Spies like us

Ron Poulton
When we think of spies, we think of dark, smoke-filled places, and cynical, world-weary operatives skulking in and out of shadows. Or, if not the Cold War version, the cartoon-like James Bond.

Either way, we certainly don’t think of their children in any concrete way. But, sometimes, spies have children and, depending on where they are born, they may have nationality issues.

Such is the case for the Vavilov brothers, Tim and Alex, born in Canada in the 1990s to parents who were allegedly spies for Russia. The boys’ parents, Andrey Bezrukov and Elena Vavilova, were alleged to have entered Canada and adopted the identity of Canadian-born children with similar birth dates to their own who had died at birth or shortly thereafter.

After procuring copies of birth certificates of these children from the local records office, they proceeded to create their identities in Canada, called “legends” in the spy world. While living and working in Canada in preparation for their actual spy work in the United States, the couple had two children, Tim and Alex, neither of whom had any idea of the shadowy world of their parents.

The family eventually moved to the U.S. and supposedly began their spy work. One day, the FBI came knocking, arrested both parents, and shipped them off to Russia in a prisoner exchange, leaving their boys, then aged 16 and 19, in disbelief and without parents.

The boys then joined their parents in Russia and, as they were born in Canada and were citizens of Canada, attempted to obtain Canadian passports and certificates of citizenship. No dice, said Passport Canada and Canada Immigration.

“You’re spy kids, not citizens,” they were told.

The Citizenship Act of Canada is based largely on a principle of law known as jus solis, or “right of the soil.” This grants anyone born in a territory or a state the nationality or citizenship of that territory or state. It is a principle of international law directly enacted into s. 5 of our Citizenship Act.

There is one exception to this principle of law: Children born in Canada of foreign diplomats do not become Canadians by birth. The rationale for excluding these children from our nationality is because family members of diplomats benefit from the same immunities as diplomats from civil and criminal liabilities and punishments.

If they are not subject to all of the laws of Canada, then they should not be members of the Canadian family, the argument goes. It’s all or nothing, in terms of the rights and liabilities of citizenship. It is a good principle, and does make eminent sense. It is also accepted in international law as a derogation from jus solis.

The parents of the Vavilov brothers were not diplomats and had no association with the Russian embassy in Canada. Yet their children were denied Canadian citizenship by birth. Why?

The section of the Canadian Citizenship Act excluding children born in Canada to foreign diplomats from acquiring Canadian citizenship was amended in 1974. The new section contained reference to children born to consular or diplomatic officials, as in previous iterations, but it now added children born to “other representatives or employees in Canada of a foreign government.”

The passport office, and Federal Court on judicial review in Vavilov v. Canada (Citizenship and Immigration), held that this meant a child born to any employee of a foreign government while in Canada, regardless of diplomatic status or immunity, would be denied citizenship in Canada.

They decided that while in Canada, the Vavilov parents were employees of the Russian government (a fact that is in dispute).

As no explanation survived the 1974 amendment to ascertain why this phrase was added, the court applied the plain meaning rule to infer that it applied to any employee of a foreign government.

On appeal to the Federal Court of Appeal, argument was made that this interpretation created an exception to jus solis, which was never intended nor recognized in international law and so risked excluding any child born in Canada to parents of a foreign-owned government corporation.

Such a broad scope to the provision could not have been intended and is certainly inconsistent with any purpose in denying citizenship to persons with immunities from Canadian laws. The appeal court reserved its decision.

The Vavilov brothers will have to wait a little longer to find out who they are.

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