A Fortuitous Referral

It was 2017 when I was called by destiny to represent an American physician who became one of my top five favourite clients of all time.

That says a lot because I respect and admire every one of my clientele. No cap (as the young folks say).

What distinguished this client was his story. 

He reached out to my office via a referral from a colleague who I held in high esteem due to her work ethic, strong principles, and commitment to the service of others. It was an intro that was replete with foreshadowing, I was to learn.

My client asked me to prepare a Proof of Citizenship Application, pursuant to s. 3 of the Citizenship Act. Section 3 provides for persons born outside of Canada, who have at least one Canadian parent, to apply for Canadian Citizenship. 

This doctor's specific motivations for acquiring Citizen status could hardly have been more profound.

Canadian Mother

His mother became a Canadian via naturalization when she, her parents and her two sisters fled Poland as Jewish refugees in the 1930s.

Canada saved their lives.

Their loyalty to this country was indelible. Their gratitude infused every accomplishment they achieved individually and as a family in terms of education, charitable giving, and attaining “helping professions”.

Yet, as it occasionally happens in life, my client’s mom was persuaded by a charming foreigner to leave the country she loved. The young couple married and moved to the USA where they had their children.

Still, Canada remained the nation that everyone referred to as “home”. As such, the happy family visited their relatives in Toronto regularly and often.

It is sometimes said that “the good die young”. Tragically, with respect to my client’s mother, that was the case. She passed in her early fifties of breast cancer. The family was never the same.

Thus, for this particular son that she left behind, the act of becoming a Canadian Citizen was a tribute to his beloved mother as much as it was a reclaiming of his birthright.

Change is Necessary

I remember thinking at the time that it made no sense that s. 3(3)(a) of the Citizenship Act prevented my client’s children from being granted automatic Citizenship. It seemed to create a lesser version of Canadian Citizenship and that felt contradictory to the whole principle. I did not act upon my critical analysis by bringing an Action in Court though.

Thankfully, my legal colleagues took up the cause in April of 2023. As a result, in December of 2023 Justice J.T. Akbarali of the Ontario Superior Court found that s. 3(3)(a) of the Citizenship Act violated our Constitution. Thus, it was declared by the Judge to be invalid and of no force or effect. Justice Akbarali gave the federal government six months from the date of the decision to change the legislation to comply with the Constitution and ss. 6 and 15 of the Canadian Charter of Rights and Freedoms.

In his words,

I find that s. 3(3)(a) of the Act contravenes ss. 6 and 15 of the Charter and it is not saved by s. 1. Under s.52 of the Constitution Act, 1982, I declare the provision to be of no force or effect, but I suspend the declaration of invalidity for a period of 6 months from the date of the release of these reasons.

For the families of those who obtained Citizenship via a Proof of Citizenship Applications that decision was monumental. 

Hence, expect updates to the Citizenship Act to be announced soon!