Authored by Ho Sung Kim, Canadian Immigration Lawyer and CILA Board Member.
In December 2023, Bjorkquist et al. v. Attorney General of Canada was heard before the Ontario Superior Court of Justice.
Watch CILA’s Feature Presentation on the Implications of Bjorkquist et al.
In 2008, a “second-generation cut-off” rule was implemented into Canada’s Citizenship Act. At the time, the amendment was criticized because it had an impact on the value of the citizenship status on certain Canadians born abroad, thus creating a second-class citizenship category.
Section 3(3)(a) of the Citizenship Act was challenged constitutionally by a group of Canadian citizens, specifically seven Canadian families, who were affected by this “second-generation cut-off.”
While the applicants in Bjorkquist et al. argued that this section violates the Equality, Mobility and Legal Rights (sections 15, 6 and 7 respectively) provisions of the Canadian Charter of Rights and Freedoms, the Ontario Court found that sections 15 and 6 are violated by the current section 3(3)(a) of the Citizenship Act, and the violation is not justified under section 1 of the Canadian Charter of Rights and Freedoms.
Consequently, the Court declared section 3(3)(a) unconstitutional and of no force or effect pursuant to section 52 of the Constitution Act, 1982. However, the declaration of invalidity is suspended for a period of six months. The Court has also granted a constitutional exemption to certain applicants from section 3(3)(a) of the Citizenship Act, and invited any first generation born abroad Canadian who has a child born abroad between the time the application was heard and the end of 6 month suspension of invalidity of section 3(3)(a) of the Citizenship Act to seek the same constitutional exemption.
On January 22, 2024, Immigration, Refugees and Citizenship Canada (IRCC) issued a statement that IRCC will not appeal the Court ruling. It is noteworthy that Bill S-245, An Act to amend the Citizenship Act (granting citizenship to certain Canadians) has been before Parliament since 2022, which will likely modify the substantial connection test to be used to assess the right to Canadian citizenship for second-generation Canadians born abroad.
Watch CILA’s Feature Presentation on the Implications of Bjorkquist et al.
