By Randolph Hahn, March 30, 2026
In a quiet but consequential shift, Canada is redefining who gets to call themselves Canadian.
What began as a constitutional challenge by a handful of families has triggered a sweeping legal and political response – one that could extend citizenship to vast numbers of people around the world, many of whom have never lived in the country and may have only a distant ancestral tie to it.
At the centre of this transformation is a basic but increasingly contested question: what does it mean to be Canadian in law? Is citizenship rooted in lived connection, such as time spent in the country, or participation in its institutions? Or can it flow indefinitely across generations?
A recent court ruling, and Parliament’s expansive response to it, have pushed decisively toward the latter view.
In Bjorkquist, the Ontario Superior Court of Justice decided that a provision of the Citizenship Act pertaining to Canadians passing on citizenship to descendants born abroad contravened the Canadian Charter of Rights and Freedoms – specifically regarding the protection of equality and mobility rights – and would be of no force or effect.
However, given the significant ramifications, the Court suspended the declaration of invalidity initially for a period of six months so the government could determine how to respond. The federal government decided not to appeal but instead introduced remedial legislation in June 2025. That remedial legislation, however, is far more wide-reaching, and benefits far more people than only those whose circumstances were addressed in Bjorkquist. There may be large numbers of people who now have a claim to Canadian citizenship. For many of these unknowing Canadians the only connection to Canada is having an ancestor, often from generations ago, who at one time was a Canadian.
To paraphrase a line from the great comedy Twelfth Night: some are born Canadian, some achieve being Canadian, and some have Canadian status thrust upon them.
The historical context
As is often the case, the past can serve as prologue.
The Canadian Citizenship Act of 1946 came into force in 1947. This marked the beginning of Canadian citizenship as legal status. The 1946 Act defined who were Canadian citizens independent of the status of British subject.
There were (and still are) three ways of acquiring Canadian citizenship:
- Being born in Canada;
- By naturalization (if a person immigrated to Canada and subsequently acquired Canadian citizenship);
- By descent – if a person was born outside of Canada, they could in some circumstances derive citizenship from a Canadian citizen parent.
In 1977, Pierre Trudeau’s Liberal government introduced a new Citizenship Act, which maintained the three ways to acquire Canadian citizenship. The circumstances varied as to whether one could inherit Canadian citizenship status from a parent or grandparent.
The 1977 Act did reference the 1946–47 Act as well as amendments that had been made in 1953. There were many circumstances and scenarios that one had to navigate when trying to determine if one might have a claim to Canadian citizenship.
Political circumstances, however, ultimately came into play.
In 2007, the United States government adopted the Western Hemisphere Travel Initiative (a recommendation of the 9/11 Commission). It required that Canadians crossing a land border into the United States hold a Canadian passport rather than simply a driver’s license or birth certificate. As a result, many Canadians applied for a passport for the first time. This led to many discovering they were not Canadians even though they had lived in Canada much of their lives. This group became known as “the Lost Canadians.”
In 2006, during the Israel–Lebanon conflict, Canada organized and paid for the mass evacuation of its citizens from Lebanon. The operation triggered a national debate, as many questioned how so many Canadians were abroad – and whether many were “citizens of convenience,” whose ties to Canada were largely nominal.
In 2007, Stephen Harper’s Conservative government amended the Citizenship Act to tighten rules on citizenship by descent. While the law already limited most cases to the first generation born abroad, the amendments made this restriction absolute for anyone born afterward. As the Minister of Citizenship and Immigration explained at the time, the goal was to “protect the value of Canadian citizenship by ensuring that our citizens have a real connection to this country.”
The amendments became law in 2009 and that’s where matters seemingly settled – which brings us back to Bjorkquist.
A remarkable legal decision
In Bjorkquist, the applicants challenged the constitutionality of a part of s. 3(3)(a) of the Citizenship Act. The effect of that section was to prohibit Canadian citizens born abroad from passing Canadian citizenship to their children automatically if their children were also born abroad.
At first glance one might think the applicable part of the legislation made sense: after all the purpose was to ensure that Canadian citizenship could not be passed on to those beyond the first generation born abroad, thus reinforcing that there should be a meaningful connection to Canada.
But the applicants in Bjorkquist asserted otherwise. They challenged this “second generation cut-off,” arguing that it created second-class citizenship. Canadians born abroad who acquired citizenship by descent from Canadian-born parents were treated differently from those born in Canada or naturalized, a distinction they said violated the Charter of Rights and Freedoms.
Despite being second-generation Canadians born abroad, all the applicants had strong ties to Canada. Most of their parents – the first generation born abroad – had spent considerable time in Canada, meaning the only real difference between them and Canadians with Canadian-born parents was the Citizenship Act itself. The reasons their parents were abroad when they were born – ranging from professional to personal circumstances – were easily understandable.
The applicants included members of seven Canadian families. Each family’s situation was different, but they all shared the common thread of having a strong connection to Canada.
Sara Bjorkquist (who gave her name to the case) and her husband Roy Brooke worked abroad for international organizations and had a child in Geneva. The family moved back to Canada when the child was one, making Canada the only country the child knew. Yet, because the child was born abroad, that child’s future children would not automatically qualify for Canadian citizenship if also born abroad.
Another applicant, Emma Kenyon, was the first generation born abroad and had returned to Canada the year after her birth. She spent most of her youth in Canada, attended university there, and also worked in Canada. Her spouse was also a first generation Canadian born abroad who had spent many years in Canada.
Another applicant, born abroad, returned to Canada at age seven and later attended university there. He then moved to China, where he and his Russian wife held only temporary status. Their child, born in Hong Kong, would not be Canadian due to the second-generation rule. And, despite being born in Hong Kong, the child was not entitled to citizenship or permanent resident status there. It also appeared that the child could not claim Russian citizenship, either. It seemed as if the child might be stateless.
The Court considered whether the second-generation cut-off violated the Charter’s guarantee (section 15) by discriminating based on national origin and, for women, “the intersection of national origin and sex.” It also considered whether it infringed mobility rights (section 6) or the rights to life, liberty and security of the person (section 7).
In analyzing the issues to be determined and the underlying facts, Madame Justice Akbarali noted that extraneous circumstances prevented at least some of the applicants from having their children in Canada. For instance, the couple who had their child in Hong Kong could not return to Canada because the woman was under the care of a fertility doctor and an obstetrician whose costs would not be covered by government-funded healthcare.
Moreover, Akbarli, J. noted that the mother in question faced specific repercussions to her health, physical integrity, job, and finances in ways that did not similarly impact her husband, saying that “[i]t was Ms. Kenyon’s bodily integrity at issue.” As such, she continued, “the burdens of the second generation cut-off were felt differently, and more keenly, by Ms. Kenyon because the discrimination based on her country of birth had different impacts on her because of her sex.”
Ultimately the Court found that the Citizenship Act’s second-generation cut-off infringed upon section 15 of the Charter, as well as the Charter’s guarantee of mobility rights in section 6, which includes the right to enter Canada. The Court did not find that it infringed upon the section 7 rights to liberty, and security of the person. Section 1 (which limits the Charter’s application) did not save the legislative infringement on the guarantees of equality and mobility.
Cleanup on aisle C-3
As noted, the Court suspended the declaration of invalidity for six months to allow the federal government time to change the applicable law as necessary. The Court ended up further extending that deadline. Ultimately, Ottawa introduced Bill C-3 in June 2025, which came into effect in December 2025.
The amendments to the Citizenship Act resulting from C-3 are such that going forward anyone born after the amendments come into force, and whose Canadian parent themselves were born abroad, will only be a Canadian if the Canadian parent had a substantial connection to Canada before the birth. “Substantial connection” is defined as 1,095 days of physical presence in Canada prior to the birth of the next generation born abroad.
On the face of it this seems reasonable – if your Canadian parent was born abroad then you will only be a Canadian if your parent has a substantial connection to Canada. That arguably reinforces the integrity of Canadian citizenship and ensures there are not multiple people obtaining Canadian citizenship by descent who do not have any meaningful connection to Canada.
When cleanup creates clutter
But here’s the rub: the requirement for a substantial connection on the part of the Canadian parent only applies to those who are born after December 15, 2025, when C-3 came into effect. If you were born before that date, you only need to show you had an ancestor born in Canada (more on that below).
Why was the “substantial connection to Canada” requirement not applied for those born before the amendments came into effect? The federal government said it was so that there would not be new retroactive requirements that “could risk creating new cohorts of ‘Lost Canadians.’”
The federal government also worried that there might still be Charter challenges of the new law. In a Charter Statement on Bill C-3 provided by the Minister of Justice, it specifically referenced instances of historical gender discrimination in Canadian citizenship law. For example, the 1947 Act stated that a Canadian woman married to a foreign national could not pass on Canadian citizenship to her children if those children were born abroad. However, a Canadian man under the same circumstances could pass on citizenship to his children.
Although subsequent amendments addressed that anomaly, it appears that the federal government was still concerned about Charter challenges under section 15. In 2009, amendments restored citizenship to first generation Canadians born abroad who had previously been ineligible because their parent was the mother. However, these individuals were less likely to have lived in Canada, making it harder for their second-generation children born abroad to establish a substantial connection to the country.
Going forward – meaning anyone born after the law comes into effect – everyone would be on the same footing, so to speak. But to foreclose any further challenges or possibilities of “lost Canadians,” everyone in the past who had a Canadian ancestor could now claim citizenship.
Stakeholders in citizenship law are now wondering how the new law will be interpreted and applied. An increasing consensus is emerging that the potential beneficiaries could include anyone who has an ancestor who was born in Canada, no matter how far back – even before 1867. It may be that many people in New England (who have ancestors from the Maritimes) or even Louisiana (who can trace their lineage back to the expulsion of Acadians in the 18th century) may now have claims to Canadian citizenship.
A report by House of Commons Standing Committee on Citizenship and Immigration references a report by the Parliamentary Budget Officer (for Bill C-71). A section titled “Volumes” includes an estimate of people affected by the legislative amendments beginning in 2025–26 but tellingly adds “… estimates on Canadians living abroad and the projected total number of individuals that would be affected by the Bill are subject to uncertainty.”
Not included in Bill C-3 are any requirements for security checks on those who would claim citizenship under the new rules. Nor are they required to provide police certificates or pass language or knowledge tests. According to the Act, “Canadians who are currently born citizens by descent are not required to undergo security or criminality screenings in order to be or remain citizens.”
Moreover, a committee briefing from the Standing Committee on Citizenship and Immigration notes that most people currently excluded from citizenship because of the first-generation limit were born after 2009, when it came into force. This cohort consists largely of minors aged 16 and under in 2025 and are generally deemed to be lower risk for security or criminality purposes.
In fact, Bill C-3 opens the door to citizenship for many people born before as well as after 2009. Among them are many people who might give rise to security concerns. But since they are now deemed Canadian citizens by law rather than by grant, they do not need to submit to security checks. This raises serious concerns in an increasingly dangerous world.
Equally important is the broader issue of what makes a person Canadian. By opening the citizenship door so widely, it diminishes the importance of an inherited history and a shared stake in the future.
While the government aimed for prospective uniformity, by sidestepping retroactive changes it may have inadvertently bolstered the case that Canada truly is “the first post-national state.”
Randolph Hahn is a partner with Garson Immigration Law and has practiced exclusively in citizenship and immigration law for many years. He is a former chair of the Citizenship and Immigration Section of the Ontario Bar Association and is the associate editor of the Immigration Law Reporter. He has authored many professional papers.
