The “Lost Canadians” legislation, designed to rectify Canada’s unconstitutional citizenship by descent regulations, was approved in the Senate on Wednesday and received royal assent on Thursday. The term “Lost Canadians” pertains to individuals born outside Canada to Canadian parents who were also born in another country.
In 2009, the federal government altered the law so that Canadians born abroad could only transmit their citizenship if their child was born in Canada. However, this was deemed unconstitutional by the Ontario Superior Court in December 2023. The new legislation suggests that Canadian citizenship can be passed down to individuals born abroad, extending beyond the first generation, if the parents spent a cumulative three years in Canada prior to the child’s birth or adoption.
Senator David Arnot from Saskatchewan contended that the bill unfairly imposes a “substantial connection” criterion on “intercountry adoptees” regarding citizenship transmission. This term applies to adopted children born abroad and raised in Canada by Canadian parents. Arnot emphasized that intercountry adoptees should receive the same treatment as domestic adoptees, citing the Hague Convention’s requirement for equal rights and treatment.
Immigration lawyers Sujit Choudhry and Maureen Silcoff have been enlisted for a potential Charter challenge on behalf of intercountry adoptees. They argue that these individuals should not be treated differently from domestically adopted children, highlighting a potential rights violation and discrimination under Section 15 of the Charter and international treaty obligations.
Choudhry expressed a preference for a legislative resolution to this issue rather than resorting to a court challenge. Attempts to introduce amendments clarifying adoption rules were made by Ontario Liberal MP Nate Erskine-Smith and B.C. NDP MP Jenny Kwan but were unsuccessful. Amendments proposed by the Conservative and Bloc Québécois members of the immigration committee regarding the three-year period in the substantial connection test were removed before the bill reached the Senate. Despite efforts by Quebec Conservative Sen. Leo Housakos to reintroduce the amendment in the Senate, it was ultimately rejected.