At the centre of Bjorkquist was the “second-generation cut-off” in the Citizenship Act. That rule stopped many Canadians who were born abroad from automatically passing citizenship to their own children if those children were also born abroad. The applicants argued that this rule created a lower class of citizenship and violated the Canadian Charter of Rights and Freedoms.
The court agreed in part. It found that the law violated section 15 and section 6 of the Charter. It did not find a breach of section 7. It also held that the government could not justify the violations under section 1.
Section 15: Equality rights
The first major Charter issue was section 15, the equality guarantee. The applicants argued that the law treated Canadians born abroad differently from Canadians born in Canada and naturalized citizens. The court accepted that argument. It held that the second-generation cut-off created a distinction based on national origin because it treated people differently depending on whether they were born in Canada or born abroad. In practical terms, the court said first-generation Canadians born abroad held a lesser class of citizenship because they could not pass citizenship to their own children born abroad.
The court went further. It also found that the law had a special and harsher effect on women. Women living abroad who became pregnant were often the ones forced to bear the health, financial, and job risks of returning to Canada to give birth if they wanted their child to receive citizenship. Because of that, the court held that the rule violated section 15 not only on the basis of national origin, but also through the intersection of national origin and sex.
So on section 15, the court’s answer was clear: the law was discriminatory. It created unequal citizenship status and reinforced harmful stereotypes about Canadians born abroad, especially women.
Section 6: Mobility rights
The second major issue was section 6, which protects the right of Canadian citizens to enter, remain in, and leave Canada. The applicants argued that the second-generation cut-off punished Canadians for living internationally, working abroad, and having children outside Canada. The court accepted that too.
The judge explained that section 6 is not just about crossing a border. It protects the freedom to make real life choices about where to live, work, and raise a family. The court found that the second-generation cut-off interfered with that freedom because it made it harder for first-generation Canadians born abroad to remain in Canada with their dependent children, or to leave Canada for legitimate opportunities without risking their child’s citizenship status.
The court called these limits unreasonable, unrealistic, and impractical. It said it was not reasonable to expect Canadians abroad to return to Canada to give birth just to protect their child’s citizenship, especially when that decision could bring serious financial, medical, and professional consequences. For that reason, the court held that the rule violated section 6(1) rights for both Canadian-born parents and first-generation Canadians born abroad.
Section 7: Life, liberty, and security of the person
The applicants also argued that the law violated section 7. Their argument was more complex. They said the rule interfered with the liberty of parents to raise their children and with the security of the person of children who could be separated from their parents or denied a stable family life in Canada.
The court took that argument seriously, but in the end it rejected it. It held that the evidence did not show a section 7 breach on the facts before it. In particular, the judge found there was not enough evidence that the family separations described in the case were caused directly enough by state action in a way that met the legal test under section 7. So while section 7 was fully argued, it was not one of the rights the court ultimately found had been infringed.
That point matters because it shows the judgment was not a blanket win on every Charter theory. The applicants succeeded on equality and mobility rights, but not on life, liberty, and security of the person.
Section 1: Could the government justify the violations?
After finding breaches of sections 15 and 6, the court turned to section 1. This is the part of the Charter that allows governments to defend rights limits if those limits are reasonable and demonstrably justified in a free and democratic society.
The government said the second-generation cut-off was meant to bring stability, simplicity, and consistency to citizenship law and to protect the value of Canadian citizenship. The court accepted that clarity and consistency were legitimate goals. But that was not enough to save the law.
The judge found serious problems with the government’s case. First, some of the government’s stated objectives were too vague and symbolic. Second, the government had not produced real evidence of the problem it was supposedly trying to solve. Third, the law failed the minimal impairment stage because it was a permanent blanket ban and less harmful alternatives were available. The court described the rule as a negation, not just a limitation, of Charter rights.
That is why the court concluded that the section 15 and section 6 breaches were not saved by section 1.
So what rights were actually infringed?
In simple terms, the court found this:
Section 15 was infringed because the law discriminated against Canadians born abroad and had a sharper impact on women.
Section 6 was infringed because the law unfairly burdened Canadians’ freedom to leave, remain in, and return to Canada while building their lives and families across borders.
Section 7 was not infringed, even though it was argued.
Section 1 did not save the law, because the government failed to justify the rights violations.
That combination is what made Bjorkquist such an important case. It was not just about citizenship rules. It was about equality, mobility, and the limits of Parliament’s power to create different classes of Canadians.
Bjorkquist is important because it shows exactly how Charter rights can be affected by citizenship law. The court found that the second-generation cut-off infringed equality rights under section 15 and mobility rights under section 6. It rejected the section 7 claim, but it also rejected the government’s attempt to justify the law under section 1. In the end, the case stands for a simple but powerful idea: Canada cannot create a citizenship rule that treats some citizens as less fully Canadian than others.
Sources
1. Bjorkquist et al. v. Attorney General of Canada, 2023 ONSC 7152 (CanLII)
2. Canadian Charter of Rights and Freedoms, Constitution Act, 1982, Part
