OTTAWA — The Supreme Court of Canada will help settle the controversy of whether the Toronto-born sons of Russian spies are actually Canadian citizens.
A high court decision Thursday grants the federal government a chance to fight a Federal Court of Appeal ruling that effectively affirmed the citizenship of Alexander and Timothy Vavilov.
Alexander, 23, and Timothy, 27, were born in Canada to parents using the aliases Donald Heathfield and Tracey Ann Foley.
The parents were arrested eight years ago in the United States and indicted on charges of conspiring to act as secret agents on behalf of Russia’s SVR, a successor to the infamous Soviet KGB.
Heathfield and Foley admitted to being Andrey Bezrukov and Elena Vavilova. They were sent back to Moscow as part of a swap for prisoners in Russia.
Alexander, who finished high school in Russia, changed his surname to Vavilov on the advice of Canadian officials in a bid to obtain a Canadian passport.
But he ran into hurdles at the passport office and in August 2014 the citizenship registrar said the government no longer recognized him to be a Canadian citizen.
The registrar said his parents were employees of a foreign government at the time of his birth, making him ineligible for citizenship.
The Federal Court of Canada upheld the decision.
But last June the appeal court set aside the ruling and quashed the registrar’s decision. It said the provisions of the Citizenship Act the registrar cited shouldn’t apply because the parents did not have diplomatic privileges or immunities while in Canada.
In its application to the Supreme Court, the federal government said the registrar’s original decision was “rational and defensible.”
Alexander’s lawyer, Hadayt Nazami, argued in reply that the federal rationale for denying the young man Canadian citizenship leads down an “absurd and purposeless” path and that accepting the government’s position “would result in uncertainty about an individual’s fundamental right to citizenship.”
In the interim, Alexander has been able to renew his Canadian passport and he hopes to live and work in Canada — calling his relationship with the country a cornerstone of his identity.
Although it involves the same key issue, Timothy’s case proceeded through the courts separately.
In a decision last month, the Federal Court said the ruling on Alexander equally applies to Timothy, making him “a citizen.”
Nazami said the brothers, both of whom are now abroad, have been through a long and difficult process. He was in touch with them Thursday about the next judicial steps.
“Of course, their reaction is the sooner this is over, the better it is,” Nazami said.
“It’s been many years, and we do want to get it over with.”
No date has been set for the Supreme Court case, to be heard in tandem with appeals by Bell Canada and the National Football League over whether Canadian viewers can watch American TV commercials during the Super Bowl game.
Normally, Canadian ads can be substituted in such programming, but the federal broadcast regulator ruled that the keenly anticipated U.S. commercials could be seen by Canadians watching American channels.
The citizenship and Super Bowl cases “provide an opportunity to consider the nature and scope of judicial review of administrative action,” The Supreme Court said Thursday, departing from its custom of refraining from comment on decisions about whether to hear cases.
Nazami said the court’s decision to delve into the issues, while creating more uncertainty for the brothers, is “a good thing from a legal perspective, as far as clarifying the laws.”