OTTAWA — Despite the Canadian government’s best efforts, the sons of two Russian spies who lived deep undercover in Toronto and Boston recently won back their rights to Canadian passports. This week, the country’s Supreme Court will decide whether to rule on a case that the government argued will impact “the integrity of Canadian citizenship.”
It’s a story worthy of “The Americans,” the critically acclaimed TV show based partly on the Russian family at the center of the citizenship battle.
Andrey Bezrukov and Elena Vavilova used the aliases Donald Heathfield and Tracey Ann Foley — names lifted from two Montreal-born children who had died in infancy in the 1960s — while acting as agents for Russia’s secret intelligence agency. Their sons, Timothy and Alexander Vavilov, were born in Toronto in the early 1990s.
Using their new identities, the family moved to France and eventually to Boston, where the FBI arrested Heathfield and Foley in 2010 as part of a high-profile case in which 10 people were indicted on charges of conspiring to act as Russian agents.
The couple were soon sent back to Russia as part of a spy swap. A few days before Heathfield and Foley were expelled from the United States, their sons were sent to Russia.
Canada stripped the parents of their citizenship. The boys, who were born Timothy and Alexander Foley, were denied new Canadian passports, and they went to court to claim their citizenship under the birthright provisions of Canadian law.
The crux of the court case is the interpretation of who has the right to Canadian citizenship. Although every baby born in Canada has an automatic right to citizenship, there is one exception: a child born to an “employee in Canada of a foreign government” cannot claim citizenship.
The judge who heard the original case, brought by Alexander, threw out his request to have his citizenship reinstated. But the Federal Court of Appeal reversed the decision, arguing that because their parents weren’t formally working for a foreign government, the brothers had the same right to citizenship as any other person born in Canada.
The government has fought the unusual case from the start and has taken it to the Supreme Court of Canada, the nation’s highest tribunal, claiming the fate of the ruling affects “the integrity of Canadian citizenship.” The court is expected to decide Thursday whether it will hear the case.
The trial judge initially threw out Alexander’s case, saying that anyone takes on a false identity to further a career of espionage in Canada is “clearly doing so in the service of a foreign government.” He said that if the brothers were granted citizenship it would lead to the “absurd result” where the children of foreign diplomats accredited to Canada who worked as spies would have no right to citizenship while the children of spies who sneaked into the country and had no official status would become Canadian citizens at birth.
But the Federal Court of Appeal ruled in a 2-to-1 decision that the exception applies only to those with diplomatic privileges and that Foley and Heathfield never had that status. The court said that “the sins of parents ought not to be visited upon children without clear authorization by law.”
“I think the appeal court decision is a sham,” said Phil Gurski, a former terrorism analyst with the Canadian Security Intelligence Service. “Those kids would never have been born here if their parents had not been sent here illegally in the first place.”
“In whose interests is this decision?” Gurski said. “They aren’t sitting in a refugee camp because Canada won’t give them their citizenship back,” noting that the brothers were granted Russian citizenship in 2010 and stripped of their American citizenship.
But Daniel Livermore, a former Canadian ambassador and onetime director general of security at Canada’s foreign ministry, said the case is so unusual and rare that the government shouldn’t waste too much time and money trying to fight it.
Livermore said he doubts that the brothers pose a threat to Canadian security. “I have trouble believing they’re dangerous,” he said. “They’re not going to get a job in the federal government and get a security clearance, but otherwise they’ll be fine.”
Both brothers declined a request for an interview as did their lawyer. Timothy, who is 27, is thought to be living in Asia, where he works in finance. Alexander, 23, completed an MBA in Spain and last month used his new passport to visit Toronto, where he told the Canadian Broadcasting Corp. he’s looking for a job in investment banking.
The brothers, who were children when they left Canada, insist that they had no idea of their parents’ true identities until they were arrested by the FBI. “I could not grasp how it was possible for my parents to be someone other than the two people I have known for 20 years,” Timothy said in an affidavit in his court case, which was heard separately.
Timothy, whose official name is Timofey Vavilov, said in the affidavit he never learned to speak Russian as a child and, after being sent back there in 2010, “I have felt out of place and a foreigner.”
“I have lived for 20 years believing I was Canadian, and I still believe I am Canadian,” he said in the affidavit.
But the Wall Street Journal, citing U.S. government sources, claimed in a 2012 article that Timothy had been told of his parents’ true identity and was already being groomed for a career in espionage before their arrests. Timothy has denied that accusation.
Alexander told the CBC last month that his parents are living in Moscow and hold good jobs with Russian companies. He said that he understood why his parents were being punished. But, he added, “why should I suffer for anything they have done?”