Court File and Parties

COURT FILE NO.: CV-21-00673419-0000 DATE: 20240802 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sara Ann Bjorkquist et al., Applicants AND: Attorney General of Canada, Respondent

BEFORE: J.T. Akbarali J.

COUNSEL: Sujit Choudhry, for the applicants David Tyndale and Kevin Spykerman, for the respondent

HEARD: August 1, 2024

Endorsement

Overview

[1] On December 19, 2023, I released reasons in this constitutional application: Bjorkquist et al. v. Attorney General of Canada, 2023 ONSC 7151. I released supplementary reasons on January 3, 2024: Bjorkquist et al. v. Attorney General of Canada, 2024 ONSC 31. In these reasons, I use the terms described in my earlier reasons.

[2] Among other things, in my reasons, I found that ss. 3(3)(a) and 3(3)(b) of the Citizenship Act, R.S.C. 1985, c. C-29, which limit derivative citizenship to first generation born abroad Canadians, contravene ss. 6 and 15 of the Charter of Rights and Freedoms and as such, are unconstitutional and of no force or effect pursuant to s. 52 of the Constitution Act, 1982. However, I suspended that declaration of invalidity for a period of six months from the date of release of my reasons. That six-month period expired on June 20, 2024.

[3] On June 19, 2024, I released reasons on the respondent’s motion for an extension of the suspension of the declaration of invalidity: Bjorkquist et al. v. Attorney General of Canada, 2024 ONSC 3554. In those reasons, I raised concerns about the ongoing hardship to those whose constitutional rights continue to be breached by the limits on derivative citizenship. I found that the mechanism put in place by the respondent to address urgent cases of hardship due to the unconstitutional law was ineffective, and poorly communicated. I also raised concerns about the lack of progress of Bill C-71, introduced by the government on May 23, 2024, in part to replace the sections of the Citizenship Act that I found to be unconstitutional.

[4] I granted an extension of the suspension of the declaration of invalidity to August 9, 2024, and directed the parties reattend before me on August 1, 2024 for me to consider whether a further extension ought to be granted. I directed the respondent to file an improved plan to address cases of hardship during any additional extended period of suspension of the declaration of invalidity, and a report explaining the progress made on Bill C-71 since its introduction and, ideally, intended next steps to pass the bill by December 19, 2024, the date to which the respondent asks that I extend the suspension of the declaration of invalidity.

[5] These reasons address whether the suspension of the declaration of invalidity should be further extended beyond August 9, 2024.

[6] I rely on, but do not repeat, my iteration of the applicable legal principles on a motion to extend the suspension of a declaration of invalidity set out in my reasons of June 19, 2024.

[7] In addition, I reiterate my conclusion from my June 19, 2024 reasons that there is still reason to have in place a suspended declaration of invalidity, to ensure there is no legislative gap, and to allow the government to make policy choices, as is its proper role, to repair the unconstitutionality of the existing legislation. I found, and continue to find, that there are extraordinary circumstances that justify some extension of time.

[8] I also reiterate my conclusion that rights-holders will continue to suffer hardship if the declaration of invalidity is suspended until December 19, 2024.

[9] The focus of these reasons is thus on whether the respondent has taken appropriate steps to address urgent cases of hardship during an extended period of invalidity, and on the progress of Bill C-71.

Preliminary Matter: Admission of Evidence

[10] As I directed, the respondent filed evidence describing the changes it has made to its process to address urgent cases of hardship, and to explain the progress and intended progress of Bill C-71.

[11] Although I did not specifically provide for the right to file responding evidence, the applicants adduced two affidavits in response. The respondent objected to the admission of one of them, the affidavit of Jessica Goldberg.

[12] I admitted both affidavits proffered by the applicants. It is customary that a party has the right to respond to new evidence. Moreover, I accepted the applicant’s argument that Ms. Goldberg’s affidavit provided evidence of ongoing harm to rights-holders as a result of the continued suspension of the declaration of invalidity, which is relevant to the question of whether to extend the suspension.

Cases of Hardship

[13] The respondent has led evidence describing how it has updated its website to better communicate how urgent cases of hardship may be addressed, and has publicly identified broader criteria which could justify the urgent processing of an applicant’s file.

[14] Near the top of the page titled “See if you may be a citizen” on the respondent’s website, there is a banner that invites the reader to click on it to learn about the “Status of changes to the first-generation limit on citizenship”. Clicking through presents the reader with information, together with a “check your next steps” button, a tool that takes the reader through a series of questions which, among other things, is designed to identify whether they may be eligible for urgent processing for an application for a discretionary grant of citizenship under s. 5(4) of the Citizenship Act.

[15] The applicants argue that the process is unwieldy, unnecessarily burdensome, and remains unclear. They point out ways by which the process could be improved.

[16] I agree with the applicants that the process could be improved, and they have posited what seem like some good ideas for how that could be done. But neither I nor the applicants have any insight into, or practical experience with, the internal workings of the Ministry. I do not think it is my role, nor within my competence, to micromanage the nature of the mechanism the respondent chooses to implement, or to stray into musings about better process or website design.

[17] I also agree with the respondent that, in considering the nature of the process to deal with urgent cases of hardship, I ought not to usurp the discretion of the Minister to make a grant of citizenship under s. 5(4) of the Citizenship Act. It is not my role to exercise the discretion of the Minister or of the public servants who carry out discretionary duties under the Citizenship Act.

[18] The question for me is not whether the respondent could have designed a better process, or whether it is executing the process it has designed in a way that I would, in my discretion. The question is whether the process it has designed is good enough to sufficiently address the concerns about the hardship caused by the ongoing rights violations such that a further extension of the suspension of the declaration of invalidity would not undermine confidence in the administration of justice: Attorney General of Canada v. Descheneaux, 2017 QCCA 1238.

[19] In my view, it is. The website, and particularly the tool I described above, adequately allows potential applicants to determine how they can seek to have their urgent cases of hardship addressed during the period of the suspension of the declaration of invalidity. The communication has been made clearer, and by broadening the description of what may constitute a case of hardship, the respondent has captured the types of cases that the evidence in the original application indicated could cause significant harm to rights-holders.

The Progress of Bill C-71

[20] The respondent’s affiant has described a series of steps taken by the government to prepare for the passage of Bill C-71 by December 19, 2024, and explained other steps it may take between now and then to support its passage.

[21] The applicants criticize these steps. They say the respondent could have done more. They question the respondent’s choices in prioritizing other bills over Bill C-71.

[22] I am not in a position, based on the titles of other Bills only, to assess the relative importance of each Bill, or the concerns that might lead the respondent to prioritize one over another. I do not have the evidence to engage in a relative assessment of the Bills. Nor is it my proper role to do so.

[23] My concern about the passage of the bill relates to the likelihood that remedial legislation will be adopted as a factor relevant to whether the suspension of the declaration of invalidity ought to be extended: Descheneaux.

[24] Having reviewed the evidence from the respondent, I am satisfied that it has taken, and continues to take steps to advance the legislation, including during Parliament’s summer recess. I am also satisfied that it has a toolbox at its disposal that it can use to accelerate the passage of Bill C-71, and that there is reason to conclude that the Bill will likely be adopted before December 19, 2024.

Conclusion

[25] I conclude that the mechanism in place to address urgent cases of hardship is sufficient to ensure that an extension of the declaration of invalidity will not undermine confidence in the administration of justice. I conclude that the circumstances continue to warrant a suspension of the declaration of invalidity, and it is likely that remedial legislation will be adopted by December 19, 2024.

[26] In view of these conclusions, I grant the respondent’s request for a further suspension of the declaration of invalidity to December 19, 2024 at 11:59 p.m.

Costs

[27] The final matter to address is costs. The applicants seek their substantial indemnity costs of this motion. They argue that:

a. This motion arises from the application, in which they were the successful parties, and since then, counsel for the applicants has served, in effect, as amicus curiae to advocate for those whose rights are impacted by this decision but who are otherwise voiceless in it;

b. This motion was brought by the respondent, and this second attendance arises from it not having met its obligation to create an appropriate hardship mechanism and advance Bill C-71 beyond first reading by the time of the first attendance; and

c. The motion raises novel legal questions, including considering whether the government has created an effective mechanism for implementing what is, in substance, a constitutional exemption under s. 24(1) of the Charter during a suspension [1].

[28] The respondent argues that substantial indemnity costs are only warranted to mark the disapproval of the conduct of a party in the litigation, and it has not acted in a way to warrant such condemnation.

[29] I am satisfied that the applicants are entitled to some measure of costs. The applicants have played an important role in this motion in holding the respondent to account, not just with respect to their rights, but for all rights-holders who are negatively impacted by the unconstitutional law. They have been helpful to the court.

[30] However, I agree that partial indemnity costs are appropriate in the circumstances. The respondent has not engaged in any conduct worthy of sanction.

[31] The applicants’ costs outline establishes partial indemnity costs of $18,498.21, all inclusive. In considering the quantum of costs that are fair and reasonable, I take into account the issues at stake on this motion and their importance to the parties, and Canadians more generally, the results obtained, the nature of the work undertaken, the short time frame within which it had to be done, and the time spent and counsel’s hourly rate. In my view, costs of $15,000 all inclusive are fair and reasonable.

[32] The respondent shall pay the applicants’ partial indemnity costs, fixed at $15,000 all-inclusive, within thirty days.

[33] If required, the parties may send an order reflecting these reasons, and approved as to form and content by both parties, to my attention for signature.

J.T. Akbarali J.

Date: August 2, 2024

Footnote [1] I make no comment on whether the applicants have accurately characterized the mechanism for responding to cases of urgent hardship when they refer to it as a system to deliver constitutional exemptions.