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Lost Canadians win their case in court of Ontario

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Sujit Choudhry filed a constitutional appeal in December 2021. (Archives)

Radio-Canada

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The Ontario Superior Court of Justice has ruled that it is unconstitutional for Canada to deny automatic citizenship to children born abroad to parents who were also born abroad but who have a substantial connection to Canada, a big victory for “lost Canadians” trying to regain their citizenship rights.

It's a wonderful Christmas present, said Sujit Choudhry, a constitutional lawyer in Toronto representing seven multigenerational families living in Canada, Dubai, Hong Kong, Japan and the United States, who have challenged what the x27;this is called Canada's second generation exclusion rule.

Mr. Choudhry filed a constitutional appeal in December 2021 because the federal government has denied its clients the right to pass on their citizenship to their child born abroad.

In 2009, you did not become a Canadian citizen if you […] were born outside of Canada to a Canadian parent and […] belong to the second or subsequent generation of children born outside of Canada (including people who have not retained their citizenship).

Source: canada.ca

In a 55-page decision released this week, Justice Jasmine Akbarali found that the second-generation exclusion rule violated the Charter of Rights and Freedoms because it treats differently Canadians who became Canadians at birth because that they were born in Canada and Canadians who obtained their citizenship by descent when born abroad.

This The latter group holds a lower category of citizenship because, unlike citizens born in Canada, they cannot transmit Canadian citizenship by descent to their children born abroad, Justice Akbarali wrote.

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“Lost Canadians” are people who, because of their place and date of birth, find themselves stuck in complicated sections of the Citizenship Act.

The second generation exclusion rule deprives the first generation born abroad of the possibility of automatically passing citizenship to their children if they were also born abroad. foreign.

It was created in 2009 by the Conservative government of the day, which faced backlash over Canadians of convenience following the evacuation, at a cost of $85 million , of 15,000 Canadians of Lebanese origin stranded in Beirut during the war with Israel.

Under this rule, it is not possible to obtain citizenship by demonstrating a substantial connection to Canada. Second-generation children must be sponsored by their parents to come to Canada as permanent residents and then apply for citizenship like any other immigrant.

Critics of the law say it created two categories of Canadian citizenship, one for Canadians born in Canada and the other for those born abroad .

The laws, as they were written, only targeted Canadian citizens. Naturalized Canadians actually have more rights than other Canadians. The court ruling puts everyone on a level playing field, said Don Chapman, director of the Lost Canadians Society, which has led this fight for decades.

For me, the court's decision is obvious and always will be. That said, I'm delighted.

In her ruling, the judge accepted claims that women are particularly affected because the second generation exclusion rule is discriminatory on the basis gender, forcing women of childbearing age to choose between traveling, studying and building a career abroad, or passing citizenship to their children.

Judge Akbarali discussed the case of Emma Kenyon, born to Canadian parents who were working in Japan at the time.

Ms. Kenyon and her husband, Daniel Warelis, a Canadian born in New York, were both raised and educated in Ontario and Quebec. She completed her undergraduate degree at Dalhousie University, while her husband attended the University of Guelph, and they met during their graduate studies at the University of Guelph. Ottawa.

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Emma Kenyon, right, and her husband, Daniel Warelis, are pictured with their sons, Darcy, 2, and Sam, 10 weeks. Darcy was finally granted Canadian citizenship as the couple prepared to return to Toronto from Hong Kong in 2022, after a personal appeal to the Minister of Immigration.

They decided to work for a few years in Hong Kong, where Ms. Kenyon became pregnant.

In an interview with CBC News, Kenyon said the Canadian government advised her at the time to return to Canada to give birth. I felt like the government was asking me to make a choice between obtaining citizenship for my son by going to Canada or preserving my financial and physical health, Ms. Kenyon said.

< p class="StyledBodyHtmlParagraph-sc-48221190-4 hnvfyV">I had difficulty getting pregnant and then staying pregnant. So we were really afraid to travel during [the pandemic]. […] I wanted to be near my doctor who understood my medical history. We weren't going to have medical coverage in Canada, so I would have had to pay out of pocket. I explained that I worked full time and contributed to my household finances, and that I could not quit my job or request extended leave. My husband wouldn't have been able to come. There were a litany of reasons why this was really, really risky. […] And there didn't seem to be any wiggle room about it.

Ms. Kenyon gave birth to their son, Darcy, in 2021. He did not receive Canadian citizenship, so he was born stateless, she explained.

Darcy was eventually granted Canadian citizenship as the couple prepared to return to Toronto in 2022, but only after Mr. Chapman of the Lost Canadians Society made a personal appeal to the federal immigration minister. /p>

That's not how an effective system works, and I don't think it's how most Canadians feel. #x27;expect the process to work, she said.

The federal government had argued that citizenship was not a Charter right and that the impact of the second-generation exclusion rule was minimal because anyone affected could apply to the Minister of Immigration to grant citizenship at his discretion. Individuals can also apply for permanent residence through family sponsorship before the age of 22. The judge rejected this argument.

The court ordered immigration officials to grant Canadian citizenship to the foreign-born children of three of the families involved in the case.

She also gave Ottawa six months to change the citizenship law. Federal government lawyers have 30 days to decide whether the government will appeal.

A Conservative opposition bill, currently going through Parliament, addresses some of the concerns of lost Canadians, but Bill S-245, which would amend the citizenship law, is currently blocked due to proposed government amendments.

We examine the court's decision and its impact on the citizenship program and its operation. We have not yet made a decision whether or not to appeal, a spokesperson for Immigration, Refugees and Citizenship Canada said in a statement to CBC News Thursday evening.

< p class="StyledBodyHtmlParagraph-sc-48221190-4 hnvfyV">Bill S-245 is scheduled to be considered on January 29, 2024, although this date is subject to change, the spokesperson said, adding that the decision of court will be reviewed to determine any considerations related to the legislation.

With information from CBC

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