Woman Fights to Get Citizenship Back.

[alphazip]

She brought this on herself by not retention her citizenship by 28. Ignorance of the law is no excuse. It is not like she lost it out of her control. She had complete control over her citizenship.

Do most people understand the intricacies of citizenship law? Of course not! This woman was born to a Canadian citizen father, was brought to live in Canada as an infant, yet she was supposed to know that she had to apply to retain her citizenship at age 28? Hopefully, the Liberals will be more open to making discretionary grants on compassionate grounds than the Conservatives were.

 

[screech339]

Do most people understand the intricacies of citizenship law? Of course not! This woman was born to a Canadian citizen father, was brought to live in Canada as an infant, yet she was supposed to know that she had to apply to retain her citizenship at age 28? Hopefully, the Liberals will be more open to making discretionary grants on compassionate grounds than the Conservatives were.

If the liberals allowed her to get back her citizenship, then that sets a precedent. Then everyone who lost citizenship due to failure to retain by 28 will be lining up to get their citizenship back too.

 

[alphazip]

If the liberals allowed her to get back her citizenship, then that sets a precedent. Then everyone who lost citizenship due to failure to retain by 28 will be lining up to get their citizenship back too.

And so they should! The requirement to register one's birth was eliminated retroactively, so why shouldn't the requirement to retain by age 28 be eliminated too?

 

[screech339]

And so they should! The requirement to register one's birth was eliminated retroactively, so why shouldn't the requirement to retain by age 28 be eliminated too?

The difference is that they had control over their citizenship under the old law that was in placed for 32 years. Had the new law come into effect in 2007 instead of 2009, we wouldn't be hearing this story. Whatever happen to personal accountability. Canada is not a nanny state that has to look after everyone.

 

[screech339]

And so they should! The requirement to register one's birth was eliminated retroactively, so why shouldn't the requirement to retain by age 28 be eliminated too?

The requirement to retain by 28 was eliminated retroactively. In other words, if you were born under the retention rule, when the law went into effect, you no longer have to follow it. The law applied retroactively to those born under the retention rule since april 1981, not april 2009. The law could have left those born under the retention rule alone and they had to abide by it, but they didn't. That is how the law was applied retroactively.

Until the new law was applied, you had to follow the retention law as if the new law never went into existence. So if you lost your citizenship the day before the new rule kick in, so be it. You shouldn't have to depend on the new law to let you off the hook in not following the old retention rule. The law doesn't apply to those who didn't follow the rules and lost it.

Let suppose that the new citizenship law never came into effect today. The woman would still have lost her citizenship regardless no matter how you slice it because that was the law at the time. She and many others who failed to retain citizenship would have lost it regardless as well. And likely it wouldn't even be in the news. The only reason this reached the news now is because the new citizenship law went into effect after she lost it. So why should she have to depend on this new law to get her citizenship back.

 

[neorol]

The difference is that they had control over their citizenship under the old law that was in placed for 32 years. Had the new law come into effect in 2007 instead of 2009, we wouldn't be hearing this story. Whatever happen to personal accountability. Canada is not a nanny state that has to look after everyone.

I really don't understand how this story can be seen so ignorantly and without any empathy. This law is cruel and doesn't make any sense whenever it came into effect. Don't forget that before the age of internet it was not easy to get any information about law. I'm pretty sure if the government would have informed her or her parents well, she wouldn't be in this ridiculous situation. She is not an immigrant, and I don't think too many people know anyhting about their home countries' immigration rules. It's a shame that there is an automatic system for revoking her citizenship but there is nothing to warn these people in advance. Protecting this non-sense law and not seeing the whole picture just leaves me in questions. Why are rules more important than someone's life? She doesn't deserves this. Nobody deserves anything like this.

 

[screech339]

She is not an immigrant,

She was not an immigrant. She was a dual Canadian who lost her Canadian citizenship when she failed to retain her citizenship. If she wants to absolve herself of her responsibility and place any blame, she can blame it on her father for not informing her of the citizenship retention rules.

The internet has been around for some time now, even years before she reach age 28. She could have easily followed up on it. Google is 18 years old. CIC had it own website before Google came along.

You should read my posts as I have stated that it was quite unfortunate for her to lose her citizenship. I didn't say that she deserved to lose it. Said nothing of the such. It was the law at the time that she had to follow. It is what it is, however cruel the law appears to some.

 

[dpenabill]

The letter of the law can often impose harsh results. And, thus, there are often various safety valves in the law, provisions which allow certain authorities in the government to exercise rather broad discretion in ways which will prevent, or at least mitigate, particularly egregious or inhumane consequences. The Minister of IRCC, for example, actually has extensive ministerial discretion.

No one should doubt the rather harsh impact on this particular individual. She has lived in Canada since she can remember, literally, since she was just two months old. She has spent more than three decades living her life as a Canadian, as a Canadian citizen, carrying a Canadian passport. It is a relatively narrow and somewhat obscure provision of law which has, without any particular notice to her, caused her to lose her citizenship.

I have yet to see anyone cite the actual provisions which had this impact. I do not doubt they exist (or, technically, existed) or that they had the impact being reported. But not even those who are so quick to say she should have known what the law was have so much as cited let alone quoted just what law it is, or was, they purport someone who has lived in Canada their entire life, carried a Canadian passport, should have known about.

In any event, there is indeed a safety valve for this situation. At the very least, there is the Minister's discretion as prescribed by Section 5.(4), which allows the Minister to grant citizenship to any person to alleviate cases of special and unusual hardship.

If the facts are indeed much as the media has reported them, this is at least one way in which the situation can be resolved to avoid the harsh impact of the letter of the law. And this is precisely what IRCC informed this individual, that this is one of two ways she could pursue recourse.

But of course the burden is on the individual to present and prove the necessary facts supporting her case. And of course the government will scrutinize any application to determine the appropriateness of granting such an unusual, extraordinary Ministerial act. My guess is that this will not be nearly so onerous as the Star article made it appear.

But of course the formal response of the government had to emphasize the nature of the process, including how stringent the decision-making steps would be, and that it would likely be a lengthy process (but I suspect not so long as the letter apparently made it out to be).



Picturing a rush of applications to be granted citizenship pursuant to Section 5.(4)

Not really. Not many with any chance of being seriously considered anyway.

But given the open-ended language in the law, I can indeed see the mental wheels spinning furiously.

Here is what Section 5.(4) states:

"Despite any other provision of this Act, the Minister may, in his or her discretion, grant citizenship to any person to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada."

And it is easy to perceive the more narcissistic mind seizing on their own special and unusual hardship as perhaps grounds for a grant of citizenship.

Forgive me if this brings to mind those who think that they qualify to have their citizenship application processed urgently because, in effect, they need a Canadian passport (for which they need citizenship to obtain), such as to pursue a business opportunity abroad or, for example, even a job in Canada which involves international travel (and which would be impractical without the visa-free travel benefits of a Canadian passport). By the way, NO that is not the sort of emergency for which IRCC will ordinarily expedite processing a citizenship application. (Just because an employer makes having a Canadian passport part of the job requirements does not mean that Canadian citizenship is a legitimate requirement which would lead IRCC to expedite processing.)

In suggesting that it is better to not waste your time, as to the vast majority of those who might think their own special and unusual hardship could be grounds for this discretionary grant of citizenship, I do not mean (by this) to be flippant, or to in any way devalue or denigrate the severity of hardship many, many, many are enduring, and who might think they deserve Canadian citizenship . . . but the gate on that path to citizenship is not really open, no more than a tiny crack any way . . . that is, except, for example, in a case like this, which would really be more about granting citizenship in recognition that this woman should be recognized to be a Canadian citizen.

In contrast, there are probably thousands, perhaps many thousands, of other persons who likewise are not citizens now, having failed to follow the procedures to retain citizenship, now excluded from citizenship by the very same provisions (if someone can cite and quote them that would be good), but who have been carrying and using another country's passport over the years. Not likely they will find the gate to a special grant of citizenship at all open, not even a crack . . . even though, all they had to do (apparently, again I am not familiar with the actual provisions themselves, and again if someone can quote the actual provisions that would be appreciated) was do some paperwork to have their right to citizenship blossom into permanent Canadian citizenship.



What about applying for and being issued a Canadian passport?

Here again, I do not know what the applicable provisions required in particular (so, if someone else could do the homework for a change, and illuminate us, that would be nice).

In the meantime, this woman carried a Canadian passport, and even had at some point a certificate of citizenship or a citizenship card.

The Canadian government recognizes that a when a person obtains the passport of another country that constitutes availment of that country's protection for its citizens. Why, then, did this woman's obtaining a Canadian passport not suffice likewise? To show she was availing herself of her right to Canadian citizenship. That is, isn't applying for a Canadian passport, as a Canadian citizen, sufficient to make an application to the government to be recognized as a citizen? And if the passport is issued, isn't that sufficient indication of legitimate citizenship for a person to reasonably conclude she is a citizen?


Actually, there are many avenues to pursue recourse.

IRCC's response identified the two it prefers. Obtain PR status (which itself can be granted based on H&C grounds, if no other qualifies) then citizenship, or seek a discretionary grant as provided by Section 5.(4) of the Citizenship Act.

A lawyer could easily fashion a Charter claim based on lack of notice, lack of fair procedure, among other reasons to challenge either the statutory provision itself or its manner of implementation or the manner in which it has been applied in the particular case. It is remarkable, after all, that the government can strip a person's citizenship without giving the individual any actual notice, any opportunity to a hearing, any opportunity to respond. She was a citizen, after all. It is not that she simply had a right to citizenship, she was a citizen, living in Canada, issued a Canadian passport, a citizen who has, in effect, had her Canadian citizenship silently wrenched away by the technical application of rather narrow and not widely known provisions of citizenship law repealed some seven years ago.

Ultimately, however, the underlying facts loom large. As they often do.

My guess is this particular case will be resolved fairly quickly, the government not wanting to so much as entertain the prospect that the law itself could be challenged and potentially declared to be in violation of the Charter (such as for lack of notice). That would open the gates to a much, much larger number, including scores of persons who have not spent much time in Canada at all.

Among jurists it is well known that equity factors, the so-called deserts of a case, can make a huge difference. Technically, a Charter challenge based on lack of actual notice should be without regard to how much the individual deserves to have Canadian citizenship, or does not deserve it, but the practical reality is that equity matters, and this woman has a very strong case given her life, living as a Canadian all her life, most of that as an actual citizen, with affirmation from the government she was a citizen (passport et al). Not a case the government would want to see the courts rule on regarding a Charter challenge.

 

[dpenabill]

I want to add, I also think that even the Conservative government would respond positively, promptly, to this situation, and that I think the current government will as well.

Of course they have to establish the actual facts first. And they will.

And it is very likely, perhaps near certain (assuming the facts are as the media has portrayed the case), that the government will indeed do what it can to appropriately fix this for this particular individual.

My strong impression is that even under Conservative leadership, CIC and IRCC generally make a concerted effort to do the right thing, within what the law allows of course . . . and subject to verification of the facts and what the "right thing" is of course.

For others? To be determined on a case-by-case basis. Equity factors looming large.

I realize that many here, in this and in some other forums, many have a much more negative view about how CIC, and now IRCC, approach individuals. For what it is worth, subject to the inevitable exceptions, my strong, strong impression is that even under the Conservatives, CIC tended to be, in its approach to most (not all, but most) liberal, if not lenient, sometimes rather generous . . . allowing that overall impressions of credibility and what-one-deserves do tend to play a significant role.

 

[screech339]

The woman will have a hard time proving that she didn't know about the retention rule. Perhaps the father did told her and she simply totally forgot about it. The woman in the article is not going to tell the news or The Star, anything that would suggest she knew about it at some point. A person who knew about the rule and intentionally lost the citizenship can easily claim "I didn't know" and tell the same story this woman is saying.

The government have to be very careful in granting citizenship back to those who lost it under the retention rule. Either government (conservatives / liberals) would be opening a can of worms in allowing to grant citizenship back to this woman, however with good intentions they had.

 

[links18]

While I agree with Dpenabill that IRCC will likely do the right thing here and this particular woman will eventually get her citizenship back (as she should), I think there is a broader point here that individuals in such situations should not have to rely on ministerial discretion--or the kindness of particular bureaucrats to maintain something so fundamental to their lives. Equitable principles are important, but what if this woman were forced to fight for her citizenship in front of an official such as Screech for whom equitable principles are not convincing? They should just change the Citizenship Act to state that once a Canadian always a Canadian period. Heck, that could be a campaign slogan!

 

[alphazip]

Dpenabill, I believe you asked to see the section of the Citizenship Act that deprived Bertha Funk of her citizenship. If so, it is here: http://laws-lois.justice.gc.ca/eng/acts/C-29/section-8-20021231.html

As to the contention that this is not political, and that the Conservatives would have done "the right thing," I'm not so sure. The Lost Canadian group had numerous examples of people who slipped through the cracks, made requests for discretionary grants, and were refused. Things were especially bad in this regard during the tenures of Jason Kenney and Chris Alexander.

Here's an example of a ministerial grant being made to a Lost Canadian by Diane Finley: http://www.ctvnews.ca/lost-canadian-becomes-citizen-over-60-years-later-1.272829 Note, however, that this was after spending "six years and $60,000 in legal costs to be recognized." Of course, Bertha Funk has a much better case, seeing as she lived in Canada for almost her entire life.

I agree with links18 that a change should be made, which in this case would be the retroactive elimination of the requirement to retain by age 28. Why this was left on the books, while the requirement to register one's birth was eliminated, is a mystery.

 

[screech339]

I agree with links18 that a change should be made, which in this case would be the retroactive elimination of the requirement to retain by age 28. Why this was left on the books, while the requirement to register one's birth was eliminated, is a mystery.

The elimination of retention is applied retroactively to April 17, 1981. Retention rule is eliminated to anyone born on or after April 17, 1981, 28 years before the 2009 bill is enacted.

 

[links18]

The elimination of retention is applied retroactively to April 19, 1981. Retention rule is eliminated to anyone born on or after April 17, 1981, 28 years before the 2009 bill is enacted.

That's a rather arbitrary cut off. Just make it universal. "Once a Canadian, Always a Canadian, Period!"

 

[screech339]

That's a rather arbitrary cut off. Just make it universal. "Once a Canadian, Always a Canadian, Period!"

The first and second generation Canadian April 17, 2009 is also an arbitrary cutoff for passing citizenship to children born abroad. Why don't we just get rid of it and have every Canadians pass on citizenship for generations and make tons "Canadian of Convenience" like we seen at the Lebanon conflicts. Canadian citizenship is a privilege, not a right.