Lost Canadians ruling 'a landmark case on sex discrimination,' says lawyer

The decision in Bjorkquist is important because it recognizes intersectional discrimination, says Ira Parghi, a lawyer for the applicants. The court found that while all the applicants were discriminated against based on national origin, the women experienced this discrimination “differently” and “more keenly” discrimination because they were women.

“You don't see intersectionality often talked about in the case law,” says Parghi. “The courts tend to decide these issues based on a single ground of discrimination only, and they tend not to consider whether, or how, more than one, two grounds or more might interact with one another.”

“It's a landmark case on sex discrimination,” says Sujit Choudhry, who also represented the applicants.

In her ruling, Ontario Superior Court Justice Jasmine Akbarali found s. 3(3)(a) of the Citizenship Act violates ss. 6 and 15 of the Charter. Akbarali granted an order which exempted the applicants born abroad from s. 3(3)(a) and gave their children Canadian citizenship. Under s. 6, every Canadian has the right to “enter, remain in, and leave Canada.” Section 15 guarantees Canadians equality under the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.  

To determine whether the applicants were denied the substantive equality protected by s. 15 of the Charter, Akbarali applied the two-step test laid out in various Supreme Court of Canada cases, including Withler v. Canada (Attorney General), 2011 SCC 12. In the first stage, the court determines whether the law creates a distinction based on an enumerated or analogous ground. If it does, the court then examines whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping.

Akbarali concluded that s. 3(3)(a) creates a distinction based on national origin by treating Canadians born abroad differently from Canadians born in Canada. She said that Canadians obtaining citizenship by descent because they were born outside of Canada “hold a lesser class of citizenship” because they do not have the automatic right to return to Canada to live with their born-abroad children.

The applicants also argued that s. 3(3)(a) violated s. 15 “based on the intersection of national origin and sex” because of the provision’s disproportionate impact on women. Akbarali found that s. 3(3)(a) had a heightened impact on the female applicants because they were the ones who were pregnant and would be required to return to Canada to give birth if their children were to be born Canadian citizens. The judge said their becoming pregnant while in the midst of establishing their careers, as is common, exacerbated the differential impact because it made relocation more difficult.  

The provision faced one applicant, Emma Kenyon, with decisions that impacted her health, physical integrity, job, and finances in ways her partner did not experience, said Akbarali. The law’s burdens “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,” she said.

The law “disadvantages pregnant first-generation born abroad women who are living abroad when they get pregnant by placing them in the position where they have to make choices between their careers, financial stability and independence, and health care on the one hand, and the ability to ensure their child receives Canadian citizenship on the other,” said Akbarali. “Even if willing, their partners cannot bear any of the career, financial independence, or health risks for women in these circumstances to ensure the children could be born in Canada.”