The legislation known as the “Lost Canadians” bill, designed to address Canada’s citizenship by descent regulations deemed unconstitutional, successfully passed through the Senate on Wednesday and received royal assent on Thursday.
The term “Lost Canadians” pertains to individuals born outside of Canada to Canadian parents who were themselves born in another country. In 2009, the federal government modified the law to restrict Canadians born overseas from passing down their citizenship unless their child was born in Canada, a move later declared unconstitutional by the Ontario Superior Court in December 2023.
Under the proposed legislation, Canadian citizenship could be transmitted to individuals born abroad, extending beyond the first generation, if the parents accumulated three years in Canada before the child’s birth or adoption.
Senator David Arnot from Saskatchewan raised concerns that the bill unfairly imposes a “substantial connection” test on “intercountry adoptees,” referring to internationally adopted children raised in Canada by Canadian parents. He emphasized that intercountry adoptees undergo a stringent immigration process before their adoption is finalized, including provincial and territorial approvals, anti-trafficking screenings, foreign state approvals, federal citizenship reviews, and other protocols.
Arnot argued for equal treatment of intercountry adoptees and domestic adoptees, citing the Hague Convention’s requirement that both groups receive the same rights and treatment. While Arnot did not propose amending the law due to a court-mandated deadline for enactment, he urged the immigration minister to consider future adjustments.
Concerns have been raised by immigration lawyers Sujit Choudhry and Maureen Silcoff regarding a potential Charter challenge on behalf of intercountry adoptees. They contend that these adoptees should not face differential treatment compared to domestically adopted children, highlighting a perceived rights violation related to citizenship requirements for intercountry adoptees with children born abroad.
Choudhry emphasized that such treatment could constitute discrimination prohibited by Section 15 of the Charter and run counter to Canada’s international treaty obligations. While preferring a legislative resolution over a court challenge, Choudhry expressed the need for addressing this issue.
Efforts to clarify adoption rules through amendments were made by Ontario Liberal MP Nate Erskine-Smith and B.C. NDP MP Jenny Kwan, though these attempts were unsuccessful. During the bill’s consideration in the House of Commons, Conservative and Bloc Québécois members sought to amend the legislation to specify that the three-year period in the substantial connection test should occur within five consecutive years. However, this amendment was removed by Liberal and NDP MPs prior to the bill’s transmission to the Senate.
In the Senate, Quebec Conservative Sen. Leo Housakos’s attempt to reintroduce the amendment was rebuffed.