History of Canadian nationality law


Since 1977, Canadian nationality has been regulated by the Citizenship Act. Canada established its own nationality law in 1946 with the enactment of the Canadian Citizenship Act 1946, which took effect on 1 January 1947. It was the second nation in the British Commonwealth to establish its own nationality law; the first was the Irish Free State in 1935.
Under current Canadian law, Canada does not restrict multiple citizenship.

Imperial and federal legislation, 1868–1914

Under common law, a person born within Her Majesty's dominions became a British subject at birth. Within their respective jurisdictions, the various colonies of the British Empire passed their own laws determining how naturalization as a subject could take place, as well as what status aliens possessed. 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.
The Aliens and Naturalization Act, 1868 was the first federal Act to be passed, and it provided that persons who had been previously naturalized in any part of the Dominion possessed the same status as anyone naturalized under that Act. In addition:
The 1868 Act was replaced by the Naturalization and Aliens Act, 1881, which came into force on 4 July 1883. 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.

Canadian citizens and Canadian nationals, 1910–1947

The status of "Canadian citizen" was first created under the Immigration Act, 1910, which included anyone who was:
  1. a person born in Canada who had not become an alien;
  2. a British subject possessing Canadian domicile; and
  3. a person naturalized under the laws of Canada who had not subsequently become an alien or lost Canadian domicile.
Aliens, as well as all other British subjects, who wished to immigrate to Canada required permission to land. "Domicile" was declared to have been acquired by a person having his domicile in Canada for three years after having been landed therein, excluding any time spent in "any penitentiary, jail, reformatory, prison, or asylum for the insane in Canada."
Although the terms "Canadian citizen" and indeed "Canadian citizenship" were used in this Act, they did not create the legal status of Canadian citizen in a nationality sense. People who had the status of "Canadian citizen" were merely free from immigration controls.
The status of all British subjects in the Empire was standardized by the British Nationality and Status of Aliens Act 1914, which was adopted in Canada by the Naturalization Act, 1914. As a result, the period of residence required to qualify for naturalization was increased from three years to five years.
A separate status of "Canadian national" was created under the Canadian Nationals Act, 1921, which was defined as being any British subject who was a Canadian citizen as defined above, the wife of any such citizen, and any person born outside Canada whose father was a Canadian national at the time of that person's birth.
After the passage of the Statute of Westminster in 1931, whereby each self-governing dominion of the British Empire was henceforth considered equal in status to all the others, with the Crown becoming one that is shared and operating independently in each realm rather than as a unitary British Crown under which all the dominions were subordinate, the monarchy thus ceased to be an exclusively British institution. Because of this Canadians, and others living in countries that became known as Commonwealth realms, were known as subjects of the Crown. However in legal documents the term "British subject" continued to be used.
Prior to 1947, Canada issued two types of passports:
  1. those to British subjects by birth, and
  2. those to naturalized British subjects or citizens.

    Eligibility of married women

There were complex rules for determining whether married women qualified as British subjects. Until 14 January 1932, the rule was that the wife of a British subject was deemed to be a British subject as well, and the wife of an alien was deemed to be an alien. After that date, and until 31 December 1946, the rules were generally as follows:
By marrying a Canadian soldier, a woman, if not already British, acquired the status of British subject and Canadian national. If she then landed in Canada, she became a British subject of Canadian domicile.
In addition, Order in Council P.C. 7318 of 21 September 1944 stated:
This was later replaced by P.C. 858 of February 9, 1945, which declared:
On May 15, 1947, P.C. 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.

Laws governing Canadian nationality

''Canadian Citizenship Act, 1946''

Canadian citizenship, as a status separate from British nationality, was created by the Canadian Citizenship Act, 1946, which came into effect on 1 January 1947. Canadian citizenship was generally conferred immediately on the following persons:
In the latter two cases, a "Canadian" was a British subject who would have been considered a Canadian citizen if the 1947 Act had come into force immediately before the marriage or birth. Where the child born outside Canada was not a minor at the time the Act came into force, proof of landed immigrant status was required to confirm Canadian citizenship.

Acquisition and loss of citizenship

In addition to those people who became Canadian citizens upon the coming into force of the Act, citizenship afterwards was generally acquired as follows:
Loss of Canadian citizenship generally occurred in the following cases:
Although Canada restricted dual citizenship between 1947 and 1977, there were some situations where Canadians could nevertheless legally possess another citizenship. For example, migrants becoming Canadian citizens were not asked to formally prove that they had ceased to hold the nationality of their former country. Similarly children born in Canada to non-Canadian parents were not under any obligation to renounce a foreign citizenship they had acquired by descent. Holding a foreign passport did not in itself cause loss of Canadian citizenship.

Impact

The Canadian Citizenship Act replaced the following phrases throughout all federal legislation:
An Act passed later in 1946 amended the Immigration Act, in order to specify that a "Canadian citizen" was one as defined in The Canadian Citizenship Act.
These amendments would lead to later jurisprudence that addressed a transition that was problematic in certain cases. Although the 1946 Act did not deprive any Canadian national of such status, being a Canadian national did not automatically confer Canadian citizenship, as the Act represented a complete code for defining such status. The Act together with later retroactive amendments in 1953, had significant effects upon children of war brides. As Canadian soldiers fathered some 30,000 war children in Europe, of which a great number were born out of wedlock, the Act's provisions had differing impacts depending on how they were born:

Extensions of citizenship

The rule relating to loss of citizenship by naturalized Canadians living outside Canada for more than ten years was repealed on 7 July 1967, with provision made for such loss to be reversed through a petition for resumption of citizenship.

''Citizenship Act, 1976''

Citizenship law was reformed by the Citizenship Act, 1976, which came into force on 15 February 1977. Canada removed restrictions on dual citizenship, and many of the provisions to acquire or lose Canadian citizenship that existed under the 1947 Act were repealed.
Under the new Act, Canadian citizenship is acquired by:
Canadian citizens are in general no longer subject to involuntary loss of citizenship, barring revocation on the grounds of:
Section 8 of the Act provides that Canadians born outside Canada, to a Canadian parent who also acquired Canadian citizenship by birth outside Canada to a Canadian parent, will lose Canadian citizenship at age 28 unless they have established specific ties to Canada and applied to retain Canadian citizenship. Children born outside Canada to naturalized Canadian citizens are not subject to the section 8 provisions, nor is anyone born before 15 February 1977.

Amendments

2009

In 2008, the Act was amended significantly. Royal assent was given on 17 April 2008, coming into force one year later. Among the main changes:
Provision was also made for the reinstatement of Canadian citizenship to those:
On 6 February 2014, a bill was presented in the House of Commons to introduce several changes to the Act, which subsequently received royal assent on 19 June 2014. Several provisions had retroactive effect to 17 April 2009, in order to correct certain situations that arose from the 2009 amendments, with the remainder coming into effect on 1 August 2014, 28 May 2015, and 11 June 2015. Among the Act's significant changes:

2017

On February 25, 2016, as a consequence of the Liberal victory in the 2015 election, a bill was presented to the House of Commons to roll back certain changes brought in by the 2014 amendments. It received Royal assent on June 19, 2017. Most provisions took effect upon Royal Assent, with the remainder coming into force on October 11, 2017 January 24, 2018 and December 5, 2018.
The Act provides for the following changes:

Significant cases relating to Canadian citizenship

There have been a number of court decisions dealing with the subject of Canadian citizenship:
CaseDescription
The Federal Court of Appeal ruled that the child of a Canadian mother had the right to be granted Canadian citizenship, despite the fact that the responsible parent of the child had naturalized as a U.S. citizen before 15 February 1977 and had thus lost his Canadian citizenship.
The Supreme Court of Canada ruled that children born abroad before 15 February 1977 of Canadian mothers were to be treated the same as those of Canadian fathers.
The FCA ruled that the Minister had to establish a bona fide justification pursuant to section 15 of the Canadian Human Rights Act for the discriminatory practice in the Act on adoptive parentage, where children born abroad to Canadian citizens obtain "automatic" citizenship while children adopted outside Canada must gain admission to Canada as permanent residents, as mandated by paragraph 5 of the Citizenship Act, which incorporates by reference the requirements imposed by the Immigration Act pertaining to permanent resident status.
However, this case also declared that the Canadian Human Rights Tribunal had overreached itself in declaring that the granting of citizenship was a service customarily available to the general public, and had breached the rules of natural justice by failing to notify the Minister that the provisions of the Citizenship Act were being questioned.

Canadians, British nationality, and immigration law (1947–1981)

The Canadian Citizenship Act, 1976 replaced the term "British subject" with "Commonwealth citizen" in 1977, but the UK did not follow suit until 1 January 1983, when the British Nationality Act 1981 went into effect.
While Canada created Canadian citizenship on 1 January 1947, the British Nationality and Status of Aliens Act 1914 continued to confer British subject status on Canadians until the British Nationality Act 1948 came into effect on 31 December 1948. That, together with succeeding Acts, changed the nature of Canadian citizenship status as it could apply within the UK: