Denial of citizenship for kids of foreign-born Canadians unconstitutional, judge rules

An Ontario judge has ruled it unconstitutional for the federal government to deny automatic citizenship to the children of foreign-born Canadians who grow up abroad.

In the judgment released Tuesday, the Ontario Superior Court of Justice gave the federal government six months to repeal the “second-generation cut-off” and amend the Citizenship Act.

When Canadian-born citizens have children abroad, their kids are automatically considered Canadian citizens. However, when the generation born abroad has their own kids outside of Canada, those children no longer have access to citizenship. This is what the ruling considers the “second-generation cut-off.”

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Justice Jasmine Akbarali took the ruling one step further and ordered immigration officials to offer immediate relief to three of the seven families who brought the court case forward.

The ruling is rooted in a court battle involving seven multi-generational Canadian families who are suing the federal government for denying their born-abroad-kids Canadian citizenship.

They argue that the cut-off violates the Charter of Rights and Freedoms by treating Canadians born abroad different to those born in Canada

“I thus conclude that the distinction based on national origin reinforces the disadvantage of the first generation born abroad by reinforcing the negative stereotyping to which they have been subjected, as people who offer nothing to Canada but seek to take advantage of the benefits of Canadian citizenship,” Akbarali wrote in the decision.

'SECOND-GENERATION CUT-OFF'

The “second-generation cut-off” came into effect in 2009 under the then-Conservative government.

Bill S-245 was introduced after a mass evacuation of Lebanese Canadians took place in the summer of 2006 in the midst of a month-long war with Israel in Lebanon.

The evacuation led to questions regarding the legitimacy of the evacuees’ status as Canadians and speculation that the evacuees were “citizens of convenience,” the decision notes.

The bill served as the government’s response, introduced as a “simple” approach that would “protect” the value of Canadian citizenship by ensuring citizens have a “real connection” to the country.

“While the simplicity of the rule may respond to the desire for clarity, the inflexibility of the rule means that the first generation born abroad and their children are assumed to be Canadians of convenience…who have made no contribution to Canada,” Akbarali’s wrote in her decision.

'PATRIARCHAL AND RACIST POLICY'

In Akbarali’s decision, she writes, “Canada’s derivative citizenship laws have historically been animated by patriarchal and racist policy.”

She endorses the families’ claim that the bill discriminates based on national origin and sex, stating that women are particularly disadvantaged. Akbarali points to Emma Kenyon, a foreign-born Canadian living in Hong Kong, as a testament to this.

When Kenyon became pregnant during the pandemic, she intended to return to Canada. However, it was 2021, and she would have had to travel during the pandemic. She also would not have been eligible for government-covered health-care in Canada.

Kenyon later learned she could not pass on Canadian citizenship to her child without returning to Canada to give birth. But at that point, she was well into her third trimester of pregnancy, and it was too late.

“It was Ms. Kenyon who would have had to miss work to travel to Canada. It was Ms. Kenyon whose health would have been at risk due to not having a physician. It was Ms. Kenyon’s bodily integrity at issue,” Akbarali’s wrote.

“Thus, the burdens of the second-generation cut-off were felt differently, and more keenly, by Ms. Kenyon because the discrimination based on her country of birth had different impacts on her because of her sex.”

While the court ruled in favour of the families that came forward, it stopped short of granting damages, unconvinced that the government had displayed “negligence, bad faith or willful blindness.”

However, the judge did order the government to pay $275,000 to cover the families' legal costs.