Canada legal geeks: impact of Bjorkquist decision on citizenship by descent for the second generation born outside Canada?

In My Humble Opinion
1

To make a VERY long story short, my grandmother was born in Canada and immigrated to the U.S. as a teenager, and for a long series of reasons, I didn’t manage to file an application for a Certificate of Canadian Citizenship until right after the 2020 election. (I had major issues lining up documentation showing that the person on her birth certificate was the same person who gave birth to my father; my father was largely uncooperative the many, many times I asked him about it, largely because he didn’t see the point, and I assumed, rightly or wrongly, that he needed to apply first; etc.)

Because my father and I were both born in the United States, that makes me the second generation born outside Canada. I even consulted a Canadian immigration attorney about my eligibility, and his response was that either I was eligible or I wasn’t, and the hard part would be documenting the qualifying family relationship, so why didn’t I just give it a try myself? So in 2020, I did, and (thanks, COVID!), about a year ago I got a response that because of relatively recent changes in the law, I no longer qualified for citizenship by descent as the second generation born outside Canada. (Amazingly, though, they believed my totally insane chain of documentation! And the decision said that it did appear that my now-deceased father was a Canadian citizen - something he never cared to bother with.)

Fast-forward to December, when a pissed-off judge in Ontario issued the Bjorkquist decision, which the Canadian government decided not to appeal (and the appeal period just passed, anyway). It’s interesting and totally worth reading, at least if you are an immigration and citizenship geek like I am - basically, the judge ruled that preventing Canadians born outside Canada from transmitting citizenship to their children at birth violated the Constitution because it discriminated based on gender and national origin. (The pile of arguments were actually much more nuanced, but that’s the gist of it.) She ruled that, among other things, a) the relevant portion of the Citizenship Act as amended was null and without effect; and b) the nullifying of the portion of the Act would be stayed for 6 months to give Parliament the opportunity to come up with something better.

So my questions are:

  1. Am I understanding this all correctly?

  2. What is Parliament likely to come up with and actually pass? It looks like the current proposal would involve requiring that Canadian parents have lived in Canada at least 3 years before the birth of the child in order to be able to transmit citizenship, and if that’s what ends up passing, then I won’t qualify - my dad never lived in Canada.

  3. Even the Canadian immigration lawyer I spoke with said trying to figured out who was grandfathered for what gave him a headache, and I concur. Any thoughts on whether I would be grandfathered if I reapply now? Current processing time is being quoted at 8 - 9 months, so Parliament will either have come up with something new by the time anyone looks at my application, or they won’t.

Feel free to share any other thoughts on possible scenarios - I will likely just reapply because it’s not crazy expensive ($75 CDN plus photos, postage, and photocopying) and I already did most of the work on my initial application. I’ll probably just tweak the supporting genealogical documentation to add/replace with some newer things I have found in the interim. And I guess it’s possible that different categories of people will be treated differently depending on dates of birth, people who apply before or after new legislation is enacted, etc.

Thanks, folks!

2

:: bump :: Anybody? Bueller? @Northern_Piper?

I plan to send in a new application in the near future, but any additional insight about how the law might be likely to change, or how things might work if it changes in the interim between when I file and when my application is processed (to the extent that’s possible to know) would be helpful. Also, I am a career immigration geek, and I find this stuff fascinating.

3

Another Canadian lawyer here, but immigration is not my strength. Still, I’ll have a look at the Bjorkquist decision, and if I can offer anything, I will.

What I do recall is that some years pre-Covid, the laws changed, and there were a series of “Are you suddenly Canadian?” ads on TV, meaning that the laws changed in such a way that people who had no idea they were Canadian, now automatically were. I don’t know if your situation would fit the changes, but I thought you might like to be aware of them.

Agree that paging @Northern_Piper is a good idea.

Okay, off to have a look at Bjorkquist.

4

Basic facts: grandmother born 1914, Canada. Came to the U.S. in 1930. Never naturalized (in fact was probably undocumented until her death in 2006 - trust me, it’s a LONG story.)

Dad born in U.S. in 1940.

Me: born in U.S., 1968.

Dad was never registered as a Canadian citizen, nor did he ever take any action to pursue citizenship by descent (and my grandmother never did on his behalf). I bugged Dad for many years about it, but he didn’t see the point. Finally, after the events of the 2020 election, I finally convinced him that I had good reasons to want a backup plan that didn’t involve living in the U.S., and he cooperated (and I managed to dig up the chain of documentation that showed that the person who was born in Winnipeg was the same person who gave birth to my dad in the U.S. - trust me, it wasn’t easy and involved, among other things, microfilm from Jewish Family Services archives in Winnipeg and the 1916 Prairie Provinces Census).

If Dad had cooperated when I first asked him, I might have been Canadian by now, but then the law changed. He died last May, so I can’t bitch at him about it anymore.

Anyway, thanks for taking a look!

5

No problem, happy to do what I can. As I recall, you were a great help when a friend was trying to emigrate to the US maybe eight years ago. Then he wasn’t so sure, and US authorities were pressuring him to make up his mind. In the end, he didn’t go to the US, but your remarks were helpful in his decision.

Since the Bjorkquist matter hinged on Charter sections 6 and 15, you may be interested in seeing the actual Charter text:

6

Sorry @Eva_Luna , I know nothing about citizenship, other than it’s complicated, especially with descent from a woman. I really don’t feel I can say anything, other than identifying some issues.

I know the laws used to favour the father’s citizenship over the mother’s. @Dr.Drake may have some knowledge of this issue.

Another thing that jumps out at me is that your grandmum left and had your dad prior to January 1, 1947. Prior to that date there was no Canadian citizenship in the modern sense. Your grandmum would have been a British subject when your dad was born.

I have no idea how the first Citizenship Act dealt with that situation. Did your grandmum not qualify for Canadian citizenship because she left before 1947 and never came back? Dunno.

If women in her position didn’t have citizenship, was that fixed in subsequent legislation? Again, dunno.

Best advice I can give is keep in contact with the Canadian lawyer you mentioned.

I’d not heard of the case you mentioned before this thread, so can’t comment on it.

7

The Canadian immigration lawyer was quite confident that both my grandmother and father were Canadian citizens. He wasn’t sure about me, but suggested that I just apply on my own and see what happened. Thanks for your input, anyway.

8

Rely on him, not me. Much better to talk to an immigration lawyer.

9

Oh, if needed I will absolutely go back to him. But right now this is all largely hypothetical, and he charges $400 for a consultation (which I already paid him once).

10

When I applied, the law required that I not be illegitimate; I know that’s been removed. I am interested to follow this, as I have a good friend in this situation: American-born father, now deceased, who had two Canadian-born parents. If she and her daughter could be Canadian, that might be very useful!

11

Please let me know if your friend finds out anything concrete!

12

I don’t think she’s actively pursuing it, but this thread will make me bring it up to her—her daughter is about to finish college, and is at a good age to take advantage of such opportunities. If she does and learns anything, I’ll definitely pass it on!

13

Okay, I read through Bjorkquist. Fascinating case, especially the discussion of the history of Canadian citizenship. Northern Piper is correct when he says that people born in Canada prior to 1947 were indeed British subjects. Generally speaking, such people were automatically made Canadians on January 1, 1947.

Then, things get complicated, and there was indeed discrimination again the Canadian women in relationships with foreigners and residing abroad. Namely, that they could not pass on their Canadian citizenship to their children. Canadian men could.

There were a number of changes to the Citizenship Act over the years, all designed to refine the vagueness and address the deficiencies of the 1947 Act. Hard to refine and address everything though, and Bjorkquist forced Parliament’s hand in clearing up loose ends. Among which was that Canadian women in relationships and residing abroad can indeed pass on their Canadian citizenship to children (Charter s. 15, equality rights).

Now, whether or not this is retroactive, such that it would/might apply to you, Bjorkquist doesn’t say. So I consulted the Act itself, and the answer boils down to “it’s complicated.” I’d have to consult a few other primary and secondary sources before I could say anything definitive to answer your question.

For now, I’d suggest that you keep working with your immigration lawyer. In the interim, go ahead and apply anyway. As you note, it’s only C$75.

Hope this helps, and good luck!

14

:: bump ::

Hot off the presses! If this bill, or something close to it, passes, looks like I’ll be Canadian after all. I had a hunch something like this might happen, which is why I refiled my application in February. And if I am reading the bill correctly, it means that any descendant of a Canadian who was born outside Canada before the new bill takes effect would also be Canadian, which means my siblings, all my cousins on my dad’s side (at least the ones who aren’t already Canadian via their other parent, which is a decent chunk of them), and their children and even grandchildren would also be Canadian.

This is going to be interesting. If current processing times stick, I should find out right around my birthday in September whether I’m Canadian under current legislation, even if no new bill has passed by then. Lots of Americans have a Canadian somewhere in their family tree, so it could affect quite a few people.

15

Wow! Thanks for this. I just sent the link to a friend. And good luck with the application!

16

Thanks - fingers crossed, but at the moment I’m feeling pretty positive about it! But I am wondering what happens once the Bjorkquist decision kicks in less than a month from now, because it seems unlikely that this bill would even pass by then, much less take effect. Does it mean that any applications filed between now and the effective date of a new law are adjudicated under prior law, minus the second-generation cutoff? I guess I’ll find out in not too long…

17

I am interested in how this works out. There was an incomprehensible article about it in this morning’s paper that seemed to say that, although my grandchildren will be Canadian citizens, their children, unless born in Canada will not be.

18

My understanding of the current version of the bill is that anyone already alive at the time of its coming into force who is descended from a Canadian will be Canadian, regardless of place of birth, but anyone born after its implementation will not be unless a) born in Canada, or b) born to parents who are either born in Canada or meet the substantial presence test before the child’s birth.

19

That make sense (sort of) for a poorly written article in the paper. One of my kids was born here. The other two grew up here and naturalized after they were 18, which was the minimum age, but before they were 21, the age after which you automatically lost US citizenship. Later that changed whether by statue or court decision I no longer recall and my wife and I also naturalized.

Once we crossed the border and the agent asked where the kids were born (my wife and I had passports) and when gave three different countries, he said, “What are you, a professor or something?” “Guilty”, I said.

Good luck on your quest for citizenship.

20

:: bump ::

So with only a couple of weeks to go until the decision takes effect, and the bill intended to replace it just having had its first reading in Parliament, it doesn’t seem likely that a new bill will pass, much less take effect, by June 19th.

Anyone care to opine how the political side of things might go down? One opinion I read said it was possible that the Canadian government might go back to the judge and ask for an extension. Given current processing times, my application should be processed any day now, but I have no idea how all these moving parts might interact with each other. Is it possible they might hold off on adjudicating it until the legislative side of things is clearer? I have no clue. It might be nice if I had a Canadian passport by August, when we are planning a trip to Michigan anyway - I could break it in with a quick dash across the border to Windsor. But I’m not planning on it.