Courts unlikely to provide fifth extension to Ottawa to address Lost Canadians before November, says immigration lawyer

2025/07/15 Leave a comment

Extension unlikely to be needed as adequate time in fall session. Government should improve C-3 by adding a time limit of five-years to meet the 1,095 day physical presence requirement, not the current open ended provision (the Don Chapman specific airline pilot example in contrast to the vast majority of likely applicants):

Parliament needs to “just get on with it” and address the issue of “lost Canadians” through amendments to the Canada Citizenship Act, according to Jenny Kwan, NDP critic of citizenship and immigration.

She told The Hill Times that she wonders if a judge would have the patience to grant the federal government a fifth extension on a court order requiring action before the current November deadline.

“This is astounding. What the current situation is right now is that Canada’s Citizenship Act,
with respect to lost Canadians, is in violation of the Charter [of Rights and Freedoms], and [Bill
C-3] will make it Charter-compliant,” said Kwan (VancouverEast, B.C.).

“I don’t know how much patience [the judge] will have to continue to see delays in the
passage of the bill to make it Charter-compliant.”

Immigration Minister Lena Metlege Diab (Halifax West, N.S.) tabled Bill C-3, an Act to amend the Citizenship Act (2025), in the House on June 5. The House rose for the summer on June 20, pausing the bill’s progress until Sept. 15, when the next parliamentary sitting begins.

If passed, the bill would reverse a change to the Citizenship Act made by then-Conservative prime minister Stephen Harper in 2009 that introduced a “first-generation limit” when it came to citizenship status. Since that 2009 amendment, a Canadian citizen who was born outside of Canada cannot pass citizenship status on to their child if that child was also born or adopted outside the country.

The Ontario Superior Court of Justice declared in December 2023, that the first-generation limit was unconstitutional on the grounds that it unjustifiably limited mobility and equality rights under the Charter of Rights and Freedoms. At that time, the Court gave the federal government a deadline of six months to fix the law through legislation. This deadline was later extended on four occasions, with the current deadline set as Nov. 20, 2025.

Kwan described Bill C-3 as “a significant piece of legislation that needs to be done,” in an interview with The Hill Times. The bill is nearly identical to the former Bill C-71, which was introduced in May 2024, but died on the order paper when Parliament was prorogued on Jan. 6, 2025.

Kwan argued that a Conservative filibuster in the fall sitting that delayed progress in the House contributed to death of Bill C-71. “Basically, nothing got through, and [Bill C-71] also died on the order paper. So, in this round, it will depend on whether or not the Conservatives will continue to play political games ahead of lost Canadians,” said Kwan.

The Hill Times reached out to Conservative MPs including citizenship and immigration critic
Michelle Rempel Garner (Calgary Nose Hill, Alta.) and Brad Redekopp (Saskatoon West, Sask.), a member of the House citizenship committee, but did not receive a response by deadline.

Bill C-3 would amend the Citizenship Act to automatically grant Canadian citizenship to anyone who would be a citizen today were it not for the first-generation limit. The bill would also introduce a “substantial connection test” for Canadian citizens born outside of Canada who wish to pass on citizenship to their children born abroad. Going forward, the bill would allow access to citizenship beyond the first generation, so long as the parent has spent at least 1,095 cumulative—not necessarily consecutive—days in Canada prior to the birth of their child.

Redekopp told the House on June 19 that Conservatives have significant issues with Bill C-3, and criticized the substantial connection test of 1,095 non-consecutive days as “not substantial at all.”

“It is a very weak way to commit to being a Canadian citizen and then to confer that citizenship onto children. It is not a real test of commitment because the days do not have to be consecutive,” Redekopp told the House. “Also, people need to understand the current situation in our country. They need to live here to understand how things are and some of the issues we have right now in our country … People do not know that if they are living in another country.”

Kwan argued that objections to the non-consecutive 1,095-day minimum don’t make sense.

“Take, for example, a person who’s a pilot, right? You travel all the time. You could be a seond-generation born and you’re a pilot. You fly out of Canada regularly as a pilot, and then that means you’re leaving Canada all the time. So, does that mean to say that they can never get a Canadian citizenship? That doesn’t make any sense at all,” she said.

“You have to recognize the fact that we live in a global society now. Canada is a global country, and people move. You have to make sure that is addressed in such a way that fits the times of today.”…

Source: Courts unlikely to provide fifth extension to Ottawa to address Lost Canadians before November, says immigration lawyer

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A new law will finally grant citizenship to ‘lost Canadians’. Are we ready for the consequences?

2024/06/19 Leave a comment

Good questions and the answer would appear to be no, judging by the lack of analysis of the possible impacts by the Minister. Like any changes in citizenship or immigration policies, persons can be expected to respond to any perceived incentives provided by the change and IRCC needs to present any analysis during parliamentary consideration of C-71, not the subsequent regulatory stage.

Past experience with responding to “lost Canadians” and expanding voting rights suggests that the number of “lost Canadians” who want to be “found” is small subset of the total expatriate population, particularly for those living in the USA. But given the increased diversity of Canadian expatriates, that may be changing:

Last week, faced with a court-imposed deadline, Immigration Minister Marc Miller introduced new legislation that would automatically give citizenship to people born outside of Canada to Canadian parents, as long as the parents have lived here for a cumulative 1,095 days before the child’s birth.

The legislation, Bill C-71, will correct the arbitrary creation of a generation of ”Lost Canadians”. Under the current Citizenship Act, subject to a few notable exceptions, a person born outside of Canada would only be a Canadian citizen if their parents were either born in Canada, or naturalized in Canada. If their parents were born outside of Canada and became a Canadian citizen through their own parents, they did not qualify for Canadian citizenship by descent.

A particular blind spot was border babies. For example, a mother in Point Roberts, Wash., may give birth in British Columbia, while a mother in Emerson, Man., might give birth in North Dakota, simply because it is the nearest hospital to her. If those mothers were born outside of Canada, their babies would not have had automatic Canadian citizenship. 

Unlike their Canadian counterparts, however, American parents in border communities do not have to worry about where they themselves were born. Under U.S. citizenship law, if either parent meets the prescribed residency requirements (five years with at least two years after the age of 14), their child will be American. While there is some disagreement with Canada’s adoption of a less burdensome cumulative 1,095 day rule, we see it as similar to the American law. Both legislation mirror the residency requirement for naturalization and ensure a substantial connection to the country is met.

While advocates are rightly celebrating this “monumental” change for cross-border families, as immigration lawyers we have mixed feelings in light of the current political environment. Will the Canadian public “open their arms” towards the potentially untold number of U.S. residents who can now claim Canadian citizenship?

Removing outdated values and addressing historic wrongs in citizenship law

As the Senate argued in 2007, the current Citizenship Act relies on past legislation, which was built on outdated values. For example, gender and marital status played a major role in determining who was or wasn’t Canadian. Bill C-71 is likely to be the first legislation that does not consider gender or marital status.

Bill C-71 also addresses racial discrimination in the Citizenship Act. Bill C-71, would for example rightfully restore citizenship to the descendants of Japanese-Canadians, who were interned and deported during the Second World War.

Bill C-71 would also restore citizenship to those who lost it because they did know they had to meet retention requirements by their 28th birthday. 

These changes are long overdue. The Citizenship Act historic issues were first identified by the Supreme Court of Canada in 1997.

All these above changes are positive as they add greater coherence to the law, bridging past shortcomings with a forward-looking lens to safeguarding Canadian citizenship.

Encouraging Canadians to Return to Home

Bill C-71 could play a role in encouraging Canadian families with young children born abroad to return home. A government study found that over half of Canadians abroad are citizens by descent. Bill C-71 would allow these families to avoid the difficult processes for sponsoring their children as permanent residents because they would automatically become Canadian citizens.

It is also important to contextualize that the citizenship rules that created “Lost Canadians” was itself the product of resistance within Canada to recognizing citizens abroad attempting to return home — in particular, a public backlash to the government evacuating Canadian citizens from Lebanon in 2006. It’s important to recognize that this new legislation comes at a time when anti-immigration sentiment is on the rise and to interrogate the 180-degree motivation shift.

While much of the support for these changes has come from U.S. cross border families, we have noticed the brunt of the online discussion about the potential law change surrounding Asian birth tourism and allegations of elaborate family schemes for descendants to claim a right to Canadian citizenship.

The reality is the flood gates might open to more Canadian citizens — but the bulk will not come from Asia. Based on our reading of this current bill, anyone who descends from a person that was born or naturalized in Canada before this bill comes into force would qualify for Canadian citizenship and the vast majority of those people are American.

This can be supported not just by anecdotal data from our own practices, but also statistics. According to the Vermont Historical Society, 20 per cent New Englanders are of French Canadian descent. This is only descended from French Canadians; The fact is we do not know how many Canadians of descent live in the United States.

Considering the more affordable post-secondary tuition in Canada for citizens (including those by descent), and our more generous social programs, such as publicly funded health care, this may become a pull factor for Americans, both young and old, to claim Canadian citizenship — in fact one of the reasons Americans claim their Canadian citizenship.

Our recommendation is that, notwithstanding political pressure to possibly pass this bill quickly, the government takes a collaborative approach that consensus-builds, not consensus-divides on the topic of citizenship. Future work must centre both ameliorating historical wrong but also strengthening a conception of Canadian citizenship that reflects modern day transnationalism beyond unpredictable shifts in domestic political values.

This process may result in amendments that impose some limits, or add additional residence obligations for Canadian citizenship, but it is one we hope will give Canada coherent and predictable legislation on who is a Canadian citizen.

Amandeep Hayer and Will Tao are immigration lawyers based in British Columbia.

Source: A new law will finally grant citizenship to ‘lost Canadians’. Are we ready for the consequences?

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