Could Canada Abolish Birthright Citizenship?

Canada has historically applied the principle of jus soli in its grant of citizenship. That is, subject to some presently immaterial exceptions, any child born on Canadian territory is a Canadian citizen, regardless of the immigration status of his or her parents. However, there have been recent allegations of “birth tourism” to Canada, focusing in particular on the Vancouver suburb of Richmond. This has led to calls in some quarters for an end to “birthright citizenship” in Canada and instead imposing a requirement similar to that which exists in Australia that a child born in Australia is not an Australian citizen unless at least one of his or her parents is either an Australian citizen or permanent resident. In this article, I briefly examine the history of Canadian citizenship laws and then move on to briefly discuss the Australian amendments. I then consider whether such a law could or should be introduced in Canada. In particular, I examine the stated reasons for ending birthright citizenship presented in a petition to the Canadian Parliament and consider whether any of these grounds is accurate and makes a good case for abolishing birthright citizenship. I then discuss whether the Canadian Parliament has the authority to simply amend Canadian citizenship legislation at will or whether such amendments could be vulnerable to a challenge under the Charter of Rights and Freedoms (“the Charter”). I conclude that the Supreme Court of Canada may take the view that such a law would amount to impermissible discrimination under s.15(1) of the Charter but that such a result is by no means certain.

Alan Freckelton, Could Canada Abolish Birthright Citizenship?, Journal of International Migration and Integration, 2021.