In a landmark move, the Federal Government of Canada is drafting legislation to restore citizenship rights for ‘lost Canadians.’ This follows a pivotal ruling by Ontario’s Superior Court of Justice that deemed it unconstitutional to deny citizenship to children born overseas to Canadians who were also born abroad. The new bill, expected to be introduced by June 19, 2024, aims to reverse the controversial 2009 law that stripped these children of their automatic right to Canadian citizenship.
The 2009 Law and Its Implications
In 2009, under Prime Minister Stephen Harper’s government, a law was enacted to prevent what were termed “Canadians of convenience.” This term referred to individuals who held Canadian citizenship but primarily lived abroad, only returning to Canada in times of need. This policy change came in the wake of Canada’s costly evacuation of 15,000 citizens from Lebanon during the Israel-Hezbollah conflict in 2006, which cost the government over $80 million.
However, the 2009 law had unintended and far-reaching consequences. It led to numerous Canadians working abroad being unable to pass their citizenship to their children born outside Canada. This not only affected “border babies” – those born just a few kilometers away in the United States – but also indigenous children born in border communities. These children found themselves unable to obtain Canadian passports despite living in Canada.
The Court Ruling and Government Response
In September, Ontario’s Superior Court of Justice ruled that denying Canadians born abroad the right to pass on their citizenship to their foreign-born children was unconstitutional. The court’s decision highlighted the need for substantial ties to Canada to be demonstrated by Canadian parents born abroad if they wished to pass on their citizenship to their children. The federal government, acknowledging the court’s ruling, chose not to appeal and is now working to draft legislation that aligns with this judgment.
Sujit Choudhry, a Toronto lawyer who challenged the 2009 Citizenship Act on behalf of ‘lost Canadian’ clients, proposed in court that the test for substantial ties should be akin to that required for naturalized Canadians: 1,095 days within five years. This suggestion could potentially form the basis for the new bill’s criteria.
Political and Social Reactions
The move to draft new legislation has received bipartisan support, though the process has not been without its hurdles. The federal government’s frustration over the stalled progress of a Conservative private member’s bill, which aimed to address the same issue, prompted them to take independent action. The Liberals support the Conservative bill, but delays caused by political maneuvering have necessitated this new government-led initiative.
NDP immigration critic Jenny Kwan criticized the Conservatives for what she termed as “playing games” with the legislative process. She emphasized the urgency of the situation, stating that “as the clock ticks down, there is no time to waste.” Kwan has been actively working with the Immigration Minister’s office to ensure the new bill includes provisions for adoptees and a clear timeline for implementation.
Don Chapman, a long-time advocate for ‘lost Canadians,’ has also been vocal about the need for change. Chapman himself had to reapply for Canadian citizenship after his father moved to the United States and acquired citizenship there. He argues that the current Citizenship Act is discriminatory, particularly against women, who are disproportionately affected by the second-generation cutoff rule.
The Path Forward
The upcoming bill aims to rectify these disparities and restore rights to an estimated three million Canadians living abroad. Justice Jasmine Akbarali’s ruling, which found the second-generation cutoff in violation of the Charter of Rights and Freedoms, particularly highlighted the gender inequality inherent in the current law. Women, more so than men, are forced to choose between their careers, studies, or travel and the necessity of returning to Canada to give birth in order to secure citizenship for their children.
The Federal Government’s decision to draft new legislation marks a significant step towards correcting historical injustices and ensuring that all Canadians, regardless of where they are born, have equal citizenship rights. The bill, expected by mid-June, promises to bring substantial changes, fostering inclusivity and equality for ‘lost Canadians.
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