Why the sons of Russian spies qualify as Canadians

Opinion: Canada’s government could appeal a court ruling that said that the son of Russian spies is Canadian. They’d be wrong to do so.

Alex and Tim Foley in Bangkok in 2011. (Tim and Alex Foley)

Alex and Tim Foley in Bangkok in 2011. (Tim and Alex Foley)

Peggy Ann Osborne and Don Chapman are the lead researcher and founder, respectively, for Lost Canadians, a volunteer group of Canadian advocates working to restore rightful citizenship to hundreds of thousands of Canadians who have fallen between the cracks of citizenship laws. 

The convoluted citizenship claim of Alexander Vavilov—the younger of two sons born in Canada to a pair of Soviet spies in the 1990s who were outed in 2010 after moving to the United States—is back in the news, seemingly in a state of flux again. Maclean’s feature story on the lives of the brothers’ parents raises questions about whether or not the sons should be guilty of the sins of the mother and father. And Sept. 20 now looms as an important date for Alexander: The Trudeau government has until then to decide whether or not it will pursue a Supreme Court appeal of a Federal Court ruling from June that ordered Ottawa to reinstate his citizenship.

But in reality, the case has already been decisively settled by that Federal Court of Appeal decision: Alexander is Canadian. If Alexander had lost that court’s appeal and been denied their Canadian citizenship birthright, they would have joined the ranks of the former and current “Lost Canadians”—people who were either born in Canada or to Canadian citizens abroad who were later stripped of their citizenship through no fault of their own, or “would-be” Canadians who should have legally qualified as Canadian citizens but had been, or still are, wrongfully denied their status and have had to fight the government to get it. And while it’s Alexander’s case that’s currently before the courts, it would also set a precedent for Timothy, as well.

MORE: Read Michael Friscolanti’s long read on the Russian spies and their children

The Citizenship Act is the deciding feature. Due to their birth in the 1990s, these boys were and are subject to the 1974-75-76 Citizenship Act. In Part I of that Act, “The Right to Citizenship,” section 3 (1) says that a person is a citizen if the person was born in Canada after Feb. 14, 1977.

There is, however, one distinct exception in that law, applying only to a very specific group of people. The Act states (bold added):

“Not applicable to children of foreign diplomats…and “does not apply to a person if, at the time of his birth, neither of his parents was a citizen of 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 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…”

The word in bold—“and”—is important. The parents were indeed not lawfully admitted for permanent residence; they’d snuck into Canada and pretended to be natural-born Canadians. No one doubted their backgrounds until many years later, when they were unmasked as spies and deported to Russia from the United States.

But although that unlawfulness denies them citizenship, it does so only if one of the next three conditions following the “and” also applies. And none of them do.

Neither parent was an accredited diplomat, a consular official, or even a foreign government employee in the sense the law establishes. A foreign spy is not a government employee under the laws of Canada, because they follow the Vienna Convention on Diplomatic Relations, of which Canada is a signatory; the only “foreign government employees” that citizenship law applies to are those who enjoy all of the rights and privileges given to consular and diplomatic and official representatives and who have been registered directly with the host country upon their arrival in Canada. Our government keeps a list of all such accredited personnel, and this includes all spouses, even common-law ones, and family members who live with them (kids, nieces, etc.); any child born in Canada to them has to be registered within days of the birth.

It is a sure bet that the Russian government did not (and do not) register their spies or secret agents with their host countries. Therefore, the parents in this case were not official employees of the Russian government under diplomatic law and protocol, and therefore, they did not enjoy a single one of the benefits, protections, rights or privileges given to those with diplomatic standing. Among these, the most valuable is immunity from the jurisdiction of Canadian law.

It then also follows that the limitation applied by almost every country in the world to rights of consular officials also applies: any child born in Canada while their parent is in a diplomatic position, or an exempt registered foreign government employee, is not a Canadian citizen. So, if they’re born in Canada, the children of foreigners, illegal aliens, pregnant tourists, or passengers on Canadian planes mid-flight—like anyone else born here—are citizens of Canada, even if they’re born to enemy spies.

Alexander Vavilov is not alone when it comes to “sins of the father” citizenship cases, with the most well-known of these being that of an accused former Nazi in Canada. Helmut Oberlander was a member of a notorious Nazi death squad in the Second World War, but he claims he had no choice; as a Ukrainian, he contends he was conscripted and acted only as a translator, and had no part in the atrocities. He came to Canada after the war and became a Canadian citizen in 1960, but the government argues Oberlander was not totally forthcoming when disclosing his wartime record in his immigration interview in 1953. Over the last two decades, Canada has tried to revoke Oberlander’s citizenship four times, including most recently just one month ago; the last three were overturned on appeal.

Like the Vavilov brothers’ parents, the Oberlanders have had children who were born in Canada, and yet no one has ever questioned or tried to cancel the Canadian status of the Oberlander children. It seems the government is applying the fathers’ sins unequally. This should be a concern for government ethics lawyers.

Another earlier case is that of Leopold Infeld, a brilliant Polish-born scientist who was once known as Canada’s greatest physicist. He authored numerous important scientific books and papers with many world-renowned scientists, and was a close friend and collaborator of Albert Einstein’s.

As a young man, Infeld received a fellowship from the Rockefeller Foundation in 1934 to study at Cambridge. In 1936, he returned to Poland for a visit; shocked at the pre-Second World War conditions in Warsaw’s Jewish ghetto, he realized he’d not be returning to Poland with its looming Nazi menace, and moved to the U.S. to study at Princeton University.

When the University of Toronto offered him a professorship in 1938, he immigrated to Canada. He and his American mathematician wife both became Canadian citizens, and had two children while living in Toronto: Eric and Joan.

A decade later, during the hysteria of the post-war Red Scare, based on no more than unfounded fear that he was going to provide atomic secrets to Russia, Infeld found himself the subject of ridicule and public harassment. In 1950, when Canada’s Parliament itself denounced him as a traitor, the family left for Poland and Canada revoked the citizenship of Infeld, his wife, and their children.

“Such action under the Canadian Citizenship Act was always legal, against minor children of a parent who had renounced or lost citizenship,” writes an editorial in the Globe and Mail, in January, 1968. “But from 1914 until 1950, the child had an absolute right to reclaim citizenship on reaching his majority. Under the amendments of 1950, which Parliament approved in the days following Dr. Infeld’s departure, the child lost this right: it was left to the Immigration Minster’s discretion to allow an application ‘under special circumstances’.”

Many years later, Canada admitted it had unjustly accused an innocent man and invited all of them to return as citizens. Infeld agreed to return, but only if he could resume his former position at the University of Toronto; the university refused to reinstate him. The Infelds remained in Poland. In 1988, though, his daughter Joan moved back to Canada and regained her Canadian status after fulfilling the required one-year’s residence in Canada under a law that allowed citizenship resumption for former Canadians who’d lost their citizenship as minors due to their father’s actions.

These cases indicate just how complicated and arbitrary our citizenship laws have become. The government says that citizenship is a legislated privilege, not a right. But legislation can, and often is, changed: whatever government holds power can amend or interpret citizenship laws as they wish, if Parliament goes along with it. In the past century, such laws were often changed out of pure bigotry or fear of “others”; even social actions and causes—such as labour union protests or cultural differences—have led to government overreactions wherein they amended citizenship laws to refuse, and even cancel, the citizenship of hundreds of thousands of Canadians. It is everyday Canadians who fall victim to the random-feeling nature of our citizenship laws. During some decades of the 20th century, Alexander Vavilov would have been allowed to freely return and regain his citizenship without any formality at all, had he actually legally lost it; a year later, with an amendment to the law, he would have only been allowed to do so if a government minister agreed to it personally; in yet other years, he would have been allowed citizenship restoration only after following certain requirements, and they, too, varied with the winds in Ottawa.

But as the law stands now, and has since their births, both the Vavilov brothers are still Canadian citizens. If that bothers you, consider this: in our Canadian family—just as in a nuclear family—you don’t always get to pick and choose your family members. While his situation has seemed complex, the case of Alexander Vavilov, is actually clear-cut: he has been declared a citizen of Canada by the Federal Court of Appeal. He should need no ministerial invitation, resumption rules, or requirements to be what he already is.

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