Justice Akbarali Rules Against Second-Generation Cut-Off in Landmark Charter Case
On 19 December 2023, Ontario’s Superior Court of Justice handed down a judgment in the judicial review Bjorkquist et al. v. Attorney General of Canada, 2023 ONSC 7152 regarding the constitutionality of the second-generation cut-off rule enacted through Bill C-37 in 2009.
The second-generation cut-off rule prohibits Canadian citizens born abroad from passing Canadian citizenship on to their children automatically if their children are also born abroad. After hearing the case on 19 and 20 April 2023, Justice Jasmine Akbarali held that the second-generation cut-off rule violates ss. 6 and 15 of the Charter of Rights and Freedoms, and is not saved by section 1, under the Constitutional Act, 1982. Ss. 6 and 15 of the Charter deal with individuals’ mobility rights and equality rights.
In this judicial review action, seven families as the applicants brought a judicial review challenging the constitutionality of s.3(3)(a) of the Citizenship Act 1985, which prohibited foreign born Canadian citizens from passing Canadian citizenship on to their children automatically if their children are also born abroad. This rule is known as the “second generation cut-off”. Under this rule, second-generation children born outside of Canada need to be sponsored by their parents to come to Canada as permanent residents, then apply for citizenship like any other immigrant, regardless of whether they have a substantial connection to Canada.
The applicants argued that Canadians born abroad were unfairly treated by the law as second-class citizens, as compared to Canadians born in Canada and naturalized Canadians. They argue that the second-generation cut-off violates ss. 15, 6, and 7 of the Charter of Rights and Freedoms, and is not saved by s. 1.
Discrimination Based on National Origin
National origin is an enumerated ground protected against discrimination under s.15 of the Charter. As the first step of its analysis, the Court found that the meaning of “national origin” encompasses “country of birth” which should be a protected ground against discrimination under s.15 of the Charter.
The Ontario’s Superior Court also considered the applicants’ argument that the second-generation cut-off rule violates s. 15 based on the intersection of national origin and sex against women in the first generation born abroad. The Court found that the applicants’ evidence shows that there is a different impact on the first generation born abroad women, who became pregnant while establishing their careers outside of Canada.
The Ontario’s Superior Court referred to the example of one of the applicants, Ms. Emma Kenyon, a first generation born abroad Canadian woman who got pregnant when she was working and living with her husband in Hong Kong. Both Ms. Kenyon and her husband were foreign born Canadian who grew up and went to school in Canada. When Ms. Kenyon was pregnant, she was advised by the Canadian government that she would need to return to Canada to give birth so that the child could acquire Canadian citizenship. Ms. Kenyon had to make a difficult decision between getting citizenship for her son by traveling to Canada or maintaining her financial and physical health by staying in Hong Kong.
Another example was Ms. Victoria Maruyama, a first generation born abroad Canadian woman working and living in Japan. When Ms. Maruyama was pregnant, she was faced with a similarly difficult situation, where she would need to give up her job and life in Japan and pay for her health care in Canada to get automatic citizenship for her child.
In light of the above real-life examples before the Court, the Judge was convinced that the disadvantage of inability to pass on citizenship was felt more keenly by first generation born abroad Canadian women because of their sex.
In analyzing the distinction created by the second-generation rule, the Court recognized that the rule places a burden and denies benefits on first generation Canadians born abroad based on their national origin. It also denies them the automatic ability to return to live in Canada with their born abroad children.
Violation of Mobility Rights under s. 6 of the Charter
The applicants argue that the second-generation cut-off rule infringes the s. 6 mobility rights of gen zero (Canadian-born or naturalized citizens who had children abroad) and the first generation born abroad, because it attaches a penalty to their choice to pursue opportunities to work and study abroad and have children abroad.
The Court found that such rule indeed interferes with their rights to remain in Canada, especially for first generation born abroad Canadians, because it interferes with their ability to remain in Canada with their dependent children. The Court recognized that it is unrealistic and impractical to expect Canadian citizens abroad to return to Canada to give birth when the decision to do so will be accompanied by the financial difficulties, professional risks, and health risks.
Analysis under s. 1 of the Charter
The Ontario’s Superior Court rejected the Federal Government’s arguments that the rule’s objectives of protecting Canadian citizenship for the future by limiting automatic citizenship and protecting the value of Canadian citizenship are “pressing and substantial”. The Court criticized such stated objectives as symbolic, vague and unsupported by evidence. The Court also found that the rule does not pass the minimal impairment test, especially where the rule serves as a blanket prohibition without considering the born abroad Canadians’ connection to Canada.
The federal government argued that citizenship is not a Charter right and that the impact of the second-generation cut-off rule was minimal because affected individuals could apply to the immigration minister for a discretionary grant of citizenship. The government also argued that affected born abroad Canadians can apply as a permanent resident through a family sponsorship. The Judge rejected these arguments, citing flaws of these alternative avenues, such as lengthy processing time of the sponsorship regime and the highly discretionary nature of minister’s grant of citizenship.
Impact of the Ruling
For the above reasons, the Court declared that the second-generation cut-off rule under s.3(3)(a) of the Citizenship Act 1985 is unconstitutional and therefore of no force or effect. The Court suspended the invalidity of such law for 6 months for the Parliament to amend the Citizenship Act. The federal government has 30 days to decide whether it will appeal the decision.
The present decision marks a significant milestone in the realm of immigration jurisprudence, including the recognition of Canadian citizens’ mobility rights to live internationally, and the intersectionality of discrimination based on sex and national original (including country of birth). This ruling reflects a critical reevaluation of the long-criticized creation of two classes of citizenship by the second-generation cut-off rule. It also prompts a broader reflection on the intersection of immigration policies and constitutional rights, urging the federal government and lawmakers to revisit and reassess legislation that may inadvertently perpetuate inequality.
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