"Ottawa appeals ruling that returned citizenship to son of Russian spies"

[The Bread Guy]

This from The Canadian Press ...

Ottawa appeals ruling that returned citizenship to son of Russian spies
In June, the appeal court ruled in Alexander Vavilov’s favour. The government says the “absurd result” of the Federal Court of Appeal’s decision “raises important issues about theintegrity of Canadian citizenship.”
Jim Bronskill The Canadian Press Published on Thu Sep 21 2017

OTTAWA — The federal government is appealing a court decision that handed Canadian citizenship back to the Toronto-born son of Russian spies after it was revoked by Ottawa.

In asking the Supreme Court of Canada to hear the case, the government says the "absurd result" of the Federal Court of Appeal's decision "raises important issues about the integrity of Canadian citizenship" and should not be allowed to stand.

It likely will be several weeks before the Supreme Court decides whether to hear the case.

In June, the appeal court ruled in Alexander Vavilov's favour — the latest turn in a long-running spy saga brimming with international intrigue.

Vavilov, 23, was born in 1994 as Alexander Philip Anthony Foley to Donald Heathfield and Tracey Ann Foley. The following year the family — including an older boy, Timothy — left Canada for France, where they spent four years before moving to the United States.

One day in June 2010, the U.S. Federal Bureau of Investigation turned up at the family's Boston-area home.

In all, 11 people — four of whom claimed to be Canadian — were indicted on charges of conspiring to act as secret agents in the United States on behalf of the SVR, the Russian Federation's successor to the ruthless KGB.

Heathfield and Foley admitted to being Andrey Bezrukov and Elena Vavilova ...

 

[Oldgateboatdriver]

So, let's see if I got this straight: It is this government's position that the Canadian born children of someone who turned out to have been a foreign spy cannot have their Canadian citizenship recognized even though they themselves have not been proven to have done anything wrong or untoward to Canada. Apparently, to maintain their citizenship would create "absurd results".

On the other hand, it is apparently OK to maintain the Canadian citizenship of a foreign born person who has elected to become a Canadian citizen without renouncing their other nationality  after they, themselves, committed an act of overt terrorism against Canada or one of our allies. That, apparently is not an "absurd result".

Also, apparently, innocent children whose parents have mislead immigration authorities to get into Canada and obtain Canadian citizenship can be automatically striped of their citizenship, unless it is suddenly discovered that they are Minister of the crown.

Am I missing something here?

Just trying to keep our immigration/citizenship policies straight.  [

 

[SeaKingTacco]

Let me sum up the policy for you, OGBD:

The policy is whatever the Minister says it is, at that particular moment.

 

[Rifleman62]

https://news.vice.com/article/a-canadian-is-a-canadian-liberal-leader-says-terrorists-should-keep-their-citizenship

'A Canadian Is a Canadian': Liberal Leader Says Terrorists Should Keep Their Citizenship - VICE News - September 28, 2015


https://globalnews.ca/tag/bill-c-6/

Dual Canadian citizens convicted of terrorism will no longer lose citizenship under new bill
Bill C-6 was designed to repeal many of the previous Conservative government’s changes to how people become citizens – and how they can lose that status

 

[ModlrMike]

So, let's see if I got this straight: It is this government's position that the Canadian born children of someone who turned out to have been a foreign spy cannot have their Canadian citizenship recognized even though they themselves have not been proven to have done anything wrong or untoward to Canada. Apparently, to maintain their citizenship would create "absurd results".

On the other hand, it is apparently OK to maintain the Canadian citizenship of a foreign born person who has elected to become a Canadian citizen without renouncing their other nationality  after they, themselves, committed an act of overt terrorism against Canada or one of our allies. That, apparently is not an "absurd result".

Also, apparently, innocent children whose parents have mislead immigration authorities to get into Canada and obtain Canadian citizenship can be automatically striped of their citizenship, unless it is suddenly discovered that they are Minister of the crown.

Am I missing something here?

Just trying to keep our immigration/citizenship policies straight.  [

Care to elaborate? BTW I agree with your stance on this issue.

 

[The Bread Guy]

Care to elaborate? BTW I agree with your stance on this issue.

Maybe this case?
"Maryam Monsef could be stripped of her citizenship without a hearing under a law the Liberals denounced while in opposition but which they’ve been enforcing aggressively since taking power, civil liberties and refugee lawyers say ..."

 

[Blackadder1916]

I am of the ("perhaps" ill-formed) opinion that the Federal Court of Appeal erred in its decision and that the government is right to appeal to the Supreme Court.

Some background reading that may be helpful or will cause headaches trying to wrap your mind around the issue.  The brief explanations are my understanding of the decisions and emanate from a non-legally trained quick reading (therefore could be out to lunch).

http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/111271/index.do
Federal Court decision on an application for judicial review of the decision of the Registrar of Citizenship (Registrar) communicated to Alexander Vavilov on August 15, 2014, in which the Registrar revoked  Mr. Vavilov’s citizenship.

This was the first legal action by Mr. Vavilov in which he challenged the revocation of his citizenship on the basis of "fairness" by contending the Registrar did not provide him with sufficient time to respond with an argument that he should be allowed to keep Canadian citizenship.  The Federal Court dismissed Mr Vavilov's application for judicial review and, in essence, upheld the fairness of the Registrar's decision.

http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/232137/index.do
The Federal Court of Appeal decision that the government is requesting the Supreme Court to review.  This decision seems to be entirely based on a study of the issue by defining "foreign government employee" as would be in line with those covered under the Vienna Convention on Diplomatic Relations.  I would be more in the camp as expressed by the dissenting opinion of this decision.

There may be a military nexus for this issue (but not this specific case).  Think children of foreign military personnel born in Canada while a parent is serving in Canada under the Visiting Forces Act (has neither diplomatic or consular status but is still an employee of a foreign government).  Does that child automatically acquire Canadian citizenship?  According to the same article of the Citizenship Act that the Registrar quoted to revoke Mr. Vavilov's citizenship, such children would not gain Canadian citizenship.  While I had no personal experience with such, when we had large numbers serving in Germany and had many births, they did not gain German citizenship.

http://laws-lois.justice.gc.ca/eng/acts/C-29/page-1.html#h-3

Not applicable to children of foreign diplomats, etc.

(2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was

(a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government;

(b) an employee in the service of a person referred to in paragraph (a); or

(c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).

 

[dapaterson]

There may be a military nexus for this issue (but not this specific case).  Think children of foreign military personnel born in Canada while a parent is serving in Canada under the Visiting Forces Act (has neither diplomatic or consular status but is still an employee of a foreign government).  Does that child automatically acquire Canadian citizenship?  According to the same article of the Citizenship Act that the Registrar quoted to revoke Mr. Vavilov's citizenship, such children would not gain Canadian citizenship.  While I had no personal experience with such, when we had large numbers serving in Germany and had many births, they did not gain German citizenship.

German citizenship law is different from Canadian, and thus the situations are not necessarily the same.

 

[Blackadder1916]

German citizenship law is different from Canadian, and thus the situations are not necessarily the same.

Agreed, I included the bit about German citizenship simply as a readily familiar example of the implications of the Visiting Forces Act in conjunction with the Citizenship Act.  Individuals admitted to Canada under such are here as employees of a foreign government and are not admitted to the country as permanent residents.  Since there is no specific mention of children being born in Canada in the VFA or in any of the information provided by CIC, my assumption is that the default position is that of the previously quoted article from the Citizenship Act.

 

[FJAG]

I am of the ("perhaps" ill-formed) opinion that the Federal Court of Appeal erred in its decision and that the government is right to appeal to the Supreme Court.

Some background reading that may be helpful or will cause headaches trying to wrap your mind around the issue.  The brief explanations are my understanding of the decisions and emanate from a non-legally trained quick reading (therefore could be out to lunch).

http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/111271/index.do
Federal Court decision on an application for judicial review of the decision of the Registrar of Citizenship (Registrar) communicated to Alexander Vavilov on August 15, 2014, in which the Registrar revoked  Mr. Vavilov’s citizenship.

This was the first legal action by Mr. Vavilov in which he challenged the revocation of his citizenship on the basis of "fairness" by contending the Registrar did not provide him with sufficient time to respond with an argument that he should be allowed to keep Canadian citizenship.  The Federal Court dismissed Mr Vavilov's application for judicial review and, in essence, upheld the fairness of the Registrar's decision.

http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/232137/index.do
The Federal Court of Appeal decision that the government is requesting the Supreme Court to review.  This decision seems to be entirely based on a study of the issue by defining "foreign government employee" as would be in line with those covered under the Vienna Convention on Diplomatic Relations. I would be more in the camp as expressed by the dissenting opinion of this decision.

There may be a military nexus for this issue (but not this specific case).  Think children of foreign military personnel born in Canada while a parent is serving in Canada under the Visiting Forces Act (has neither diplomatic or consular status but is still an employee of a foreign government).  Does that child automatically acquire Canadian citizenship?  According to the same article of the Citizenship Act that the Registrar quoted to revoke Mr. Vavilov's citizenship, such children would not gain Canadian citizenship.  While I had no personal experience with such, when we had large numbers serving in Germany and had many births, they did not gain German citizenship.

http://laws-lois.justice.gc.ca/eng/acts/C-29/page-1.html#h-3

I agree entirely with you.

I've read the FCA reasons and it strikes me that the majority was reaching and stretching here for whatever reason I do not know. As the dissenting judge points out there is nothing in the current act which limits the term "employee" to those with some form of consular status/immunity. In fact I would go so far as to say that the changes in the legislation over the years, has moved from where only consular employees were covered by the Act, to the point where the legislature has expressly changed the legislation to broaden the definition of employee to "any" employee of a foreign government.

Having said all that, the judge writing the majority decision was described in a 2015 survey of Canadian jurists as follows:

survey respondents described him as "the greatest administrative law jurist of our age," "the only one going deep into doctrine, making sense of it all," "thoughtful, scholarly, practical, and so hard working," and the author of "plain speaking decisions" that "have a real impact" and "hammer the important points home." He has also been described as "a sparkling writer" with an "engaging personality" and a "constitutional expert with...a prodigious work ethic and an encyclopedic knowledge of the law."

https://en.wikipedia.org/wiki/David_Stratas

 

[Oldgateboatdriver]

ModlrMike: Milnews.ca hit what I was making reference to right on the nose.

And Blackadder, my post was not meant to deal with the legalities of the matter but with the political inconsistencies in the public discourse of this government concerning such matters. While the Citizenship Act has various highly legal and technical articles, there remains the fact that Citizenship is a matter that is highly political in nature and, regardless of the actual law, the public - at least I believe - wants to have a clear understanding of the value we attach to it, and in particular, a consistent position on whom we deem deserving of it or not, and what could lead to its loss. I think most Canadian have a sense of the natural justice and equity aspect of not denying someone who is innocent of blame a Canadian citizenship merely because of his/her parents actions, if that innocent child otherwise qualifies for citizenship.

I am not seeing such consistency here. Take for instance the campaign underway to take away Aung San Suu Kyi Honorary citizenship. There is a reason behind the campaign, wether we agree with it or not, that is based on perception that our citizenship should not stand for her inaction underwear countries circumstances.

Here, while there may be a "legality" in the interpretation of who is an "employee" of a state under the law, I think most Canadian would not view the law as having that type of situation in mind. What if this child had grown his whole life in Canada, as a Canadian, only to suddenly discover the truth about his parents? Would it be right to take away his citizenship? (Yes, I am thinking about a situation such as the one in FX's "The Americans" TV show).

Just food for thoughts.

 

[dapaterson]

Here, while there may be a "legality" in the interpretation of who is an "employee" of a state under the law, I think most Canadian would not view the law as having that type of situation in mind. What if this child had grown his whole life in Canada, as a Canadian, only to suddenly discover the truth about his parents? Would it be right to take away his citizenship? (Yes, I am thinking about a situation such as the one in FX's "The Americans" TV show).

See also: http://ottawacitizen.com/news/local-news/stateless-man-argues-deportation-before-court-of-appeal for a related question of citizenship.

Deepan Budlakoti, born and raised in Canada, has no citizenship anywhere. But that doesn’t make him “stateless,” a lawyer for Citizenship and Immigration Canada argues.

Budlakoti needs to ask India whether he can get citizenship there before saying he’s stateless, the government argued in the Federal Court of Appeal Tuesday.

The 25-year-old convicted weapon and drug trafficker has fallen into an odd legal crack. His parents came to Canada in 1985 as diplomatic staff at the Indian High Commission. Their son Deepan was born here in October, 1989. Budlakoti has been ordered deported to India, but India rejected him. Indian officials said Budlakoti is not a citizen and have refused Canada’s request to issue him travel documents.

On Tuesday, Budlakoti went to the Federal Court of Appeal in an attempt to convince the court he should receive Canadian citizenship and be allowed to stay.

Canadian law gives citizenship to babies born here — but not if their parents are embassy staff from other countries. The senior Budlakotis eventually quit their Indian jobs and settled permanently in Canada. But the crucial question is when they did this.

Budlakoti’s lawyers say they left their Indian government jobs the summer before he was born, which would mean his citizenship should automatically be Canadian.

Canadian government records show that India gave notice they were making this change only in December, two months after Deepan was born.

While his parents later became citizens here, Budlakoti has remained a permanent resident but not a citizen. His parents never applied for citizenship for him.

And he has a criminal record that includes trafficking cocaine and weapons. That’s why Canada wants to deport him.

 

[Blackadder1916]

Here, while there may be a "legality" in the interpretation of who is an "employee" of a state under the law, I think most Canadian would not view the law as having that type of situation in mind. What if this child had grown his whole life in Canada, as a Canadian, only to suddenly discover the truth about his parents? Would it be right to take away his citizenship? (Yes, I am thinking about a situation such as the one in FX's "The Americans" TV show).

Just food for thoughts.

Though I haven't had a close look at all these supposed inconsistencies in the application of citizenship law and regulations (frankly, I'm probably like most Canadians, I simply don't care), there is probably one consistency - any action taken (or not taken) is likely in accordance with existing law and regulations (and there is probably a lot of wiggle room in some of the regulations).  They haven't been making it up out of thin air.  Yes, there is probably some "political" motives behind some of these cases, but what else is new.  In the case of this particular child of a "Russian/Soviet illegal", the exact wording of the law (in my opinion, but which has been "overlooked" by the FCA in its ruling - /sarcasm) would categorically deny him Canadian citizenship.  I feel no sympathy for him, whether he spent only one year or his entire life in the country.  If his status had been uncovered while he was still in this country and supposing it was also news to him, there are/were immigration regulations which could have permitted him to remain as a refugee/political asylum seeker.

The TV show "The Americans" is a completely different matter.  As DAP pointed out to me that citizenship laws differ in other countries, so does it in the USA.  Citizenship for Americans is governed by their constitution (and not like us by separate legislation).  Their basic rule is:

https://www.uscis.gov/us-citizenship

•Have been born in the United States or certain territories or outlying possessions of the United States, and subject to the jurisdiction of the United States

By "subject to the jurisdiction . . ." they mean not having diplomatic or consular status (i.e. immunity from prosecution).  Otherwise, if born on US soil, you have US citizenship, even if your parents are employees of a foreign government.

https://fam.state.gov/fam/09FAM/09FAM020201.html

Child Born in the United States to Aliens on Official Assignment:  A child born in the United States to alien parents who are in the United States on assignment for a foreign government is considered to be a U.S. citizen.  However, a child born to alien parents who, at the time of the child’s birth were “not subject to the jurisdiction of the United States”, such as ambassadors, envoys, ministers and other persons as set forth in 7 FAM 1111 (d)(2) are not considered U.S. citizens.  Any doubtful cases should be determined by post’s citizenship and passport officer.

That's why a child born to a CF member on an OUTCAN posting (but not if as a military attaché with diplomatic status) to the US becomes a US citizen.

 

[dapaterson]

The Supreme Court has ruled "Just because your parents were spies in the country illegally is no reason for you not to be granted citizenship".

https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do

The Supremes, both the quorum and the dissent, adopted a narrow, unsupportable (in my view) interpretation of 3(2) of the Citizenship Act, asserting that the restrictions articulated in the Act regarding citizenship in 3(2) are only applicable to individuals with diplomatic status.

I will note that CIC and Passport Canada apparently failed to address the applicant's arguments in that area; this may be a case where the justices were ruling on what was properly before them in the absence of the GoC providing appropriate arguments.