One more question, since there is no “intent to reside” clause for PR renewal as of now, do you think it can be retroactively be implemented in future?
For example, I plan to get my U.S. green card and give it up immediately due to personal reasons. If the future, if “intent to reside” is implemented by say a conservative government, can they make that requirement retroactive? Would such an post-facto implementation be legal under Canadian laws?
My crystal ball is out-of-order so I cannot offer even a wild guess about what changes a future government might adopt.
BUT of course it is POSSIBLE for a future government to make all sorts of changes to BOTH the requirements for a grant of naturalized citizenship (including terminating any provision for the grant of citizenship altogether) and the requirements for keeping PR status.
Charter Rights are likely to factor into just how draconian the government could change the law governing the privileges and rights of Permanent Residents, but so far the courts have upheld some rather draconian changes the previous (Harper) Conservative government implemented (automatic termination of PR status for PRs who came to Canada as refugees, for example, if they no longer qualified for refugee status pursuant to UNHCR guidelines as adjudicated in so-called "cessation" proceedings . . . EVEN if the basis for the cessation happened many years BEFORE the law changed).
Thus, I do NOT know if the government adopted a law to in effect terminate the status of ALL PRs whether the courts will uphold that against a Charter challenge.
BUT they could certainly change the rules to make it a lot, lot more strict, a lot more difficult to keep PR status.
LAWS WITH RETROACTIVE EFFECT:
In Western jurisprudence and philosophy of law history, there is a general opposition to Ex Post Facto laws BUT the extent to which governments are prohibited from adopting and enforcing Ex Post Facto provisions varies widely. So far as I am aware (I am NOT a Canadian lawyer, after all, let alone an expert on Canadian constitutional law), while the Charter of Rights has provisions (subsections 11(g) and 11(i) in the Charter) which in effect prohibit Ex Post Facto
CRIMINAL liability, otherwise there is NO definitive prohibition . . . which in practice is again illustrated by how the government has applied the Harper government's 2012 change to the law governing termination of PR status, pursuant to which the courts have upheld a PR being stripped of PR status based on having traveled to his home country some TEN YEARS before this law was adopted.
Similarly, the Harper government also adopted legislation which allowed the government to strip a Canadian citizen of his citizenship EVEN if that citizenship was obtained by birth IN CANADA for certain criminal acts committed BEFORE the law was adopted. These provisions have been repealed by the current government and it appears the current government also, in effect, undid the few cases in which the Harper government proceeded to implement those changes. BUT to the extent there were judicial decisions about those provisions, they were UPHELD (subject to further appeal, which did not happen because the Liberal government's changes rendered the cases moot).
Summary re Ex Post Facto laws:
-- in most situations, there is at the least strong reluctance to adopt laws with retroactive effect,
-- but except for criminal liability, in many ways the Canadian government CAN adopt laws which have retroactive effect
THAT SAID: There is often a tendency to conflate or confuse laws which have prospective effect applicable to status or facts in existence before the law changes. These are NOT Ex Post Facto laws. Sorting out the differences can be complicated, and several pay grades above mine.
It can be easy to describe an example of what constitutes a generally prohibited Ex Post Facto law: The Canadian government can make it a crime to possess tobacco. But it cannot make it a crime to have possessed tobacco last year. (Technically, since such an Ex Post Facto criminal law is explicitly prohibited by the Charter of Rights, the government is prohibited from doing this BUT there is an overriding clause in the Charter which does allow the government to do so if there are sufficient government interests to do so.)
It can be a lot, lot more difficult to sort out whether the consequences of a change in law has a retroactive effect and how other Charter Rights might factor into determining the constitutional validity of the change.
EXAMPLES LIKELY to PASS CONSTITUTIONALITY TEST:
Government changes requirements for citizenship and applies those changes to current PRs? Yes. We know this will pass constitutionality screening because it has. PRs who became a PR before Harper changed the requirements for citizenship to a 4/6 rule rather than a 3/4 rule were subject to the changes. (The citizenship part of this forum was permeated by bitter complaints from scores and scores of those who felt cheated because they immigrated to Canada under rules in which they would qualify for citizenship much sooner than they did under the changes.)
What about changes that would have an effect not only on current PRs but even on those who have already applied for citizenship? Yes, the government can do this. This falls into that category in which there is a general reluctance to do so but, depending on the particulars, the government can do it. Thus, for example, the Harper 4/6 rule changes were NOT applied to those with an application already in process, BUT that draconian cessation of protected person status automatically terminating PR status provision was applied even to PRs who were qualified for citizenship when they applied but then rendered no longer eligible because the Harper government proceeded to apply the change in law based on events which occurred well in the past.
But make no mistake: Parliament COULD have applied the 4/6 rule even to those who already had an application in process (courts might have required the government to do things like reimburse ALL fees paid).
WHAT about those who have already been granted citizenship? This is a far more difficult question. The tendency is to think OF COURSE NOT. And in most respects this is NOT a practical, realistic question. What if a Scheer government decided that to be a citizen, even those who have already been granted citizenship should only get to keep citizenship if they prove they met a 4/6 rule? There is NO virtual chance the government would attempt to do this. And any such attempt would undoubtedly run afoul of other Charter rights. BUT MAKE NO MISTAKE, again so far as the Federal Court and the Court of Appeals had ruled they UPHELD Harper government changes which allowed the government to TAKE AWAY a person's Canadian citizenship, EVEN IF BORN a Canadian citizen by the fact of being BORN IN CANADA, based on engaging in certain crimes before that law was adopted. (How this would have fared in the Supreme Court is a matter of speculation.)
Regarding intent to reside: see next post.
