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 federal immigration department is being criticized by Acadian history specialists for unfair treatment of members of the French-speaking diaspora community, after it said they may not be entitled to Canadian citizenship because the sources of their family records are not acceptable.
Acadians living outside Canada who obtained citizenship after the November passing of a new law extending citizenship by descent are among those whom the department recently informed may have been granted the right to a Canadian passport in error.
Peggy Sun, the registrar of Canadian Citizenship, wrote in June to about 100 “Lost Canadians” saying she had reasonable grounds to believe that their citizenship status is not valid and informing them it is now under review.
Most of those sent such letters have now had their citizenship certificates and passports restored. But others have been told, in a subsequent letter, that they may have been granted a citizenship certificate in error.
In the case of Acadians, Immigration, Refugees and Citizenship Canada has taken issue with some baptismal records, birth records and other documents sourced from France and the U.S.
Acadians, emigrants from France, established distinct communities in what is now Atlantic Canada in the 17th century. But sovereignty over much of their land passed to Britain after the signing of the 1713 Treaty of Utrecht when much French territory in North America was ceded to Britain.
British colonial authorities suspected Acadians were helping the French, including by trading with their forces. And they found that some fought alongside the French against them. The British forcibly expelled about 11,500 of the 14,000 Acadians between 1755 and 1764 from their territory in the Maritimes.
Some were deported to England, where they were imprisoned and later released. Some hid and others fled to regions under French control including in what is now Quebec and Prince Edward Island, or across the border into what is now the United States. Others were displaced to France, with many eventually finding refuge in Louisiana in what was then a Spanish colony.
Academics specializing in Acadian history say it is unjust for IRCC to penalize Acadians whose forebears were forced out by the British in the 18th century. Many records, including those held by churches and individual families were destroyed in the upheaval.
NDP immigration critic Jenny Kwan said it was deeply concerning that Acadians were “being denied recognition of legitimate historical records from France and the United States, even though these jurisdictions hold many of the primary archival documents.”
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