Court File and Parties

Court File No.: CV-21-673419-0000 Date: 2025-11-12 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

Read: November 12, 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. The declaration of invalidity is currently suspended until November 20, 2025 at 11:59 p.m. In its Notice of Motion, the respondent sought an extension to April 22, 2026. However, on consent of the parties, it now seeks an extension only to January 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 my reasons and supplementary reasons on the merits, I found 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.

[3] Since that time, I have granted a number of extensions of the suspension of the declaration of invalidity: see Bjorkquist et al. v. Attorney General of Canada, 2024 ONSC 3554; Bjorkquist et al. v. Attorney General of Canada, 2024 ONSC 4322; Bjorkquist et al. v. Attorney General of Canada, 2024 ONSC 6982; Bjorkquist et al. v. Attorney General of Canada, 2025 ONSC 1657; and most recently on April 22, 2025 (Bjorkquist et al. v. Attorney General of Canada, 2025 ONSC 2413).

[4] 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 repeat the law and findings I set out in my earlier reasons, although I adopt them in these reasons.

Issue

[5] The issue on this motion is whether I ought to grant the respondent's request to suspend the declaration of invalidity, and if so, for how long.

Analysis

[6] 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.

[7] As I have repeated many times in this case, 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.

[8] I have also indicated many times that I am concerned about the negative impact of the unconstitutional legislation on rights-holders. This concern is attenuated, but not eliminated, by the fact that the respondent has put in place an interim 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. The interim measure also provides that those born or adopted after December 19, 2023 whose Canadian parent has a substantial connection to Canada, which it defines 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. The record indicates that people are availing themselves of this interim measure.

[9] Importantly, I note that since the last election, and in particular this fall, the respondent has been making significant progress in its efforts to enact replacement legislation. It is possible that the legislation will be enacted prior to the current expiration of the declaration of invalidity, but it likely will require some more time. There is a reasonable expectation that the replacement legislation may come into force by the end of 2025.

[10] In these circumstances, I am prepared to grant the two-month extension sought by the respondent with the consent of the applicants. The respondents shall provide updates to the court and applicants' counsel with respect to the progress of the bill (Bill C-3) on November 20, 2025 and on the date if and when Bill C-3 receives Royal Assent.

[11] I adjourn the balance of the respondent's motion to January 13, 2026 at 10 a.m. for two hours. Counsel shall agree on a timetable for delivery of materials if the motion must be returned at that time. Counsel shall advise me as soon as possible if the date is not needed.

[12] Order to go in accordance with the draft I have signed.

J.T. Akbarali J.

Date: November 12, 2025