Limit to Canadian citizenship by descent struck down

In the landmark decision of Bjorkquist et al. v. Attorney General of Canada, 2023 ONSC 7152, the Ontario Superior Court of Justice held that section 3(3)(a) of the Citizenship Act, RSC 1985, c. C-29 (the “Act”), which prohibits Canadian citizens born abroad from passing Canadian citizenship on to their children automatically if their children are also born abroad, contravenes rights to mobility and equality under the Canadian Charter of Rights and Freedoms and is unconstitutional.

The Court held that section 3(3)(a) of the Act created a distinction among Canadian citizens based on national origin, treating Canadians who became Canadians at birth because they were born in Canada differently from those Canadians who obtained their citizenship by descent on their birth outside of Canada.

The latter group effectively holds a lesser class of citizenship because, unlike Canadian-born citizens, they are unable to pass on Canadian citizenship by descent to their children born abroad.

Further, the Court held that Canadians who obtained their citizenship by descent on their birth also hold a lesser class of citizenship because, unlike Canadians born in Canada, they do not have the automatic right to return to Canada to live with their born-abroad children.

Currently, the Act states that a person may be eligible for Canadian citizenship if they were born outside of Canada and at least one of their parents at birth was a Canadian citizen when there were born. However, there is a limitation to citizenship by descent to the first generation born outside Canada to a Canadian parent. To gain Canadian citizenship, second-generation children must first be sponsored by their parents to come to Canada as permanent residents and then apply for citizenship.

The Honourable Justice J.T. Akbarali declared s. 3(3)(a) of the Act to be unconstitutional, and of no force and effect, but suspended the declaration of invalidity for a period of six months to allow for legislative amendments to the Act.

The Government of Canada has confirmed it will not be appealing this decision. In fact, Bill C-71: An Act to Amend the Citizenship Act (2024) was introduced in May 2024 proposing changes to the Act that will cure the defect.  Bill C-71 is currently going through the legislative process in the House of Commons.