Court File and Parties

COURT FILE NO.: CV-21-673419-0000 DATE: 20240103

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Sara Ann Bjorkquist, Douglas Roy Brooke, AB (by their litigation guardian Douglas Roy Brooke), Gregory Burgess, QR (by their litigation guardian Gregory Burgess), Patrick Chandler, Paul Chandler, MN (by their litigation guardian Patrick Chandler), OP (by their litigation guardian Patrick Chandler), Emma Kenyon, Marian Kenyon, Roger Kenyon, IJ (by their litigation guardian Emma Kenyon), Victoria Maruyama, CD (by their litigation guardian Victoria Maruyama), EF (by their litigation guardian Victoria Maruyama), Alexander Kovacs, KL (by their litigation guardian Alexander Kovacs), Thomas Setterfield, Timothy Setterfield, GH (by their litigation guardian Timothy Setterfield), Daniel Warelis, and William Warelis Applicants

– and –

Attorney General of Canada Respondent

Counsel: Sujit Choudhry and Ira Parghi, for the Applicants David Tyndale, Hillary Adams and Kevin Spykerman, for the Respondent

HEARD: April 19 and 20, 2023

Supplementary Reasons for Decision

J.T. Akbarali J.:

[1] On December 19, 2023, I released reasons in this constitutional application: Bjorkquist et al. v. Attorney General of Canada, 2023 ONSC 7152. Terms in these supplementary reasons bear the meanings set out in my December 19, 2023 reasons.

[2] This application addressed the ability of Canadian citizens born abroad who have a substantial connection to Canada and who obtained their citizenship by descent from a Canadian parent on their birth, to pass on Canadian citizenship to their born-abroad children. The application challenged the constitutionality of the second-generation cut-off, created by s. 3(3)(a) of the Citizenship Act, R.S.C. 1985, c. C-29 (the “Act”), which prohibits Canadian citizens born abroad from passing Canadian citizenship to their children automatically if their children are also born abroad.

[3] In my reasons, I found that s. 3(3)(a) of the contravenes ss. 6 and 15 of the Charter, and is unconstitutional and of no force or effect pursuant to s. 52 of the Constitution Act, 1982. I suspended the declaration of invalidity for a period of six months. However, in the interim, I granted constitutional exemptions to three of the applicants, each of them Canadians born abroad who acquired their citizenship by descent, and each of whom have children who had not obtained legal status to reside in Canada at the time of the hearing.

[4] In particular, with respect to the constitutional exemptions, I ordered in my reasons:

a. Each of Victoria Maruyama, Timothy Setterfield, and Alexander Kovacs are exempted from s. 3(3)(a) of the Citizenship Act, with immediate effect, and as a consequence, are Canadian citizens as if s. 3(1)(a) of the Citizenship Act applied to them, pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms;

b. As a result of the exemption of Victoria Maruyama, Timothy Setterfield, and Alexander Kovacs from s. 3(3)(a), their children, CD, EF, GH, and KL are Canadian citizens because s. 3(1)(b) of the Citizenship Act applies to them.

c. Within seven working days of the date of the receipt of applications under s. 12(1) of the Citizenship Act and s. 14 of the Citizenship Regulations, No. 2, SOR/2015-124, the respondent shall issue a certificate of citizenship to each of CD, EF, GH, and KL;

d. If any first generation born abroad applicant becomes the parent to another child born outside of Canada during the period between the hearing of this application and the end of the period of the suspension of invalidity of s. 3(3)(a) of the Citizenship Act, counsel shall advise me, and I shall remain seized of the matter in order to address any additional constitutional exemptions that may be required;

[5] Since the release of my reasons, counsel have written to advise me of certain matters that require clarification and amendment. The purpose of these supplementary reasons is to address those matters.

First Clarification

[6] On reviewing the record with respect to Mr. Kovacs’ child’s application to receive their Canadian citizenship certificate in accordance with my reasons, officials at Immigration, Refugees and Citizenship Canada noted that s. 3(3)(a) of the Act is not the provision under which Mr. Kovacs’ was granted citizenship; rather s. 3(3)(b) of the Act applied to Mr. Kovacs. The applicants’ counsel then noted that s. 3(3)(b) also applies to the applicant Gregory Burgess, not s. 3(3)(a).

[7] Both ss. 3(3)(a) and 3(3)(b) grant automatic Canadian citizenship to the first generation born abroad, and citizens who received citizenship under both of these provisions are subject to the second-generation cut-off. However, s. 3(3)(a) applies to persons born on or after the 1977 Citizenship Act came into force, while s. 3(3)(b) applies to persons born before then. Both Mr. Kovacs and Mr. Burgess were born before the 1977 Citizenship Act came into force.

[8] The application had proceeded on the understanding of all parties that s. 3(3)(a) of the Act applied to Mr. Kovacs and Mr. Burgess. It was only in the implementation of the remedy I ordered that the discrepancy came to light. The application materials did not refer to s. 3(3)(b) of the Act.

[9] Counsel have advised me that they agree that my reasoning with respect to the constitutional invalidity of s. 3(3)(a) of the Act applies with equal effect to s. 3(3)(b) of the Act, and that the evidentiary record supports a finding of invalidity with respect to s. 3(3)(b) of the Act.

[10] This discrepancy has come to light prior to the issuance of the order. The respondent advises that, in the unique circumstances of this case, it consents to an order which corrects this discrepancy, and which extends the effect of my order to both subsections of the Act.

[11] In my view, the parties’ agreement is sensible. Extending the effect of my reasons to s. 3(3)(b) of the Act is, in these very unusual circumstances, appropriate substantively, in view of the reasoning in my reasons for judgment. It is also appropriate procedurally, in that it does not require any of the parties nor the court to invest resources into a new process to address the constitutionality of s. 3(3)(b).

[12] Accordingly, my December 19, 2023, reasons shall be understood to refer to the constitutionality of both, s. 3(3)(a) of the Act and s. 3(3)(b) of the Act. The parties have prepared a draft order (the “s. 3(3)(b) order”) which amends the relief granted on the application, expanded in scope to encompass both ss. 3(3)(a) and 3(3)(b), which I have signed.

Second Clarification

[13] The second clarification is in fact an amendment. As set out in paragraph 3(c) above, I ordered that the respondent grant to the children of the applicants who received constitutional exemptions certificates of citizenship within seven working days of the date of the receipt of applications under s. 12(1) of the Act and s. 14 of the Citizenship Regulations, No. 2, SOR/2015-124.

[14] Due to logistical issues with staffing over the holidays, counsel have jointly requested an extension of the deadline for the issuance of citizenship certificates from seven working days after receipt of an application to fourteen working days. I am content with this modification, which is reflected in the s. 3(3)(b) order that I have signed.

Third Clarification

[15] I am advised that the applicant, Timothy Setterfield, has become the parent to a child born after the hearing. As I have already granted Dr. Setterfield a constitutional exemption, counsel agree that it follows that Dr. Setterfield’s new baby ought also to be able to receive Canadian citizenship by virtue of his constitutional exemption.

[16] For clarity, counsel have suggested, and I agree, that the operative provision set out in para. 3(a) above ought to amended. I amend the order as follows:

As a result of the exemption of Victoria Maruyama, Timothy Setterfield, and Alexander Kovacs from s. 3(3)(a) and 3(3)(b), their children, CD, EF, GH, and KL, and any of their children born after the hearing are Canadian citizens because s. 3(1)(b) of the Citizenship Act applies to them.

[17] In addition, para. 290 of my December 19, 2023 reasons shall be amended to read:

Accordingly, I grant a constitutional exemption such that Victoria Maruyama, Dr. Timothy Setterfield, and Alexander Kovacs shall be exempted from s. 3(3)(a) and s. 3(3)(b) of the Act with immediate effect, and as a consequence, are Canadian citizens as if s. 3(1)(a) of the Citizenship Act applied to them. It follows that their children, CD, EF, GH, and KL, and any of their children born after the hearing, will become citizens, not because I have bestowed citizenship on them, but because, given the constitutional exemptions I grant to their parents, s. 3(1)(b) of the Act applies to them.

[18] These amendments are contained in a separate draft order (the “first order”), prepared by counsel prior to discovery of the discrepancy relating to s. 3(3)(b) of the Act which I describe above. Accordingly, I have amended the first order to make reference to s. 3(3)(b) where appropriate to ensure consistency with the s. 3(3)(b) order.

Fourth Clarification

[19] Counsel has drawn to my attention an inadvertent inconsistency in my reasons. In para. 291, I wrote that I would grant a constitutional exemption to “any first generation born abroad Canadian who has a child born abroad between the time the application was heard and the end of the period of suspension of invalidity of s. 3(3)(a) of the Act.” This statement is broader than the actual order I made, set out in para. 3(d) above.

[20] I thus correct my earlier reasons. Paragraph 291 should not refer to “any first generation born abroad Canadian”, but rather, to “any other first generation born abroad applicant who has a child born abroad between the time the application was heard and the end of the period of suspension of invalidity of s. 3(3)(a) and s. 3(3)(b) of the Act.”

[21] This correction is also contained in the first order, and I have amended it to make it consistent with the s. 3(3)(b) order.

Conclusion

[22] Counsel have prepared two draft orders that reflect the amendments I make herein to my December 19, 2023 endorsement. The order shall be taken out in the forms that I have signed.

J.T. Akbarali J.

Released: January 3, 2024

Court File and Parties (Duplicate Header)

COURT FILE NO.: CV-21-673419-0000 DATE: 20240103

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Sara Ann Bjorkquist, Douglas Roy Brooke, AB (by their litigation guardian Douglas Roy Brooke), Gregory Burgess, QR (by their litigation guardian Gregory Burgess), Patrick Chandler, Paul Chandler, MN (by their litigation guardian Patrick Chandler), OP (by their litigation guardian Patrick Chandler), Emma Kenyon, Marian Kenyon, Roger Kenyon, IJ (by their litigation guardian Emma Kenyon), Victoria Maruyama, CD (by their litigation guardian Victoria Maruyama), EF (by their litigation guardian Victoria Maruyama), Alexander Kovacs, KL (by their litigation guardian Alexander Kovacs), Thomas Setterfield, Timothy Setterfield, GH (by their litigation guardian Timothy Setterfield), Daniel Warelis, and William Warelis Applicants

– and –

Attorney General of Canada Respondent

REASONS FOR JUDGMENT

J.T. Akbarali J.

Released: January 3, 2024