Court grants Ottawa extension to fix ‘lost Canadians’ citizenship rules

Original deadline was completely unrealistic given legislative process and flawed draft legislation having no time limit to meet residency requirements, unlike for Permanent Residents (1,095 days within 5 years):

Immigration officials will have until Dec. 19 to enact Bill C-71, which would automatically confer Canadian citizenship on people born abroad to a Canadian parent who is also born abroad before the changes take effect. Until then, lost Canadians can only try to reclaim their citizenship on an emergency basis.

At the same time, officials must also roll out a system for anyone born outside Canada subsequently to prove their foreign-born Canadian parent had a “substantial connection” with the country by meeting a residency requirement, which is 1,095 cumulative days of physical presence in Canada before the birth or adoption of their foreign-born child.

Friday’s decision by the Ontario Superior Court of Justice is likely going to end a three-year legal saga that started in 2021 by a group of 23 people from seven families who have been harmed by the loss of citizenship as a result of the so-called second generation cut-off rule introduced by Stephen Harper’s Conservative government in 2009.

They claimed the second generation cut-off rule — denying the first generation born abroad the right to pass on citizenship by descent outside Canada to the second generation born abroad — violated their Charter rights based on country of origin and sex.

In December, Judge Jasmine Akbarali ruled the second-generation citizenship cut-off rule was unconstitutional and ordered the federal government to repeal it and amend the Citizenship Act in six months.

In June, officials asked the court for a six-month extension of the deadline, saying they needed more time to pass a new bill to fix the problems. However, the court was not satisfied that the government recognized the urgency of a new law and asked officials to return Aug. 1 with an effective plan to address the hardship that any further delay might “cause people whose constitutional rights are being violated day after day.”

The court held a hearing this week and was presented submissions by the government of the updated procedure and communications to address “special cases of hardship,” as well as the new instructions created for affected citizenship applicants who have an urgent need for family reunification in Canada.

While the revised website and communication may not be perfect, the judge said they “adequately” allow potential applicants to navigate how they can seek a grant of citizenship in urgent cases that may involve a child’s statelessness or hardship in family reunification during the delay.

“The question for me is not whether the respondent could have designed a better process, or whether it is executing the process it has designed in a way that I would, in my discretion,” Akbarali wrote in a decision released Friday.

“The question is whether the process it has designed is good enough to sufficiently address the concerns about the hardship caused by the ongoing rights violations.”

The court heard that the government has made every effort to ensure the passage of Bill C-71 to amend the Citizenship Act, including technical briefings to MPs and to opposition immigration critics about the proposed changes. Immigration officials are also undertaking work to support the implementation of the new law as soon as it is passed.

But at the hearing, Sujit Choudhry, lawyer for the affected families, raised doubts over the government’s commitment to push through the legislative changes, arguing that Ottawa could have prioritized the passage of the bill, first introduced on May 23, before Parliament recessed for the summer on June 20.

Akbarali said she was satisfied with the plan outlined by the government and trusted that it will continue to take steps to advance the legislation.

“It has a tool box at its disposal that it can use to accelerate the passage of Bill C-71,” she wrote. “There is reason to conclude that the Bill will likely be adopted before Dec. 19, 2024.”

Akbarali also awarded $15,000 in indemnity costs to the litigants and credited them for holding the government to account.

Source: Court grants Ottawa extension to fix ‘lost Canadians’ citizenship rules