Ontario Superior Court rules against second-generation citizenship cut-off in Canada

Julia Hornstein
Published: December 23, 2023

The Ontario Superior Court has deemed it unconstitutional for the Canadian federal government to deny automatic citizenship to the children of foreign-born Canadians who grew up abroad.

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The court ruling challenges the "second-generation cut-off," which prevents the children of Canadians born abroad from obtaining citizenship when they have their own children outside of Canada.

The case involved seven multi-generational Canadian families that argued that the cut-off violates s. 15(1) and s. 6 of the Canadian Charter of Rights and Freedoms.

Justice Akbarali, the judge, wrote that the “second-generation cut-off” creates a distinction based on national origin, as it treats Canadians who became Canadians at birth because they were born in Canada differently from those Canadians who obtained their citizenship by descent on their birth outside of Canada.

Akbarali stated that the latter group holds a “lesser class of citizenship” because, unlike Canadian-born citizens, they are unable to pass on Canadian citizenship by descent to their children born abroad. In addition, Canadians who obtained their citizenship by descent on their birth also hold a lesser class of citizenship because, unlike Canadians born in Canada, they do not have the automatic right to return to Canada to live with their born-abroad children.

Akbarali concludes that the rule is a “patriarchal and racist policy”. She endorses the families claim that the bill discriminates not only on national origin, but on sex. First generation born abroad women are particularly impacted because of the intersection of their country of birth and their sex, as biologically, only women have the capacity to become pregnant.

“The second-generation cut-off disadvantages pregnant first-generation born abroad women who are living abroad when they get pregnant by placing them in the position where they have to make choices between their careers, financial stability and independence, and health care on the one hand, and the ability to ensure their child receives Canadian citizenship on the other” wrote Akbarali.

She has ordered the Canada government to repeal this provision within six months and amend the Citizenship Act.

Understanding the second-generation cut-off for Canadian citizenship

The current rule states that a person may be eligible for Canadian citizenship if they were born outside Canada and at least one of their biological or legal parents at birth was a Canadian citizen when they were born. However, Canada has been limiting citizenship by descent to the first generation born outside Canada to a Canadian parent.

The Canadian Citizenship Act has been amended numerous times since first coming into effect in 1947. For years, the Act allowed Canadian parents to pass citizenship to their children born outside of Canada onto indefinite generations as long as foreign-born decedents had registered with the government by a certain age.

The “second-generation cut-off” came into effect in 2009 after a mass evacuation of Lebanese Canadians following a long war between Israel in Lebanon. The bill was the Canadian government’s response, introduced as an easy approach that would “protect” the value of Canadian citizenship by ensuring citizens have a “real connection” to the country.

The immigration minister at the time, Diane Finley, said the change was enacted to discourage “Canadians of convenience”.

How to apply for proof of citizenship

The Canadian government requires a "proof of Canadian citizenship" application to confirm one’s citizenship status, which is commonly referred to as applying for a Canadian citizenship certificate. The Canadian citizenship certificate is issued by Immigration, Refugees and Citizenship Canada (IRCC) and along with the Canadian birth certificate, it is only one of two documents accepted by Passport Canada as proof of Canadian citizenship.

Individuals have the flexibility to apply for a Canadian citizenship certificate at any point in their lives, regardless of whether their Canadian parent is living or deceased. To start the application process, you must download the application package from IRCC's official website. The application will require evidence that at least one of the individual's legal or biological parents at the time of birth was a Canadian citizen.

Upon submitting the application, an "acknowledgment of receipt" will be issued, and your application will be reviewed and processed by IRCC.

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