Citizenship and Immigration Committee on May 15th, 2023

[Jenny Kwan, NDP, Vancouver East, BC]

Madam Chair, yes, I'd like to move NDP-4.

This amendment essentially recognizes citizenship in deceased women who lost British subject status prior to 1947, or in 1949 in Newfoundland and Labrador, and on that basis they did not become citizens. Citizenship is recognized retroactively to the time each woman lost status as a British subject.

This amendment does not allow for derivative claims and there is no liability to the government. Noting that subsection 11(2) of the Citizenship Act provides for citizenship for such women if they are still alive, the amendment accordingly only covers women who are deceased.

One might ask why this is even necessary. For some family members, it is important to them. In fact, I met with an elderly lady whose dying wish actually was to have been recognized. In any event, I think this is important just for symbolic purposes, Madam Chair.

[The Chair, Liberal, Salma Zahid]

Thank you.

Go ahead, Mr. Redekopp.

[Brad Redekopp, Conservative, Saskatoon West, SK]

Thank you.

My question for the officials is: Do you have any concerns about this amendment from your perspective as a department?

[The Chair, Liberal, Salma Zahid]

Go ahead, Ms. Girard.

[Nicole Girard]

Thank you, Madam Chair.

The first point I'd like to share with the committee is that to this point, none of the previous legislative remedies for lost Canadians, either in 2000 or 2015, restored citizenship to persons who had passed away. That is a first concern.

The second concern is the potential for unintended consequences, including potentially for citizenship by descent for such persons. I believe there is a provision in the proposed amendment that is seeking to mitigate that, but from the perspective of the experts in the department and our colleagues at the Department of Justice, we're not necessarily convinced that the concern is fully mitigated. There is a potential for unintended consequences or impact on the descendants of those who are targeted by this amendment, and those are people who are alive today.

Those are some points to share for the committee's consideration.

I'll invite my colleague from the Department of Justice to speak in case there's anything I have neglected or there's anything she may wish to add on this point.

[Erika Schneidereit, Counsel, Legal Services, Department of Citizenship and Immigration]

I will echo my colleague's comments just now and say it's of course open to Parliament to legislate retroactively, but it is inherently complex, because we're talking about applying new laws to facts that have occurred in the past. Particularly if we're talking about a period of time some 80 years in the past, it's very difficult to say precisely what the consequences might be. In particular in this case, with the legislation that existed prior to 1947, it's difficult to say with precision exactly how these amendments might interact with legislation from that time period.

[The Chair, Liberal, Salma Zahid]

Go ahead, Mr. Redekopp.

[Brad Redekopp, Conservative, Saskatoon West, SK]

That's good, because I was thinking some of the same things.

On the last point, Ms. Schneidereit, how does that actually work? The legislation obviously would have been much different back in those days. How does it even interact? How does that work from your perspective?

[Erika Schneidereit]

Thank you for the question.

I would just say again that it's very difficult to say with certainty. What I can say is that in general, there's typically one scheme that operates in legislation on citizenship or nationality. Nationality is one thing; if we have two different pieces, it would be somewhat novel, I think, to try to predict how those two pieces would interact. At this point it's difficult to say.

[Brad Redekopp, Conservative, Saskatoon West, SK]

I'll go back to Ms. Girard's two concerns.

The first one you mentioned is that we've never legislated anything on people who are deceased. Was the consequence of that your second point, or were there further consequences? Are there other things that this brings up?

You talked about the unintended consequences of descendants. That was going to be my other question. Just on issuing citizenship to a deceased person, other than the unintended consequences of descendants, are there other issues that would potentially come up?

[Nicole Girard]

I think the member is correct in the sense that the main concern is to limit or avoid unintended consequences.

As was brought up moments ago, one of the important ways to do that is to offer a mechanism for those who may need to renounce for personal, professional, legal or other reasons. As soon as a legislative remedy like this comes into force, when the beneficiary is not alive to do that, that option isn't available. Then it can have those downstream, automatic, kind of trickle-down impacts on the children, who may now be adults, particularly in this cohort that's under discussion, when we're talking about women who—well, we're talking about a pre-1947 cohort.

I'll turn to my colleague at the Department of Justice, who may wish to elaborate further.

[Erika Schneidereit]

I think that mostly covers it, but I'd just say that the act as it's structured currently envisions citizenship attached to living persons. That's all I'll add.

[Brad Redekopp, Conservative, Saskatoon West, SK]

On that point, if this new interpretation of both living and deceased persons were to proceed, could it potentially complicate legal issues? Does that throw a bunch of complications into court proceedings—common law, and those kinds of things?

[Nicole Girard]

Yes, I think it would.

I think the other concern that we have in the department and that I understand Department of Justice shares is that we may not fully know the legal and practical consequences unless a provision like this passes. We want to ensure that the committee is aware of these concerns and considerations, as it hasn't been done before.

I will again pass it to my colleague in case she wishes to add.

[Erika Schneidereit]

I have nothing to add. Thank you.

[The Chair, Liberal, Salma Zahid]

Go ahead, Mr. Redekopp.

[Brad Redekopp, Conservative, Saskatoon West, SK]

The issue of the descendants was the first thing I thought of when I looked at this. Are you saying there is some wording in this amendment to prevent that, but you don't necessarily think it's sufficient to eliminate it? Could you expand a bit more on why you think that?

[Nicole Girard]

Yes, that's correct. Perhaps my colleague could elaborate.

[Erika Schneidereit]

I would perhaps return to my earlier point on this issue of interaction between the current amendments and the previous legislation to say that as that interaction is sort of an unknown, it's again difficult to say how descendants of those persons may be affected.

[Brad Redekopp, Conservative, Saskatoon West, SK]

I think I'm done.

[The Chair, Liberal, Salma Zahid]

Thank you.

Go ahead, Ms. Kwan.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you very much, Madam Chair.

I don't want to prolong further debate on this amendment, because I know it likely will not pass. I'll just put on the record what the legislative counsel has provided by way of language to ensure there are no implications, legal or otherwise, in this amendment.

This is the provision and language included to recognize citizenship for this group of women:

Subsection (7.1) does not have the effect of conferring any rights, powers or privileges—or imposing any obligations, duties or liabilities—under any Act of Parliament or any other law on a woman referred to in that subsection or on any other person who may have any of those rights, powers, privileges, obligations, duties and liabilities as a result of the woman being deemed to have been a citizen.

It goes on to add another clause:

(8.2) For greater certainty, no person has a right to citizenship as a result of any woman being deemed under subsection (7.1)

—and this is the section I would like to add—

—to have been a citizen.

It then goes on to say:

No action or other proceedings for damages based on subsection (7.1) may be brought against His Majesty in right of Canada or any officers, employees or agents of His Majesty in right of Canada in respect of anything done or omitted to be done.

Anyway, that was the certainty the legislative counsel suggested we incorporate into this amendment so that there would be no implications coming out of it.

In any event, I understand that perhaps people still feel that this isn't enough. However, it was not done without consideration of those elements, Madam Chair.

[The Chair, Liberal, Salma Zahid]

Thank you, Ms. Kwan.

Seeing no further debate, I will go to Mr. Kmiec.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

That's something I was going to ask about. It's my fourth question.

Just so I understand, you're saying that legislating backwards like this has never been done. I was going to ask if that is even.... Let's say it were to pass and this were to become the law. Is this even defensible in court? How could a court say, “You get citizenship, but you have none of the rights of citizenship”? That's the way I read the clause that was just read by Ms. Kwan. It gives citizenship but confers no “rights, powers, privileges, obligations, duties or liabilities”. You have it, but it gives you nothing.

Has that ever been done? Is that even defensible in court?

[The Chair, Liberal, Salma Zahid]

Go ahead, Ms. Girard.