Court File and Parties

COURT FILE NO.: CV-21-0067419-0000 DATE: 20240619 SUPERIOR COURT OF JUSTICE - ONTARIO

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

BEFORE: J.T. Akbarali J.

COUNSEL: Sujit Choudhry, for the applicants David Tyndale and Hillary Adams, for the respondent

HEARD: June 19, 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 expires tomorrow, on June 20, 2024.

[3] Today, I heard an urgent motion brought by the respondent seeking a six-month extension of the suspension of the declaration of invalidity. The applicants oppose the extension, and in the alternative, propose that any extension should be granted with terms.

[4] Thus, the question for me on this motion is whether I ought to extend the suspension of the declaration of invalidity, and if so, for how long, and on what, if any, terms?

The Applicable Legal Principles

[5] In Carter v. Canada, 2016 SCC 4 (“Carter 2”), the Supreme Court of Canada was asked by the Attorney General of Canada for a six-month extension of the Court’s earlier suspension of its declaration of invalidity with respect to certain provisions of the Criminal Code, R.S.C. 1985, c. C-46, relating to physician-assisted death.

[6] The Court noted that suspending a declaration of the constitutional invalidity of a law is an “extraordinary step”, because by doing so, the court permits an unconstitutional law to be maintained. “To extend such a suspension is even more problematic.” The Court concluded that extraordinary circumstances must be shown to order an extension of a declaration of invalidity. It held that “[t]he burden on the Attorney General who seeks an extension of a suspension of a declaration of constitutional invalidity is heavy”: para. 2.

[7] The following year, in Attorney General of Canada v. Descheneaux, 2017 QCCA 1238, at paras. 39 to 43, the Quebec Court of Appeal identified four factors to identify whether the extraordinary circumstances contemplated in Carter 2 exist and justify an extension of a suspension of a declaration of invalidity:

a. Does a change in circumstances justify the extension? b. Do the circumstances still warrant a suspension? c. What is the likelihood that remedial legislation will be adopted? d. Would the extension undermine confidence in the administration of justice?

[8] The court noted that each case must be analyzed in light of its particular circumstances, and that other factors may be important in addition to the four specifically identified. Moreover, the factors are not cumulative. “[I]t is rather the weighing of these factors, taking into account the particular circumstances of each case, that will determine whether an extension is justified: Descheneaux, at para. 39.

[9] The Court of Appeal for Ontario applied the factors identified in Descheneaux in Canadian Civil Liberties Association v. Canada, 2019 ONCA 342, at para. 17.

[10] Although not dealing with extensions, in Ontario (Attorney General) v. G., 2020 SCC 38, the Court returned to the topic of suspended declarations of invalidity. It reviewed the circumstances in which declarations of invalidity have been suspended, and noted the case before it provided the opportunity to recalibrate the remedial principles that guide judicial discretion to delay the effect of a declaration of invalidity: at para. 118.

[11] The Court noted that some declarations of invalidity have been suspended due to the differing capacities and roles of legislatures and courts, on the theory that suspensions allow the legislature to determine the remedy for its own breach of the Constitution. The Court cautioned that respecting the role of the legislature cannot come at the expense of the functions the Constitution assigns to the judiciary: giving effect to constitutional rights and making determinations of law: G, at para. 128.

[12] The Court went on to hold that “the benefit achieved, or harm avoided, by the suspension must be transparently weighed against countervailing fundamental remedial principles, namely the principles that Charter rights should be safeguarded through effective remedies and that the public has an interest in constitutionally compliant legislation” G, at para. 131. “The appropriate balance will result in suspensions only in rare circumstances”: G, at para. 132.

[13] The Court noted the danger of suspended declarations of invalidity, including legal uncertainty and instability from leaving an unconstitutional law on the books, the undermining of public confidence in the Constitution, the laws and the justice system, and the ongoing violation of constitutional rights: G, at para. 132.

[14] The Court concluded that “[t]he period of suspension, where warranted, should be long enough to give the legislature the amount of time it has demonstrated it requires to carry out its responsibility diligently and effectively, while recognizing that every additional day of rights violations will be a strong counterweight against giving the legislature more time”: G, at para. 139.

[15] Thus, in G, the Court endorsed a cautious approach to suspended declarations of invalidity.

[16] It was against the backdrop of the principles in G. that I reached my conclusion to suspend the declaration of invalidity in this case for six months. I found that there was a public interest in maintaining a coherent legislative scheme, and that (given the policy options open to Parliament to rectify the constitutional breach) it was Parliament’s obligation to craft legislation that would survive Charter scrutiny. In granting a suspended declaration of invalidity, I noted that there were, at the time of my decision, amendments under study by Parliament in an opposition member’s bill, Bill S-245, giving Parliament a head start on amendments addressing derivative citizenship. As a result, I was prepared to grant the suspension, but only for a period of six months, not the twelve that the respondent had sought.

What has happened since the suspension of the declaration of invalidity?

[17] The evidence before me indicates that, on May 23, 2024, over five months after my decision and less than one month before the expiry of the suspended declaration of invalidity, the government introduced Bill C-71, An Act to amend the Citizenship Act (2024). Bill C-71, as currently drafted, would confer citizenship by descent on all persons born outside Canada to Canadian citizens before the date the Act comes into force. Persons born outside Canada to Canadian citizens after the date the Act comes into force would become citizens by descent if their parent has a substantial connection with Canada, defined as 1,095 days of physical presence in Canada before the birth of the person.

[18] The respondent’s affiant deposes that the respondent originally thought that Bill S-245 would be a viable path for bringing the legislation in compliance with the Charter. The applicants challenge that evidence. What is apparent is that, once amendments were voted on that added derivative citizenship and a substantial connection test to Bill S-245, the sponsor of the bill was no longer interested in advancing it. The bill remained stalled, and prior to the release of my reasons, had been moved down the order paper three times. I agree that it was entirely predictable that Bill S-245 was not going to be the vehicle to make the Citizenship Act Charter-compliant.

[19] The respondent has crafted a bill that does much of what Bill S-245 would have done, but it is different in some material ways, and, if passed, will be a more robust amendment than Bill S-245 would have been. The applicants argue that if the respondent wanted to make a more comprehensive amendment, it did not need to wait until the last minute to bring this motion. I agree with the applicants that it would have been preferable to address this issue well before now, but that is not fatal to the respondent’s request for an extension.

[20] I am troubled by the fact that, after taking over five months to introduce Bill C-71, in the almost-month that has passed since then, the bill has not reached second reading. The applicants point out that an Act respecting medical assistance in dying went from first reading to Royal Assent within the month of February 2024. A bill that was introduced about two-and-a-half weeks before Bill C-71 has been through third reading in the House and is waiting for third reading in the Senate. There is no explanation as to why this bill is languishing since May 23, 2024, when the government was aware of the date on which the suspended declaration of invalidity was set to expire.

[21] Moreover, I am advised that the legislature will take its summer break beginning on June 20, 2024, and is not expected to reconvene until mid-September.

[22] In the meantime, the unconstitutional law remains on the books, and continues to interfere with the Charter rights of Canadians to make important decisions about where to live, and where and when to have children, all of which have implications for the financial, physical and emotional health of the people involved. The evidence before me at the application demonstrated that these are not theoretical, or minor constitutional violations. They can lead to children being stateless. They can lead to women having to make choices between their financial health and independence on one hand, and their physical health on the other. They can separate families. They can force children to stay in places that are unsafe for them. They can interfere with some of the deepest and most profound connections that human beings both enjoy and need.

[23] I accept the respondent’s evidence that preparing the Ministry for changes in the law is a complex undertaking, and involves, not just changing the law itself, but training materials, forms, website pages, and integration with other stakeholders, among other things. I understand much of this work is already underway. I also understand the concern about a duplication of efforts if the declaration of invalidity takes effect before there is law to replace it.

Analysis

[24] Considering the factors identified in Descheneaux, and the evidence before me, I note the following:

a. I do not find there is any change in circumstances since my decision was released. Bill S-245 was not a promising candidate to be a vehicle to rectify the legislation well before my decision was released. The respondent says contingency planning was underway in anticipation of a decision from me declaring the legislation unconstitutional. If so, that contingency planning should have accounted for the obvious problems with Bill S-245 as a mechanism to render the legislation Charter-compliant.

b. There is still some basis in the circumstances to warrant a suspension. The respondent has introduced Bill C-71 to rectify the constitutional problems with the existing legislation. It is preferable that there be a framework to take the place of the previous framework rather than an absence of a framework, which will be the result if the suspension of the declaration of invalidity is not extended. It is also preferable that the legislature be afforded the opportunity to make policy choices with respect to how to render the legislation Charter-compliant.

c. It is unclear what the likelihood is that the remedial legislation will be adopted. The respondent’s affiant deposes that some factors in the legislative process are beyond the control of the government, but nevertheless expresses confidence that the government can get the legislation passed within a further six months. I note this is a minority Parliament, so the timing of elections is not assured. On balance, however, it appears that most of the other parties were supportive of the amendments proposed to Bill S-245, so I am prepared to accept that the remedial legislation can be passed.

d. I have concerns that granting the extension will undermine confidence in the administration of justice. I am concerned that, while it has been working on the legislation, the respondent has not proceeded with any sense of urgency to rectify the unconstitutional aspects of the legislation. Moreover, as I will come to, it does not propose an effective mechanism to address the hardship that a further six-month suspension will cause to people whose constitutional rights are being violated day after day. On the other hand, I am worried that confidence in the administration of justice will be undermined if the court does not grant the extension when remedial legislation has been tabled. The public could interpret such a decision as the court not allowing the legislature to fulfil its proper role.

[25] In addition to these factors, I reiterate that I am very concerned about the hardship that the ongoing rights violation creates on the people impacted by it. The applicant has adduced evidence of those figures, which suggest that there are over 170,000 women in the first-generation born abroad who are in the age range at which people often choose to start families, and who are being affected by the unconstitutional law. The impact on them of an extension of the suspension may be severe, as the evidence led on the application established it was for some of the applicants.

[26] To address this, the respondent advises that it has put in place a mechanism under which:

a. People seeking proof of citizenship who may be subject to the current limits under the unconstitutional law have their applications de-prioritized, so they can be considered under the new law once passed;

b. People will be offered the chance to seek an urgent processing of their application under s. 5(4) of the Citizenship Act, which permits the Minister, in his discretion, to grant citizenship “to any person to alleviate cases of statelessness or of special and unusual hardship or to reward services of an exceptional value to Canada”.

c. Whether the application is referred for urgent processing will be determined by Immigration, Refugees and Citizenship Canada (“IRCC”) staff, considering guidelines applicable to urgent processing.

[27] The respondent urges me to find that the Minister is keen to address the problems created by the unconstitutional legislation and will exercise his discretion under s. 5(4) in a manner that is aligned with the policy changes the government seeks to make as disclosed by Bill C-71.

[28] I accept that the Minister is well-intentioned, and intends to exercise his discretion in that manner. However, that does not address the significant problems with the process the respondent has put in place. I note that what follows comes from certain web pages I reviewed with counsel at the hearing, as the respondent did not put into the record the relevant guidelines and policies.

[29] First, there is one page on the IRCC website on which the respondent relies. It is entitled “Interim measure for proof of citizenship applications affected by the first-general limit (FGL) to citizenship by descent [1].” This webpage deals with derivative citizenship rules and largely focuses on the rules as they currently exist, in their unconstitutional form. However, it does note that the first generation limit is changing, and discloses an “interim measure” to address “certain proof of citizenship applications that may be impacted by the FGL to citizenship by descent”. In brief, if a person makes a proof of citizenship application that would be rejected due to the first generation limit, and they request urgent processing, and IRCC determines that they are eligible for urgent processing, IRCC will advise the applicant that the FGL is still in force, and offer them the option to request a discretionary grant of citizenship under s. 5(4).

[30] There are two main roadblocks to an applicant in this scenario. First, they must be applying for proof of citizenship rather than a grant of citizenship. This is not a small hurdle, as anyone who is aware of the impact of the first generation limit will not apply for proof of citizenship, because they will understand that under the law, they are not citizens. They will apply for a grant of citizenship. No one directed me to any communication clarifying that an application under s. 5(4) may be a feasible alternative for someone who has applied for a grant of citizenship.

[31] Second, the applicant must qualify for urgent processing. There is no definition on the website of what qualifies for urgent processing, but only some examples. The examples given on the page referenced above do not include statelessness, nor do they include family separation, or a desire to relocate to Canada with children (minor or adult) who are not currently Canadian citizens by reason of the unconstitutional law. Thus, many people will not consider themselves eligible for urgent processing, and it is unclear whether IRCC would consider them eligible for urgent processing in the situations I have described.

[32] There is another webpage with links to two pages that has potentially relevant information on it, called “Can I get my citizenship application processed urgently?” [2] This page distinguishes between applications for proof of Canadian citizenship, for which urgent reasons may include wishing to move to Canada your minor child who was born outside Canada to a Canadian parent, but the reasons do not include family separation or reunification, or statelessness (nor would they, given that the application for proof of citizenship presumes one has citizenship already). The information linked from this page indicates that applications for citizenship may be processed urgently for reasons which include needing citizenship to apply for or keep a job, or travel because of death or serious illness in the family and the applicant cannot get a passport in their “current nationality”. Urgent reasons on this webpage do not include family reunification with children, moving with children to Canada, or statelessness.

[33] Like the first webpage I reviewed, even assuming that those rights-holders who could seek a grant of citizenship under s. 5(4) before Bill C-71 is in force could find the information (a big assumption), there is no suggestion in the webpage communications that the kinds of hardship experienced by the applicants in this case would qualify them for urgent processing.

[34] Moreover, the evidence on the application indicated that grants of citizenship under s. 5(4) have historically been rare, and at least somewhat inequitable, in that the evidence indicated that those with the right connections were more likely to be able to obtain citizenship for their children under s. 5(4).

[35] I thus find the mechanism proposed to address urgent cases of hardship due to the unconstitutional law to be ineffective, and also poorly communicated. Moreover, I am concerned that, given that the reasons on the webpage that qualify as urgent circumstances do not include statelessness, family separation, or desire to relocate to Canada with children, the determination of whether any particular case warrants an urgent referral to the Minister under s. 5(4) will be left to the discretion of many different IRCC officers who have not been trained to take a consistent approach. The evidence on the application revealed an immigration process that is replete with errors. No evidence before me suggests that any efforts have been made to ensure that this temporary mechanism will work any better than the system has worked in the past.

[36] The applicants argue that if I am prepared to grant an extension of the suspension of the declaration of invalidity, I ought only to do so on three conditions:

a. First, that an ad hoc mechanism be put in place to address cases of urgency;

b. Second, that the applicants who have not already received constitutional exemptions receive constitutional exemptions; and

c. Third, that I direct the respondent to file a plan with the court as to how it plans to ensure that Bill C-71 is passed by the end of the extension of the suspension of the declaration of invalidity, and to provide monthly reports on its progress.

[37] The respondent’s position is that (i) the ad hoc mechanism is not necessary because the current procedures suffice, but if they do not, I can order conditions to address my concerns; (ii) there is no prejudice to the applicants who have not received constitutional exemptions to continue to wait, but the respondent does not have a strong objection to granting the constitutional exemptions; and (iii) I ought not to direct a plan to advance the bill, although the respondent resists less the idea of reports on the progress of the remedial legislation.

[38] In reaching my conclusions on this motion, I place great weight on the fact that there is still reason to have in place a suspended declaration of invalidity, that is, to ensure that 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, both of which goals are furthered by the fact that the respondent has introduced Bill C-71. When considered with the fact that the original suspension of the declaration of invalidity was, at six months, a tight timeline, I am prepared to conclude that extraordinary circumstances exist justifying some extension of time.

[39] However, I also place great weight on the hardship that rights-holders will continue to suffer, along with what appears to be the unhurried pace of the respondent to address the issues, and the unsatisfactory processes it proposes to address the cases of hardship. At the same time, I am not prepared to direct the respondent with respect to how it ought to deal with those cases; that is not my role.

[40] Given these circumstances, I conclude:

a. The declaration of invalidity shall be suspended until August 9, 2024.

b. This matter shall return before me on August 1, 2024 at 10 a.m. for two hours, at which time I will consider whether a further extension of time to December 19, 2024, or some earlier date, is warranted. In advance of the hearing, to assist with my determination, the respondent shall file:

i. An improved plan to address cases of hardship during any additional extended period of suspension of invalidity; and

ii. A report explaining the progress made on Bill C-71 since May 23, 2024, and, ideally, intended next steps to pass the bill by December 19, 2024. For clarity, I do not require a “plan”; I am not at all certain I have the jurisdiction to order the respondent produce one in any event. But I would benefit from having some evidence to allow me to evaluate the anticipated go-forward legislative process in the context of this bill (as opposed to the general process of passing legislation) to determine the appropriate length of any additional suspension of the declaration of invalidity.

c. The constitutional exemption granted to Victoria Maruyama, Timothy Setterfield, and Alexander Kovacs shall be granted to the other first generation born abroad applicants.

Commencement Provision

[41] The applicants ask me to address an issue they raise regarding s. 8 of Bill C-71, which provides that the Act (aside from coordinating amendments) comes into force on a day to be fixed by order of the Governor in Council. The applicants are concerned that the respondent intends to create a new gap by enacting legislation that is not in force, in effect giving themselves the ability to grant their own extensions of suspensions of declarations of invalidity by delaying the coming into force of the Act.

[42] The respondent’s counsel notes that, if the legislation is not in force when the declaration of invalidity takes effect, the effect of the declaration of invalidity remains the same. The unconstitutional law is struck down. If there is no legislative provision in force to replace it, the situation will be what it would have been if the declaration of invalidity had taken effect immediately.

[43] I agree with respondent’s counsel that, if no law is in force when the declaration of invalidity takes effect, the legislation will still be rendered unconstitutional and the second generation limit will be of no force and effect.

Costs

[44] 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;

b. This motion was brought by the respondent, and arises from it not having met its obligation to move diligently and efficiently to amend the legislation;

c. The motion raises novel legal questions, including whether I ought to require the filing of a legislative roadmap, and the interaction of the commencement provision in Bill C-71 on the declaration of invalidity;

d. Counsel for the applicants acted as a voice for all the people who are not party to the application, but whose constitutional rights are being violated day after day during the suspension of the declaration of invalidity, at least some of whom are suffering as a result of it.

[45] 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.

[46] I am satisfied that the applicants are entitled to some measure of costs. Although the respondent has gained a brief extension, and may yet get a further one, the applicants have succeeded in obtaining terms to ensure that the remaining applicants are not prejudiced by the further delay, that those rights-holders experiencing hardship ought to be able to expect a better process to deal with their situations during any future period of suspension beyond August 9, 2024, and that the government must take accountability publicly with respect to its efforts to advance Bill C-71 by filing a report with the court. However, I agree that partial indemnity costs are appropriate in the circumstances.

[47] The applicants’ costs outline establishes partial indemnity costs of $35,064.47. Having regard to the issues at stake on this motion, 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, I am satisfied that the costs sought are fair and reasonable.

[48] The respondent shall pay the applicants’ partial indemnity costs, fixed at $35,064.47 all-inclusive, within thirty days.

[49] 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: June 19, 2024

[1] Interim measure for proof of citizenship applications affected by the first-generation limit (FGL) to citizenship by descent - Canada.ca [2] Can I get my citizenship application processed urgently? (canada.ca)