No More Second-Class Canadian Citizens? A Landmark Decision in Bjorkquist et al. v. Attorney General of Canada
Today, we're delving into a case that's caused quite the stir in the realm of citizenship rights in Canada. In the recent case of Bjorkquist et al. v. Attorney General of Canada, a significant decision was made regarding Canadian citizenship law. This case revolved around the constitutionality of section 3(3)(a) of the Citizenship Act, which restricts Canadian citizens born abroad from automatically passing their citizenship to their children if those children are also born abroad. This provision, often referred to as the "second-generation cut-off", was challenged as it was argued to confer second-class citizenship status on Canadians born abroad, treating them differently than Canadians born in Canada or naturalized Canadians.
The Background
The case involved several Canadian families, spanning multiple generations, who had been impacted by this provision. These included families where the parents were Canadian citizens by birth or naturalization, but their children, born abroad, were affected by the second-generation cut-off. The families' circumstances varied, with some having worked internationally or faced other situations leading to the birth of their children outside Canada.
The Court was asked to consider several key issues, including whether section 3(3)(a) of the Citizenship Act discriminated based on national origin against the first generation born abroad, if it discriminated against women in the first generation born abroad based on national origin and sex, and whether it violated specific rights under the Canadian Charter of Rights and Freedoms.
Analysis and what the Court had to say
In its analysis, the Court rigorously applied the two-step test for discrimination under section 15(1) of the Canadian Charter of Rights and Freedoms to evaluate the constitutionality of section 3(3)(a) of the Citizenship Act. This two-step test, as repeatedly affirmed by the Supreme Court of Canada in cases like Fraser v. Canada, Withler v. Canada, and R. v. Sharma, involves first determining if the law creates a distinction based on an enumerated or analogous ground, and secondly, whether this distinction creates a disadvantage by perpetuating prejudice or stereotyping.
The first step of the test required the Court to assess whether section 3(3)(a) of the Act created a distinction based on an enumerated ground. The applicants argued that the provision was discriminatory as it created a distinction based on national origin in relation to the first generation born abroad. Section 15(1) of the Charter stipulates that every individual is equal before and under the law without discrimination based on, among other things, national or ethnic origin. In this context, national origin was understood broadly, considering past interpretations like in Canadian Doctors for Refugee Care v. Canada, which differentiated between 'national origin' and 'ethnic origin'. The Court found that section 3(3)(a) indeed created a distinction based on national origin, as it treated Canadians who were born in Canada differently from those who obtained their citizenship by descent upon birth outside Canada. This distinction was seen to result in a lesser class of citizenship for the latter group, as they were unable to pass on citizenship to their children born abroad automatically.
[84] For all of these reasons, I conclude that s. 3(3)(a) creates a distinction based on national origin; it treats differently those Canadians who became Canadians at birth because they were born in Canada from those Canadians who obtained their citizenship by descent on their birth outside of Canada. 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.
[85] 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.
The second step of the test assessed whether the law imposed burdens or denied benefits in a manner that perpetuated or exacerbated a group’s disadvantage. The applicants contended that the distinction created by section 3(3)(a) reinforced, perpetuated, and exacerbated the disadvantage faced by children born to Canadian citizens abroad. This aspect of the test required a consideration of the history and context of Canada's citizenship laws. Expert evidence provided by Dr. Lois Harder, a political science professor, was crucial in painting a detailed picture of this history. The Court acknowledged the necessity and relevance of Dr. Harder's expert testimony, which traced the evolution of citizenship legislation from its inception, highlighting how derivative citizenship rules in Canada have historically created disadvantages for certain groups. The Court agreed with the applicants' position, finding that the second-generation cut-off indeed reinforced and perpetuated disadvantages.
Moreover, the Court recognized the concept of intersectional discrimination, where discrimination can occur based on a combination of factors. In this case, it was argued that the provision not only discriminated based on national origin but also had a particular impact on women in the first generation born abroad. The Court acknowledged this type of intersectional discrimination claim.
[152] The distinction created by s. 3(3)(a) of the Act unquestionably places a burden and denies benefits on first generation Canadians born abroad based on their national origin. It denies them the ability to pass on Canadian citizenship to their born-abroad children when Canadians born in Canada or naturalized citizens have that ability. It also denies them the automatic ability to return to live in Canada with their (non-citizen) born abroad children.
[156] The legislative goal, as described by the then-Minister, of the second-generation cut-off is to create a simple rule to protect the value of Canadian citizenship by ensuring that it is not held by so-called “Canadians of convenience”, a term that must be understood to be pejorative.
[157] …In other words, the policy enacted through an inflexible second-generation cut off reinforces the stereotype that … that first generation born abroad Canadians and their children are parasites or leeches, in the sense defined by the Merriam Webster dictionary as “a person who seeks support from another without making an adequate return”.
[158] I thus conclude that the distinction based on national origin reinforces the disadvantage of the first generation born abroad by reinforcing the negative stereotyping to which they have been subjected, as people who offer nothing to Canada but seek to take advantage of the benefits of Canadian citizenship.
The Court also considered whether section 3(3)(a) of the Citizenship Act could be saved under section 1 of the Canadian Charter of Rights and Freedoms. Section 1 of the Charter allows for certain limits on rights and freedoms to be justified if they are "reasonable" and can be "demonstrably justified in a free and democratic society."
In other words, the Court had to consider whether the limitations imposed by section 3(3)(a) of the Act, which effectively prevented Canadian citizens born abroad from passing on their citizenship to their children if those children are also born abroad, were reasonable and justifiable. The Court’s task was to balance the government's objective in enacting the provision against the rights infringement it caused.
However, in the judgment, it was found that the infringement of rights as a result of the second-generation cut-off was not justified under section 1 of the Charter. The Court determined that while the government may have had legitimate objectives, such as maintaining the connection of citizens to Canada or managing citizenship in a globalized world, the means used were not proportional to these objectives. As such, the Court did not find a sufficient justification under section 1 to uphold the limitations imposed by section 3(3)(a) of the Citizenship Act.
So, what did the Court decide?
In summary, the Court's meticulous application of the two-step test led to a profound understanding of the discriminatory impact of section 3(3)(a) of the Citizenship Act, particularly highlighting its unfair treatment of Canadians based on their place of birth and its intersectional impact on women. This comprehensive analysis underpinned the Court's ultimate decision to declare the provision unconstitutional. The decision emphasized the need to consider the history and context of Canada's citizenship laws, with expert evidence provided to this effect. The Court noted the importance of such historical context in understanding the evolution and implications of citizenship legislation.
Ultimately, the Court declared section 3(3)(a) of the Citizenship Act to be in violation of sections 6 and 15 of the Charter, rendering it of no force or effect. However, the declaration of invalidity was suspended for six months from the date of the decision. The court also granted an order exempting specific individuals from the provision of the Act, thus recognizing them as Canadian citizens.
This ruling is significant as it addresses the complexities of citizenship in the context of globalization and mobility. It acknowledges the challenges faced by Canadians living abroad and the impact of citizenship laws on their families, especially on the rights of their children born outside Canada. The decision also underscores the evolving understanding of discrimination, including intersectional discrimination, under the Charter.
About the Author:
Igor Kyryliuk
Articling student, LLM
