Ottawa won't appeal court ruling striking down limit on passing citizenship to children born abroad

A young new Canadian holds a flag as she takes part in a citizenship ceremony on Parliament Hill in Ottawa on Wednesday, April 17, 2019, to mark the 37th anniversary of the Canadian Charter of Rights and Freedoms. THE CANADIAN PRESS/Sean Kilpatrick

The federal government has announced it won't be challenging a court ruling that struck down a portion of the Citizenship Act which blocked children born abroad to Canadian parents from obtaining Canadian citizenship beyond the first generation.

The "first generation limit" had meant that foreign-born children of Canadian parents who were also born aboard would not be eligible to automatically obtain Canadian citizenship by birthright. Critics had long argued that this limit created two classes of Canadian citizenship, and on Dec. 19, 2023, the Ontario Superior Court of Justice agreed, declaring it unconstitutional.

"This law, as it currently stands, has had unacceptable consequences for Canadians whose children were born outside the country. For this reason, we will not appeal the ruling," Immigration Minister Marc Miller said in a news release on Monday.

The court case was brought on by a group of families living abroad who were affected by the limit and unable to pass on their Canadian citizenship to their children.

Toronto-based constitutional lawyer Sujit Choudhry, who represented the families, said his clients felt "vindicated" by the court's ruling and the government's decision not to challenge it.

"They're feeling vindicated because it's been a long fight. Some of them have been fighting for over a decade. They feel more of a sense of relief by the government's decision not to appeal," he told CTVNews.ca over the phone on Monday.

The first generation limit was instituted under the government of then-prime minister Stephen Harper in 2009 in response to outcry from the public after Canada spent $94 million to bring 15,000 Canadian citizens out of Lebanon during the Israel-Hezbollah war in 2006. At the time, several MPs and political commentators had questioned the strength and legitimacy of the evacuees' ties to Canada, using the term "Canadians of convenience."

The Harper government said in 2007 establishing a first generation limit would "protect the value of Canadian citizenship by ensuring that our citizens have a real connection to this country."

However, in her ruling released last month, Justice Jasmine Akbarali ruled that this limit violated the sections of the Charter of Rights and Freedoms that pertain to mobility rights and equality rights.

"It basically put them in an impossible position, that they shouldn't have to be, of having to choose between pursuing their opportunities abroad and passing on citizenship," Choudhry said. "The timing of choosing when to begin a family is not straightforward … and it's simply it's not practical for them to drop everything in their lives and run back to Canada to deliver their kids."

Choudhry says it's unclear how many "lost Canadians" abroad are affected by this ruling. However, the 2021 census found that there were 322,530 Canadians by descent living in Canada.

"They all have the same type of second-class citizenship as my clients," Choudhry said. "Essentially, the second-generation cutoff stands in the way of them pursuing opportunities to study and travel and pursue education abroad that others don't."

The court ruling gave the federal government six months to repeal the cutoff and amend the Citizenship Act, but there's already a bill making its way through Parliament to do exactly that. Last summer, Bill S-245 was amended by a House of Commons committee to allow foreign-born second-generation Canadians to pass on their citizenship to a child born abroad if the parent can offer proof of having a "substantial connection with Canada."

"I think the simplest thing to do would be to bring S-245 for a vote in Parliament, and then for the Senate to consider the amendments and accept them, and then for the bill to receive royal assent," said Choudhry.

Meanwhile, Miller said the government will "continue to assess the impacts of the decision on existing legislation and will provide more information and confirm next steps as quickly as possible."