Challenge to the 2004 deadline for delayed registration of birth abroad

[aaronl1]

Heres my situation:

After months of research into Canadian nationality law, I have determined that my mother and I were entitled to Canadian citizenship but lost that right in 2004 when we failed to register our births with the Canadian government. We didn't even know we had the right to Canadian citizenship, so how could we be expected to register by this cutoff date? I really want to get a Canadian passport, so I'm looking into the possibility of challenging the 2004 deadline in court. I've spent hours looking online, and it doesn't seem anyone has attempted this before.

Does anyone have any recommendations for an attorney or law firm? I spoke to a Canadian attorney on the phone today and they said I'd need a lawyer that specializes in federal appeals.

For those interested, basically here is my lineage and the explanation of how we were entitled to Canadian citizenship but lost that right in 2004.

My great grandfather was born a British Subject in Canada in 1889, he moved to the United States and never became a U.S. citizen. He was therefore still a British Subject at the time of my grandfather's birth in 1929. As the foreign-born child of a Canadian-born British Subject, my grandfather became a Canadian citizen in 1947, when Canadian citizenship was introduced, and remained a Canadian citizen his whole life, though he was unaware of this fact. This means that my grandfather was a Canadian citizen at the time of my mother's birth in 1963. Before 2009, Canadian law granted citizenship by descent through the paternal line without limitation to the number of generations, so long as each generation was born in wedlock. However, births were required to be registered with the Canadian government within 2 years. This never happened in my mothers case as my grandfather didn't even know he was a Canadian citizen, much less that he had two years to register my mother's birth with the government of Canada so she too could have Canadian citizenship. However, in 1977, the Canadian government allowed for delayed registration of birth abroad for those in the second or subsequent generations, and if registered, the person's citizenship would be recognized retroactively starting from their birth. But, this provision expired in 2004, leaving my mom now with no pathway to Canadian citizenship, despite being the child of a Canadian citizen. Had we been aware of this possibility and my mother registered her birth before 2004, she would have been retroactively reocgnized as a Canadian citizen starting from her birth, making her a Canadian citizen at the time of my birth in 2002, making myself a Canadian citizen too.



So essentially, we could have become Canadian citizens, but missed the opportunity in 2004. I don't see how this is fair, how could they expect us to act on that opportunity if we didn't even know about it? I want to try to challenge this in court. What is everyone's thoughts?

 

[hawk39]

Heres my situation:

After months of research into Canadian nationality law, I have determined that my mother and I were entitled to Canadian citizenship but lost that right in 2004 when we failed to register our births with the Canadian government. We didn't even know we had the right to Canadian citizenship, so how could we be expected to register by this cutoff date? I really want to get a Canadian passport, so I'm looking into the possibility of challenging the 2004 deadline in court. I've spent hours looking online, and it doesn't seem anyone has attempted this before.

...

So essentially, we could have become Canadian citizens, but missed the opportunity in 2004. I don't see how this is fair, how could they expect us to act on that opportunity if we didn't even know about it? I want to try to challenge this in court. What is everyone's thoughts?

First off, unfortunately, ignorance is not an excuse for the law. The laws were published and made accessible to the public back then, so 'saying that you did not know they laws existed' is not an accepted legal principle. If your reasoning was accepted, it would basically open up citizenship for anyone who had a Canadian ancestor, which is against the basis of the first-generation limit of the current Act and the requirements of the previous Acts.

Before 2009, Canadian law granted citizenship by descent through the paternal line without limitation to the number of generations, so long as each generation was born in wedlock.

Out-of-wedlock mothers could also pass on citizenship. This and the in-wedlock paternal link were repeal with the 1977 Act.

However, in 1977, the Canadian government allowed for delayed registration of birth abroad for those in the second or subsequent generations, and if registered, the person's citizenship would be recognized retroactively starting from their birth.

Delayed registration was open to anyone born prior to the 1977 Act that was obligated to the two-year registration period, which is anyone born abroad after the Commencement of the 1947 Act; this was not exclusive to second or subsequent generations.

As the foreign-born child of a Canadian-born British Subject, my grandfather became a Canadian citizen in 1947, when Canadian citizenship was introduced, and remained a Canadian citizen his whole life, though he was unaware of this fact. This means that my grandfather was a Canadian citizen at the time of my mother's birth in 1963.

Now legally, I believe your grandfather was required under section 6 of the 1947 Act to make a declaration to retain his Canadian citizenship and to renounce his American citizenship at age 21. However, since it seems that he did not know about these requirements, he would have lost his citizenship one year later, and was not a Canadian citizen when your mother was born. Therefore, I do not believe you and your mother were ever entitled to citizenship by descent.

 

[canuck91]

Did your Grandfather ever get proof of his Canadian citizenship? That seems like your first step here.

 

[Copingwithlife]

Heres my situation:

After months of research into Canadian nationality law, I have determined that my mother and I were entitled to Canadian citizenship but lost that right in 2004 when we failed to register our births with the Canadian government. We didn't even know we had the right to Canadian citizenship, so how could we be expected to register by this cutoff date? I really want to get a Canadian passport, so I'm looking into the possibility of challenging the 2004 deadline in court. I've spent hours looking online, and it doesn't seem anyone has attempted this before.

Does anyone have any recommendations for an attorney or law firm? I spoke to a Canadian attorney on the phone today and they said I'd need a lawyer that specializes in federal appeals.

For those interested, basically here is my lineage and the explanation of how we were entitled to Canadian citizenship but lost that right in 2004.

My great grandfather was born a British Subject in Canada in 1889, he moved to the United States and never became a U.S. citizen. He was therefore still a British Subject at the time of my grandfather's birth in 1929. As the foreign-born child of a Canadian-born British Subject, my grandfather became a Canadian citizen in 1947, when Canadian citizenship was introduced, and remained a Canadian citizen his whole life, though he was unaware of this fact. This means that my grandfather was a Canadian citizen at the time of my mother's birth in 1963. Before 2009, Canadian law granted citizenship by descent through the paternal line without limitation to the number of generations, so long as each generation was born in wedlock. However, births were required to be registered with the Canadian government within 2 years. This never happened in my mothers case as my grandfather didn't even know he was a Canadian citizen, much less that he had two years to register my mother's birth with the government of Canada so she too could have Canadian citizenship. However, in 1977, the Canadian government allowed for delayed registration of birth abroad for those in the second or subsequent generations, and if registered, the person's citizenship would be recognized retroactively starting from their birth. But, this provision expired in 2004, leaving my mom now with no pathway to Canadian citizenship, despite being the child of a Canadian citizen. Had we been aware of this possibility and my mother registered her birth before 2004, she would have been retroactively reocgnized as a Canadian citizen starting from her birth, making her a Canadian citizen at the time of my birth in 2002, making myself a Canadian citizen too.



So essentially, we could have become Canadian citizens, but missed the opportunity in 2004. I don't see how this is fair, how could they expect us to act on that opportunity if we didn't even know about it? I want to try to challenge this in court. What is everyone's thoughts?

If you have thousands of dollars to spend , letter rip

 

[hawk39]

Did your Grandfather ever get proof of his Canadian citizenship? That seems like your first step here.

First step towards what? Just as is your situation, even if the OP's grandfather had proof of citizenship, the OP's mother did not have her birth registered within two years of her birth or during the delayed registration period. Before the 1977 Act, citizenship by descent was not automatically passed on; it had to be registered. The OP understands this and is seeing if he/she can sue the Canadian government to repeal the registration requirement to retroactively be granted citizenship on the basis of ignorance of the applicable laws.

 

[canuck91]

It would be the first step needed in order for the lawsuit to have any merit. If the OP cannot prove their citizenship lineage, then they'd have no standing to appeal in the first place.

I'd argue there's a good case here. If you look at the legal context from 1977 forward, there were sex-based policy-decisions on who was entitled to register their birth under which provision. Those born to Canadian fathers in wedlock/mothers out of wedlock were entitled to register under subsection 3(1)(e), and were considered Canadian citizens since birth. Those born to Canadian mothers in wedlock had to apply for a grant of citizenship, akin to the nautralization process (with the oath and background checks included, the latter of which was removed after Benner v. Canada where the courts deemed it unconstitutional). Additionally, those who applied for citizenship under section 5(2)(b) were only considered citizens from the date their application was approved, and any children born before that date were not eligible to register.

However, those born out of wedlock to Canadian fathers were barred from registering until the May 2004 Augier v. Canada case, which deemed it unconstitutional to bar the children of unwed Canadian fathers from registering their births. But then three months later, the government shut down both registration clauses (on August 14th, 2004), claiming the clause was a temporary provision.

This is a clear-cut case of the Canadian Government protecting themselves against future litigation, which realistically, is why they shut down the program. 3(1)(e) and the 5(2)(b) grant were still discriminatory after May 2004, as different sets of rules were still applied to the two separate clauses (on the basis of sex). And ultimately, if the program continued, it would open up the pathway to further lawsuits, which would ultimately require that portion of the Citizenship Act to be rewritten entirely.

What would be interesting for the courts to redress would be with Charter violations (s. 6, 7 and 15 come to mind, for example). The Oakes Test would need to be applied in reagrds to whether these violations are saved under s. 1. There's a 4 step process here:

1. Substantive legislative objective
2. Proportionality between the objective and the means used to achieve it
3. Rational Connection
4. Minimal Impairment

So in effort to ameliorate the sex-based discrimination policies, the Canadian government attempted to rectify the situation by barring everyone from registering, rather than introducing new amendments to the Citizenship Act that could make the registration clause more equitable. While there may be legislative intent and a rational connection, the test seems to fail when it comes to proportionality and minimal impairment.

Long story short, it seems that it would not be difficult for the Superior Court to overturn the policy if such a case were to be presented. With the recent ruling on citizenship by descent and the 'second generation cutoff', the consensus of these rules and their legality is certainly changing. So ultimately, time will tell.

 

[hawk39]

It would be the first step needed in order for the lawsuit to have any merit. If the OP cannot prove their citizenship lineage, then they'd have no standing to appeal in the first place.

I'd argue there's a good case here. If you look at the legal context from 1977 forward, there were sex-based policy-decisions on who was entitled to register their birth under which provision. Those born to Canadian fathers in wedlock/mothers out of wedlock were entitled to register under subsection 3(1)(e), and were considered Canadian citizens since birth. Those born to Canadian mothers in wedlock had to apply for a grant of citizenship, akin to the nautralization process (with the oath and background checks included, the latter of which was removed after Benner v. Canada where the courts deemed it unconstitutional). Additionally, those who applied for citizenship under section 5(2)(b) were only considered citizens from the date their application was approved, and any children born before that date were not eligible to register.

However, those born out of wedlock to Canadian fathers were barred from registering until the May 2004 Augier v. Canada case, which deemed it unconstitutional to bar the children of unwed Canadian fathers from registering their births. But then three months later, the government shut down both registration clauses (on August 14th, 2004), claiming the clause was a temporary provision.

This is a clear-cut case of the Canadian Government protecting themselves against future litigation, which realistically, is why they shut down the program. 3(1)(e) and the 5(2)(b) grant were still discriminatory after May 2004, as different sets of rules were still applied to the two separate clauses (on the basis of sex). And ultimately, if the program continued, it would open up the pathway to further lawsuits, which would ultimately require that portion of the Citizenship Act to be rewritten entirely.

What would be interesting for the courts to redress would be with Charter violations (s. 6, 7 and 15 come to mind, for example). The Oakes Test would need to be applied in reagrds to whether these violations are saved under s. 1. There's a 4 step process here:

1. Substantive legislative objective
2. Proportionality between the objective and the means used to achieve it
3. Rational Connection
4. Minimal Impairment

So in effort to ameliorate the sex-based discrimination policies, the Canadian government attempted to rectify the situation by barring everyone from registering, rather than introducing new amendments to the Citizenship Act that could make the registration clause more equitable. While there may be legislative intent and a rational connection, the test seems to fail when it comes to proportionality and minimal impairment.

Long story short, it seems that it would not be difficult for the Superior Court to overturn the policy if such a case were to be presented. With the recent ruling on citizenship by descent and the 'second generation cutoff', the consensus of these rules and their legality is certainly changing. So ultimately, time will tell.

Please explain how a Charter violation can make one ignorant of the law. The OP's grandfather was required and had the opportunity to make a declaration to retain his citizenship and the mother would have had the opportunity and been required to register her birth had he made a declaration. The laws were accessible and made public to everyone. Instead of contacting a consulate or embassy and inquiring about their citizenship status at that time, the thought seemed to never have crossed their minds. Only because of the OP's selfish desire for a passport has the question been raised, but the law is pretty clear (as stated in Augier that the officer correctly applied the law when the applicant's application we initially rejected). 'The train has left the station' 77 years ago.

4(3)(b) of the 1977 Act made the delayed registration period temporary, and 5(2)(b) after modification was not repealed until the 2009 Act. Whether you think it was pulled because of Augier is pure speculation.

The recent ruling and proposed bill were based on the judge's clever interpretation of a Charter violation (i.e. inequality as a result of the female biological clock), whereas the OP's case is purely a failure to follow the law. Given that the OP is third generation born abroad, with his/her previous two generations never having any substantial direct connection to Canada, I hope that the consensus you speak of is not forgiving to someone so far removed or unconnected to Canada.

 

[armoured]

The OP's grandfather was required and had the opportunity to make a declaration to retain his citizenship and the mother would have had the opportunity and been required to register her birth had he made a declaration.

Whatever one might think about whether gender-related challenges are 'clever' or substantive, I think the basic legal principal of legal sanctimony parsimony (or in plain language, "don't decide stuff you don't need to decide") would apply. And in order of operations, if the grandfather didn't retain his citizenship, then the entire idea is dead in the water. So in that sense, that's the first thing to check.

And I agree here that it seems (on the face of it) that he didn't, and therefore the whole idea of the next step is a nullity.

[edit: laughing at mysefl as I wrote legal 'sanctimony' and not parsimony - so edited that]