Court File and Parties
Court File No.: CV-21-673419-0000 Date: 2024-12-13 Superior Court of Justice - Ontario
Re: Sarah Ann Bjorkquist et al. And: Attorney General of Canada
Before: J.T. Akbarali J.
Counsel: Sujit Choudhry, for the plaintiff Hillary Adams and Kevin Spykerman, for the defendant
Heard: December 12, 2024
Corrected 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] In my reasons and supplementary reasons on the merits, I found that 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.
[3] On June 19, 2024, a day before the period of suspension of the declaration of invalidity was due to expire, 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 continued to be breached by the limits on derivative citizenship. I found that the mechanism the respondent had put in place 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, less than a month before the suspension was set to expire, 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 respondent to file further evidence, and the parties to reattend before me on August 1, 2024, for me to consider whether a further extension ought to be granted.
[5] On August 2, 2024, I released reasons in which I concluded that the revised mechanism the respondent had put in place to address urgent cases of hardship was sufficient to ensure that an extension of the declaration of invalidity would not undermine confidence in the administration of justice. I concluded that the circumstances continued to warrant a suspension of the declaration of invalidity, and that it was likely that remedial legislation would be adopted by December 19, 2024. Accordingly, I granted the respondent’s motion for a further suspension of the declaration of invalidity to December 19, 2024 at 11:59 p.m.
[6] In effect, this decision gave the respondent a year from the original declaration of invalidity to pass remedial legislation which had already been developed in significant measure at the time of my original decision, although at that time, the changes to the legislation were being advanced in a private member’s bill sponsored by a member of the New Democratic Party.
[7] Now, in spite of the respondent’s assurances in evidence to this court in the summer of 2024 that it had confidence it would be able to pass remedial legislation by the December 19, 2024 deadline, the respondent has returned seeking a further suspension of the declaration of invalidity. Once again, the motion is an urgent motion.
[8] In view of the urgency with which I must address the issues in this motion, I do not intend to repeat the law and findings I set out in my earlier reasons, although I adopt them in these reasons. I will refer only to that which is necessary to determine the issues raised on this motion in the interests of releasing reasons as quickly as possible.
Issue
[9] The sole issue on this motion is whether I ought to grant the respondent’s request to suspend the declaration of invalidity for a further three-month period.
Analysis
[10] The respondent raises many of the same arguments I have already heard and accepted: citizenship legislation is complex and has far-reaching effects. Allowing the declaration of invalidity to take effect without replacement legislation would cause a legislative gap that would result in an unclear and inconsistent application of citizenship law and an unknowable number of people becoming automatic Canadian citizens, some of whom may not wish to become Canadians.
[11] Moreover, the parliamentary process is complex and unpredictable. In this case, the respondent argues, there has not been enough time to pass remedial legislation.
[12] The respondent argues that the constitutional principle of the rule of law and the orderly administration of justice weighs in favour of granting a further extension to allow the democratic parliamentary process to continue.
[13] The factual context of the request for a further extension of time requires some explanation. While a private member’s bill proposing changes to the Citizenship Act had been under debate in Parliament, that bill was not progressing. On May 23, 2024, five months after I found the legislation to be unconstitutional, the government introduced Bill C-71 for first reading, and then immediately brought the respondent’s first motion for an extension of time. On the motion for an extension of time, I found that it was entirely predictable that the private members’ bill was not going to be the vehicle to make the legislation Charter-compliant, and that it would have been preferable for the respondent to address the issue earlier. Nothing more happened with respect to Bill C-71 before Parliament’s summer recess began on June 20, 2024.
[14] During the summer break, the government engaged external stakeholders to brief them on Bill C-71 and to facilitate the anticipated study of Bill C-71 by the House and Senate. In anticipation of the passage of Bill C-71, Immigration, Refugees and Citizenship Canada (“IRCC”) initiated the regulatory development process required to operationalize Bill C-71.
[15] Summer break ended on September 16, 2024. On the first day back from summer break, the Minister moved that Bill C-71 be read the second time and referred to committee. The same day, the Parliamentary Secretary to the Minister moved a motion during the Standing Committee on Citizenship and Immigration’s (“CIMM”) meeting that Bill C-71 be deemed read a second time and referred to the CIMM. The motion was not adopted.
[16] Also on September 16, 2024, the NDP Critic for Immigration, Refugees and Citizenship, with government support, sought unanimous consent of the House that Bill C-71 be deemed read a second time and referred to the CIMM. This motion was not successful.
[17] Debate on the second reading continued on September 17, 2024, and was scheduled to resume on September 25, 2024, but has not since advanced through second reading. The respondent’s affiant states that other Parliamentary business, outside of the government’s control, including concurrence debates, took precedence.
[18] Certain days were not available for the government to try to advance Bill C-71, including opposition days, and days on which non-confidence motions were debated.
[19] Since September 26, 2024, the House has been seized with two motions of privilege that have halted all other debates. Motions of privilege are not subject to time limits for debate. As of November 29, 2024, the respondent’s affiant deposes that government business has not happened in 36 days.
[20] But this is not correct. As counsel for the applicants points out, government bills were considered after the motions of privilege were introduced. These include Bill C-76, An Act to amend the Canada National Parks Act, which progressed through second reading, report stage, and third reading on September 27, 2024. These also include Bill C-78, An Act respecting temporary cost of living relief (affordability) (the Tax Break for All Canadians Act), which received first, second, and third reading in the House of Commons on November 27 and 28, 2024.
[21] Bill C-71 has not been debated since September 17, 2024, but the respondent’s affiant deposes that IRCC continues to prepare for its passage; IRCC has been drafting the Order in Council.
[22] The government’s affiant deposes that once normal business resumes in the House, the government intends to continue to take steps to expedite the legislative process.
[23] On October 21, 2024 and October 29, 2024, the government put on notice two motions which, if adopted, would either conclude second reading debate on Bill C-71 or provide a maximum time allotment for second reading debate, and the Bill would be deemed to pass all other legislative stages in the House of Commons such that it could be introduced in the Senate. In this way, there would be no consideration of the Bill by the CIMM, and the Bill would not be subject to debate at third reading. The government now estimates that a further three months will be required to pass the Bill.
[24] If neither of the October 21, 2024 or October 29, 2024 motions are passed, Bill C-71 will continue to be debated at second reading, proceed to committee study, and return to the House of Commons at the “report stage.” During the report stage, amendments may be proposed to the text of the bill and debated. Thereafter, the Bill would proceed to third reading, after which a vote will be taken, prior to referral to the Senate. The Bill thereafter must go through a similar legislative process in the Senate. If amended in the Senate, the Bill returns to the House of Commons which must consider the Senate amendments. If accepted, the Bill passes. If rejected, a message to that effect is sent to the Senate. This process continues until both Houses agree on the form of the Bill. Finally, it would receive Royal Assent.
[25] If the Bill takes the path outlined above, the government is confident that the CIMM, comprised of a majority of supportive members who are familiar with the issues having already spent time studying the private member’s bill that pre-dated Bill C-71, can examine the Bill quickly. Other tactics can be employed to speed up the legislative process, including time allocation, unanimous consent motions, or efforts to have Bill C-71 considered by a Committee of the Whole, that is, the entire membership of the House of Commons. As I have noted, the time allocation motions have been put on notice, and the unanimous consent motions proposed have not been adopted.
[26] I also note that in affidavits filed on earlier motions for an extension of the suspension of the declaration of invalidity, the respondent’s affiant described tools the respondent could use to speed up the legislative process. The government has not yet employed all of the tools at its disposal, though it does not explain why not, especially when it is apparent that other government business is being conducted, albeit in circumstances where the privilege motions have been disrupting the normal business of the House.
[27] The evidence in the record indicates that Senator Gold, Government Representative in the Senate, has moved that the Standing Senate Committee on Social Affairs, Science and Technology be authorized to examine the subject matter of Bill C-71 in advance of the Bill coming before the Senate, and that it submit its final report to the Senate no later than December 10, 2024. This motion was adopted on November 28, 2024, with pre-study set to have commenced during the week of December 2, 2024. This measure has been taken to expedite the legislative process. The respondent notes that the Senate passed the prior private member’s bill through the Senate within days.
[28] The Senate appears poised to deal with the Bill quickly. I have no criticisms of the Senate’s treatment of the proposed Bill as a priority.
[29] Ontario v. G., 2020 SCC 38, sets out the framework to apply to suspensions of declarations of invalidity; although not specifically dealing with extensions of suspensions, the parties agree that the principled framework set out in G also applies to requests for such extensions. At para. 139, the Court held that suspensions should be long enough to allow the legislature 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.”
[30] The Court also held that suspensions of declarations of invalidity will be rare, consistent with the Court’s recent practice. The Court observed that it has not suspended the effect of a declaration of invalidity since its decision in Carter five years prior, making 13 immediately effective declarations that legislation was of no force and effect for violating the Charter over that period: G., at para. 133.
[31] In Carter v. Canada (A.G.), 2016 SCC 4 (“Carter 2”), the Supreme Court of Canada dealt more directly with the question of extensions, finding that “extraordinary circumstances must be shown” to justify an extension: Carter 2, at para. 2. In Canada (Attorney General) v. Descheneaux, 2017 QCCA 1238, the Quebec Court of Appeal identified four non-exhaustive and non-cumulative factors to consider when determining if extraordinary circumstances exist: (i) whether a change in circumstances justifies the extension; (ii) whether the circumstances still warrant a suspension; (iii) the likelihood that remedial legislation will be adopted; and (iv) whether the extension undermines confidence in the administration of justice.
[32] The respondent argues that the principled framework in G has overtaken any suggestion that only extraordinary circumstances, like Parliament’s dissolution for a general election, is required for an extension of time. It argues that G. affords a more appropriate lens through which to consider whether an extension ought to be granted than do the more limited, but overlapping, factors identified in Descheneux.
[33] The respondent argues, based on G, that an extension should be available where the respondent demonstrates that the coming into effect of the declaration of invalidity would endanger an interest of such great importance that, on balance, the benefits of delaying the effect of that declaration outweigh the cost of preserving an unconstitutional law that violates Charter rights, and that the government has acted diligently to respond to the declaration of invalidity, but requires more time to do so: G., at para. 139.
[34] The respondent submits that this requires consideration of the impact of the declaration of invalidity on the public, the impact of the extension on rights holders, including in light of any interim relief that may be available to them during the extension, and the diligence of the government in its efforts to respond to the declaration of invalidity.
[35] The respondent argues that the Parliamentary process is difficult to predict, and that a more appropriate standard by which to assess the progress of Parliament is whether the government has acted with diligence and effectiveness in responding to the declaration of invalidity. This, in the respondent’s view, is enough to favour granting a further extension. The respondent argues its evidence filed on the motion demonstrates that it has made significant efforts to advance the remedial legislation and that it is making progress. The respondent notes that the government is a minority government, which impacts its ability to advance remedial legislation although it has not led any evidence to suggest it does not have sufficient support in the House to pass the Bill.
[36] I am satisfied that having replacement legislation in place prior to the declaration of invalidity taking effect would be in the public interest. However, even if the respondent is correct that the test in G has overtaken the criteria in Descheneux, to grant a further extension, I would have to be satisfied that the government has been acting diligently.
[37] While I accept that the respondent has taken steps to advance the passage of the Bill, I am not satisfied that the respondent has treated the declaration of unconstitutionality of the legislation with the priority it was owed. It is not my role to set or evaluate the Parliamentary agenda, and I do not suggest that Bill C-71 must be the respondent’s only or top priority.
[38] But in circumstances where the respondent has already obtained two extensions of the suspension of the declaration of invalidity, in part due to its evidence about the steps it would take to expedite the legislative process to pass the Bill, it is incumbent on the respondent to treat Bill C-71 as a priority. I am not convinced that it has done so.
[39] If the question of whether to extend the suspension were based solely on the respondent’s legislative diligence, I would not grant the extension. However, there are a number of factors I must balance in determining whether the extension of the suspension is warranted.
[40] I am concerned that the interests of the public will be negatively affected if the declaration of invalidity comes into force without replacement legislation in place.
[41] I am also concerned about the negative impact of the unconstitutional legislation on rights-holders. The applicants to this case have received constitutional exemptions, but those who are similarly situated to them have not. There are measures in place to deal with urgent cases of hardship that suffice in the short-term, but that does not mean that others are left suffering with hardship that does not qualify as urgent under IRCC’s processing guidelines because the unconstitutional law remains in force. People’s lives remain in limbo. There is a limit to how long that situation can be allowed to continue.
[42] In balancing the diverging interests in this case, I note:
a. The respondent has made some efforts towards passing Bill C-71. However, it has an obligation to treat Bill C-71 as a priority, but it not acted with sufficient diligence in moving the Bill through the legislative process.
b. The evidence filed by the respondent about the legislative context of the last several months was incomplete, and obscured the respondent’s successes in moving forward other legislation. When trying to justify a further extension of a suspension of a declaration of invalidity, it is incumbent on the respondent to offer complete and accurate evidence. The respondent’s failure to do so raises concerns about the reliability of the respondent’s evidence.
c. However, it is not the proper role of the court to purport to set, or even evaluate, Parliament’s priorities. My role is limited to evaluating whether the respondent’s response to the unconstitutional law is sufficiently diligent to reveal that it is treating the replacement legislation as a priority.
d. It is the proper role of the legislature to replace unconstitutional legislation, especially when the legislative regime is complex and political, like the citizenship regime is.
e. The public is entitled to the benefit of legislation. If anything, this entitlement is heightened in the context of citizenship legislation, which operates under a complex regime and is marked by a history of discriminatory distinctions.
f. Rights-holders should not be made to suffer the impacts of an unconstitutional law indefinitely.
g. There is a limited measure in place to alleviate the most urgent cases of hardship. It does not alleviate all cases of hardship, let alone cases where the rights violation is not currently causing hardship but may in the future.
h. To ensure that confidence in the administration of justice is not undermined, it is necessary that the suspension of the declaration of invalidity is as brief as possible. It is also necessary that the legislature have the opportunity to exercise its proper function by replacing unconstitutional legislation in complex and highly regulated areas like citizenship so that the public has the benefit of that legislation, and the potential for chaos and confusion is minimized or avoided.
i. In a minority government, it may take longer for legislation to pass, and a longer period of suspension may be needed.
j. If the further extension of the suspension of the declaration of invalidity is granted as requested, the total period of suspension will be 15 months, which is not an unusual amount of time in most cases where a suspension has been granted. In this case, however, significant study and work had already been done on the private members’ bill, such that it would have been reasonable that less, rather than more, time would be required to pass compliant legislation.
k. The House will shortly rise for its winter break and is not expected to resume for several weeks. As a result, we are entering a period where no legislative progress can be made.
[43] Having regard to these factors, I conclude, reluctantly, that the extension of time the respondent seeks ought to be granted. The respondent shall have an extension of the suspension of the declaration of invalidity to March 19, 2025, at 11:59 p.m.
Costs
[44] The issue that remains is costs. Counsel for the applicants seeks costs of responding to this motion on a substantial indemnity scale. Substantial indemnity costs are generally warranted where there is an offer to settle that has been beaten, which is obviously not applicable here, or where the party ordered to pay costs has behaved in a manner that is scandalous or reprehensible: Toronto Star Newspapers Ltd. v. Fraleigh, 2011 ONCA 555, at para. 34.
[45] The respondent did not contest that an award of partial indemnity costs is appropriate in the circumstances. This is public interest litigation, and as I noted in my earlier decisions extending the period of suspension, the applicants have played an important role in the respondent’s motions for extensions of time. They have held the respondent to account, on behalf of all the rights-holders currently suffering the impacts of an unconstitutional law.
[46] I agree, however, that costs on a partial indemnity scale are appropriate, with one exception. I elevate those costs to reflect the work that counsel for the applicants put in reviewing the legislative record over the past months, without which I would not have been aware of the government business that has been conducted in the House of Commons, because the respondent’s affidavit evidence on this point was incomplete, and left an erroneous impression that had to be corrected.
[47] The applicants’ costs outline reflects partial indemnity costs of $8,777.73, and full indemnity costs of $14,629.55, inclusive of HST. There is no basis on which to criticize the costs incurred by the applicants. The costs are reasonable bearing in mind the tight timeline, the work undertaken, and the value of the applicants’ work to the court.
[48] The respondent shall pay the applicants’ costs, which I fix at $11,000, all-inclusive, within thirty days.
J.T. Akbarali J.
Date: December 13, 2024