History of Canadian nationality law

Canada became a French possession in 1663 and Louis XIV established that the laws and ordinances of France governed the territory.

[1] The Ancien Régime of France developed a system of feudal allegiance in which subjects were bound together by a scheme of protection and service tied to land ownership.

[2] Possession of land was typically tied to military and court service and omitted women because they could not perform those obligations.

[4][5] In 1763, at the end of the Seven Years' War under the terms of the Treaty of Paris, Canada was transferred to British control and converted to the laws of Britain.

[8] Marriage did not affect the status of a subject of the realm, except that under common law, single women, including divorcées, were not allowed to be parents thus their children could not derive nationality maternally and were stateless unless legitimated by their father.

[1] In 1849, Upper Canada passed a statute to bring its law into line with the British Naturalization Act 1844, requiring foreign women to automatically derive their nationality from their spouse.

[15][16] Upon passage of the British North America Act, 1867, the Parliament of Canada was given authority over "Naturalization and Aliens", by virtue of section 91(25).

It made the rules allowing aliens to hold property uniform throughout the Dominion, and otherwise standardized the law along the same lines as the Naturalization Act 1870 of the United Kingdom.

[22] The policies adopted for immigrants, and indigenous peoples, were aimed to include those who could quickly assimilate into the mainstream culture and exclude those who could not.

[35] The uniform law, which went into effect on 1 January 1915, required a married woman to derive her nationality from her spouse, meaning if he was British, she was also, and if he was foreign, so was she.

[38] The statute reiterated common law provisions for natural-born persons born within the realm on or after the effective date.

[39] For those born abroad on or after the effective date, legitimacy was still required, and could only be derived by a child from a British father (one generation), who was natural-born or naturalised.

[41] By 1918, the rise of women's suffrage motivated new federal interest in the question of women's nationality,[42] but the country's legislative ability to change its nationality laws was limited by the common code for Dominions of Britain that required legal changes to be unanimous among all member countries.

[24][26] In 1928, the Japanese government agreed to amend their emigration agreement, limiting immigration to Canada to 150 persons annually.

Prior to 1947, Canada issued two types of passports:[55] There were complex rules for determining whether married women qualified as British subjects.

858 was replaced with an amendment to the Immigration Act, which provided that, subject to medical examination, war brides and children of Canadian servicemen, who were still in Europe, were automatically entitled to admission and landing in Canada.

Where the child born outside Canada was not a minor (i.e. was not under 21 years in age) at the time the Act came into force, proof of landed immigrant status was required to confirm Canadian citizenship.

Similarly children born in Canada to non-Canadian parents were not under any obligation to renounce a foreign citizenship they had acquired by descent.

This meant that between two and three thousand women, who married allies of Britain during the Second World War, in Canada or overseas, were still deprived of their original nationality.

Under its provisions, children who were legitimate or adopted were allowed for the first time to derive nationality from their Canadian mother.

He held that residency is a matter of the degree to which a person, in mind or fact, settles into or maintains or centralizes their ordinary mode of living, including social relations, interests, and conveniences.

In Re Koo,[104] Justice Barbara Reed further elaborated that in residency cases the question before the Court is whether Canada is the country in which an applicant has centralized their mode of existence.

The co-existence of such disparate, yet equally valid approaches has led some judges to comment that: In 2010, it seemed that a relative judicial consensus for decision-making in residence cases might emerge.

In several Federal Court decisions it was held that the citizenship judge must apply a hybrid two-test approach by firstly ascertaining whether, on the balance of probabilities, the applicant has accumulated 1,095 days of physical presence.

If not, then the judge must additionally assess the application under the "centralized mode of existence" approach, guided by the non-exhaustive factors set out in Koo (Re).

[114][115] However, this case also declared that the Canadian Human Rights Tribunal had (a) overreached itself in declaring that the granting of citizenship was a service customarily available to the general public;[citation needed] and (b) breached the rules of natural justice by failing to notify the Minister that the provisions of the Citizenship Act were being questioned.

[121] The respondent, Burou Jeanty Dufour, a Haitian citizen who was adopted by a Quebec man, was deemed as an adoptee by convenience.

[126] On 10 May 2018, the federal government's leave to appeal was granted by the SCC, who would examine whether the man and his elder brother, who won a similar case in April that year, would fall under s. 3(2) of the Act.

[127] On 19 December 2019, the SCC ruled in Alex and Timothy Vavilov's favour and affirmed their status as Canadian citizens.

[128][129][130] In this case, a senior-level IRCC decision-maker determined that the appellant, Halepota, a permanent resident and a senior director of the U.N. High Commissioner for Refugees (UNHCR), was ineligible for naturalization under s. 5(4) as she had made no notable contribution to Canada "to grant Canadian citizenship."