Court grants Ottawa four more months to fix unconstitutional 'lost Canadians' law

A court has granted the federal government more time to amend unconstitutional legislation concerning so-called "lost Canadians."

The deadline extension — to Dec. 19 — is the second the courts have given Ottawa to amend the law, which prevents some Canadians born abroad from passing on their citizenship to children also born abroad.

Bill C-71, which introduces sweeping changes to Canada's citizenship laws, is set to become law by Dec. 19. The federal government says the legislation addresses the court's concerns about constitutionality.

In her decision to grant the extension, Ontario Superior Court Justice Jasmine Akbarali said the government was able to address concerns about the hardship Canadians could face if the amended legislation is delayed again. 

"The mechanism in place to address urgent cases of hardship is sufficient to ensure that an extension of the declaration of invalidity will not undermine confidence in the administration of justice," the judge said in the decision.

Justice Akbarali initially gave Ottawa until June 20 to amend the current Citizenship Act after the Ontario Superior Court of Justice ruled in late 2023 that it violated the constitutional rights of some Canadians born abroad.

The Liberal government did not get the bill passed through the House of Commons before it rose for the summer a few days before the deadline.

The government appealed for a six-month extension. Justice Akbarali handed down a seven-week extension, to Aug. 9.

In granting the original extension, the judge said the government would only have until Aug. 1 to present arguments on why she should consider another extension until Dec. 19.

Justice Akbarali ordered the government to file a plan to address the hardship experienced by parents under the existing law during the extended period and to "ideally" file a report on the steps required to get the bill passed before mid-December.

Sujit Choudhry, the lawyer who represented the families challenging the law, estimates that the current law violates the rights of at least 1.48 million Canadians here and abroad.

An estimated 170,000 women born abroad who are in the age range when people often start families are still being affected by the current law, the judge said in her June decision.

Justice Akbarali added 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 the 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."

Until Bill C-71 is passed, the government can grant citizenship to lost Canadians at Immigration Minister Marc Miller's discretion.