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The substantive content of “every citizen of Canada” in the Charter: Are citizens whoever Parliament says they are? Sean Rehaag Osgoode Hall Law School. Canadian Charter of Rights and Freedoms: Everyone. 2. Everyone has the following fundamental freedoms:
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The substantive content of “every citizen of Canada” in the Charter:Are citizens whoever Parliament says they are?Sean RehaagOsgoode Hall Law School
Canadian Charter of Rights and Freedoms: Everyone • 2.Everyone has the following fundamental freedoms: • (a) freedom of conscience and religion; • (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; • (c) freedom of peaceful assembly; and • (d) freedom of association. • 7.Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. • 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Canadian Charter of Rights and Freedoms: Citizens • 3.Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. • 6.(1) Every citizen of Canada has the right to enter, remain in and leave Canada. • (2) Every citizen of Canada and every person who hasthestatus of a permanent resident of Canadahas the right • (a) to move to and take up residence in any province; and • (b) to pursue the gaining of a livelihood in any province. • 23.(1) Citizens of Canada • (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or • (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, • have the right to have their children receive primary and secondary school instruction in that language in that province…
Defining Citizens: The Positivist Approach “Canadian citizenship is a creature of federal statute and has no meaning apart from statute… [I]n order to be a Canadian citizen, a person must satisfy the applicable statutory requirements.” - Taylor v. Canada (Min. Citizenship and Immigration), 2007 FCA 349. “The best course is for courts to accept that citizenship is a creature of federal statute law and that it can be changed from time to time by the federal Parliament, even though the consequence of any such change is also to change the scope of ss. 3, 6 and 23 of the Charter.” - Peter Hogg, Constitutional Law of Canada (2010)
“We make clear and unambiguous promises in our constituencies and then face pressure from Toronto elites.” - John Baird (Conservative House Leader) Hypothetical 1: The Toronto Elites Act • The Toronto Elites Act, S.C. 2010. • Persons who, on January 1 2010, were domiciled in Toronto and had the status of citizens of Canada , are no longer citizens of Canada, but instead have the status of Toronto Resident Non-Citizens. • Toronto Resident Non-Citizens are ineligible to vote or to run for office in federal or provincial elections. • Aside from the right to vote and to run for office, Toronto Resident Non-Citizens have all the rights and obligations of citizens of Canada.
Defining Citizens: The Substantive Approach “[N]ationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.” - Nottenbohm Case (Lichtenstein v. Guatemala), [1955] I.C.J. Rep. 4. • Partly independent constitutional definition of citizenship • Purposive and functional • Substantive content: Genuine and Effective Link Test? • Habitual residence • Centre of interests • Family ties • Participation in public Life • Attachment shown for the country • Etc.
Hypothetical 2: Maria When Maria was 2 years old, she came to Toronto from Mexico with her parents as undocumented migrants. Her younger brother and sister were born in Canada and are Canadian citizens. Maria attended primary and secondary school in Toronto. When she graduated from high school she went to work in a factory using false identity documents. Maria speaks only rudimentary Spanish, and has never been to Mexico. She has no family or friends in Mexico. Maria is now 25 years. Last week, the factory where she worked was subject to an immigration raid, and her immigration status was discovered. She is due to be deported to Mexico shortly.
Hypothetical 3: Northern Tradesperson Program To encourage economic development in Northern Canada, the federal government modifies the Immigration and Refugee Protection Act to create a new class of immigrants: the Northern Tradesperson Class. Persons selected to come to Canada as Northern Tradespersons have all right rights and responsibilities of Canadian Permanent Residents, except that they may only live and work in the Yukon, the North West Territories or Nunavut, and that they are not eligible to apply for Canadian citizenship. After 15 years in Canada, Northern Tradespersons may convert their status to Canadian Permanent Residents, subject to certain conditions.
