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Feds won't appeal landmark citizenship ruling for 'Lost Canadians'

Toronto lawyer Sujit Choudhry filed a constitutional challenge in December 2021 to the Citizenship Act, suing the federal government for denying his clients the right to transmit their citizenship to their foreign-born offspring. An Ontario Superior Court justice ruled in his clients' favour last month. (Doug Husby/CBC - image credit)
Toronto lawyer Sujit Choudhry filed a constitutional challenge in December 2021 to the Citizenship Act, suing the federal government for denying his clients the right to transmit their citizenship to their foreign-born offspring. An Ontario Superior Court justice ruled in his clients' favour last month. (Doug Husby/CBC - image credit)

The federal government will not appeal a court ruling that found part of Canada's Citizenship Act to be unconstitutional.

Last month, an Ontario Superior Court justice found the federal government violated Charter rights with its "second-generation cut-off" rule, which denies automatic citizenship to children born abroad if their Canadian parents were also born abroad.

"This law, as it currently stands, has had unacceptable consequences for Canadians whose children were born outside the country. For this reason, we will not appeal the ruling," Immigration Minister Marc Miller said in a media statement.

"People who may be impacted by this situation will no doubt have questions about what this means for them and their families. That is why we will continue to assess the impacts of the decision on existing legislation and will provide more information and confirm next steps as quickly as possible."

In an interview with CBC News on Sunday before the government's decision was made public, lawyer Sujit Choudhry confirmed federal government representatives informed him last week that there would be no appeal.

Ottawa had 30 days to appeal the ruling. That deadline passed on Thursday.

"My clients are relieved. It's been a long, hard fight," said Choudhry, who is representing families affected by the law.

Choudhry filed a constitutional challenge in December 2021 suing the federal government for denying his clients the right to transmit their citizenship to their foreign-born offspring.

Critics have long said the law creates two tiers of citizenship, creating different rules for Canadians depending on whether they were born abroad.

In her December ruling, Ontario Superior Court Justice Jasmine Akbarali agreed, writing that foreign-born Canadians hold "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."

The case is seen as a win for up to 200,000 "Lost Canadians" — people not considered citizens because of gaps or contested interpretations of citizenship law.

The second-generation cut-off was created in 2009 as part of a crackdown by Prime Minister Stephen Harper's government on Canadian citizens who live permanently outside the country. The move came in response to the evacuation of 15,000 Lebanese Canadians stranded in Beirut during the 2006 conflict between Israel and Hezbollah, an operation that cost taxpayers $85 million.

In her ruling, Akbarali noted public anxiety over the Beirut evacuation but wrote that "the highest the evidence goes is to show that some people were concerned about it ... there is no evidence to demonstrate that there are citizens without a connection to Canada, nor that if any such citizens exist, that their existence or citizenship creates any kind of problem."

Federal government must act

The federal government has six months to repeal the second-generation cutoff in the law — a move that will require either fresh legislation or the passage of a bill already being debated.

Senate Bill S-245 was amended in committee to remove the second-generation cut-off rule and replace it with a "substantial connections test" to pass on citizenship to the children of foreign-born Canadians who were born abroad.

In her ruling, Akbarali described S-245 as a "head start" allowing Parliamentarians to amend the Citizenship Act law to make it fully constitutional within six months.

The court also ordered the federal government to grant citizenship to the four foreign-born children of three Canadian families involved in the case.

Choudhry said they received certifications of their citizenship last week.

"They're beyond elated," he said.