The Supreme Court of Canada recently upheld the Citizenship claim of a man born in Canada to Russian undercover spies.
The Citizenship Act of Canada provides that a person who was born in Canada after February 14, 1977, is a Citizen by Birth. Though Alexander Vavilov was born in Canada in 1994, the Registrar noted that neither of his parents was a citizen of Canada, and neither of them had been lawfully admitted to Canada for permanent residence at the time of his birth. It was further noted that parents were convicted of "conspiracy to act in the United States as a foreign agent of a foreign government", and recognized as unofficial agents working as "illegals" for the SVR.
Section 3(2) (a) provides that s. 3(1) (a) of the Citizenship Act (which grants citizenship by birth to persons born in Canada after February 14, 1977) does not apply to an individual if, at the time of the individual's birth, neither of their parents was a citizen or lawfully admitted to Canada for permanent residence and either parent was "a diplomatic or consular officer or other representative or employee in Canada of a foreign government." The Registrar interpreted s. 3(2) (a) as applying to children of individuals who have not been granted diplomatic privileges and immunities at the time of the children's birth and cancelled his Citizenship.
On the petition filed by Vavilov, the Federal Court agreed with the Registrar's conclusion that Vavilov's parents had at the time of his birth been in Canada as part of an undercover operation for the Russian government was reasonable. Federal Court of Appeal (majority) held that s. 3(2) (a) was meant to apply only to individuals who have been granted diplomatic privileges and immunities under international law. Because it was common ground that neither of Mr. Vavilov's parents had been granted such privileges or immunities, it ruled that s. 3(2) (a) did not apply to him.
Upholding the Court of Appeal view, the Supreme Court observed that the Registrar did not consider the potential harsh consequences of her interpretation for such a large class of individuals, which included Mr. Vavilov, or the question whether, in light of those possible consequences, Parliament would have intended s. 3(2) (a) to apply in this manner. It said that the Registrar's decision had the same effect as a revocation of citizenship — "a process which has been described by scholars as "a kind of 'political death'."
Instead of remitting the matter matter to the Registrar for re-determination, the court considered the case on merits and held that Parliament did not intend s. 3(2)(a) of the Citizenship Act to apply to children of individuals who have not been granted diplomatic privileges and immunities. It said:
"Given that it is undisputed that Ms. Vavilova and Mr. Bezrukov, as undercover spies, were granted no such privileges, it would serve no purpose to remit the matter in this case to the Registrar. Given that Mr. Vavilov is a person who was born in Canada after February 14, 1977, his status is governed only by the general rule set out in s. 3(1) (a) of the Citizenship Act . He is a Canadian citizen."
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