Son of Russian spies can travel home to Canada, judge rules - Macleans.ca

Son of Russian spies can travel home to Canada, judge rules

The Trudeau government has been ordered to issue citizenship documents and a passport to the Toronto-born son of elite Russian spies at the centre of a Supreme Court battle

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Tim and Alex Vavilov

Alex and Tim Vavilov in Bangkok in 2011. (Tim and Alex Vavilov)

A judge has ordered the Trudeau government to issue citizenship documents—and a passport—to the Toronto-born son of elite Russian spies, ruling that the 23-year-old should be allowed to return to Canada even though the Supreme Court is still pondering whether to hear one last appeal in his controversial case.

Alexander Vavilov was stripped of his Canadian citizenship “through no fault of his own,” the judge ruled, and after winning it back last summer at the Federal Court of Appeal, he should not be forced to wait in limbo while Ottawa tries to convince the country’s top court to overturn that decision. Instead, the Liberals should reinstate Vavilov’s revoked citizenship—and allow him to come home—pending any potential ruling from the Supreme Court.

“It is difficult to accept that issuing these documents to this one person will cause significant and irreparable harm to the public interest,” wrote Justice Wyman Webb of the Federal Court of Appeal, in his Jan. 19 decision. “There is no allegation that Mr. Vavilov did anything wrong.”

Ottawa has fought for years to keep Vavilov from re-entering his country of birth, and despite this latest ruling the government is still doing all it can to keep him out. Instead of conceding defeat, Justice Department lawyers filed yet another motion last week, asking the Federal Court of Appeal to reconsider. The feds remain adamant that nothing should happen on the contentious file until the Supreme Court decides, once and for all, whether Vavilov is indeed a Canadian.

The high court has yet to announce whether it will weigh in on the matter, and is under no deadline to do so.

WATCH: The Russian spies who raised us

Vavilov was born in Toronto in 1994 as Alexander Philip Anthony Foley, the second son of a husband-and-wife team of deep-cover KGB agents who slipped into Canada during the Cold War and stole the identities of two dead babies from Montreal: Donald Howard Heathfield and Tracey Lee Ann Foley. Alex and his older brother, Timothy, spent their childhood oblivious to the fact that their parents’ real names were Andrey Bezrukov and Elena Vavilova, or that their mom and dad were prized assets of Russia’s foreign intelligence service. The boys were still young when the family moved to France, then Massachusetts—where, in 2010, the couple was arrested in a high-profile FBI raid that later inspired the hit TV series The Americans. Tim was 20 when his parents were exposed; Alex was 16.

After the bust made headlines around the world, immigration officials in Ottawa concluded that both brothers were never Canadian to begin with, despite being born here, because their parents were “employees in Canada of a foreign government,” a rare exception to the birthright rule under the Citizenship Act. Now Russian citizens who changed their last name to Vavilov, Alex and Tim have been battling in court to regain their Canadian status, arguing, among many other things, that they should not be punished for their parents’ espionage.

Though they lived abroad most of their lives, the brothers always travelled with Canadian passports and identified themselves as Canadians. “It is an integral part of my identity, the way others recognize me and is a recognition of certain values,” Alex told Maclean’s last year. “It is unacceptable that the government may strip me of my rights just because it wants to.”

MORE: Sons of Russian spies’ case comes to a head

The feds appear especially eager to keep Tim, the eldest brother, from coming back. According to a report prepared by a senior immigration official, the Canadian Security Intelligence Service (CSIS) has told the government that Tim not only knew the truth about his parents’ double lives, but had pledged to join them—having been “sworn in” by the SVR, the KGB’s post-Soviet successor, before his mother and father were arrested.

Specific evidence to support that claim has never been revealed, and Tim, now 27, denies the accusation. “I am aware that there have been some media reports that my parents were ‘grooming’ me for espionage,” he wrote in one sworn affidavit. “These allegations are not true. 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.”

Authorities have never alleged that Alex knew anything about his parents’ real identities.

Though their life story contains all the elements of a spy thriller, the brothers’ parallel court challenges hinge on a granular question of law: the definition of “employee of a foreign government,” as outlined in section 3(2)(a) of the Citizenship Act. Again, the Act states that children born in Canada do not qualify for citizenship if their parents are employees or representatives of a foreign government.

Alex’s case is furthest along, and in 2015 a Federal Court judge sided with Ottawa’s interpretation of the statute: that deep-cover Russian spies fit the definition of employee of a foreign government. However, the Federal Court of Appeal overturned that decision on June 21, 2017, ordering the government to reinstate Alex’s citizenship. The court concluded (2-1) that the clause is actually very specific, applying only to those visiting workers 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.

In September, government lawyers sought leave to appeal to the Supreme Court.

MORE: Feds launch Supreme Court appeal in sons-of-Russian-spies case

In the meantime, Alex met with Canadian consular officials in Moscow to request a new citizenship certificate and passport. Armed with the June court ruling reinstating his status, he assumed the government would oblige. He says he is especially keen on travelling to Ontario to participate in the Supreme Court appeal, should there be one.

The feds refused to hand over the documents, noting in a Nov. 6 letter that “we are at the final stage of legal proceedings and will have definitive resolution on this issue shortly.” When the brothers’ Toronto lawyer, Hadayt Nazami, continued to insist that Ottawa adhere to the finding of the Federal Court of Appeal, the government responded by going back to court to request a stay: an order that would essentially freeze the judgment until the Supreme Court chimes in.

“The ability of a state to determine who is and who is not a citizen lies at the heart of its sovereignty,” government lawyers wrote on Nov. 30. “This implies a significant public interest in ensuring that proof of citizenship is not treated casually, as something to be bestowed and then withdrawn repeatedly. To do so when an individual’s right to this status remains in issue before the country’s highest court would harm the integrity, symbolism and reputation of Canadian citizenship.”

In his written submissions, Nazami countered by saying the public interest is truly protected when “the government abides by the laws and does not deprive citizens of their rights without proper and lawful authority.” He continued: “The Minister seeks to have a Canadian citizen, as ruled by this Court, deprived of a passport and a right of mobility, an essential aspect of his citizenship rights and very identity, based on pure speculation of what the Supreme Court might decide.”

Justice Webb—one of the two judges who originally ruled to reinstate Vavilov’s citizenship—sided with him a second time. He concluded that the harm to the government is minimal because if the Supreme Court does ultimately rule in Ottawa’s favour, the feds can simply revoke Vavilov’s citizenship once again. “The Minister would be issuing one certificate of citizenship and one passport to one person who was born in Canada,” Webb wrote. “There is no allegation that Mr. Vavilov did anything wrong and therefore any harm to the integrity or reputation of Canadian citizenship that would arise as a result of the Supreme Court of Canada overturning the decision of this Court would be minimal.”

MORE: Russian spy son to Supreme Court: Don’t waste your time

That should have been enough to force the government to admit defeat and hand over a passport. But Ottawa has gone back to court in a last-ditch attempt to win a stay on procedural grounds—namely that Tim’s Federal Court case is now scheduled to be heard (on April 5), thus creating the risk of “legal complexities” and “inconsistent outcomes.” Nazami has yet to file a reply to the latest motion, and neither he nor Alex has replied to a request for comment.

Alex previously told Maclean’s that his parents—who were flown back to Moscow as part a historic spy swap, and now work in the private sector—are paying the legal bills for he and his brother. “We have spent a substantial sum,” he said, “but have no regrets.”

Alex, who recently earned a masters degree in finance from Madrid’s IE Business School, also urged Canadians to “see beyond the story of my parents and the international political atmosphere, and to recognize the strong legal grounds” underpinning his case. “Whether or not the government decides to reissue my citizenship, I will always be Canadian at heart,” he continued. “I have grown up that way and believe it to be my only identity. It is something I would fight to the end to retain.”

The question now is whether Alex will be allowed to step foot on Canadian soil before the end of that fight.

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