Second generation children born to Canadian citizens are not currently eligible for Canadian citizenship. That is, until a recent court case that examined the constitutionality of this law.
In this application, the applicants challenged the constitutionality of s. 3(3)(a) of the Citizenship Act, R.S.C. 1985, c. C-29 (the “Act”). This provision was incorporated into the Act through Bill C-37, An Act to Amend the Citizenship Act, S.C. 2008, c. 14 (“Bill C-37”). Its effect is to prohibit Canadian citizens born abroad from passing Canadian citizenship on to their children automatically if their children are also born abroad. There is no mechanism to remove this limitation from the citizenship status of Canadian citizens born abroad to Canadian-born parents. The parties refer to this effect as the “second-generation cut-off”.
The court agreed with the Applicants which means now the second generation Canadians that were previously excluded, will have access to Canadian citizenship. The ruling has been stayed for 6 months starting on December 19, 2024 but after that time, will be in effect.
The reasons the court gave include the following:
[165] In conclusion, I find that s. 3(3)(a) violates s. 15(1) of the Charter with respect to all first generation born abroad Canadians on the basis of the national origin, and in addition, with respect to all first generation born abroad women on the basis of the impacts it has given the intersection of their status as Canadians born abroad and as women.
[183] In my view, the second-generation cut-off interferes with the right of first generation born abroad Canadians to remain in Canada, because it interferes with their ability to remain in Canada with their dependent children. The second generation born abroad children may be able to enter Canada temporarily, and may succeed in obtaining permanent status in Canada or citizenship through other means, but it is not a given that the children of first generation born abroad Canadians will receive permanent residence status or Canadian citizenship.
[186] In particular, the second-generation cut-off creates an immutable second-class citizenship for the first generation born abroad. It unreasonably attaches permanent consequences suffered by the first generation born abroad as a result of the decision of their gen zero Canadian parents to have children while temporarily abroad. First generation born abroad children take an inferior citizenship by descent. In this way, the second-generation cut-off interferes with gen zero Canadians’ decision to leave Canada for legitimate pursuits…
[187] The second-generation cut-off impacts first generation born abroad Canadians, in a way that is even more burdensome. The consequences attached to a first generation born abroad Canadian’s decision to go abroad and have a child are greater; such a parent cannot pass on Canadian citizenship to their child at all, and runs the risk of their child being born stateless. It thus interferes with a first generation born abroad Canadian’s right to leave Canada, and to remain in Canada with their born-abroad child.
[193] The second-generation cut-off also creates an unrealistic and impractical restriction for both, gen zero Canadians and first generation born abroad Canadians, for all the reasons that I have already described in the context of the s. 15 analysis. That is, it is unrealistic and impractical to expect Canadian citizens abroad to return to Canada to give birth when the decision to do so will be accompanied by the financial difficulties, professional risks, and health risks I have described above.
This judgment has the effect of removing the exclusion of second generation born abroad Canadians. To read the full case, please see 2023 ONSC 7152.
If you are wondering if you or your children may now have a claim to Canadian citizenship, please schedule a strategy session for an evaluation.
