Sons of Russian spies’ case comes to a head

Two Toronto-born brothers stripped of their Canadian citizenship after their parents were exposed as deep-cover Russian spies will find out sometime in the next week whether their years-long legal battle with the federal government is headed to the Supreme Court.

Timothy and Alexander Vavilov are the adult sons of elite KGB agents who slipped into Canada during the Cold War, stole the identities of two dead babies (Donald Howard Heathfield and Tracey Lee Ann Foley), and eventually moved to the United States—where the couple was famously arrested in the same FBI bust that inspired the hit TV series The Americans.

After the raid, Ottawa concluded that the spies’ sons were never Canadian to begin with—despite being born here in the 1990s—because their secret-agent parents were “employees of a foreign government,” a rare exception to the birthright rule under the Citizenship Act. Now Russian citizens, the brothers have spent the past four years fighting in Federal Court to regain their Canadian status, arguing they should not be punished for the actions of their mother and father (whose real names are Elena Vavilova and Andrey Bezrukov). Both men also insist that until the FBI showed up at their Boston-area home in 2010, when Tim was 20 and Alex 16, they had no idea their parents were leading an elaborate double life.

The full saga, including exclusive interviews with the Heathfield and Foley families, was featured in a recent Maclean’s cover story.

READ MORE: The Russian spies who raised us

On June 21, the Federal Court of Appeal issued a ruling in Alex’s case, overturning a lower court judgment and ordering Ottawa to reinstate his citizenship. Simply put, the court concluded (2-1) that the “employee of a foreign government” clause is extremely specific, applying only to those visiting employees who enjoy diplomatic immunity, such as an ambassador. Because Alex’s parents were so-called “illegals” who had no affiliation with the Russian embassy—and therefore didn’t enjoy any form of state immunity—their Canadian-born son must be recognized as a citizen, the court ruled.

“Unless another ground for revocation applies—and none has been argued here—the appellant is entitled to Canadian citizenship,” said Justice David Stratas, writing for the majority. Any other conclusion, he continued, “is not supportable, defensible or acceptable.”

Speaking to Maclean’s via email, Alex, now 23, applauded the ruling. “I am once again Canadian in the eyes of the law,” he wrote in June. “I have to say I feel very happy and vindicated that justice finally prevailed.”

Nothing is final quite yet, however. The Trudeau Liberals have until Sept. 20—six more days—to decide whether to seek leave to appeal to the Supreme Court. With that deadline looming, Ottawa is still deliberating. “The Government of Canada is carefully reviewing the Federal Court of Appeal’s decision and has not determined whether or not to appeal this decision at this time,” an Immigration spokeswoman said today, in an email to Maclean’s. “If a decision is made to seek leave to appeal to the Supreme Court, the leave application must be filed by September 20, 2017.”

Tim’s case, a separate Federal Court file, was adjourned last year pending the outcome of his brother’s legal fight. Both cases hinge solely on the definition of “employee of a foreign government,” and if Ottawa chooses not to appeal Alex’s ruling, the latest judgment would almost certainly apply to Tim, too.

READ MORE: Why the Vavilov children—the sons of Russian spies—qualify as Canadians

But there is one glaring difference between the brothers’ cases: Canada’s spy agency, the Canadian Security Intelligence Service (CSIS), has told immigration authorities that the eldest son did in fact know the truth about his parents—and that Tim was “sworn in” by the SVR, the KGB’s post-Soviet successor, before U.S. authorities handcuffed his mom and dad. Although the precise evidence revealed to federal bureaucrats remains secret, the CSIS briefing appears to be the first official confirmation of a 2012 Wall Street Journal report that claimed Tim had agreed to travel to his parents’ homeland to begin formal espionage training. During one conversation with his parents, the article alleged, the eldest son “stood up and saluted ‘Mother Russia.’ ”

Tim, 27, adamantly denies having any knowledge of his parents’ true identities, or that they were “grooming” him to follow in their espionage footsteps. “These allegations are not true,” he wrote in a sworn affidavit, filed as part of his court proceedings. “It has been stated by the FBI that for over 10 years my home was bugged, however no evidence of my involvement has ever been presented.”

The suspicion surrounding Tim raises a compelling question: Would the government try to appeal Alex’s ruling solely because a Supreme Court victory would keep Tim out of the country, too?

The brothers’ Toronto lawyer, Hadayt Nazami, filed a motion in Tim’s case last month, demanding that Ottawa’s decision to revoke his citizenship be quashed “for the same reasons set out” in Alex’s judgment. The Federal Court of Appeal settled the matter “finally and unequivocally,” Nazami wrote.

Government lawyers opposed the motion, arguing it would be “premature” to rule in Tim’s matter before the appeal deadline passes in Alex’s case. “There is no reason for the Court to issue a judgment in this case in the next 20 days, before it is definitively known whether Alexander Vavilov’s case will be brought before the Supreme Court,” Justice Department lawyers wrote on Aug. 31. “[T]he granting of this motion would raise unnecessary procedural and legal complexities in this case, given the potential need to preserve appeal rights, certify a question and pursue a parallel appeal.”

On Monday, Justice Henry S. Brown agreed with the government and dismissed the motion. Like Alex, Tim will have to wait a little while longer for Ottawa’s next move.