The Government of Canada introduces citizenship by descent legislation for Canadians
- Thread starter Copingwithlife
- Start date
So basically three-year physical presence (cumulative) before the birth of a child. That's quite a light requirement (not complaining, just noting). At least not a punishment of a requirement like the conservatives had pushed for, reportedly a three years in the last five years requirement.* (Which was clearly ridiculous and playing political games, I believe - also wouldn't have passed long-term legal test. Anyway I think they were just putting that up to prevent the government from getting it out of committee).
The part I admit I don't understand (to the point that it sounds to me like it's not been fully thought through or worked out): how the 'automatic' restoration of citizenship to (what they claim to be) substantially all 'Lost Canadians' will work and if there are any restrictions. Does it apply only to those who obtained/got proof of citizenship in their lifetimes? Or completely wide open (starting in what year?)? The latter implies it could be in the many millions, whereas only 20,000 or so were recognized as citizens under previous provisions. (I assume I've read it correctly that any connection test applies only to those born from time the bill passes, or whatever date meaning roughly 'now' established in the bill).
That said: government still has to pass this. I should think do-able given enough time - but I say this to warn that govt might have to compromise to get this through, so it could change.
* I admit openly I hate the previous law, as it excluded my child (now a citizen living in Canada, but citizenship via immigration - and that all not incidentally caused numerous other problems for us, but that's a separate story). I would've qualified under almost any 'substantial connections' test, 10, 15, 20 years, even plausible ones from adulthood (family returned to Canada not long after I was born). But I couldn't have qualified under that absurd conservative amendment.
The part I admit I don't understand (to the point that it sounds to me like it's not been fully thought through or worked out): how the 'automatic' restoration of citizenship to (what they claim to be) substantially all 'Lost Canadians' will work and if there are any restrictions. Does it apply only to those who obtained/got proof of citizenship in their lifetimes? Or completely wide open (starting in what year?)? The latter implies it could be in the many millions, whereas only 20,000 or so were recognized as citizens under previous provisions. (I assume I've read it correctly that any connection test applies only to those born from time the bill passes, or whatever date meaning roughly 'now' established in the bill).
That said: government still has to pass this. I should think do-able given enough time - but I say this to warn that govt might have to compromise to get this through, so it could change.
* I admit openly I hate the previous law, as it excluded my child (now a citizen living in Canada, but citizenship via immigration - and that all not incidentally caused numerous other problems for us, but that's a separate story). I would've qualified under almost any 'substantial connections' test, 10, 15, 20 years, even plausible ones from adulthood (family returned to Canada not long after I was born). But I couldn't have qualified under that absurd conservative amendment.
I'd like to see how they will verify this "1095 days before the child is born".
For citizenship grant, quite easy, people take note of their trips and it's recent data from CBSA, but what about someone who was born outside the country to Canadian citizen, came back as a baby, before the family relocated when he was, say, 6. How can that person document something 20 or 30 years later when a baby is on the way, and possibly with deceased parents and no family in Canada anymore?!
For citizenship grant, quite easy, people take note of their trips and it's recent data from CBSA, but what about someone who was born outside the country to Canadian citizen, came back as a baby, before the family relocated when he was, say, 6. How can that person document something 20 or 30 years later when a baby is on the way, and possibly with deceased parents and no family in Canada anymore?!
They've had a similar rules in place in the US as far back as I remember. Onus is on the applicant to gather enough evidence to prove the residency days. If they can't get sufficient evidence, they are SOL.
One small difference is USA rules are that this applies to ALL US citizen-parents, it's not just 'second-gen.' I think that's notable as it actually does show an example that administration of this type of requirement is not impossible, and no, discrimination against second-gen citizens/having a separate citizen class is not 'required' while still achieving the policy goal. (A similar approach for Canada would cover naturalized citizens because of the physical presence requirement for citizenship).
Now note, I don't think this means the proposed approach necessarily means a court will strike it down (and it could be years before it ever even gets challenged, because a smaller group of people who could claim standing). I think there's a plausible argument that could be made that it amounts to an exemption from the 'physical presence' requirement for those born in Canada, and that it's justified from an administrative burden requirement (i.e. would only effectively cover the small percentage of those born in Canada who don't end up residing three years or more - although this would actually address the 'birthright citizenship' football a bit).
I think the government could reduce chances of a successful legal challenge to near zero by making this requirement universal though (going forward only for those born from day of adoption of the law). Admin burden with better CBSA entry/exit records manageable - without requiring addl documents for vast majority anyway.
That said: they probably won't, would not be popular.
Good to know, and I am not familiar with US citizenship law. Thank you.
One amendment I would like to see would be the replacement of "1095 days spent in Canada", somewhat akin to the precise calculations for the citizenship grant physical presence check, by something like "3 years total period of life predominantly in Canada". There should be no need to check the CBSA reports for someone who got a 3 years bachelor degree in Canada. I suppose we'll see how they implement this in the future, and in all cases, this is premature as we don't know what the actual law will be, and when it will receive royal assent.
The US has specific rules about not only how much time the parent must have spent living in the US but also I believe it has to be after a certain age, like 15 or 16 or something. So if the time in the US was all as a toddler, citizenship won't be passed down.
Not sure I would agree that completing a Bachelor through a Canadian university proves residency. There are school (Athabasca comes to mind) that have offered distance program from the 1970s or 1989s. Pretty sure IRCC will be looking for more than that. But we will have to see.
If it’s like the US you can prove via school records, employment records, stamps in passport that prove you were in the country, etc. as a US citizen it’s been a pain for my two kids who were born in Canada, despite having spent 28 years living in the US. I would imagine Canada will be fairly similar in terms of what sort of things prove you were actually in a given country.
I looked it up recently, and it's eg five years total in USA of which minimum two over 14 yrs of age (or something similar in composition/definition.)
The US definition of time "in USA" is also broader - military service, accompanying family in govt/diplomatic service, etc., and - specific to USA definition and notably lacking from Canadian version - serving for international organizations (UN etc) abroad counts as time in USA for citizenship purposes.
So for the US it’s actually the transcript that is needed not a diploma that shows completion of a degree and the transcript shows if a semester is in-person, online, a semester abroad etc. it’s not perfect as someone could have been outside the US for a short trip etc, but I think they only carefully check if you’re near the edge. For example I had university (4 years) and high school (4years)and graduate school (5years) and employment records (3 years)so it was pretty clear I met that. My sister had to actually show with airplane receipts etc as she was cutting it much much closer
. . . new Bill same as the old Bill . . .
Here is a link to the actual text of the proposed amendments to the Citizenship Act in Bill C-3:
https://www.parl.ca/DocumentViewer/en/45-1/bill/C-3/first-reading
Again, nothing new here . . . At a glance obviously proposed Bill C-3 is substantially (almost verbatim actually) the same as the proposed amendments to the Citizenship Act in Bill C-71, as proposed in the 44th Session of Parliament more than a year ago; noting in particular that the provisions regarding those born abroad, and what constitutes a "substantial connection" based on physical presence for at least 1095 days, are exactly the same as what was previously proposed.
So the only thing new here is that the legislation that was proposed just over a year ago (Bill C-71) is again proposed in the current session of Parliament as Bill C-3. (Differences appear to be limited to contextual details, such as where Bill C-71 referred to the Act as amended by the legislation proposed in the 2024 Bill, the current legislation proposed in Bill C-3 refers to the legislation proposed in Bill C-3 in 2025; and this version drops, as unnecessary, coordinating provisions with a no longer pending Senate Bill from the previous session.)
Thus, to the extent it was relevant at the time, all the previous commentary (and there is a lot of it) addressed to what was proposed a year ago remains relevant to this proposed legislation. Again, nothing new here other than the fact the same proposed legislation is again on the table.
If Enacted, What Does It Do?
Foremost, See Authoritative Sources of Information About The Proposed Changes:
The Bill itself is difficult to read, as proposed legislation tends to be, even for jurists, even for those of us with decades of experience digesting newly adopted legislation to compose coverage in treatises and other publications geared toward providing information especially for lawyers (not the general public), such as legal encyclopedias (deep into boring as boring gets; weedy, wonky, deathly dull).
So, for most questions, in addition to the commentary about the previous bill (Bill C-71 as proposed in the 44th Session of Parliament), good idea to start with government information geared for the public, including in particular the information about the proposed changes and interim measures provided by IRCC, including the following:
Information about Bill C-71; old Bill same as the new Bill, so also good source of information about what Bill C-3 proposes):
Note: current law, subject to current interim measures, applies until at least November 20, 2025 (pursuant to judicial suspension) unless enacted amendments take effect before that; other side of that coin is the prospect that if the law is not changed by then, the current FGL becomes invalid, and . . . well what that would do is a big subject in itself.
Key Further Reference: The decision invalidating current law provides key context for what is proposed; that is Bjorkquist et al. v. Attorney General of Canada, 2023 ONSC 7152, which is here: https://canlii.ca/t/k1vdj
Important and Useful Sources Beyond That: There's more, way more sources of good information, than even most wonky, weedy, detail-diggers focused on figuring things out, are likely to give attention. Lots to consider. Lots that is informative. For more politically oriented context/background, for example, see Parliament speeches and transcripts of Senate committee sessions. There is, for example, an extensive sample of discussions about Bill C-71 by the then IRCC Minister and representatives from other parties, including the NDP (supporting the Bill), Bloc Québécois (supporting the Bill), Green Party (supporting the Bill) and the Conservatives (CPC, who in addition to mostly criticizing the Liberals and IRCC and going on at length in other off-topic diatribe, oppose the Bill generally and the cumulative 1095 day presence test in particular, proposing a draconian consecutive 1095 days presence test) in a transcript of speeches in Parliament attendant a motion to give the Bill a Second Reading, September 16 last year For that in particular, scroll down to speeches about the proposed amendments to the Citizenship Act here:
Political Note: Not sure if it was in Parliament speeches just linked or another meeting, but in addition to the many methods employed by the CPC to block the Bill's progress, there is reference to the filibustering done by the CPC to block a Senate Bill which had made a lot of progress toward getting adopted, Bill S-245, which had been tabled back in 2022 (well before the Bjorkquist decision) and which would also have addressed and at least partially resolved (albeit in a different way) the unconstitutional First-Generation-Limitation (FGL, also referred to as the Second-Generation Cutoff) adopted by the Conservative (Harper) government in 2009. Among spurious arguments seen in CPC opposition to both Bills, the CPC has repeatedly argued that because the Liberal party voted to pass Bill C-37 in 2009 (the Bill which at least significantly, even if not sufficiently, made a long overdue effort to resolve the "Lost Canadians" problem, which Harper's government conditioned on including the FGL) that means the Liberals cannot reasonably propose legislation to change the law, not only as if the Bjorkquist decision either does not exist or is without effect, as if there is no compelling need for the law to be amended, but as if voting for flawed legislation (such as Bill C-37 in 2009) forever precludes a political party from fixing the flaws.
A Word About Pros and Cons:
In regards to the pros and cons of the proposed amendments to the Citizenship Act in Bill C-3, which is mostly (but not exclusively) about reconciling the law governing citizenship by descent applicable to persons born outside Canada (current law definitively excluding second generation born abroad, regardless of Canadian connections, being unconstitutional), I will defer to others.
The Issues . . . to be continued . . . from will this pass to what will establish physical presence sufficient to confer citizenship . . .
Here is a link to the actual text of the proposed amendments to the Citizenship Act in Bill C-3:
https://www.parl.ca/DocumentViewer/en/45-1/bill/C-3/first-reading
Again, nothing new here . . . At a glance obviously proposed Bill C-3 is substantially (almost verbatim actually) the same as the proposed amendments to the Citizenship Act in Bill C-71, as proposed in the 44th Session of Parliament more than a year ago; noting in particular that the provisions regarding those born abroad, and what constitutes a "substantial connection" based on physical presence for at least 1095 days, are exactly the same as what was previously proposed.
So the only thing new here is that the legislation that was proposed just over a year ago (Bill C-71) is again proposed in the current session of Parliament as Bill C-3. (Differences appear to be limited to contextual details, such as where Bill C-71 referred to the Act as amended by the legislation proposed in the 2024 Bill, the current legislation proposed in Bill C-3 refers to the legislation proposed in Bill C-3 in 2025; and this version drops, as unnecessary, coordinating provisions with a no longer pending Senate Bill from the previous session.)
Thus, to the extent it was relevant at the time, all the previous commentary (and there is a lot of it) addressed to what was proposed a year ago remains relevant to this proposed legislation. Again, nothing new here other than the fact the same proposed legislation is again on the table.
If Enacted, What Does It Do?
Foremost, See Authoritative Sources of Information About The Proposed Changes:
The Bill itself is difficult to read, as proposed legislation tends to be, even for jurists, even for those of us with decades of experience digesting newly adopted legislation to compose coverage in treatises and other publications geared toward providing information especially for lawyers (not the general public), such as legal encyclopedias (deep into boring as boring gets; weedy, wonky, deathly dull).
So, for most questions, in addition to the commentary about the previous bill (Bill C-71 as proposed in the 44th Session of Parliament), good idea to start with government information geared for the public, including in particular the information about the proposed changes and interim measures provided by IRCC, including the following:
-- News release June 5, 2025 here:
-- Backgrounder information for Bill C-3 here:
-- Information regarding extension of interim measures posted in March (updated in April) here:
-- Current IRCC information for finding out if a person born outside Canada but not a Canadian citizen (under current law) is eligible to apply (under current interim measure) for a discretionary grant of citizenship, here:
Information about Bill C-71; old Bill same as the new Bill, so also good source of information about what Bill C-3 proposes):
-- Backgrounder for Bill C-71 is here:
-- Bill C-71 Overview – December 5, 2024 is here:
-- For context/background, also see IRCC's information about Bjorkquist decision here:
-- IRCC Q&A re Bill C-71 is here:
-- For context/background, also see IRCC's information about history of "Lost Canadians" here:
Note: current law, subject to current interim measures, applies until at least November 20, 2025 (pursuant to judicial suspension) unless enacted amendments take effect before that; other side of that coin is the prospect that if the law is not changed by then, the current FGL becomes invalid, and . . . well what that would do is a big subject in itself.
Key Further Reference: The decision invalidating current law provides key context for what is proposed; that is Bjorkquist et al. v. Attorney General of Canada, 2023 ONSC 7152, which is here: https://canlii.ca/t/k1vdj
Important and Useful Sources Beyond That: There's more, way more sources of good information, than even most wonky, weedy, detail-diggers focused on figuring things out, are likely to give attention. Lots to consider. Lots that is informative. For more politically oriented context/background, for example, see Parliament speeches and transcripts of Senate committee sessions. There is, for example, an extensive sample of discussions about Bill C-71 by the then IRCC Minister and representatives from other parties, including the NDP (supporting the Bill), Bloc Québécois (supporting the Bill), Green Party (supporting the Bill) and the Conservatives (CPC, who in addition to mostly criticizing the Liberals and IRCC and going on at length in other off-topic diatribe, oppose the Bill generally and the cumulative 1095 day presence test in particular, proposing a draconian consecutive 1095 days presence test) in a transcript of speeches in Parliament attendant a motion to give the Bill a Second Reading, September 16 last year For that in particular, scroll down to speeches about the proposed amendments to the Citizenship Act here:
Political Note: Not sure if it was in Parliament speeches just linked or another meeting, but in addition to the many methods employed by the CPC to block the Bill's progress, there is reference to the filibustering done by the CPC to block a Senate Bill which had made a lot of progress toward getting adopted, Bill S-245, which had been tabled back in 2022 (well before the Bjorkquist decision) and which would also have addressed and at least partially resolved (albeit in a different way) the unconstitutional First-Generation-Limitation (FGL, also referred to as the Second-Generation Cutoff) adopted by the Conservative (Harper) government in 2009. Among spurious arguments seen in CPC opposition to both Bills, the CPC has repeatedly argued that because the Liberal party voted to pass Bill C-37 in 2009 (the Bill which at least significantly, even if not sufficiently, made a long overdue effort to resolve the "Lost Canadians" problem, which Harper's government conditioned on including the FGL) that means the Liberals cannot reasonably propose legislation to change the law, not only as if the Bjorkquist decision either does not exist or is without effect, as if there is no compelling need for the law to be amended, but as if voting for flawed legislation (such as Bill C-37 in 2009) forever precludes a political party from fixing the flaws.
A Word About Pros and Cons:
In regards to the pros and cons of the proposed amendments to the Citizenship Act in Bill C-3, which is mostly (but not exclusively) about reconciling the law governing citizenship by descent applicable to persons born outside Canada (current law definitively excluding second generation born abroad, regardless of Canadian connections, being unconstitutional), I will defer to others.
Note: With some but very few exceptions (such as in regards to PR/refugee cessation) I try to focus on what the law is, how it is interpreted and applied, trying to avoid confusing discussion of what-is with should-be questions.
The Issues . . . to be continued . . . from will this pass to what will establish physical presence sufficient to confer citizenship . . .
The Issues With Bill C-3 (same as with Bill C-71, proposed more than a year ago) . . .
Some belated but nonetheless just preliminary observations about what is at stake, what is happening, what will happen, the issues . . .
What the Law Should Be Issues:
Pros and Cons; should these provisions be or not be adopted?
-- without further amendment?
-- with further amendment?
-- -- if with further amendment, how so? (so far only the CPC has opposed the cumulative 1095 days presence test, proposing a far more strict hurdle, a draconian consecutive 1095 days presence test)
Should an entirely different test be adopted to define what constitutes "substantial connection" sufficient to confer citizenship on persons born outside Canada? Apart from the draconian CPC 1095 consecutive days present test, for a list with description of other prospective approaches see the Bjorkquist decision, which includes descriptions of approaches in the U.S., the UK, and in Australia, noting however the court favorably refers to a 1095 days within five years test and describes it as "a simple, clear rule, and familiar because it is similar to the requirement for immigrants seeking Canadian citizenship."
As I previously commented, I will not pay much attention to these what-should-be-the-law issues . . . other than to acknowledge them. And to note why the consecutive 1095 days presence test is far too draconian to consider, noting for example that just periodic long weekend trips to the states could preclude meeting this test even if the parent was well settled and living in Canada for many, many years. That test will not fly. Whether the proposed test or some other test should be adopted, again I will defer such questions to others.
Issues In Regards To Whether Bill C-3 Will Be Adopted, and What Will Influence This:
So far, except for the CPC, there appears to be solid support for this legislation. In particular, in addition to the governing Liberal Party tabling this legislation, all others, other than the CPC, have previously expressed support for the passage of these provisions (again, exactly these provisions), most of it very solid support (as in "get-it-done" already). Given this, the more likely issue is what if any amendments to the Bill will be made, and very importantly, WHEN will the Citizenship Act be amended to remedy the unconstitutionality of the FGL? The latter, when, will likely depend on the extent to which the CPC continues to employ the tactics it used to delay adoption of former Bill S-245 and stall progress on former Bill C-71.
I am reluctant to speculate about whether the CPC might force a game of chicken, forcing delays that risk passing the November deadline, in effect using the deadline in an attempt to force the Liberals to compromise and adopt a more strict test for what will be a sufficient connection to Canada warranting the grant of citizenship to a second-generation born abroad person. The CPC did engage in such delaying tactics last year, and the court extended its previous deadlines. Not sure how accommodating the court will continue to be if passing the Bill continues to be stalled.
Note: while it is hard to forecast whether the court will grant further extensions if passage is delayed, it is very likely that the court will grant a further extension pending a later actual implementation date . . . given the logistics of actually implementing such changes, the Governor- general will need to allow IRCC a significant period of time to do this following adoption of the changes, so even if this Bill is expedited without CPC opposition, it is unlikely it could be adopted and then implemented before the current November deadline. That is, as long as a Bill is passed, or at least clearly on track to get timely adopted, the court is likely to extend the suspension of its order invalidating the FGL, even if actual implementation will not happen before next year.
Whether some other approach is likely to be adopted . . . spoiler alert, so far it does not appear there is much if any inclination at all to even consider, let alone any significant support for adopting the U.S. or UK or Australian approaches; not in the speeches in Parliament, not in committee meetings, for either the Senate Bill S-245 or Bill C-71. Especially not the U.S. approach.
Not sure why many here give much weight to what the U.S. does, but even before the Trumpian 51st State rhetoric rendered following what the U.S. does a virtual do-not-touch third-rail in Canadian politics, as far as I have seen not even Conservatives have so much as suggested any aspect of the U.S. approach here. Of course I have not read transcripts of all 30 hours of filibustering the CPC apparently did to block S-245, but reports of it do not indicate much if any favorable citation of what the U.S. does, and again that was before the 51st state stuff . . . and, moreover, there is a huge difference in U.S. citizenship compared to Canada, birthright citizenship being a constitutional right in the U.S., whereas there is no constitutional birthright citizenship in Canada, citizenship here being a privilege afforded by statute.
Validity -- will the cumulative 1095 day presence test pass constitutional/charter scrutiny?
This one is easy. Yeah, it will, easily. There is near universal agreement among the political parties and what IRCC calls "stakeholders," and the Bjorkquist court, that even a more strict physical presence test would make the Citizenship Act Charter compliant (CPC appears to still maintain the FGL, the current law, is Charter-compliant, and for sure argues that a very strict consecutive 1095 days presence test would be Charter compliant, let alone the rather minimal hurdle that Bill C-3 proposes). Moreover, remember, it took well over a decade to get a court to even consider whether the current Act is Charter compliant in regards to the FGL. And here too, perhaps even more so, the fact that in Canada citizenship is a privilege, granted by statute, not a constitutional right, looms large, lowering the bar for what is Charter compliant considerably.
Nonetheless, questions about this warrant addressing. In due course.
Establishing/proving 1095 days of physical presence:
This might be the big issue, except . . .
I expect, in a subsequent post, to more fully address what many may consider the main issue, or at least the issue that appears to loom large among more than a few here, and that is what will establish (or prove) a parent's physical presence for 1095 days. Caveat: I am not sure there is a real issue here (other than individual case specific, particular balance of probabilities questions that typically arise, and are routinely adjudicated, in cases where facts are contested) given the extensive experience IRCC has adjudicating applications and other processes that depend on assessing evidence of physical presence, including calculation of the number of days, and the Federal Court in reviewing such decisions. That experience includes adjudicating PR RO compliance based on physical presence for the past quarter century, as well as adjudicating PR applications for citizenship in many if not most citizenship cases for nearly a half century, but also as the definitive, dispositive determination of physical presence required for applications made since June 2015.
Moreover, the gist of it is not complicated, the crux of it already been observed, as @scylla commented:
Except that, under the proposed rule, mere presence is sufficient even if the total consists entirely of days here during visits to Canada, counting even days here for very short visits; no need for any sustained period of residency in Canada.
A lot more can be said about establishing presence, but it warrants remembering that CIC/IRCC and the Federal Courts have had extensive experience, for decades, applying a balance of probabilities burden of proof standard in regards to counting days PRs are physically present in Canada. There is little hint this will be a big issue generally.
