such status, being a Canadian national did not automatically confer Canadian citizenship, as the Act represented a complete code for defining such status. The Act together with later retroactive amendments in 1953, had significant effects upon children of war brides. As Canadian soldiers fathered some 30,000 war children in Europe (including 22,000 in Britain and 6,000–7,000 in the Netherlands), of which a great number were born out of wedlock, the Act's provisions had differing impacts depending on how they were born: In 1947, the Chinese Exclusion Act ended, but was replaced by an act which limited immigration to the spouses and minor unmarried children of Chinese and other Asian persons who already had Canadian nationality. In 1950, an amendment to the Citizenship Act removed the one-year residency requirement for repatriation of married women, but still required them to apply for naturalisation. It also allowed foreign husbands of Canadian nationals and minor children to be admitted for immigration.

Extensions of citizenship

1967 amendment

The rule relating to loss of citizenship by naturalized Canadians living outside Canada for more than ten years was repealed on 7 July 1967, with provision made for such loss to be reversed through a petition for resumption of citizenship. Immigration restrictions based on race and national origin were removed from Canadian legislation in 1967.

Citizenship Act, 1976

Citizenship law was reformed by the Citizenship Act, 1976 (popularly known as the 1977 Act), which came into force on 15 February 1977. Under its provisions, children who were legitimate or adopted were allowed for the first time to derive nationality from their Canadian mother. Canada removed restrictions on dual citizenship, and many of the provisions to acquire or lose Canadian citizenship that existed under the 1947 Act were repealed. Under the new Act, Canadian citizenship is acquired by: Canadian citizens are in general no longer subject to involuntary loss of citizenship, barring revocation on the grounds of: Section 8 of the Act provides that Canadians born outside Canada, to a Canadian parent who also acquired Canadian citizenship by birth outside Canada to a Canadian parent, will lose Canadian citizenship at age 28 unless they have established specific ties to Canada and applied to retain Canadian citizenship. Children born outside Canada to naturalized Canadian citizens are not subject to the section 8 provisions, nor is anyone born before 15 February 1977.

Amendments

2009

On 17 April 2008, An Act to amend the Citizenship Act received Royal assent, coming into force one year later. Among the changes made: Provision was also made for the reinstatement of Canadian citizenship to those:

2014

The Strengthening Canadian Citizenship Act received royal assent on 19 June 2014. Several provisions had retroactive effect to 17 April 2009, in order to correct certain situations that arose from the 2009 amendments, with the remainder coming into effect on 1 August 2014, 28 May 2015, and 11 June 2015. Among the Act's significant changes:

2017

On February 25, 2016, as a consequence of the Liberal victory in the 2015 election, An Act to amend the Citizenship Act and to make consequential amendments to another Act was passed on June 19, 2017. Most provisions took effect upon Royal Assent, with the remainder coming into force on October 11, 2017 January 24, 2018 and December 5, 2018. The Act provided for the following changes:

Judicial review of Citizenship Act provisions

Definition of "residence requirement"

There have been several court decisions dealing with the subject of Canadian citizenship. In particular, the interpretation of the 3-year (1,095-day) residence requirement enacted by the 1977 Citizenship Act, which does not define the term "residence" and, further, prohibits an appeal of a Federal Court decision in a citizenship matter to the Federal Court of Appeal or the Supreme Court, has "led to a great deal of mischief and agony" and generated considerable judicial controversy. Over the years two principal schools of thought for residence have emerged from the Federal Court. Early on, Associate Chief Justice Arthur L. Thurlow in Papadogiorgakis (Re), [1978] 2 F.C. 208, opined that residency entails more than a mere counting of days. He held that residency is a matter of the degree to which a person, in mind or fact, settles into or maintains or centralizes their ordinary mode of living, including social relations, interests, and conveniences. The question becomes whether an applicant's linkages suggest that Canada is their home, regardless of any absences from the country. In Re Koo, Justice Barbara Reed further elaborated that in residency cases the question before the Court is whether Canada is the country in which an applicant has centralized their mode of existence. Resolving such a question involves consideration of several factors: "# Was the individual physically present in Canada for a long period before recent absences which occurred immediately before the application for citizenship? The general principle is that the quality of residence in Canada must be more substantial than elsewhere. In contrast, a line of jurisprudence flowing from the decision in Re Pourghasemi (1993), 62 F.T.R. 122, 19 Imm. L.R. (2d) 259, emphasized how important it is for a potential new citizen to be immersed in Canadian society and that a person cannot reside in a place where the person is not physically present. Thus, a potential citizen must establish that they have been physically present in Canada for the requisite period of time. In the words of Justice Francis Muldoon: "It is clear that the purpose of paragraph 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become 'Canadianized.' This happens by 'rubbing elbows' with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques, and temples – in a world wherever one can meet and converse with Canadians – during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers, and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook... So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else." The co-existence of such disparate, yet equally valid approaches has led some judges to comment that: In 2010, it seemed that a relative judicial consensus for decision-making in residence cases might emerge. In several Federal Court decisions it was held that the citizenship judge must apply a hybrid two-test approach by firstly ascertaining whether, on the balance of probabilities, the applicant has accumulated 1,095 days of physical presence. If so, the residency requirement is considered to have been met. If not, then the judge must additionally assess the application under the "centralized mode of existence" approach, guided by the non-exhaustive factors set out in Koo (Re). However, most recently, this compromise formula was rejected by Federal Court judges, with some judges commenting on the need for legislation to resolve the issue.

Other significant cases

Canadians, British nationality, and immigration law (1947–1981)

The Canadian Citizenship Act, 1976 replaced the term "British subject" with "Commonwealth citizen" in 1977, but the UK did not follow suit until 1 January 1983, when the British Nationality Act 1981 went into effect. While Canada created Canadian citizenship on 1 January 1947, the British Nationality and Status of Aliens Act 1914 continued to confer British subject status (the only nationality and citizenship status of the United Kingdom and its colonies and dominions before 1949) on Canadians until the British Nationality Act 1948 came into effect on 31 December 1948. That, together with succeeding Acts, changed the nature of Canadian citizenship status as it could apply within the UK:

Timeline

Citations