With the new changes to the Citizenship Act and Bill C-24, applicants have new concerns. People wonder what would happen if after becoming Canadian citizens they are offered a job overseas or if they decide to go back to their native lands for several years.
The media has done a great job alarming the population and talking about the so-called “second-class Canadian citizen”. The issue here would be to determine whether a “second-class Canadian citizen” really exists and if so; what that actually means.
Regularly, people tend to think that a naturalized Canadian is a de facto “second-class citizen”, however, this is not necessarily true. Parliament intended to have Bill C-24 to be applied as a protective measure and it created a means to get rid of Canadian citizens (born in or naturalized) whose intentions are to harm our country. It is not true that minor offences will be used to revoke Canadian citizenship and as long as you (or your children) are not terrorists or are planning to commit crimes against humanity, you should be fine.
On the other hand, assuming that a second-class exists, the fact that the Feds wish to remove someone from Canada does not mean it is really happening. The other jurisdiction would need to agree in receiving the national and principles of international law, extradition, human rights and so on, would be applicable. Therefore, I am sure the Canadian government is going to think more than twice prior to consider removing a national. Or do you think that most countries in the world will welcome back with open arms the nationals convicted in Canada of a very serious crime just because our government says so?
I understand that when the Bill C-24 passed the first couple of readings back in 2014, activists and even the Canadian Bar Association advocated against the Bill. However, at that point, there was still some misconception of the final provisions of the Bill and no constitutional matters had been taken deeply into consideration or clarified by the Federal government. At that point, no one had certainty in regards to what the object of the Act and the intention of Parliament were going to be.
Regarding the provision of the intention to reside in Canada, there is a lot of misinformation as well.
Paragraph 5(1)(c.1) of the Citizenship Act, as amended by the Strengthening Canadian Citizenship Act (SCCA), states that an applicant must intend, if granted citizenship,
- to continue to reside in Canada;
Subsection 5(1.1) of the Act states that for the purposes of paragraphs 5(1)(c.1) and 11(1)(e), the person’s intention must be continuous from the date of their application until they have taken the Oath of Citizenship.
The problem arises when new citizens believe that they are bound to stay in Canada for the rest of their lives. As I mentioned above, the intention factor ends when the Oath of Citizenship is taken.
One needs to understand that the Canadian Charter of Rights and Freedoms is paramount to Bill C-24; and that Subsection 5(1.1) of the Act cannot be saved under Section 1 of the Charter. In order to prove my statement an Oakes Test would need to be conducted and that is a matter of constitutional law, therefore it is rather complex to do it here. However, in order to summarize the test in this matter and to illustrate my saying, I will explain it as follows:
1) Section 6 of the Canadian Charter of Rights and Freedoms allows Canadian citizens (whether born in Canada or naturalized) to enter, remain in, and leave Canada.
2) Section 1 of the same Charter confirms that the rights listed in the Charter are guaranteed, however, this section is also known as the “reasonable limits clause” or “limitations clause”, as it legally allows the government to limit an individual’s Charter rights.
For example, Section 2 covers the fundamental freedoms, including freedom of expression, however, hate speech is forbidden; and this is a legal limitation of the freedom of expression that is saved and upheld under Section 1, because in order to create a harmonious society, the government is entitled to ban hate speech.
3) The government has failed to show a legal or compelling justification to limit the mobility rights provided in Section 6 of the Charter to a Canadian citizen. Therefore, Section 6 prevails and a Canadian citizen cannot be forced to live in Canada after becoming a citizen.
The rationale behind the intention to reside in Canada before taking the Oath has as an object to encourage applicants to create ties in Canada that are strong enough that they will not be tempted to leave Canada after becoming citizens. Again, as citizens they are fully protected under Section 6 of the Charter, therefore, the intention to reside is created to screen applicants who in colloquial words are considered “professional passport collectors”.
In Re Pourghasemi,  F.C.J. No. 232 (T.D.), Mr. Justice Muldoon considered that it was necessary for a potential citizen to establish the he or she has been physically present in Canada for the required time.
“It is clear that the purpose of paragraph 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become “Canadianized.” This happens by “rubbing elbows” with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples – in a word wherever one can meet and converse with Canadians – during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook… So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else.”
The new requirement to be physically present in Canada for a year longer than what it used to be and the intent to reside in Canada must not alarm applicants. What really matters is the protection that the Charter confers and the Act does not have an objective to make people stay but to build stronger roots within Canadian society. The INTENT to reside must be genuine at the time of applying, however, this does not mean that the INTENTION cannot change at a later date.
By: Maria Campos Ozaine LL.M.
Regulated Canadian Immigration Consultant