'Lost Canadians' win in Ontario court as judge ends 2 classes of citizenship

Ontario's Superior Court of Justice has ruled it's unconstitutional for Canada to deny automatic citizenship to children born abroad to parents who were also born overseas but have a substantial connection to Canada — a big win for "Lost Canadians" trying to reclaim citizenship rights.

"It's a wonderful Christmas gift," said Sujit Choudhry, a constitutional lawyer in Toronto representing seven multi-generational families living in Canada, Dubai, Hong Kong, Japan and the United States who challenged what's known as Canada's "second-generation cut-off rule."

"It removes a second-class status that people had because of the accident of where they were born."

Choudhry filed a constitutional challenge in December 2021, suing the federal government for denying his clients the right to transmit their citizenship to their foreign-born offspring.

In a 55-page ruling released this week, Justice Jasmine Akbarali found that the second-generation cut-off rule violates the Charter of Rights and Freedoms because 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," Akbarali wrote.

"Lost Canadians" are people who, because of where and when they were born, are caught up in complicated sections of the Citizenship Act.

The second-generation cut-off rule denies the first generation born abroad the ability to automatically pass on citizenship to their children if they are also born outside of Canada.

It was created in 2009 by the then-Conservative government, which faced backlash over "Canadians of convenience," following an $85-million evacuation of 15,000 Lebanese Canadians stranded in Beirut during a war with Israel.

Under the rule, there is no ability to gain citizenship by showing a substantial connection to Canada. Second-generation children must be sponsored by their parents to come to Canada as permanent residents, then apply for citizenship like any other immigrant.

Critics have long said it has created two classes of Canadian citizenship — one for Canadians born in Canada and one for those born abroad.

"The laws, as written, only targeted Canadian citizens. Naturalized Canadians actually had more rights than the other Canadians. This [court ruling] levels the playing field," said Don Chapman, head of the Lost Canadians Society, who has been fighting this battle for decades.

"The court's decision to me is a no-brainer and always would be a no-brainer. But that said, I'm thrilled."

In her decision, the judge accepted claims that women are particularly impacted because the second-generation cut-off rule discriminates on the basis of gender — forcing women in their reproductive years to choose between travel, study and career opportunities abroad, or passing citizenship on to their children.