Endorsement

Court File No.: CV-21-673419-0000
Date: 2025-03-13
Superior Court of Justice – Ontario
Re: Sarah Ann Bjorkquist et al.
And: Attorney General of Canada
Before: J.T. Akbarali
Counsel: Sujit Choudhry, for the applicants
Martin Anderson and Kevin Spykerman, for the respondent
Heard: March 13, 2025

Introduction

[1] On this motion, the respondent seeks a further 12-month extension of the suspension of the declaration of invalidity of certain provisions of the Citizenship Act, R.S.C. 1985, c. C-29. I declared the provisions at issue, relating to derivative citizenship, unconstitutional on December 19, 2023, and suspended the declaration of invalidity for six months: 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.

Background and Prior Extensions

[2] Since then, I have granted several extensions of the suspension of the declaration of invalidity:
(i) on June 19, 2024 in reasons reported at Bjorkquist et al. v. Attorney General of Canada, 2024 ONSC 3554, for seven weeks;
(ii) on August 2, 2024, in reasons reported at Bjorkquist et al. v. Attorney General of Canada, 2024 ONSC 4322, for four-and-a-half months; and
(iii) on December 21, 2024, in reasons reported at Bjorkquist et al. v. Attorney General of Canada, 2024 ONSC 6982, for three months.
The most recent extension of the suspension of the declaration expires on March 19, 2025, at 11:59 p.m.

Factors Relevant to Further Extension

[3] The record before me raises factors that are relevant to determining whether a further extension ought to be granted, and if so, for what length of time. The respondent relies heavily on a change in circumstances, that being the prorogation of Parliament that occurred after the last extension was granted. Among other relevant factors to be considered is the continuing impact on rights-holders of leaving unconstitutional legislation in place.

[4] At the time of the first extension motion, in June 2024, the respondent had put in place interim measures designed to address urgent cases of hardship suffered by rights-holders. I was unsatisfied with those measures. I granted a seven-week extension of the suspension of the declaration of invalidity and required the respondent to return before me in August 2024 with a better plan to address urgent cases. In August 2024, on the return of the motion, the respondent satisfied me that the revised interim measures then in place would attenuate the burden of the unconstitutional legislation on rights-holders who were in situations of hardship while the respondent made efforts to advance remedial legislation.

[5] In the motion now before me, the respondent’s affiant deposes that “it is the government’s intention to continue and expand the interim measure [to address cases of hardship] during any further period of suspension” to mimic, to the extent possible, the framework established in the remedial legislation that the respondent introduced to rectify the Citizenship Act. (That remedial legislation has now died on the order paper as a result of the prorogation of Parliament.)

[6] According to the respondent’s affiant, consideration for a discretionary grant of citizenship will be offered to individuals born prior to December 19, 2023 who are subject to the first generation limit, irrespective of urgent circumstances. Those born on or after December 19, 2023 will be offered consideration for a discretionary grant of citizenship under s. 5(4) on a prioritized basis, where their Canadian parent can demonstrate a substantial connection to Canada, defined as having 1095 cumulative days of physical presence in Canada prior to the birth of the child.

[7] Consideration for a discretionary grant of citizenship “will also be available” for those who are subject to the first-generation limit and who were not affected directly by my decision, including certain individuals born before April 1, 1949, those who lost citizenship under s. 8 of the previous Citizenship Act because they failed to meet retention requirements under that Act, and children born abroad and adopted by Canadian citizens who remain subject to the first generation limit. It appears that for some people in these categories, consideration will be offered on a prioritized basis.

[8] Parliament has now been prorogued for over two months. The expiration date of the suspension of the declaration of invalidity was well-known to the respondent, and the impacts of prorogation on the respondent’s ability to pass legislation were foreseen when Parliament was prorogued. On January 10, 2025, the respondent’s counsel wrote to me to advise that the respondent was “assessing the impacts of prorogation and next steps, if any, in this litigation.”

[9] The motions of June and August 2024 ought to have made clear to the respondent that if it wants to rely on interim measures that are meant to attenuate the impact of ongoing rights violations on right-holders in support of its request for an extension of the suspension, it ought to produce specific evidence about those interim measures.

[10] Unlike the evidence that was before me in August 2024, which included detailed policies and web pages communicating the options available to those seeking grants or proof of citizenship, (or even the evidence before me in June 2024 which included web pages and policies that I found were unsatisfactory) I have nothing in the evidence on this motion other than broad, aspirational statements from the respondent about what it intends to do to mitigate the impact of the unconstitutional legislation. There is no evidence of what policy will be adopted to implement its intention. There is no evidence about how any such policy will be communicated to people affected by the unconstitutional legislation. There is nothing to allow me to evaluate how effective the expanded interim measures will be in attenuating the impact of the ongoing rights violations that the respondent proposes.

[11] The respondent submitted that, if I were unsatisfied with the evidence it had adduced, I ought to provide it with an opportunity to augment the record.

[12] While I am of the view that the absence of evidence regarding the intended expanded interim measure is a clear gap that should have been proactively addressed by the respondent prior to this motion, given the issues at stake, I am prepared to grant the respondent some additional time to adduce the necessary evidence and place it before the court, so that I am able to properly consider all relevant factors in determining whether a further suspension ought to be granted, and if so, its length.

[13] The respondent sought to return before me in four weeks. I agree this timeframe is reasonable.

Orders

[14] Accordingly, I make the following orders:

a. The suspension of the declaration of invalidity shall be extended until April 25, 2025 at 11:59 p.m.

b. The respondent shall file additional evidence of its expanded interim measures by April 2, 2025 at 5 p.m. The respondent may file further legal argument of no more than ten pages by April 4, 2025 at noon.

c. Should the applicants wish to file evidence in response to the respondent’s new evidence, they may email my assistant to seek directions. The applicants may file additional legal argument of no more than ten pages by April 9, 2025 at 5 p.m.

d. The parties shall reattend before me on April 11, 2025 at 10 a.m. for 90 minutes. They shall not repeat the arguments they made before me on March 13, 2025, but shall confine their argument to issues raised by the new evidence and argument that is delivered in accordance with these reasons.

J.T. Akbarali
Date: March 13, 2025