Federal Appeal


Immigration and Citizenship

Citizenship

Citizenship by birth

Diplomatic immunity required to trigger s. 3(2)(a) of Citizenship Act

Applicant’s parents were exposed as foreign agents after entering Canada decades earlier and assuming identities of two deceased Canadians. In 2010 parents were returned to Russia from United States via spy swap and applicant’s passport and American citizenship were revoked. Applicant moved to Russia and amended his birth certificate to his parents’ true identities to obtain Certificate of Canadian Citizenship. Registrar cancelled certificate on ground that applicant’s parents were not lawfully Canadian citizens or permanent residents and were employees or representatives of foreign government for purposes of s. 3(2)(a) of Citizenship Act. Applicant‘s application for judicial review was dismissed on basis that anyone who moved to Canada with explicit goal of establishing life to further foreign intelligence operation, in Canada or another country, was doing so in service of or as employee or representative of, foreign government. Registrar found that scenario was captured by s. 3(2)(a). Applicant’s appeal to Federal Court was dismissed. Applicant appealed. Appeal allowed. There was no breach of procedural fairness as applicant was able to meet case against him with information contained in notification letter. Registrar’s interpretation of paragraph 3(2)(a) was unreasonable. At no time did applicant’s parents enjoy immunity. Immunity is required to trigger application of paragraph 3(2)(a). Purpose of paragraph was shown by its legislative history. Definition of “employee[s] in Canada of a foreign government” includes only those who enjoy diplomatic privileges and immunities under Vienna Convention on Diplomatic Relations. Paragraph 3(1)(a) applied and gave applicant Canadian citizenship.

Vavilov v. Canada (Citizenship and Immigration) (2017), 2017 CarswellNat 2791, 2017 FCA 132, David Stratas J.A., Wyman W. Webb J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 3740, 2015 CarswellNat 4747, 2015 FC 960, 2015 CF 960, B. Richard Bell J. (F.C.).

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