The history of Canadian nationality law dates back over three centuries, and has evolved considerably over that time.
During the early colonial period, residents of the French colonies were French subjects, governed by French nationality law, while residents of British colonies were British subjects, governed by British law. Prior to Confederation in 1867, the residents of the various provinces of British North America were British subjects, governed primarily by British law.
After Confederation, as Canada evolved to full nationhood, it gradually enacted laws relating to rights of domicile and entry to Canada, although Canadians continued to be British subjects under British law.
In 1946, the federal Parliament enacted the Canadian Citizenship Act, 1946, which created fully independent Canadian citizenship, separate from British law and status as British subjects. That Act came into force on January 1, 1947, and remained in force for thirty years. It conferred citizenship in different ways, by birth in Canada, birth to a Canadian parent, and by naturalisation. Since 1977, Canadian nationality has been regulated by the Citizenship Act, enacted in 1976 and brought into force in 1977.
The Canadian Citizenship Act, 1946 imposed restrictions on multiple citizenship. The current Canadian Citizenship Act does not restrict multiple citizenship.
Background Canada became a French possession in 1663 and Louis XIV established that the laws and ordinances of France governed the territory. The Ancien Régime of France developed a system of feudal allegiance in which subjects were bound together by a scheme of protection and service tied to land ownership. Possession of land was typically tied to military and court service and omitted women because they could not perform those obligations. Thus, French nationality also derived from place of birth in French territory, until the nineteenth century, but under feudal law married women were subjugated to the authority of their husbands under coverture.
In 1763, at the end of the Seven Years' War under the terms of the Treaty of Paris, Canada was transferred to British control and converted to the laws of Britain. For a decade, English Common Law defined civil status in the territory. In Britain, allegiance, in which subjects pledged to support a monarch, was the precursor to the modern concept of nationality. The crown recognised from 1350 that all persons born within the territories of the British Empire were British subjects. Those born outside the realm — except children of those serving in an official post abroad, children of the monarch, and children born on a British sailing vessel — were considered by common law to be foreigners. Marriage did not affect the status of a subject of the realm, except that under common law, single women, including divorcées, were not allowed to be parents thus their children could not derive nationality maternally and were stateless unless legitimated by their father.
Nationality acts passed in Britain did not extend beyond the bounds of the United Kingdom of Great Britain and Ireland. Other than common law, there was no standard statutory law which applied for subjects throughout the realm, meaning different jurisdictions created their own legislation for local conditions, which often conflicted with the laws in other jurisdictions in the empire. Thus, a person who was naturalised in Canada, for example, would be considered a foreigner, rather than a British national, in Australia or South Africa. The Quebec Act 1774 restored French civil law in the territory of Quebec. The Constitution of 1791 divided Canada into two provinces and reaffirmed that Quebec, known as Lower Canada, was to retain French law as it existed up to 1763, while English law would be applicable in Upper Canada.
In 1849, Upper Canada passed a statute to bring its law into line with the British Naturalization Act 1844, requiring foreign women to automatically derive their nationality from their spouse. In 1866, the Civil Code of Lower Canada was drafted to modernize and codify the legal system in place for Lower Canada, creating a coherent compilation of the various laws in effect in the territory in both English and French. Under the terms of the Code, foreign women automatically acquired the nationality of their spouse upon marriage. Married women were legally incapacitated and subject to their husband's authority. They were also required to share his domicile, which under French law is tied to the place from which one derives their civil rights.
Imperial and federal legislation, 1868–1914
Upon passage of the British North America Act, 1867, the Parliament of Canada was given authority over "Naturalization and Aliens", by virtue of section 91(25).
The Aliens and Naturalization Act, 1868 was the first federal Act to be passed, and it provided that persons who had been previously naturalized in any part of the Dominion possessed the same status as anyone naturalized under that Act. In addition:
Aliens could apply for naturalization after three years' residence in Canada. Alien-born women became naturalized by marriage to a natural-born subject or to a husband naturalized under the Act. The laws in Nova Scotia and the former Province of Canada that allowed aliens to hold property were kept in force.
The 1868 Act was replaced by the Naturalization and Aliens Act, 1881,S.C. 1881, c. 13 which came into force on 4 July 1883. It made the rules allowing aliens to hold property uniform throughout the Dominion, and otherwise standardized the law along the same lines as the Naturalization Act 1870 of the United Kingdom. It also provided that Canadian women automatically derived their nationality upon marriage from their husbands.
From the late nineteenth century, English or Anglo-Canadians viewed their nation as a white, British society; whereas, those in Quebec identified as nationals of Canada, with unique ties to French culture and Catholicism. The policies adopted for immigrants, and indigenous peoples, were aimed to include those who could quickly assimilate into the mainstream culture and exclude those who could not. In 1885, the government passed the Chinese Immigration Act, requiring payment of a $50 head tax for all Chinese immigrants. In 1907, an agreement was reached with Japan to restrict emigration to 400 persons per year and only allow contract labourers who had been government-approved, domestic workers for Japanese families, and persons who had been previous residents to enter Canada. With increasing Indian/South Asian (primarily Punjabi Sikh) immigration to Canada between 1897 and 1907, the Continuous journey regulation was passed in 1908 to prevent Asian immigrants from entering Canada unless they arrived from their birth country; since there was no direct route to Canada from India, the law effectively barred Indian immigration.
From 1869 to 1985, First Nations women in Canada who were Status Indians under the Indian Act were required to follow the status of their husband. This meant primarily that if they married a person who was not a Status Indian, they lost their Indian status. Likewise, being a Status Indian person was described in law until 1951, as a male person who had native blood with a tribal affiliation. His children or legal wife derived their Indian status from their father or husband.
Canadian citizens and Canadian nationals, 1910–1947
The status of "Canadian citizen" was first created under the Immigration Act, 1910, which included anyone who was:
a person born in Canada who had not become an alien; a British subject possessing Canadian domicile; and a person naturalized under the laws of Canada who had not subsequently become an alien or lost Canadian domicile.
Aliens, as well as all other British subjects, who wished to immigrate to Canada required permission to land. "Domicile" was declared to have been acquired by a person having his domicile in Canada for three years after having been landed therein, excluding any time spent in "any penitentiary, jail, reformatory, prison, or asylum for the insane in Canada."
Although the terms "Canadian citizen" and indeed "Canadian citizenship" were used in this Act, they did not create the legal status of Canadian citizen in a nationality sense. People who had the status of "Canadian citizen" were merely free from immigration controls.
In 1911, at the Imperial Conference a decision was made to draft a common nationality code defining British nationals for use across the empire. The status of all British subjects in the Empire (whether by birth or naturalization) was standardized by the British Nationality and Status of Aliens Act 1914, which was adopted in Canada by the Naturalization Act, 1914. The uniform law, which went into effect on 1 January 1915, required a married woman to derive her nationality from her spouse, meaning if he was British, she was also, and if he was foreign, so was she. It stipulated that upon loss of nationality of a husband, a wife could declare that she wished to remain British and provided that if a marriage had terminated, through death or divorce, a British-born national who had lost her status through marriage could reacquire British nationality through naturalisation without meeting a residency requirement. The statute reiterated common law provisions for natural-born persons born within the realm on or after the effective date. By using the word person, the statute nullified legitimacy requirements for jus soli nationals. For those born abroad on or after the effective date, legitimacy was still required, and could only be derived by a child from a British father (one generation), who was natural-born or naturalised. Naturalisations required five years residence or service to the crown.
By 1918, the rise of women's suffrage motivated new federal interest in the question of women's nationality, but the country's legislative ability to change its nationality laws was limited by the common code for Dominions of Britain that required legal changes to be unanimous among all member countries. In 1919, women were successful in lobbying for foreign women to be able to naturalise independently of their spouse in Canada, but by law they were still required to have the same nationality as their husband in the empire.
A separate status of "Canadian national" was created under the Canadian Nationals Act, 1921, which was defined as being any British subject who was a Canadian citizen as defined above, the wife of any such citizen, and any person born outside Canada whose father was a Canadian national at the time of that person's birth.
Canada later passed the Chinese Immigration Act, 1923 on June 30, 1923, which barred Chinese immigration except for a very restricted group of diplomats, merchants, missionaries, students and returning residents. In 1928, the Japanese government agreed to amend their emigration agreement, limiting immigration to Canada to 150 persons annually. After the World Conference on the Codification of International Law held in The Hague in 1930, Canada became the first Commonwealth country to modify its laws to conform with the provisions to prevent statelessness in the Convention on Certain Questions Relating to the Conflict of Nationality Laws. In 1931, under the government of R. B. Bennett the Nationality Act was reformed to prevent women from losing their nationality through marriage if they would be rendered stateless. The amendment also introduced the concept of consent, meaning that alien women did not automatically derive the nationality of a spouse, but could obtain his nationality if they requested it within six months of his change of status.