Interim Rules on Citizenship by Descent

[weofikl]

This morning the IRCC posted a bulletin regarding the Lost Canadians lawsuit stay and Conservatives blocking unanimous consent on C-71 which will delay passage until the fall most likely. The government is annoyed and it appears not seeking an extension of the stay. As of now the government has changed its rules 18 hours before the stay expires at midnight. Until new legislation is passed the Honourable Marc Miller MP directly decides who is a citizen and who isn't for all matters regarding citizenship by descent.

Currently there is no rule at all stopping any length of the chain. Those stripped at 28, and those born abroad after 2009 to a parent born abroad can be approved via a grant of citizenship and paying an extra $100. However, a grant is not necessarily a native born citizen and this brings in potential issues on its own, so it could be wise to wait, though I can't think of any current laws like exist in the US to harm a Canadian granted citizenship. I believe the date of citizenship would be from the date, not birth in this case. If anyone knows, please correct me.

It also remains unclear what happens if C-71 should not pass. The King could dissolve parliament for example in theory and legislation passes that is different in the future without things being remedied. It does seem unfair that applications are only adjudicated now under the urgent rules. As for myself, I have a child this pertains to, and have already submitted the application for this exact scenario. At least we will be able to argue for recourse in the future, but that isn't fun.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/canadian-citizenship/proof/interim-measures-fgl.html#s7

 

[xf2278389393]

Currently there is no rule at all stopping any length of the chain. Those stripped at 28, and those born abroad after 2009 to a parent born abroad can be approved via a grant of citizenship and paying an extra $100. However, a grant is not necessarily a native born citizen and this brings in potential issues on its own, so it could be wise to wait, though I can't think of any current laws like exist in the US to harm a Canadian granted citizenship. I believe the date of citizenship would be from the date, not birth in this case. If anyone knows, please correct me.

The US would not take issue with a US citizen receiving Canadian citizenship by way of a grant as opposed to automatically by descent; however, certain other countries that restrict dual or multiple citizenship could strip their citizens of that citizenship if it's a grant on application. For countries (mainly in Asia) that completely ban dual citizenship, it would make no difference, however.

52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

A plain reading of section 52 says in plain language that an inconsistent part of the law is of no force or effect and does not merely vest in somebody a discretion as the Minister would have it. Therefore, I think that the Minister has it wrong in terms of how a declaration of right declaring a law as inconsistent pursuant to section 52 applies. As the Minister is named in the proceeding as the respondent, the proceeding is in the province where the Minister exercises his office and there is no appeal pending, the time to bring an appeal being expired, the Minister is bound and compellable not to apply the 2nd generation limit when a person applies for proof of citizenship under section 12(1). Therefore, the descent provisions in subsection 3(b), without the unconstitutional provisions that limit citizenship by descent, are in force as of tomorrow and apply looking backwards to the moment each person in the line of descent was born as if the said unconstitutional provisions were never passed. The persons concerned should therefore be recognized as citizens automatically on asking for evidence of citizenship, rather than by a discretionary grant.

The simple solution is to just apply for proof instead of a grant. If application is denied or not dealt with promptly (right now processing times are 3 months), then a motion for a declaration of right can be filed with the Superior Court in the same application that declared the unconstitutional provisions invalid.

 

[weofikl]

The grant can affect someone's rights in Canada if the date of citizenship matters or being 'native born' ever comes into play. In the US you cannot get certain security clearances for example if born abroad without a CRBA. You effectively get a grant with inviting your child to the US with an immigrant visa, then magically as they enter US airspace or cross the border they both become a permanent resident and a citizen at the same time, ineligible to ever become president. That's what I was hinting at, but you brought up a great point in the debate on Bill S-235 which raised your very concerns about other countries stripping citizenship.

The simple solution is to just apply for proof instead of a grant. If application is denied or not dealt with promptly (right now processing times are 3 months), then a motion for a declaration of right can be filed with the Superior Court in the same application that declared the unconstitutional provisions invalid.

This seems to be very solid advice, and I concur with you. I've already applied for proof for my daughter after coordinating with the Honourable Marc Miller's office, and my local High Commission. Some things are only said unofficially in person because nobody really knows exactly all of the ramifications. It's unfortunate the IRCC is so detached from customer service, but it is understandable with so much new immigration. I believe proof of citizenship should be processed urgently always, and since they require copies only, it should be able to be done electronically, maybe with a visit in person to the High Commission as a human step against fraud.

I don't want to pay $100 for a grant when she will be viewed as a citizen from birth. I'm from a legal family so filing this would be a fun family activity if it came to the courts. Interestingly, the lead counsel on the Lost Canadians case is now a Superior Court justice. There are very deep politics at play in this, thankfully on my side, so I am not worried, but I want all Canadians to know they are Canadian. If you are born Canadian this is not an immigration issue at all, and I would love for people in my party to stop conflating the two. The most conservative value is to put your compatriots first, even if they don't ideologically follow your political opinions.

 

[marc1990]

This morning the IRCC posted a bulletin regarding the Lost Canadians lawsuit stay and Conservatives blocking unanimous consent on C-71 which will delay passage until the fall most likely. The government is annoyed and it appears not seeking an extension of the stay. As of now the government has changed its rules 18 hours before the stay expires at midnight. Until new legislation is passed the Honourable Marc Miller MP directly decides who is a citizen and who isn't for all matters regarding citizenship by descent.

Hi @weofikl, is there a web page for that bulletin and rules change you mention?

The page linked at the bottom of your post says "Date modified: 2024-05-30" at the end. And I can't find anything in the IRCC newsroom page about this new action today.

I hope you're right, though. That would be big news for many people.

Thanks

 

[armoured]

The grant can affect someone's rights in Canada if the date of citizenship matters or being 'native born' ever comes into play.

To take the other side of this: if the issue of citizenship by descent is restricted in future, receiving citizenship by grant (naturalization) would provide that first-generation status which, ironically, would allow one to pass on citizenship. (eg As someone hit by the 2009 rule, my child - who received citizenship after becoming PR/grant - would be able to pass on citizenship, and hence not subject to the citizen-by-descent restrictions to which I'm bound).

Now, I think some lawyers would say that most measures that specifically limited rights / duties of naturalized citizens would be unconstitutional. To my knowledge, none are allowed/currently exist now. (Hey, as many lawyers would acknowledge, if the US consitution didn't specifically mandate a native-born qualification for president, it would not be constitutional). Security clearances: I doubt that the specific 'native born' bit is a restriction in Canada, although a substantive test constructed otherwise might achieve a similar result - as long as not actually based upon the way one received citizenship.

This brings up a point I've made before, eventually I think we may end up with the 'ties to Canada' test for all citizens, because it HAS created a separate class of citizenship. Or no restriction such as this at all.

 

[xf2278389393]

The grant can affect someone's rights in Canada if the date of citizenship matters or being 'native born' ever comes into play. In the US you cannot get certain security clearances for example if born abroad without a CRBA. You effectively get a grant with inviting your child to the US with an immigrant visa, then magically as they enter US airspace or cross the border they both become a permanent resident and a citizen at the same time, ineligible to ever become president. That's what I was hinting at, but you brought up a great point in the debate on Bill S-235 which raised your very concerns about other countries stripping citizenship.

Canadian law doesn't make such a distinction. Citizens born in Canada and citizens by grant have always been treated the same under Canadian law and the Canadian constitution. It's only citizens by descent that were essentially treated as second class citizens, but only when it comes to passing on their citizenship. In terms of security clearances, they just need to be able to check one's whereabouts for the last five or ten years, meaning ideally you lived in Canada during that time, regardless of citizenship at birth. There is also no Canadian office from which somebody can be excluded because they were naturalized as opposed to born a Canadian.

The committee report in bill S-235 that changes provisions for automatic citizenship in the original version to a grant for individuals in care is quite odd. The original bill already had a provision that required individual consent where another citizenship prohibiting dual citizenship was concerned, so that it was only automatic if the individual could retain their other citizenship. Now they changed it into a grant application, so if the bill passes with the amendments, that would affect, for example, those with Dutch or Austrian parents. Even if Bill S-235 had made it automatic in all cases, the vast majority of countries with complete dual citizenship prohibitions would have completely ignored Canadian citizenship unless and until the rights of Canadian citizenship were excercised by the individual (because the logical implication of doing otherwise would mean that Canada, or any other country for that matter, could legislate India, China and a bunch of other nations out of existence and annex them by simy declaring all of their citizens to be Canadian or whatever citizens).

 

[weofikl]

Hi @weofikl, is there a web page for that bulletin and rules change you mention?

The page linked at the bottom of your post says "Date modified: 2024-05-30" at the end. And I can't find anything in the IRCC newsroom page about this new action today.

I hope you're right, though. That would be big news for many people.

Thanks

Nice catch. Publicized today, but I wondered if it was already written not published so I looked at archive sites. A CMS modified date does not mean something was publicly viewable. There is an archive.is from June 9th of the same text. I didn't find it until today, but perhaps this is what everyone in government basing their opinion on.

The stay expires tonight at midnight: https://www.canlii.org/en/on/onsc/doc/2024/2024onsc31/2024onsc31.html#document

You may have just caught a government bluff in terms of saying they *might* extend the stay. This being published before such comments maybe shows they had no intent as I surmised as a body language specialist, but we shall see. I've throughly enjoyed catching up with Canadian parliament processes. I have gained many surprising new allies and have a shortlist of lifetime enemies from it that have nothing at all to do with party affiliations. It's funny how you can view things fresh when you have no prejudice to anyone.

 

[weofikl]

Canadian law doesn't make such a distinction. Citizens born in Canada and citizens by grant have always been treated the same under Canadian law and the Canadian constitution. It's only citizens by descent that were essentially treated as second class citizens, but only when it comes to passing on their citizenship. In terms of security clearances, they just need to be able to check one's whereabouts for the last five or ten years, meaning ideally you lived in Canada during that time, regardless of citizenship at birth. There is also no Canadian office from which somebody can be excluded because they were naturalized as opposed to born a Canadian.

The parliament has a penchant for the ex post facto though which is always a concern. In American law it is enshrined in the very first article of the constitution that such things can't happen, although states and local governments love to try.

Since we are talking potentially about people who are adults already, a different date on citizenship could affect things like the Olympics which have procedure for the length of time being a citizen if changing nationality and competing for a new country, but that is mostly arbitrary and evidentiary with more than one fact. I'm sure there are other edge cases. I love to find those. The argument of having different standards on citizenship and winning this case is a brilliant example of a software logic bug. The statements individually behave normally when run on their own, but when they interact unexpected output is seen.

It excites me that the IRCC is using neural learning to process some immigrant applications, but it excites me more that the legislative and legal processes could be identified by mining the law for such conflicts. I believe there is a career just analyzing where unfair results come from.

 

[xf2278389393]

The parliament has a penchant for the ex post facto though which is always a concern. In American law it is enshrined in the very first article of the constitution that such things can't happen, although states and local governments love to try.

The prohibition on ex post facto laws refers only to criminal law. It prevents an offence from being created that retroactively criminalizes conduct that was previously legal or subject to a lesser punishment. The same exists in section 11 (g) and (i) of the Canadian Charter.

The legal changes we are talking about are simply retrospective (looking backwards, not taking effect in the past). They don't make somebody a citizen yesterday but they may make you a citizen tomorrow as if you had been a citizen all along since birth. The difference is important because it doesn't change anything that happened in the past (e.g., you got a jury summons and you responded you weren't eligible to serve because you weren't a citizen and that was true on the date you signed, that's still true tomorrow but if you had a child that wasn't a citizen because you weren't but tomorrow you become a citizen because your parent was a citizen, then your child does so as well as if you had been a citizen when they were born).

It should also be noted that, for the most part, what the Superior Court's judgment does and Bill C-71 would do is void or repeal the unconstitutional provisions. What's left is then read without the unconstitutional provisions which were never valid law in the first place. It's not very much different in any other legal system, even in the US, that voids enactments that are unconstitutional.

 

[weofikl]

The prohibition on ex post facto laws refers only to criminal law. It prevents an offence from being created that retroactively criminalizes conduct that was previously legal or subject to a lesser punishment. The same exists in section 11 (g) and (i) of the Canadian Charter.

The legal changes we are talking about are simply retrospective (looking backwards, not taking effect in the past). They don't make somebody a citizen yesterday but they may make you a citizen tomorrow as if you had been a citizen all along since birth. The difference is important because it doesn't change anything that happened in the past (e.g., you got a jury summons and you responded you weren't eligible to serve because you weren't a citizen and that was true on the date you signed, that's still true tomorrow but if you had a child that wasn't a citizen because you weren't but tomorrow you become a citizen because your parent was a citizen, then your child does so as well as if you had been a citizen when they were born).

It should also be noted that, for the most part, what the Superior Court's judgment does and Bill C-71 would do is void or repeal the unconstitutional provisions. What's left is then read without the unconstitutional provisions which were never valid law in the first place. It's not very much different in any other legal system, even in the US, that voids enactments that are unconstitutional.

In the US you cannot pass any ex post facto laws whether criminal or civil from the first article. Procedure can change though, and in arbitrary matters like citizenship there can be a degree of it. There are SCOTUS rulings regarding the edges of it, but in the US is less forgiving of moving goalposts. You really have to fight sometimes for your rights however.

As an aside, in my own battle for citizenship of my child in the USA I went down a deep rabbit hole. The actual procedure for citizenship adjudication is classified, and the US has secret courts for citizenship. When my wife naturalized as an American the clerk of the judge that granted her citizenship signed off on it. She had a procedural need for a "True Original" copy for another immigration process to document her name change. I went directly to the judge's chambers and the clerk said that the clerk that signed the citizenship papers hadn't worked there for 6 months (my Canadian mother was also a clerk at this court long ago so we knew the people which makes a difference in openness). Someone in the DHS secret system forged the signature of the clerk for whatever reason. We all agreed it's a terrible system, but most people don't ever realize it's random faceless people actually adjudicating. This was not the time to cause a fuss though, the end of the road had been reached.

In the case of my daughter, there was a recourse and the local consulate didn't appreciate me going over their head and the matter was solved amicably. In the case of the "True Original" copy of the naturalization certificate with the name changed, only the USCIS (under the DHS) could sign off on it. I got in an intense argument at a field office with the top supervisor and said you are the only one who can do this. He called Washington, came back sheepishly with multiple copies and apologized. He learned something too in this mess. Then we sent it off to get an Apostille and that got bungled, could just fake any document with the way they did it, because they'd never done this document, but thankfully no government has rejected it yet. (Probably because they know the kind of argument they will get into with the US.)

Back to the issue at hand:

What was being discussed in S-245 was ex post facto, barring people from citizenship who were denied previously, no matter what there denial was for not exercising citizenship by 28. This is one reason S-245 got ditched. The 2009 law is not ex post facto in regards to the 28 years old expiration, but it is unfair. What I am worried about here is a glitch now that the stay has expired and my daughter (plus a few million other citizens created last night) could be screwed in some way with a new law defining things differently before her application is adjudicated. I think there is a low chance of that given the politics involved, but it's not a zero percent possibility.

It is interesting to learn Canada only has protections for criminal ex post facto, and not civil. I will have to learn more on the decisions. I have been having fun with the Canlii system, which I think is brilliant. In the USA you have to pay out the bloody arse for access. It's a hodgepodge of 50 states, and different circuit courts. Definitely harder to reason arguments there, and subject to more abuse.

 

[leafsandstars75]

The US would not take issue with a US citizen receiving Canadian citizenship by way of a grant as opposed to automatically by descent; however, certain other countries that restrict dual or multiple citizenship could strip their citizens of that citizenship if it's a grant on application. For countries (mainly in Asia) that completely ban dual citizenship, it would make no difference, however.


A plain reading of section 52 says in plain language that an inconsistent part of the law is of no force or effect and does not merely vest in somebody a discretion as the Minister would have it. Therefore, I think that the Minister has it wrong in terms of how a declaration of right declaring a law as inconsistent pursuant to section 52 applies. As the Minister is named in the proceeding as the respondent, the proceeding is in the province where the Minister exercises his office and there is no appeal pending, the time to bring an appeal being expired, the Minister is bound and compellable not to apply the 2nd generation limit when a person applies for proof of citizenship under section 12(1). Therefore, the descent provisions in subsection 3(b), without the unconstitutional provisions that limit citizenship by descent, are in force as of tomorrow and apply looking backwards to the moment each person in the line of descent was born as if the said unconstitutional provisions were never passed. The persons concerned should therefore be recognized as citizens automatically on asking for evidence of citizenship, rather than by a discretionary grant.

The simple solution is to just apply for proof instead of a grant. If application is denied or not dealt with promptly (right now processing times are 3 months), then a motion for a declaration of right can be filed with the Superior Court in the same application that declared the unconstitutional provisions invalid.

What would the issue the US would have if a US citizen is a citizen by grant as opposed to by descent and retroactive to birth.

 

[weofikl]

What would the issue the US would have if a US citizen is a citizen by grant as opposed to by descent and retroactive to birth.

Ineligible for certain jobs and clearances, can't be president or vice president. You can also have your citizenship revoked in certain circumstances. Also ineligible for jury service on certain panels. You have to have been a citizen for 7 or 9 years for serving in congress depending if it is the house or the senate.

The biggest one is for the military though, that comes into play quite often. You are capped on the clearance you get. You can still get the lower clearances, but you'll never see a SCIF. I've given interviews for people getting clearances before. They might ask you if you know where someone is born. Kind of birther type questions that are weird and provocative to get you to say things. If it is for a military clearance usually they are in uniform, but the FBI and Secret Service have been known to vet as well in plain clothes going pssst.

In today's news, things are shockingly silent not a peep in parliament and they all raced through the agenda and went on recess two days early. Typical. I have written the IRCC asking for clarification on if my child is issued a grant if they would then be retroactively considered a natural born citizen (in Canadian terms automatic citizen) at a later date.

If so I'm going to find an angle and at least ask. The worst they can say is no. Since it is a toddler who has never been to Canada I will need to get creative. I have about a month before getting the AoR. If there is no risk at all, I will just be patient. I am already getting my tentacles warmed up to help out in the 2025 election. Everyone is dooming Canada, and maybe rightfully so, but I still love Canada.

 

[xf2278389393]

In the US you cannot pass any ex post facto laws whether criminal or civil from the first article. Procedure can change though, and in arbitrary matters like citizenship there can be a degree of it. There are SCOTUS rulings regarding the edges of it, but in the US is less forgiving of moving goalposts. You really have to fight sometimes for your rights however.

I am not expert in US constitutional law but my understanding is that the US Supreme Court has long settled that the prohibition on ex post facto does not apppy at all to civil law. See for example:

• https://constitution.congress.gov/browse/essay/artI-S9-C3-3-4/ALDE_00013194/#:~:text=post facto laws.-,Now it has been solemnly settled by this court, that,penal in nature, see ArtI.
• https://www.law.cornell.edu/wex/ex_post_facto

What was being discussed in S-245 was ex post facto, barring people from citizenship who were denied previously, no matter what there denial was for not exercising citizenship by 28. This is one reason S-245 got ditched. The 2009 law is not ex post facto in regards to the 28 years old expiration, but it is unfair. What I am worried about here is a glitch now that the stay has expired and my daughter (plus a few million other citizens created last night) could be screwed in some way with a new law defining things differently before her application is adjudicated. I think there is a low chance of that given the politics involved, but it's not a zero percent possibility.

The official reason Bill S-245 was dropped was because the MP who sponsored the bill in the House (a Conservative) did not bring the bill back for third reading (in parliamentary speak, did not move "that the bill now be read a third time") after the committee report was adopted. Whether said MP thought it was ex post facto I have no idea, but from what I heard, the main issue he took with it was that the bill was amended far beyond the scope of what his party buddy had proposed in the Senate, which was to only restore citizenship to those caught up by the age 28 retention provisions before they were repealed.

That being said, nothing in either Bill S 245 or C 71 is ex post facto. The second generation limits and the age 28 retention requirement were unconstitutional and never proper law to begin with. Consequently, anyone who lost citizenship or never gained it because of these unconstitutional provisions was a Canadian citizen all along, just not officially recognized as such and with the caveat that this doesn't give rise to personal liability by any government officials who denied anyone their rights in good faith reliance on the unconstitutional privisions.

As for your daughter, it would be almost impossible for Parliament to take Canadian citizenship away from her, unless she voluntarily renounced. It's not because it would be ex post facto - it wouldn't be ex post facto as it would likely only apply going forward - but because Charter rights cannot be taken away without amending the Charter, which is exactly why Justice Akbarali ruled the way she did ("As such, the limit imposed by s. 3(3)(a) of the Act is not truly a limit on Charter rights, but a negation of those rights." - Bjorkquist et al. v. Attorney General of Canada, 2023 ONSC 7152 (CanLII), at para. 258). Even when it's not Charter but statutory, common law or contractual rights at stake, it is still not straightforward for Parliament or a provincial legislature to take those away.

It is interesting to learn Canada only has protections for criminal ex post facto, and not civil. I will have to learn more on the decisions. I have been having fun with the Canlii system, which I think is brilliant. In the USA you have to pay out the bloody arse for access. It's a hodgepodge of 50 states, and different circuit courts. Definitely harder to reason arguments there, and subject to more abuse.

CanLII is good but it's missing some cases that you might get through a Lexis Nexis or WestLaw subscription (but even subscriptions don't offer every possible decision that has ever been rendered in a Canadian court). The issue is mainly that the assignment of neutral case citations is fairly recent and often only happens for written decisions. Anything that doesn't have a neutral citations needs to be transcribed and published by a court reporter. CanLII does have access to some reporters but not all of them.

The US certainly is quite a patchwork of a much greater nunber of jurisdictions. However, I noticed there are also a few free case reporting sites there, although I can't speak as to their quality. The US federal judiciary makes federal case opinions available through PACER at no charge although signing up for an account is required.

 

[weofikl]

I am not expert in US constitutional law but my understanding is that the US Supreme Court has long settled that the prohibition on ex post facto does not apppy at all to civil law. See for example:

• https://constitution.congress.gov/browse/essay/artI-S9-C3-3-4/ALDE_00013194/#:~:text=post facto laws.-,Now it has been solemnly settled by this court, that,penal in nature, see ArtI.
• https://www.law.cornell.edu/wex/ex_post_facto

The official reason Bill S-245 was dropped was because the MP who sponsored the bill in the House (a Conservative) did not bring the bill back for third reading (in parliamentary speak, did not move "that the bill now be read a third time") after the committee report was adopted. Whether said MP thought it was ex post facto I have no idea, but from what I heard, the main issue he took with it was that the bill was amended far beyond the scope of what his party buddy had proposed in the Senate, which was to only restore citizenship to those caught up by the age 28 retention provisions before they were repealed.

That being said, nothing in either Bill S 245 or C 71 is ex post facto. The second generation limits and the age 28 retention requirement were unconstitutional and never proper law to begin with. Consequently, anyone who lost citizenship or never gained it because of these unconstitutional provisions was a Canadian citizen all along, just not officially recognized as such and with the caveat that this doesn't give rise to personal liability by any government officials who denied anyone their rights in good faith reliance on the unconstitutional privisions.

As for your daughter, it would be almost impossible for Parliament to take Canadian citizenship away from her, unless she voluntarily renounced. It's not because it would be ex post facto - it wouldn't be ex post facto as it would likely only apply going forward - but because Charter rights cannot be taken away without amending the Charter, which is exactly why Justice Akbarali ruled the way she did ("As such, the limit imposed by s. 3(3)(a) of the Act is not truly a limit on Charter rights, but a negation of those rights." - Bjorkquist et al. v. Attorney General of Canada, 2023 ONSC 7152 (CanLII), at para. 258). Even when it's not Charter but statutory, common law or contractual rights at stake, it is still not straightforward for Parliament or a provincial legislature to take those away.


CanLII is good but it's missing some cases that you might get through a Lexis Nexis or WestLaw subscription (but even subscriptions don't offer every possible decision that has ever been rendered in a Canadian court). The issue is mainly that the assignment of neutral case citations is fairly recent and often only happens for written decisions. Anything that doesn't have a neutral citations needs to be transcribed and published by a court reporter. CanLII does have access to some reporters but not all of them.

The US certainly is quite a patchwork of a much greater nunber of jurisdictions. However, I noticed there are also a few free case reporting sites there, although I can't speak as to their quality. The US federal judiciary makes federal case opinions available through PACER at no charge although signing up for an account is required.

Thanks for the explanation on S-245 for the procedural details and the comments on Canlii. Love it. As for the ex post facto nature of C-71, as it stands now, I am good with most of the verbiage. In my opinion after dealing with the US, I am not against the way they do things, even if it is clandestine and obfuscated. I agree with the 5-year rule, two after 14 (at the time 14 was the legal age of consent in Hawaii which make sense to protect young mothers irrespective of extraneous moral discussion), and the second key part of going back to the grandparents for a substantial connection. Grandparents are a key pillar of an immediate family. In the case of my Canadian mother who hates Trump who got her passport finally just so she could move (we argue a lot about politics), it's a big deal when she has a grandchild living abroad.

As for ex post facto civil laws, yes there are federal decisions, and state constitutions blocking specifically civil ones, which covers most things. This is not an easy discussion, and you can probably argue anything and get away with it with the right judge. In terms of the idea of say the IRS retroactively demanding anyone who made a bunch of money in 2007 now owes double what they paid in 2024, this in theory could be legal in one lens, but there's a lot of angles to shoot it down.

The fifth amendment's due process clause comes into play as does the shockingly poorly written and overly broad 14th amendment which covers way more ground than most people would ever think. You have a principal of legality and caselaw support arguments against retroactive enforcements as by default being an unfair thing. It's a bit like obscenity, people know it when they see it. However, there are legislative cases like this that offer some exceptions: https://supreme.justia.com/cases/federal/us/503/181/, but there are others where it's shot down https://en.wikipedia.org/wiki/Eastern_Enterprises_v._Apfel. Even in the unanimous former case, the liberal side of the court, namely O'Connor, said things to cite in other cases negatively against retroactive civil enforcements.

I'm no lawyer, I just wind people up for a living, but I think it is fair to say the USA has much stronger protections against arbitrary retroactive decisions. However, having read a few of the key cases it does seem you would be absolutely right in a situation involving citizenship as that is legislative fixing things if something was ruled unconstitutional. (e.g. Black people being prevented citizenship gets ruled unconstitutional, but the way it was written would make every black person in the world eligible for citizenship without retroactive revision.) Immigration law is already a mess with executive orders on obscure things nobody will challenge but technically stand. Things like DACA for example. There's a lot of craziness going on already, which is why I feel I'm justified to be paranoid here. I trust nobody. Not conservative, not liberal, and certainly not in the NDP.

Now to be perfectly fair regarding detractors of getting rids of the FGL - mostly conservatives driven by current social issues, I think they have a right to be upset about unlimited chain migration. What I can't understand is the desire to disenfranchise Canadian families out of spite for the current immigration problems. Indian people will never go away from Canada, they built it like the Chinese and Jewish immigrants. There's a lot of thinly veiled racism. I've always found a way to hate people without taking their national origin, skin color, age, or sexual orientation into account. Every political argument these days becomes superficial with ad hominems usually being part of the first volley.

 

[xf2278389393]

As for ex post facto civil laws, yes there are federal decisions, and state constitutions blocking specifically civil ones, which covers most things. This is not an easy discussion, and you can probably argue anything and get away with it with the right judge. In terms of the idea of say the IRS retroactively demanding anyone who made a bunch of money in 2007 now owes double what they paid in 2024, this in theory could be legal in one lens, but there's a lot of angles to shoot it down.

The fifth amendment's due process clause comes into play as does the shockingly poorly written and overly broad 14th amendment which covers way more ground than most people would ever think. You have a principal of legality and caselaw support arguments against retroactive enforcements as by default being an unfair thing. It's a bit like obscenity, people know it when they see it. However, there are legislative cases like this that offer some exceptions: https://supreme.justia.com/cases/federal/us/503/181/, but there are others where it's shot down https://en.wikipedia.org/wiki/Eastern_Enterprises_v._Apfel. Even in the unanimous former case, the liberal side of the court, namely O'Connor, said things to cite in other cases negatively against retroactive civil enforcements.

This is going somewhat off topic here but concurring or dissenting, is not the law and, from I gather, it's now the prevailing view of the US Supreme Court that the ex post facto clause doesn't apply to regulatory taking of property rights which fall under emminent domain, a different constiutional principle, which, if they happen pursuant to legislation, have to be clearly articulated in the legislation and there has to be reasonable compensation offered.

Many but not all constitutional protections may seem stronger in the US but sometimes is is the opposite. One example would be that witness testimony is automatically protected from being used against the witness in a subsequent prosecution against the witness pursuant to section 13 of the Charter; whereas in the US, the witness would first have to plead the 5th amendment and then be told that they have immunity (similiar to the procedure that section 5 of the Canadian Evidence Act contemplates). The problem is that the US is basically stuck in the 18th century in terms of interpreting its constitution; Canada on the other hand uses a living tree doctrine to adapt the Charter as needed to the circumstances as they arise. For example, the US is really big on gun rights and free speech. You can still own firearms and express your opinion in Canada, it's just that these rights are more balanced against the rights of others.