The story of the “lost Canadians”
Ashley Mantha-Hollands (European University Institute)
In their kick off piece to this forum debate David Owen and Rainer Bauböck give three reasons why states might offer citizenship as “reparations”, i.e., to make good for past wrongdoings. The reasons that they lay out are i) forced exile; ii) lost territory; and iii) group discrimination. In their important contribution, Jocelyn Kane and Patti Tamara Lenard add that accepting citizenship refusal should also be seen as a form of reparations in settler colonial states.
In my response, and to keep the focus of the forum on Canada for a little longer, I will discuss the third reason and explore the phenomenon of “lost Canadians” who are persons (as well as subsequent generations of their descendants) who have either lost or never acquired citizenship because of discriminatory provisions in Canadian citizenship law. At one point, there was an estimate of up to 1 million “lost Canadians” both within Canada and abroad. The term became popularised especially since 2004, when the Western Hemisphere Travel Initiative came into force, requiring Canadians to get a passport to travel to the United States. Many people realised upon application that despite considering themselves as such, they had actually never been legally Canadian citizens.
I will begin my contribution with a brief sketch of the historical context to explain who was considered as a “lost Canadian” prior to 2008. The second section will describe the recent decision by the Ontario Superior Court (2024) that amended the Canadian Citizenship Act and restored citizenship to the second generation of Canadians born abroad. The final section will hopefully invigorate the debate with some skepticism about the true motives of the state to extend citizenship to this group.
Who are the ‘Lost Canadians’?
The story of the “lost Canadians” is a story of the evolution of Canadian citizenship law and the attempted removal of the gender discriminatory barriers to citizenship that were created by the Citizenship Act of 1947. It should be noted that this was Canada’s first “official” Citizenship Act. Prior to this, the status of “Canadian citizen” was created under the Immigration Act of 1910, the Naturalization Act of 1914, and the Canadian Nationals Act of 1921, which designated as Canadian citizens British subjects who had been born or naturalised in Canada. There were undoubtedly problematic measures in this previous legislation. For example, the Immigration Act of 1910 allowed authorities to prevent certain categories of immigrants from settling in Canada. And in the pre-WWII period, there was a denaturalisation campaign for people from “enemy countries” and “foreign-born activists.” One group that did, however, have their citizenship repaired were Japanese Canadians who were forcibly relocated after the Second World War. In 1988, they received an apology from the government which included a reinstatement of citizenship as well as for their descendants. None of the categories discriminated under these early legislations are generally included in the “lost Canadian” discourse.
The 1947 Act was part of a general push from the government to alleviate the ethnic and racial tensions that had grown after the Second World War and to foster an independent Canadian national identity. The act outlined the different circumstances by which Canadian citizenship could be acquired or lost. While the law made it possible for women to retain their Canadian citizenship if they married a foreigner, women could not transmit Canadian citizenship to their children if they were born abroad. Other groups that would not be eligible for Canadian citizenship were “war brides” and their children, children born abroad out of wedlock, and persons born to a parent on military service outside of Canada.
The next phase of Canadian citizenship legislation was the passing of the 1977 Citizenship Act. Part of the goal of the act was to fix some of the discriminatory provisions in the 1947 Act. For instance, it emphasised equal treatment between men and women. As of 1977, citizenship could be transmitted by either the mother or the father to children born abroad. However, the second-generation born abroad needed to affirm their Canadian citizenship by the age of 28. Dual citizenship also became permitted. This fixed some, but not all, of the discriminatory clauses, and the reform was not applied retroactively. Therefore, those who had been disenfranchised remained so. For example, some children of “war brides”, some children born outside of Canada, and some children born out of wedlock were still not able to gain Canadian citizenship. Mennonites who have a complicated story of relocation/return to Canada were also still refused citizenship.
The early 1980s saw a push towards further equality inducing measures. Canada ratified the UN Convention on the Elimination of All Forms of Discrimination against Women in 1981. But most importantly, in 1982 Canada passed its Charter of Rights and Freedoms. The Charter questioned the constitutionality of certain provisions in the citizenship law, yet the Supreme Court established that the Charter should not apply retroactively. However, it also stated that in cases that assess “the contemporary effects of a law that was passed before [the Charter]… Charter rights should apply.” In the following years, there were several court cases concerning citizenship law that invoked certain charter rights (Benner v. Canada (1997); Augier v. Canada (2002); Canada v. Taylor (2007)). In these cases, the primary issue was the denial of citizenship status to a child based on the sex/marital status of the responsible parent. For example, in Benner v. Canada the Supreme Court found that the citizenship law was unconstitutional, as women who gave birth abroad could not extend citizenship to children equally to men.
Policies of restoring citizenship for these ‘lost Canadians’ began in 2008 with Bill C-37. The law, which came into effect in 2009, had a “reparations clause” that essentially applied the changes of the 1977 act retroactively so that those born between 1947 and 1977 who had not been eligible for citizenship were now automatically considered as such. The framing of the “reparations clause” has been about rectifying this past discrimination, as the government stated after the 2009 amendment: “The federal government’s effort to address the ‘Lost Canadians’ issue marks a critical step toward rectifying past injustices.” However, while the amendment was crucial for capturing the ‘lost Canadians’ born between 1947 and 1977, in the end, it wound up creating a new generation of ‘lost Canadians’ as it put into effect a “second-generation cut-off rule” where Canadians born abroad would no longer be able to pass on Canadian citizenship to their children if these were also born abroad.
Ontario Superior Court Judgement (2024)
The “second-generation cut off rule” became subject to legal challenge last year. Bjorkquist et al. v. Attorney General of Canada (2024) disputed the rule, stating that it violates the Charter of Rights and Freedoms by discriminating on the basis of sex and national origin. The case involves seven families, all with children born abroad, who have been denied Canadian citizenship because their parent(s) were also born abroad. The applicants claim that the Citizenship Act bestows a “second class citizenship status” on this group of citizens.
There were several questions before the Court. Most relevant for the purposes of this forum debate are the questions of whether the second-generation cut-off discriminates based on national origin, whether the law discriminates against women based on intersectional discrimination (national origin and sex), and whether the law places an unfair penalty on citizens born abroad who wish to seek international opportunities at the same time as exercising their reproductive/family choices.
The judge found that in terms of all three of these questions, the answer is “yes” and that the law violates section 6 (mobility rights) and section 15 (equality rights) of the Charter of Rights and Freedoms. Thus, the judge declared that limiting citizenship by birth to the first-generation born abroad was unconstitutional.
The legal analysis is particularly interesting for other states who have similar rules (which are quite common in the citizenship law of countries, especially in the Americas; see for example, Argentina, Chile, and Mexico). In terms of equality, there is a two-step test for establishing whether a law violates substantive equality. First, does the law create a distinction based on a protected group? And second, does the distinction create a disadvantage by perpetuating or reinforcing prejudice or stereotyping? In this case, the judge finds that the law discriminates based on national origin (a protected group), which is understood as country of birth (based on previous Canadian case law). This is because it denies this group their ability to pass on Canadian citizenship to their born-abroad children, as well as limits their ability to return to live and work in Canada.
The judge also stated that the law perpetuates a stereotype of “citizens of convenience” and reinforces that they are somehow “parasites or leeches” which is a pejorative term referring to Canadian citizens who live permanently outside Canada and often comes up during global crises involving armed conflict or public health. The judge writes, “I thus conclude that the distinction based on national origin reinforces the disadvantage of the first generation born abroad by reinforcing the negative stereotyping to which they have been subjected, as people who offer nothing to Canada but seek to take advantage of the benefits of Canadian citizenship.”
Moreover, the judge also finds that the law discriminates intersectionally based on national origin and sex because of the disproportionate impact on women. The judge agreed with the applicants that while all the first generation born abroad are impacted by the discriminatory impact of the law, women in this group are particularly impacted. This is because women become pregnant often at a time while they are establishing their careers, and thus the burdens of the second-generation cut-off are felt differently. For instance, it puts women in a position where they have to make a choice “between their careers, financial stability and independence, and health care on the one hand, and the ability to ensure their child receives Canadian citizenship on the other” (by returning to Canada before giving birth).
The government did not appeal the court’s decision. In May 2024, the government introduced legislation for citizenship by descent. Bill C-71 would automatically confer Canadian citizenship to persons born abroad to a Canadian parent who was also born abroad, and it would apply retroactively to those who had been made ineligible under the 2008 law. However, the law conditioned passing down citizenship for the second generation born abroad on a “substantial connection test” which is a residency criterion where the parent needs to have lived in Canada for a cumulative 1095 days before the birth of their child. (1095 days of residency is the same as the residency criterion for ordinary naturalization in Canada.) This brings the law closer to the citizenship by descent laws for children born abroad to parents also born abroad in the United Kingdom where the parent must have lived in the UK for three years as a minor to transmit citizenship to the child born abroad.
Should we be sceptical of citizenship as reparations?
In principle, I am all for citizenship as a form of reparations if the deprived community consents to it. However, I think looking at the “big picture” and the motives of states is important for evaluating whether or not these policies are, in fact, motivated by justice concerns on behalf of the state. In my view, this picture is not black and white. The “reparations clause” in the 2009 Citizenship Act was a way to repair discrimination for those who were born between 1947 and 1977. While the “reparations clause” was shrouded in the language of rectifying past inequalities, exactly for whom it did its rectifying is telling. Others have noted that these were primarily white individuals with European ancestry, and the political discourse around their citizenship was about their “inherited birthright.” If the government had been solely motivated over concerns for justice, then why not show also a similar commitment to rectifying other historical wrongs? The other changes to the Citizenship Act at the time are also revealing as to what possibly motivated the government to repair citizenship for this group. It was in 2008 when the “second generation cut-off rule” was instated, and thus, the combined provisions were, as Elke Winter suggests, “an ethnicised interpretation of two different types of the population, predominantly White Americans on the one hand, and Canadians from more recent (non-Western) source countries on the other.” Even if it is a way to make good for sex discrimination in citizenship law, what does it say about the government and the national community when reparations are primarily for the descendants of white European settlers? In other words, I think one can be sceptical that the government would have been open to repairing citizenship if the group had been part of another demographic.
John Carlaw “reminds us that the terms and hierarchies of citizenship and societal membership in Canada shift over time.” Canadian citizenship as a form of reparations appears to be somewhat of a mixed picture, often involving racialized categories of inclusion/exclusion. Which injustices are atoned for tells us something about the priorities of the Canadian state at different points in time. What is then the broader story of the 2024 changes? Perhaps it is too soon to tell. However, the law was passed at a time where naturalisation in Canada is at an all-time low, and the federal government has announced cuts to the granting of permanent residence permits by nearly 30 percent over the next three years. At a time of rising xenophobia in Canada, could the change in law be about securing more citizens in a way that is politically palatable for the broader Canadian public? While the residency criterion of the law certainly answers to the concern that extraterritorial ius sanguinis would create many citizens abroad without a connection to Canada, in my view, we should keep the big picture of the racialized history of Canadian citizenship in mind.