Can new legislation help ‘Lost Canadians’ be found again?

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When Pete Giesbrecht was summoned to his local police station on Halloween 2015, he had no idea he was 30 days away from being deported.

His crime? He had not reaffirmed his Canadian citizenship before the age of 28 under a complicated, confusing and not well publicized section of the Citizenship Act.

“They said, ‘No, actually, you have 30 days to leave the country. And if you do not leave willingly, we will fly you out with bracelets and all,’ ” Giesbrecht recalled recently from his home in southern Manitoba.

He’s one of thousands of so-called “Lost Canadians” — people who, because of where and when they were born, are caught up in confusing sections of the Citizenship Act. It can result in a loss of citizenship that forces them to leave Canada for countries they’ve never really known. Others become stateless.

The House of Commons will vote on new legislation this fall meant to solve the problem faced by Giesbrecht, although it doesn’t address a different issue affecting second-generation Canadians born abroad.

Cut off from Canada at age 28

Giesbrecht hopes the changes are passed — he and his family felt a mix of disbelief and anger over his impending deportation. 

“I had carried a citizenship for 29 years. So now to find out that that was done didn’t mean anything. That was a bit of a shock,” he said.

At the time, Giesbrecht was a commercial truck driver living near Winkler, Man. He crossed the border more than 100 times a year for work. 

He had a Canadian passport, which he received before turning 28, but let it lapse because he had a FAST card, which certified he’d been pre-cleared to cross the U.S.-Canada border.

A close-up photo shows a hand holding a Canadian passport.
Critics say the Citizenship Act has created two tiers of Canadian citizenship — one for those born in Canada, and one for those born abroad. (Tom Hanson/The Canadian Press)

His case was flagged when he re-applied for the card in August 2015.

Since 1977, second-generation Canadians born abroad had an automatic right to citizenship, but those children had to meet certain conditions and apply to retain their citizenship by the time they turned 28. If they didn’t, they automatically and unknowingly lost citizenship.

Legislative amendments in 2009 were supposed to fix that, but the changes didn’t apply to everyone and created new problems for others. 

Bill C-37 introduced a rule limiting citizenship by descent to the first generation born abroad. People born abroad in subsequent generations now have to become immigrants, or in some cases they can apply for a grant of citizenship, which can take years, and there’s no guarantee they’ll be accepted.

The changes only affected people who had not yet turned 28 and didn’t help anyone who’d already lost citizenship.

That’s where Giesbrecht got caught — he was born on Aug. 11, 1979, in Mexico. His parents were Canadian, but they were born in Mexico to Mennonites who had moved there to have less government interference in their lives. However, when he was seven, his family moved back to Manitoba near where his Canadian grandparents were born. 

Don Chapman, head of the Lost Canadians Society in B.C., says the problem was compounded because those affected weren’t told about the retention requirement.

“Here’s the problem: He got a citizenship certificate. There was no mention on that citizenship certificate that he had to reaffirm,” Chapman said.

WATCH | Don Chapman describes the deficiencies in the Citizenship Act: 

Holes in Canada’s Citizenship Act leading to stateless children, advocate says

Don Chapman, of the Lost Canadians Society, outlines the deficiencies he says still exist in the Citizenship Act.

New legislation aims to fix age-28 rule

New legislation coming before Parliament this fall is meant to reinstate those affected by the age-28 rule who weren’t covered by Bill C-37. 

Bill S-245 has already passed in the Senate and passed first reading in the House of Commons before it recessed for the summer. If it becomes law, it will eliminate the requirement for people to reaffirm their citizenship by age 28. Those affected would be considered Canadian back to their dates of birth.

“These are individuals who were born to Canadian parents and who only know Canada as their country,” said Sen. Yonah Martin, who represents British Columbia and is currently the deputy leader of the opposition in the Senate. She introduced Bill S-245.

“They’re taxpayers. They had lived their lives as Canadians until this age-28 rule caught up to them because it wasn’t clearly communicated.”

Giesbrecht’s Canadian-born wife started the process to sponsor him for citizenship. As a permanent resident, he had to prove a long-time connection to Canada. He’d spent thousands on lawyers when he heard about Chapman and the Lost Canadians Society from other Mennonites going through the same process. 

Chapman started advocating on his behalf and on Oct. 17, 2017, Giesbrecht received his Canadian citizenship — for a second time.

“It means security. It means a future. It means hope for the children and a place that we are free,” he said.

WATCH | ‘Lost Canadian’ describes feeling out of place and disowned: 

Manitoba man describes ‘disbelief’ at losing his Canadian citizenship

Pete Giesbrecht was told he had 30 days to leave the country after he unknowingly lost his Canadian citizenship due to a problem with the Citizenship Act.

Giesbrecht knows of others he says are afraid to come forward, worried they’ll be deported and lose everything.

“They have a life. They also have families. They have work. They have to give that all up,” he said. “That’s a very risky, very difficult thing to do.”

Chapman says many Lost Canadians don’t find out about their status until they apply for a passport, move provinces and apply for health benefits or a driver’s licence, or are convicted of a crime.

“Pete, he’s one of the lucky ones,” Chapman said.

“There are thousands of people, actually many thousands of people in Canada, that are affected and might still not know it. And this [legislation] will make it so they are whole, as though they never lost their citizenship.” 

New rule created new Lost Canadians

But, there’s another category of Lost Canadians the new legislation won’t address.

The “second-generation cut-off” is a rule under Bill C-37 that permanently denies the first generation born abroad the ability to automatically pass on citizenship to their children if they are also born outside Canada. 

It also eliminated the ability to gain citizenship by showing a “substantial connection” to Canada. Now, those second-generation children have to be sponsored by their parents to come to Canada as permanent residents, then apply for citizenship like any other immigrant.

Critics say it has created two classes of Canadian citizenship — one for Canadians born in Canada and one for those born abroad. 

“What’s discriminatory about the Citizenship Act is that there is no way that people can rid themselves of this second class status no matter how close and deep their ties to Canada are,” said Sujit Choudhry, a constitutional lawyer in Toronto representing seven families living in Canada, Dubai, Hong Kong, Japan and the United States, who are all affected by this rule. 

Choudhry filed a constitutional challenge in December 2021, asking that his clients’ children be granted citizenship and that this section of the Citizenship Act be struck down. The case will be before court in April 2023. 

WATCH | Victoria Maruyama’s children ‘very aware Canada is rejecting them’: 

Canadian woman frustrated by process to obtain citizenship for her children

Victoria Maruyama has been trying for years to have her children recognized by Canada, but has struggled because she and her daughters were all born abroad.

‘I’m not Canadian enough’

Victoria Maruyama is angry about the way her family has been treated because of where she and her children were born. 

“I grew up [in Canada] like everybody else. Why am I being treated this way? Why are you treating my children this way? And why can’t we just come home like everybody else?” Maruyama, one of Choudhary’s clients, asked in a recent interview from her home in Nagoya, Japan.

Maruyama was born in Hong Kong and received Canadian citizenship through her father, who had previously immigrated from Vietnam. When she was a toddler, the family returned to Edmonton, where she attended school. She later got a degree at the University of British Columbia.

Victoria Maruyama has been trying for years to have her children recognized as Canadian citizens, but she can’t. Both she and her two kids were born abroad. The family has moved back to Alberta several times, but whenever visitor visas for the children run out, they have to return to Japan. (Hwangsung Kim/CBC)

When she was 22, she moved to Japan temporarily to teach English and met her husband, a Japanese national. They married in 2007.

She was seven months pregnant with their first child when Bill C-37 took away her right to pass on citizenship to her children unless they were born in Canada.

“The shock of it, like, ‘Oh my God, I’m not Canadian enough,’ ” Maruyama said.

Their second child was also born in Japan two years later. The family has moved back to Edmonton from Japan several times so she could apply for citizenship for her children and sponsor them as immigrants. 

All of those applications have been denied.

Their grandparents helped build the stupid railroad … It makes me angry. Really angry.– Victoria Maruyama, whose children aren’t considered Canadian because they, and Maruyama, were born abroad

A 2018 letter from Immigration, Refugees and Citizenship Canada said the children were rejected because “they are not stateless, will not face special and unusual hardship if you are not granted Canadian citizenship and you have not provided services of exceptional value to Canada.” 

They returned to Japan in July 2019 because her husband had a job offer, but she says the family would like to live in a more multicultural and accepting society and be closer to her aging parents.

The children are “very aware that Canada is rejecting them,” Maruyama said. “[But] they feel Canadian. It’s just part of their identity.”

“Their grandparents helped build the stupid railroad … It makes me angry. Really angry.”

Stateless babies 

In an even more extreme case, if a Canadian born abroad has a baby in a country that doesn’t provide citizenship at birth, that child is stateless.

This means no country is responsible for their legal protection and they can’t get a passport. They have no right to vote and they often lack access to education, employment, health care, registration of birth, marriage or death and property rights.

That’s the situation for Gregory Burgess, who was born in the U.S. to an American father and Canadian mother. He got citizenship through his mother, grew up and went to school in Alberta where his ancestors settled after fleeing what is now Ukraine many generations ago.

It’s basically bureaucratic terrorism … I believe Canada is better than this.– Gregory Burgess, on the various applications needed to get his infant son Canadian citizenship

He and his wife, a Russian citizen, are on work visas in Hong Kong. Their son was born there last October. Since neither parent is a citizen or permanent resident of Hong Kong, their son has no status.

“The children are the victims,” Burgess said recently. 

Burgess says because he was born outside Canada — and can’t automatically give his child Canadian citizenship — he was told by an IRCC agent that his wife should apply for Russian citizenship for the baby. If that is rejected, he can then go through the process with Canada. However, there are no guarantees it would be successful.

However, Burgess doesn’t want his son to have Russian citizenship; he wants him to be Canadian.

“It’s basically bureaucratic terrorism. It’s horrible. It’s adversarial,” he said of the various applications he’s already made on behalf of both his son and his wife. “I believe Canada is better than this.”

Toronto lawyer Sujit Choudhry represents seven families affected by the Citizenship Act’s second generation cut-off rule, which means they can’t pass their Canadian citizenship to their children. He has filed a constitutional challenge that will be heard in court in April 2023. (Doug Husby/CBC)

Burgess is one of Choudhry’s clients and part of the constitutional challenge. The lawyer says Canada could fix the family’s situation if it would add back the ability for a second-generation child born abroad to prove a “substantial connection” to the country.

“This law creates hierarchies of Canadians based on where they were born,” Choudhry said.

In the meantime, he said Citizenship and Immigration Minister Sean Fraser could grant Burgess’s son citizenship by acknowledging the “special and unusual hardship” the family is facing. 

CBC requested an interview with Fraser several times, but a spokesperson said he was unavailable. 

However, in a statement, his department said there is a “discretionary mechanism” for anyone who doesn’t qualify for citizenship, including a special process if someone is stateless. The department said those cases are assessed individually.



www.cbc.ca 2022-09-25 08:00:03

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