Law Times

www.lawtimesnews.com LAW TIMES 8 COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 4, 2019 BY MICHAEL MCKIERNAN For Law Times E liminating birthright citizenship would be an overreaction to fears about a growth in birth tourism, according to an Ottawa immigration law professor. Canada's Citizenship Act en- shrines the principle of jus soli, conferring automatic citizen- ship on anyone born on Cana- dian soil, making it one of just 30 or so countries in the world to maintain birthright citizenship. But a recent reaction against the phenomenon of "birth tour- ism," in which non-resident non-Canadians give birth in the country in order for their children to obtain Canadian citizenship, has led to calls to tighten up the law. At its policy conference in Halifax last summer, members of the Conservative Party of Canada passed a resolution to amend the act so that birthright citizenship is only automatic when one of the child's parents is either a citizen or permanent resident of Canada, following the example of Australia, which made a similar move in 2007. And Liberal MP Joe Peschi- solido, whose Richmond, B.C. riding has become a f lashpoint for its high rate of births to non- resident mothers, lent his sup- port to a petition demanding an end to birth tourism, which it denounced as an "abusive and exploitative practice" that is "de- basing the value of Canadian citizenship." Despite the passion the prac- tice arouses, Jamie Liew, an as- sociate professor at the Univer- sity of Ottawa's faculty of law, says it's important to remember that there is currently no legal bar to birth tourism in Canada. And she strongly opposes any amendment that would tackle it by ending birthright citizenship. "In my opinion, it would be a massive overreaction to a very small problem that will lead to humongous social problems," Liew says. Such an amendment, she says, would affect every Cana- dian, because people would have to prove their citizenship regard- less of where they were born. "That opens up a can of worms, because you would have whole swaths of people without the means or knowledge to apply for citizenship," Liew says. "You create a whole population of state- less people who could be excluded from the basics of life in Canada." In addition to the cost to the taxpayer of a whole new layer of bureaucracy, Liew says, there would also inevitably be mis- takes and bad decisions in com- plex or difficult cases. "People will end up in court challenging decisions, which is expensive for everyone," she adds. In a recent study carried out for the Institute for Research on Public Policy think tank, au- thor and commentator Andrew Griffith, a former senior official at Immigration, Refugees and Citizenship Canada, suggested that previous figures may have heavily underestimated the inci- dence of birth tourism. Statistics Canada numbers indicate birth tourism peaked in 2012, when the agency recorded 699 births to mothers whose res- idence was outside Canada, fall- ing to 233 in 2015, before rising again in 2016 to 313. But Griffith used hospital billing data to show that the number of non-resident moth- ers giving birth in Canada is actually much larger. Even with- out data from Quebec hospitals, the figure rose to 3,223 in 2016 from 1,752 in 2012. According to Griffith's findings, the 3,628 births to non-resident mothers in 2017 accounted for 1.2 per cent of all births in Canada, a proportion he says can no longer be dismissed as "insignificant." Griffith says the discrepancy can be accounted for by the fact that birth tourist mothers are more likely to use their tempo- rary Canadian address on birth registration documents used by Statistics Canada, while giving their real addresses abroad for the purposes of hospital pay- ments. However, he acknowledges that his figures overstate birth tourism to some extent, because the billing data does not distin- guish births to temporary resi- dents such as corporate trans- ferees or international students or children born to Canadian expatriates returning home tem- porarily to give birth. He says he welcomes the fed- eral government's recent com- mitment to look into the issue and says he hopes they can get a better handle on the precise number of birth tourists. "But I don't think it's tenable to leave it at just doing a study. If they find that my numbers are correct, they need to look at op- tions to address it," Griffith says. "What's important is how it's perceived as undermining the fundamentals of citizenship." Despite his discomfort with birth tourism, Andy Semotiuk, an immigration lawyer with Pace Law Firm in Toronto, says he's a firm believer in birthright citizenship. "The troublesome thing for me is the people making money from advertising and facilitating anchor births," he says, suggest- ing legal solutions focus on those profiting off birth tourism, rath- er than the mothers engaging in it or their children. LT Debate over birthright citizenship emerges Uncertainty around program causes concern P. 10 Process for getting LMIAs should change P. 11 Immigration Law In my opinion, [an amendment] would be a massive overreaction to a very small problem that will lead to humongous social problems. Jamie Liew Jamie Liew says there is currently no legal bar to birth tourism in Canada, and she strongly opposes any amendment that would tackle it by ending birthright citizenship. Focus on FOCUS THE TOP PERSONAL INJURY BOUTIQUES AND ARBITRATION CHAMBERS Complete the survey at canadianlawyermag.com/surveys VOTING IS OPEN UNTIL FEBRUARY 25 TH IT'S TIME TO VOTE FOR… Untitled-2 1 2019-01-31 3:42 PM

• Cover