Bjorkquist et al. v. Attorney General of Canada, 2025 ONSC 2413

COURT FILE NO.: CV-21-673419-0000 DATE: 20250422 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: April 11, 2025 ENDORSEMENT Overview [ 1 ] On this motion, the respondent seeks an extension of the suspension of the declaration of invalidity of certain provisions of the Citizenship Act , R.S.C. 1985, c. C-29 to March 20, 2026. Procedural History [ 2 ] 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. [ 3 ] 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 , 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. [ 4 ] 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 . [ 5 ] 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. [ 6 ] On August 2, 2024, I released reasons with respect to the respondent’s motion: Bjorkquist et al. v. Attorney General of Canada , 2024 ONSC 4322 . In those reasons, 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., thus providing the respondent with a year from the original declaration of invalidity to pass remedial legislation. [ 7 ] The respondent attended before me again seeking a further extension of the suspension of the declaration of invalidity on December 12, 2024. After balancing a number of factors for and against the extension, I released reasons on December 13, 2024 granting a further extension to March 19, 2025: Bjorkquist et al. v. Attorney General of Canada , 2024 ONSC 6982 . [ 8 ] After those reasons were released, Parliament was prorogued. A new leader of the Liberal Party was chosen and thereafter sworn in as Prime Minister. A new session of Parliament was scheduled to begin on March 24, 2025, the end of the prorogation period granted by the Governor General. [ 9 ] The respondent moved for a further extension of the suspension of the declaration of invalidity, seeking an additional 12-month suspension. I heard its motion on March 13, 2025. [ 10 ] In my reasons from that hearing, I noted that, in support of a further extension of the period of suspension of the declaration of invalidity, the respondent filed evidence indicating that it was expanding the interim measure it had put in place. It indicated its new interim measure would reflect the approach in (the now-dead) Bill C-71. Specifically, it indicated that it intended to offer applicants consideration for discretionary citizenship under s. 5(4) of the Citizenship Act in non-urgent cases, and not only in urgent cases of hardship. By doing so, it argued that the negative impact that maintaining the unconstitutional legislation has on rights holders, including those who do not face urgent hardship, has been attenuated. [ 11 ] Unfortunately, the evidentiary record describing the new interim measure was deficient. In my reasons released on March 13, 2025, I provided the respondent with an opportunity to augment the record, and adjourned the motion to April 11, 2025. I also extended the suspension of the declaration of invalidity to April 25, 2025 at 11:59 p.m.: Bjorkquist et al. v. Attorney General of Canada , 2025 ONSC 1657 . [ 12 ] Since that time, Parliament has been dissolved, and a general election called for April 28, 2025. Until the results of the election are known, it is uncertain which party will form government, whether it will be a party that supported Bill C-71 during the last Parliament, whether the election will result in a majority or minority government, and, given other important political matters ongoing globally, what other priorities Parliament may have to respond to. Currently, Parliament is expected to resume on May 26, 2025. The Parliamentary Calendar suggests that it will break for the summer on June 20, 2025, and, if consistent with past years, may not resume sitting until sometime in mid to late September. On the other hand, as the applicants point out, the current Prime Minister has indicated that it is his intention (if re-elected) to introduce legislation in the House of Commons by July 1, 2025, so it is possible that Parliament will continue to sit beyond June 20, 2025. In any event, all of this is speculation at this juncture. [ 13 ] Moreover, while I now have before me more detailed evidence about the new interim measure that has been introduced, there is no guarantee that the next government will not adopt a different interim measure, or do away with an interim measure entirely. I am thus in the position of considering the motion for a lengthy extension to the suspension of the declaration of invalidity without reliable evidence about what the impact of such an extension will be on rights-holders, who have already been waiting for about sixteen months to be able to enjoy the rights that the unconstitutional legislation violates. [ 14 ] At the return of the motion, there was some confusion as to the length of the extension the respondent seeks, that is, whether the respondent seeks 12 months from the date of the return of the motion, or 12 months from the date of the expiry of the extension granted on the motion for an extension that was brought in December 2024. The respondent clarified that it was seeking an extension to March 20, 2026. [ 15 ] I have addressed the legal considerations on a motion to extend the suspension of the declaration of invalidity in past reasons in this case. 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 efficiently and quickly as possible. Issue [ 16 ] The sole issue on this motion is whether I ought to grant the respondent’s request to suspend the declaration of invalidity to March 20, 2026, or some other period that I, in my discretion, think is appropriate. Analysis [ 17 ] In my reasons of December 13, 2024, I described the framework of the law to be applied on the respondent’s motion, at paras. 29-31, as follows: 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.” 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 . 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. [ 18 ] The respondent previously argued 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. Rather, based on G , an extension should be available where the respondent demonstrates that: (i) 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 (ii) the government has acted diligently to respond to the declaration of invalidity, but requires more time to do so: G. , at para. 139 . [ 19 ] The respondent’s argument in favour of an extension of the suspension of the declaration of invalidity now, however, also accounts for the dissolution of Parliament for a general election, which is a change in circumstances since the last order was made, and is an extraordinary circumstance. [ 20 ] The respondent submits that any extension of the period of suspension 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, which, in these circumstances, must take into account the months that Parliament has not been sitting and thus unable to advance remedial legislation. [ 21 ] As I have been all along, 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, especially given the complexity of citizenship legislation. [ 22 ] Also as I have been all along, I am concerned about the negative impact of the unconstitutional legislation on rights-holders. This concern is heightened in these circumstances where the extension sought is lengthy, and there is no guarantee that the interim measures currently in place (or interim measures more advantageous to the rights-holders than those currently in place) will be maintained by the next government. [ 23 ] In balancing the diverging interests in this case, I note: a. While I have, in previous reasons, criticized the diligence with which the respondent has moved Bill C-71 through the legislative process, the circumstances since the last extension was granted are different, and exceptional. Parliament was prorogued. A new leader of the Liberal party has been chosen. An election has been called. Looking only at the period since the extension sought on the last motion was granted, I accept that the prorogation and then dissolution of Parliament has left the respondent unable to advance remedial legislation. b. One might argue that prorogation and then calling an election was the choice made by the current government. However, it is not the proper role of the court to evaluate the merits of those choices. c. 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. d. 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 marred by a history of discriminatory distinctions. e. Rights-holders should not be made to suffer the impacts of an unconstitutional law indefinitely. f. The respondent proposes an expanded measure to alleviate the impact of the unconstitutional legislation on rights holders, by offering consideration for a discretionary grant of citizenship under s. 5(4) for all individuals seeking proof of citizenship born or adopted prior to December 19, 2023 who are subject to the first generation limit. It also states that those born or adopted after December 19, 2023 whose Canadian parent has a substantial connection to Canada, which it defines, consistent with Bill C-71, as three years of physical presence in Canada prior to their birth, will also be offered consideration under s. 5(4) on a prioritized basis. g. As I have already noted, there is no certainty that the expanded interim measure will be continued by the next government. 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 Parliament 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. If the further extension of the suspension of the declaration of invalidity is granted as requested, the total period of suspension will be 27 months, which would be the longest or equal to the longest period of suspension ever granted. This length of time is not justified by the complexity of citizenship law. The prorogation of Parliament and the calling of a general election are relevant factors in considering the appropriate length of suspension, if any, but the current request from the respondent is for a period of suspension longer than that which I was prepared to order in the first place. j. The evidence before me on this and earlier motions indicates that there have been many reasons for the delays in advancing remedial legislation. I explicitly make no comment on the validity or value of what appears to be political motivations of different parties that have contributed to the delay that has occurred in the past. I simply note that at some point, the public is entitled to expect Parliament to fulfil its legislative role and pass legislation. [ 24 ] Having regard to these factors, I conclude that the extension of time the respondent seeks ought to be granted, but I am not prepared to grant an extension to March 20, 2026. A new government will be elected within days of the release of these reasons. It will have to decide whether passing remedial citizenship legislation is a sufficiently important priority for it to work quickly to get it done, in circumstances where rights-holders have been deprived of their constitutional rights for a long time already. [ 25 ] The parties agree that the circumstances of prorogation and the general election mean a loss of five months during which no legislation could be advanced. The respondent points out there is an anticipated break of two-and-a-half or three months over the summer. [ 26 ] I grant an extension of the suspension of the declaration of invalidity to November 20, 2025 at 11:59 p.m. This is an eight-month period from the expiry of the declaration of invalidity I ordered arising out of the previous motion for an extension. By my count, this equals or surpasses the time that has been and will be lost as a result of prorogation, the general election, and the summer recess. Given the work that was done on the prior bill, both in the House of Commons and the Senate, the party that forms government ought to be able to pass remedial legislation within this time frame if it chooses to make that legislation a priority. [ 27 ] Given the uncertainty around the interim measures, if any, that will remain in place after the election, and the length of time that rights-holders have been living with the impacts of the unconstitutional law on matters that are highly personal, like when and where to start or grow a family, I am not prepared to grant a longer suspension. Costs [ 28 ] The issue that remains is costs. Counsel for the applicants seeks costs of responding to this motion on a substantial indemnity scale. As I have previously noted in earlier motions for an extension of the period of suspension, substantial indemnity costs are generally warranted where there is an offer to settle that has been beaten, which is 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 . [ 29 ] The respondent did not contest that an award of partial indemnity costs is appropriate in the circumstances. I agree. This is public interest litigation, and as I have repeatedly noted, the applicants have acted to hold the respondent to account on behalf of all the rights-holders currently suffering the impacts of an unconstitutional law. Their contribution to this motion has been important. [ 30 ] The applicants’ costs outline reflects partial indemnity costs of $10,983.60 all-inclusive. Costs in this amount are reasonable bearing in mind the tight timeline, the work undertaken, the need for two attendances, and the value of the applicants’ work to the court. [ 31 ] The respondent shall pay the applicants’ costs, which I fix at $10,983.60, all-inclusive, within thirty days. J.T. Akbarali J. Date: April 22, 2025