SOCI – Ontario Superior Court of Justice’s Decision on First Generation Limit – December 5, 2024

Key Facts and Figures

• On December 19, 2023, in Bjorkquist et al v. Attorney General of Canada, (“Bjorkquist”), the Ontario Superior Court of Justice declared ss. 3(3)(a) and 3(3)(b) of the Citizenship Act, key provisions limiting the passing of citizenship by descent to the first generation, to be of no force and effect. The Court suspended the coming into force of this declaration for a period of six months to allow Parliament to enact remedial legislation.
• The government did not appeal the ruling because the first generation limit has had unacceptable consequences for some Canadians whose children were born outside the country.
• On August 2, 2024, the Court granted a further extension of the suspension of the declaration of invalidity to December 19, 2024.

Key Messages

• In Bjorkquist, the Ontario Superior Court of Justice deemed key provisions of the first generation limit to citizenship by descent unconstitutional on the grounds that it unjustifiably limited mobility and equality rights under the Charter of Rights and Freedoms.
• If this declaration comes into force prior to Bill C-71, there will be no limit to citizenship by descent for many people born abroad to Canadian citizens, regardless of their connection to Canada. At present, the coming into force of the declaration has been suspended until December 19, 2024.
• For this reason, the government has introduced legislation that would extend citizenship by descent beyond the first generation in a way that is inclusive and upholds the value of Canadian citizenship.

Supplementary Information

• Since the Ontario Superior Court of Justice decision was released, the government has been working diligently to introduce legislation that will establish a new framework governing citizenship by descent.
• On May 23, 2024, the government introduced Bill C-71, An Act to Amend the Citizenship Act (2024). Due to the time required to enact legislation, the government requested a six-month extension of the suspension of the Ontario Superior Court of Justice’s declaration in order for Bill C-71 to come into force, and to make the significant administrative, policy and regulatory changes required to implement the legislation. The Court granted the extension to December 19, 2024.
• If the Court declaration were to take effect before Bill C-71 comes into force, it will create a legislative gap whereby citizenship by descent will be able to be passed on to many, irrespective of generation or connection to Canada.
• However, others will remain limited by the first generation limit and not become citizens as a result of the Court decision taking effect as it does not apply equally to all and does not:
  • Strike down the first generation limit for persons born abroad and adopted by a Canadian parent;
  • Restore citizenship to section 8 “Lost Canadians”; and,
  • Provide citizenship to some descendants of “Lost Canadians” (a subset of persons born abroad before April 1, 1949).
• For these reasons there is an urgency to pass Bill C-71 as quickly as possible to allow the Bill to come into force and for there to be sufficient time for implementation.