Note: the facts matter. They usually do. And there are some unknown facts of much importance in this case.
As I said, and some others have at least somewhat concurred, my sense is that Bertha Funk's case will be resolved relatively easily and promptly.
But in looking at what we know, and considering what we do not know, my further guess is that this is not a complicated case and one way or another the government will respond positively, relatively promptly, whether she is granted citizenship (pursuant to Section 5(4) Ministerial discretion), or perhaps it may be appropriate for the government to simply recognize that she has retained her citizenship. The latter depends a bit on some unknown details, but this case might, possibly, be explained as a simple mistake . . . a mistake either by CIC back in 1980 or so, or by IRCC this year.
I hope a good Canadian lawyer has come forward to offer her some assistance.
In reading some further information, it is apparent that Bertha Funk has not had, at least as of the time she commenced her online petition and the Star and other media publicized her story, the assistance or even advice of competent legal counsel. Again, I hope a good lawyer has come forward to offer assistance.
In addition to avenues of recourse previously discussed, it may indeed be appropriate, even expeditious, to make an application to obtain leave for judicial review of IRCC's decision denying her a certificate of citizenship. The circumstances suggest, to me, that Bertha Funk's parents made some kind of application to CIC in the early 80s, resulting in all five children, as well as the parents, having Canadian citizenship, their citizenship either being granted or recognized. Bertha was, after all, issued a certificate of citizenship and subsequently, on
two occasions, issued a Canadian passport.
Thus, it appears to me there is a fair likelihood
the error in this case was in CIC or IRCC.
The unknown facts have to do with just what process was involved when Bertha's parents made the application leading to all five children (Bertha was the youngest) becoming citizens, or being recognized as citizens . . . but at least we do know that they were either granted or recognized as citizens. Including Bertha, since she was issued a certificate of citizenship, and subsequently
twice issued passports.
At the very least, given whatever process was employed to have Bertha Funk's citizenship either granted or recognized,
that should suffice to have met the requirement of Section 8 . . . and, if it did not, CIC should have given notice that it did not.
I do not know the history of Section 27 prior to 2002, but is safe to conclude that there was similar authorization to adopt regulations
prescribing the manner in which and the place at which applications and registrations are to be made and notices are to be given . . .
. . . which of course would have to meet the requirements of fair process. Meaning, if the application made (apparently by Bertha's parents) which resulted in the grant or recognition of Bertha's citizenship did not suffice for her to obtain permanent citizenship, CIC should have given notice thereof in response to the application.
My guess is that IRCC failed to properly research its records when it rejected the application to issue a replacement citizenship certificate, or perhaps somewhere in migrating physical records to digital format, IRCC lost or overlooked that Bertha Funk was not simply deemed a citizen pursuant to her father's citizenship by descent (particularly since, given his own birth abroad before 1977, my sense is that he needed to affirmatively apply or register) but there was a formal process to assert or claim citizenship, resulting in a grant or recognition of Bertha's citizenship, which process should suffice to have met the requirements of former Section 8.
Apart from that, there is the proper notice issue:
alphazip said:
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
Thank you
alphazip for the link to Section 8 of the
Citizenship Act which was applicable from December 31, 2002 to April 16, 2009. (This provision was repealed in 2008,the repeal apparently coming into force, however, April 17, 2009. Did not apply retroactively.)
That section, Section 8, was in Part II of the
Citizenship Act prescribing the
Loss of Citizenship. This is significant. Section 8 only applies if someone is indeed a citizen. It is, thus, a provision of law which prescribed
taking away a person's rights.
It would be highly unusual indeed if the Canadian government could effectively take away a person's rights, those rights a person has by virtue of being a citizen, without notice, due process, or the right to a hearing; that is, as Section 7 in the
Charter of Rights and Freedoms states, to not be deprived of one's rights
"except in accordance with the principles of fundamental justice."
Perhaps Section 8 has never been challenged.
It was cited in the
Frankowski decision (should link), and indeed this is the only decision I have found citing Section 8. ( discussing the
Frankowski decision gets complicated but would mostly be a distraction; not really relevant because Frankowski was never a citizen even though Frankowski had the right to citizenship, if only his parents or later himself timely made the application -- it is one thing to deny a status never obtained versus taking away a person's rights as a citizen once the person is a citizen and living in Canada).
What may really matter, in terms of the Constitutional validity of Section 8, is the manner in which it is applied. (A statute may be challenged on its face, or as it is applied generally, or as it is applied in a particular situation.) While again I do not know the history of Section 27(1) prior to 2002, at the least between 2002 and January 14, 2008 (the date Bertha Funk's citizenship was stripped from her), the "application" referred to in former Section 8 was subject to the authority in Section 27(1) for the making of regulations to prescribe the manner in which and the place at which applications and registrations are to be made and notices are to be given.
Stripping a citizen of their citizenship is a big deal. It is about as big a deal as big deals go.
It seems utterly inconceivable that someone who has been issued a certificate of citizenship, and passports, and who has been living in Canada, could be stripped of their citizenship without being first given
actual notice. Not implied notice, but
actual notice.
The right to notice is one of the most important principles of fundamental justice there is.
Bertha Funk probably has no need to worry, one way or another I believe the government will promptly fix this.
