An Ontario court has granted another reprieve for Ottawa to enact the “lost citizenship” legislation despite not knowing what a new government elected after Monday will do next.
But by extending the deadline for eight more months, until Nov. 20, Judge Jasmine Akbarali of the Superior Court of Justice showed her displeasure at how political interests have played a role in causing the nearly two-year delay in fixing the current Citizenship Act. Part of it has been ruled unconstitutional by the court.
“I explicitly make no comment on the validity or value of what appears to be political motivations of different parties that have contributed to the delay that has occurred in the past,” the judge wrote in a decision released on Wednesday.
“I simply note that at some point, the public is entitled to expect Parliament to fulfil its legislative role and pass legislation.”
It was a fifth extension granted to the mandated deadline, since the court ruled in December 2023 in favour of a group of families who challenged Ottawa for denying automatic citizenship to children born outside the country because their parents also happened to be born abroad.
The court, however, has suspended its order to declare the law invalid at the government’s request. The government has asked for time to introduce a new Charter-compliant law, while interim measures have been put in place to grant citizenship on a case-by-case basis to those affected by the second-generation cut-off rule.
The latest extension was granted two days before the most recent deadline on Friday and Monday’s federal election. The vote, and a new government, could set a new course for the saga to restore citizenship for lost Canadians, affected by the restrictive law introduced by the Conservative government in 2009.
And the judge was aware of the uncertainty that lies ahead.
“There is no guarantee that the next government will not adopt a different interim measure, or do away with an interim measure entirely,” Akbarali wrote in her seven-page decision to grant the extension, which was short of the year the government had requested.
“I am thus in the position of considering the motion for a lengthy extension to the suspension of the declaration of invalidity without reliable evidence about what the impact of such an extension will be on rights holders, who have already been waiting for about 16 months to be able to enjoy the rights that the unconstitutional legislation violates.”
The eight-month period is from the expiry of the previous extension, which was March 19.
A new government cannot appeal the Ontario court’s constitutionality ruling on the second-generation citizenship cut-off rule because the appeal period has expired. Nor can it invoke the notwithstanding clause to re-enact the unconstitutional provisions because mobility rights — which are central to the case — are exempt from that clause.
“They’re going to have a choice: either to let the old provisions fall with nothing to replace them, or to adopt a kind of a Charter-compliant replacement,” said Sujit Choudhry of the law firm Circle Barristers, who represents the lost Canadian families. “The question will be, if they introduce a bill, we’ll have to look at what they propose.”
Akbarali’s decision on Wednesday could mark an end to this court challenge unless the new government returns in November for another extension to amend the citizenship law. If a new bill passes and contains questionable provisions, Choudhry said a fresh court challenge would be required.
“All this court has done is strike down the old law,” he said. “It’s not here to pass any type of judgment on the new legislation. That would be for a fresh case brought by another set of applicants based on fresh evidence with a new hearing.”
