At first glance, the old citizenship rule looked neutral. The second-generation cut-off applied to everyone the same way on paper. But in practice, it did not affect everyone equally.
Women carried the real burden. Under the old system, if a Canadian woman was living abroad and became pregnant, she often faced a difficult choice. If she gave birth outside Canada, her child might not receive Canadian citizenship. If she wanted to ensure her child’s citizenship, she might have to return to Canada to give birth. That was not a simple decision. It could mean leaving a job, losing income, interrupting medical care, or travelling late in pregnancy.
Men did not face the same pressure. A father could continue working abroad while the mother dealt with the immediate consequences of the rule. This is why the impact of the law was not truly equal, even though it appeared neutral.
What the court recognized in Bjorkquist
The Ontario Superior Court addressed this directly in Bjorkquist et al. v. Attorney General of Canada. The court found that the second-generation cut-off violated section 15 of the Charter, not only because it created a lesser class of citizenship, but also because it had a disproportionate impact on women.
The court explained that pregnancy made the burden of the law immediate and unavoidable for women. A woman abroad could not delay the consequences. She had to decide, in real time, whether to return to Canada or accept that her child might not be a citizen.
This is where earlier case law mattered. The principle from Brooks v. Canada Safeway Ltd.—that pregnancy-based disadvantage is a form of sex discrimination—helped shape the analysis. The court in Bjorkquist applied that reasoning and recognized that what looked like a neutral rule actually imposed a gendered burden.
The result was clear. The law was discriminatory not only on the basis of national origin, but also through the intersection of national origin and sex.
The real-life consequences for women
The evidence in Bjorkquist showed how serious this impact was. Some women faced pressure to travel during pregnancy, even when it was medically risky. Others had to choose between maintaining employment abroad and securing citizenship for their child. Some families experienced separation because immigration processes took time and did not offer immediate solutions.
These were not rare situations. They reflected a broader reality: the law forced women into choices that men did not have to make in the same way. That is why the court’s finding matters. It acknowledged that equality is not just about whether a rule looks neutral. It is about how that rule operates in real life.
How the new law changes the picture
Bill C-3 introduced a new approach. Instead of a strict cut-off, the law now allows citizenship by descent beyond the first generation in certain cases where there is a substantial connection to Canada.
For many families, this removes the immediate pressure that women once faced. A child’s citizenship is no longer determined solely by the place of birth across generations. Instead, the focus shifts to whether the Canadian parent has a real link to Canada.
This change matters for women in particular.
A woman living abroad no longer faces the same forced choice between staying where she lives and works or returning to Canada to give birth. The law no longer pushes that decision in the same way. It recognizes that Canadian families can live internationally without losing their connection to Canada.
Government materials explain that the new system uses a 1,095-day physical presence requirement to show substantial connection. That approach replaces the old blanket exclusion with something more flexible and more grounded in real life. (parl.ca)
From formal equality to real equality
The shift from the old law to Bill C-3 reflects a deeper change in how equality is understood.
The old system treated everyone the same on paper, but ignored the fact that its effects were not the same. Women, especially pregnant women abroad, carried the immediate and often heavy burden.
The new approach moves closer to substantive equality. It recognizes that laws must account for how people actually live and how different groups are affected in practice. It also reflects the court’s message in Bjorkquist: citizenship law cannot be designed in a way that leaves one group of Canadians at a disadvantage simply because of how their lives unfold across borders.
The old citizenship regime placed a disproportionate burden on women, even though it appeared neutral. It forced difficult and sometimes harmful choices at a moment when women were most vulnerable. The Bjorkquist decision made that impact visible and recognized it as a violation of equality rights.
Bill C-3 does not erase every issue, but it marks an important step forward. By replacing a rigid cut-off with a connection-based approach, the law reduces the pressure that once fell so heavily on women. It reflects a clearer understanding of equality—one that looks not just at rules, but at their real-world effects.
Sources
1. Bjorkquist et al. v. Attorney General of Canada, 2023 ONSC 7152 (CanLII)
