Charter Statement - Bill C-71: An Act to amend the Citizenship Act (2024)

Tabled in the House of Commons, June 18, 2024

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-71 An Act to amend the Citizenship Act (2024), for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-71 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the bill. It does not include an exhaustive description of the entire bill, but rather focuses on those elements relevant for the purposes of a Charter Statement.

Overview

Bill C-71, An Act to Amend the Citizenship Act (2024), would amend the Citizenship Act to extend access to citizenship to those born abroad to Canadian citizens or those adopted abroad by Canadians born abroad beyond the first generation.

Historically, Canadian citizenship could not be passed on from parents to children as of right in certain circumstances. For example, under Canadian citizenship laws in 1947, a Canadian woman who married a foreign national was unable to pass on Canadian citizenship to her children if those children were born abroad. However, a Canadian man in the same circumstances was able to pass on citizenship to his children.

In 2009, amendments to the Citizenship Act imposed a first generation limit, with limited exceptions, to citizenship by descent, which means Canadian citizens were able to pass on citizenship to their children who were born outside of Canada, that is, only to the “first generation” born abroad. As a result, under the current Citizenship Act, this first generation of Canadian citizens born outside Canada are unable to pass on citizenship to their children who are born outside Canada, or the “second generation” born abroad. This is the case even if these second generation children may have a genuine connection to Canada.

The objective of the bill is to establish a new legislative scheme for Canadian citizens born abroad to pass on citizenship to their children also born abroad. For people born abroad before the proposed amendments come into force, the bill would extend automatic citizenship to the second or subsequent generation born abroad if they had a Canadian citizen parent at the time of their birth.

For people born abroad on or after the coming into force of these proposed amendments, the bill would establish a way for second or subsequent generations born abroad to be recognized as citizens from birth. For this group, the bill would require the first generation Canadian citizen parent born abroad to demonstrate a substantial connection with Canada, meaning that they would be required to show that they were physically present in Canada for a period totalling three years at any time prior to their child’s birth abroad.

Right to Equality (section 15 of the Charter)

Section 15(1) of the Charter protects equality rights. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the basis of sex. Equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as equally deserving of concern, respect, and consideration.

The bill potentially engages section 15 of the Charter with respect to individuals whose ancestors had historically lost eligibility to pass on citizenship for reasons such as their sex. One example is a Canadian woman who married a foreign national and was unable to pass on Canadian citizenship to her first generation children born abroad. Under the 2009 amendments, her “first generation” child had their citizenship status restored. However, because the child’s citizenship was only restored in 2009, they are less likely to have lived in Canada and may as a result have more difficulty demonstrating a substantial connection to Canada that is required under the bill in order to be able to pass on citizenship to their “second generation” children. As a result of the historic exclusion, it may be more difficult under the requirements of the proposed bill for the first generation child to pass on citizenship to their second generation children born outside of Canada.

The following considerations support the consistency of this potential measure with section 15. Citizenship indicates a relationship with the country of issue, either by birth or connection. Therefore, the requirement in the bill to demonstrate a substantial connection to Canada provides a clear, simple, and understandable rule for the transfer of Canadian citizenship to those who are born abroad. The requirement is appropriately tailored to meet the objectives of the legislation while allowing greater access to citizenship for those born abroad who have a genuine connection to Canada. The coming into force of the bill would signal to first generation Canadians born abroad that they will need to have spent a period totalling three years in Canada if they wish to pass on citizenship to their second generation children who will be born abroad.