National Post: 'Lost Canadians' beat Ottawa in court over Charter violations that never should have happened


The immigration minister can grant anyone citizenship he likes and yet the simplest, lowest-profile cases of obviously Canadian children rarely seem to get to the top of his pile

by Chris Selley

 To read the full article, go to National Post

December 22, 2023: Ottawa’s bizarre battle with a group of would-be Canadian citizens — foreign-born children of Canadian citizens who were themselves born abroad — met a comprehensive rebuke this week at the Ontario Superior Court of Justice. Judge Jasmine Akbarali ruled that the provision, which dates from 2008, violates the Charter of Rights and Freedoms. Both Section 6 (which guarantees mobility rights) and Section 15 (which guarantees equal treatment under the law).

(Click here to read Justice Akbarali's decision on )

That couldn’t really have been any more obvious. The Charter is very clear that you cannot discriminate on the basis of national origin, which is precisely what this law does. It confers on Canadians born abroad a “lesser class of citizenship,” Akbarali wrote. The “second generation born abroad” cannot automatically pass on citizenship to their children unless they are born in Canada.

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The judge “rejected as vague” the government’s stated purpose of “preserv(ing) the value of Canadian citizenship.” (I would have rejected the measure as antithetical to that stated goal.) But even had she accepted it, she wrote, “the blanket second-generation cut off is overbroad.”

To clarify the situation: I was born in Canada, have never resided outside of Canada a day in my life. If I moved to Paris for two years for a job, during which time I married and had a daughter, she would automatically be Canadian.

If we then moved back to Canada and my daughter followed the same life path — lived her entire life in Canada, moved abroad for work and had a child there — her foreign-born child would not be automatically Canadian.

Yet, if she were to fly back to Canada for a week to have the baby, and then flew straight back to Paris — presto! — it would be a fully Canadian baby. This is not coherent public policy.

In theory, there are ways for parents to rectify this situation. Parents can sponsor their own children for citizenship. This, in part, was the government’s defence in court. In practice, however, the process is often nightmarish and the citizenship ministry simply unable or unwilling to adjudicate cases competently and on a reasonable timeline or with an ounce of compassion.

Some of its agents abroad don’t even seem to understand citizenship law. In 2018, I reported on Daniela Bramwell’s Kafkaesque battle with the Canadian foreign service in Ecuador: In one email, the embassy advised that her newborn daughter Emma had been rejected for a temporary passport because she was the “second generation born abroad”; in another email, it rejected a visitor’s visa for Emma because she was entitled to Canadian citizenship, helpfully providing a link to the application form.

Last year, I reported on the case of Gregory Burgess, a lifelong Canadian citizen living in Hong Kong with his Russian wife Viktoriya and their newborn son Phillip. Burgess was born in the United States, as many Canadian children are. Before the embassy would even consider Phillip’s case, it demanded Burgess provide proof that neither the Americans nor the Russians would accept Phillip as a citizen.

Why the hell would Canada want Phillip Burgess to be Russian, rather than Canadian? This is a country that let in 430,000 people in a three-month period this year — somewhat by accident, it seems — and many of those have no connection to Canada whatsoever. Why is the government at war with Canadian parents who happen to live abroad, as so many Canadians do? The immigration minister can grant anyone citizenship he likes — and he does, fairly routinely — and yet the simplest, lowest-profile cases of obviously Canadian children rarely seem to get to the top of his pile.

Don Chapman, a retired airline pilot who has championed the cause of “lost Canadians” — people who have fallen through the cracks of Canada’s impossibly Byzantine citizenship laws over the course of the country’s history — sums up the ruling’s implications: “It’s saying the government has been violating these children’s rights for 14 years. They’ve been making families forcibly separate. They’ve been violating several human rights conventions.” (In some cases Canada has arguably rendered children stateless, which is a no-no under international law.)

“Why did you even do this?” Chapman asks, of the government, incredulously. “You just should have corrected it!”

In fact, Chapman says, Bill S-245, which is currently awaiting third reading in the House of Commons, will address this issue — replacing the blanket cut-off with a “substantial connection (to Canada) test” of the kind we use to judge naturalizing citizens. If we’re going to cut off inherited citizenship at some point, which is reasonable enough, this is the obvious solution. That makes it all the more absurd that it took Ottawa so long to arrive at such a reasonable resolution, and instead fought the case in court.

Taxpayers are on the hook for $275,000 in legal costs, incidentally, plus goodness knows how many wasted person-hours by government lawyers. One hopes the government won’t appeal, but one would be foolish to bet against it.

 To read the full article, go to National Post