Court grants government another extension to fix unconstitutional citizenship law

So-called "lost Canadians" will have to wait longer to obtain their right to citizenship now that a court has granted the federal government more time to fix legislation it ruled was unconstitutional.

The courts initially gave the federal government until today to replace legislation that prevents Canadians born abroad from passing on their citizenship to children also born abroad.

In May, the Liberals introduced Bill C-71, which introduced sweeping changes to Canada's citizenship laws. The government says the legislation addresses the concerns of the court.

But the Liberals did not get the bill through the House of Commons before it rose for the summer on Wednesday. MPs will not return to the Commons until mid-September.

In handing down the extension to Aug. 9 on Wednesday, Ontario Superior Court Justice Jasmine Akbarali slammed the pace of the legislation's passage through the House. She noted that other pieces of government legislation moved swiftly to the Senate, while a citizenship bill responding to the violation of a legal right still remains in its early stages.

"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," Akbarali said.

• READ: Justice Jasmine Akbarali's decision on lost Canadians
• The House of Commons has adjourned for the summer — what did it accomplish?
• 'Lost Canadians' win in Ontario court as judge ends 2 classes of citizenship

"There is no explanation as to why this bill has been languishing since May 23, 2024, when the government was aware of the date on which the suspended declaration of invalidity was set to expire."

In the meantime, Akbarali added, Canadians' rights are being violated.

"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 justice wrote.

Akbarali said these are not "theoretical or minor constitutional violations" but ones that could 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," Akbarali said in her decision.

"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."

In a previous ruling, Akbarali said the current law forces women in their reproductive years to choose between travel, study and career opportunities abroad, and passing citizenship on to their children.

WATCH: The 'Lost Canadians' who fell through the cracks of citizenship law 

The ‘Lost Canadians’ who fell through cracks of citizenship loophole

2 years ago

Duration 4:19

Thousands of so-called "Lost Canadians" have lost their citizenship, and in some cases been deported, due to a complicated section of the Citizenship Act. Now, the federal government is trying to pass new legislation to prevent people from falling through the cracks.

In December, Ontario's Superior Court struck down Canada's old citizenship law, Bill C-37, which prevented parents born outside Canada from passing on their citizenship to children also born abroad. The court ruled that it violated their rights under the Canadian Charter of Rights and Freedoms. It gave the government six months to enact Charter-compliant legislation.

• New bill would let Canadians to pass citizenship rights down to children born abroad

The Liberal government said in May its legislation to respond to the judgment, Bill C-71, would fix those problems and automatically confer citizenship rights on children born since 2009 once enacted.

In granting the extension, Justice Akbarali said the government would only have until Aug. 1 to present arguments on why she should consider another extension until Dec. 19. The judge ordered the government to file a plan to address the hardship experienced by parents under the existing law during the extended period and "ideally" file a report on the steps required to get the bill passed before mid-December.

Sujit Choudhry, the lawyer who fought the constitutional case for the families, called for these conditions. Choudhry estimates that the current law violates the rights of at least 1.48 million Canadians at home and living abroad.

"I've been hearing from people who have been discriminated against, or whose rights have been violated by the cut-off since we won in December," Choudhry told CBC. "They've been anxious for the legislation to be enacted and enacted quickly, so that they can recover their citizenship for their children in particular."

Choudhry said the court might have had more sympathy for the government if the bill was further along.

"Zero has happened since it was introduced," Choudhry said. "When the enactment of a law is pursuant to a court order, that bill has to take priority over other bills in the legislative process."

Immigration, Refugees, and Citizenship Canada did not answer CBC's questions. But the department did say the Ontario court granted the "government request [for an extension] … with conditions" until August.