In December 2021, Toronto attorney Sujit Choudhry initiated a constitutional challenge against the Citizenship Act, accusing the federal government of infringing on his clients' ability to pass on citizenship to their foreign-born children. He expressed satisfaction with the recent Ontario court decision, referring to it as a delightful Christmas present. (Image: Doug Husby/CBC)
In a significant legal victory, Ontario's Superior Court of Justice has declared unconstitutional Canada's practice of denying automatic citizenship to children born abroad to parents who were also born overseas but maintain a substantial connection to Canada. This ruling is particularly noteworthy for a group known as "Lost Canadians" who have been striving to reclaim their citizenship rights.
Sujit Choudhry, a constitutional lawyer based in Toronto, expressed jubilation over the court's decision, calling it a "wonderful Christmas gift." Choudhry represented seven multi-generational families residing in various parts of the world, including Canada, Dubai, Hong Kong, Japan, and the United States. These families contested the "second-generation cut-off rule," a policy preventing the automatic transmission of citizenship to children born abroad to Canadian parents who were also born outside Canada.
The constitutional challenge, filed by Choudhry in December 2021, targeted the federal government's refusal to acknowledge the citizenship rights of his clients' foreign-born offspring. The 55-page ruling, delivered by Justice Jasmine Akbarali this week, concluded that the second-generation cut-off rule violates the Charter of Rights and Freedoms. Akbarali argued that the rule creates an inequity between Canadians born in Canada and those acquiring citizenship by descent, as the latter cannot pass on Canadian citizenship to their foreign-born children automatically.
The origins of the second-generation cut-off rule trace back to 2009 when the Conservative government introduced it in response to concerns about "Canadians of convenience" during a crisis involving Lebanese Canadians. Critics argue that this rule has resulted in a two-tier system of Canadian citizenship—one for those born in Canada and another for those born abroad.
The court's decision is seen as a corrective measure, eliminating what some perceive as a second-class status imposed on individuals due to circumstances beyond their control. Don Chapman, the head of the Lost Canadians Society, emphasized that the ruling levels the playing field, ending the preferential treatment of naturalized Canadians over other citizens.
A notable aspect of Justice Akbarali's decision is the acknowledgment of the disproportionate impact on women. The rule places women in their reproductive years in a challenging position, forcing them to choose between pursuing opportunities abroad and passing on citizenship to their children.
One case cited involved Emma Kenyon, who, while working in Japan with her Canadian husband, faced the dilemma of either returning to Canada for childbirth or jeopardizing her financial and physical well-being. Kenyon's situation highlights the complexity and hardships faced by individuals entangled in the intricate sections of the Citizenship Act.
The court has mandated immigration officials to grant Canadian citizenship to the foreign-born children of three families involved in the legal case. Additionally, Ottawa has been given six months to amend the Citizenship Act. The federal government has 30 days to decide whether to appeal the ruling, while an opposition Conservative bill addressing Lost Canadians' concerns is pending in Parliament. The court's decision brings hope for a more inclusive and equitable Canadian citizenship policy, awaiting potential legislative changes shortly.
