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Canadian Citizenship (Bill C-24)
In June 2014, the Harper government amended the Citizenship Act, making citizenship in Canada harder to get and easier to lose. Key provisions of the amending legislation, which has already been approved by Parliament, will be coming into force at a later date. Under the new amendments, the Minister of Citizenship and Immigration may revoke the citizenship of Canadians convicted abroad of terrorism, treason, or spying, or who are or may have been part of an organization considered to be at war with Canada. These new amendments had been already rejected by a Parliamentary Committee in 2005 when the Conservatives had a minority government. The amendments are now being challenged in Federal Court as contrary to the Constitution. Critics have also argued that the amendments create a two-tiered system of citizenship that targets dual nationals and naturalized Canadians by granting unprecedented discretionary powers to the Minister to grant or revoke citizenship, and making it harder for Canadians to appeal decisions about their citizenship.
- increasing the residency requirement (section 3(8) of new Act);
- broadening the age range of people who must pass the Canadian citizenship test to 64 years old (s. 5(1)(e));
- fast-tracking citizenship for members of the Canadian Armed Forces (s. 11);
- limiting citizenship-by-descent to one generation (i.e. at least one of the child’s parents must be Canadian by birth or naturalization – a Canadian grandparent is no longer sufficient) (s. 3);
- denying citizenship to persons charged abroad or convicted abroad of offences that would be indictable in Canada (s. 22(2));
- denying citizenship to persons the Minister believes may be a security risk to Canada (s. 19(2));
- denying citizenship to persons the Minister believes may commit an indictable offence with other persons (s. 19(2));
- revoking citizenship from Canadians the Minister believes committed crimes against humanity/serious crimes prohibited by sections 34 to 37 of the Immigration and Refugee Protection Act (s. 10.1(1));
- revoking citizenship from Canadians the Minister believes served in a foreign army of a country that fought against the Canadian army (s. 10.1(2)); and
- revoking citizenship from Canadians convicted abroad of terrorism, treason, or spying (s. 10(2)).
Certain provisions were declared in force in June 2014, others were declared in force on August 1, 2014. Some remaining provisions, including those relating to revocation of citizenship, will be declared “in force” at a future date to be determined by the government.
This case study focuses on the amendments relating to the Minister’s citizenship revocation powers.
New: Revocation of Citizenship for Terrorism Offences
Section 10(2) of the new Citizenship Act permits the Minister to now revoke the citizenship of Canadians who have been convicted of terrorism and treason-related offences in Canada, as defined by the Criminal Code, National Defence Act and Security of Information Act.
Section 10(2)(b) of the new Act permits the revocation of citizenship for offences committed outside Canada.
Section 10(4) of the new Act permits but does not require the Minister to allow the concerned person to make written submissions. The Act does not require the Minister to give the citizen an opportunity to have an oral hearing.
New: Revocation of Citizenship for Membership in Organization
Section 10.1 of the new Act permits the Minister to seek a Federal Court declaration that a person committed acts crimes against humanity/ serious crimes prohibited by sections 34 to 37 of the Immigration and Refugee Protection Act or was a member of an organized armed group that was engaged in an armed conflict with Canada. Such a declaration would then form the basis for revocation of citizenship.
Significantly, the new law does not account for the following concerns:
- whether the person’s involvement in an organized armed group was coerced;
- whether the person’s involvement was a function of state persecution; or
- the relevance of the grounds for protection under the UN Refugee Convention.
Effects of Revocation
Under section 10.3 of the new Act,, when a Canadian loses their citizenship, they are legally considered to be a foreign national and thus fall under the authority of Canada’s immigration law (s. 10.3).
The Act also provides that the Minister may deport individuals stripped of their Canadian citizenship to any country for which the Minister has “reasonable grounds to believe” they are citizens (s. 10.5(1)(3)). However, the UN Convention on the Reduction of Statelessness, to which Canada is a party, limits the situations in which a person may be lawfully deprived of nationality, if such deprivation results in statelessness (s. 10.4(1)).
Thus, the risk of citizenship revocation and deportation is faced by:
- Canadians who are dual nationals;
- Canadians who were naturalized; and/or
- Canadians whose parents were naturalized.
Canada cannot deport people who have nowhere to be deported to. The government denies it would remove anyone who might become stateless.
Recent case law suggests that even people born in Canada are at risk of losing their citizenship. In a case that began before the passage of Bill C-24, the federal government is seeking to deport a Canadian-born man, Deepan Budlakoti, for criminality. The government alleges that his parents were working for a foreign diplomat at the time of his birth, and thus that the fact that Canada granted him citizenship is a mistake. Mr. Budlakoti lacks citizenship in any other country. Canada has justified its attempts to remove him from Canada as being consistent with Bill C-24 amendments.
In cases relating to fraud or misrepresentation (s. 10(1) of the Act), the Minister has the discretion to decide whether or not to revoke a person’s citizenship, if he believes that citizenship was obtained by misrepresenting facts. The concerned person does not have a right to respond orally in person to the allegations against them in front of a government representative, judge, or adjudicator.
The Minister is entitled to revoke a Canadian person’s citizenship if he believes on reasonable grounds that the person has another nationality (whether or not such nationality exists). If the concerned person wishes to contest the Minister’s decision, they must prove that it is likely that the Minister’s claim that a second citizenship exists is false.
For cases related to revocation of citizenship on the grounds of security, human or international rights violations, and organized criminality, the Minister must prove the violation in a court hearing before a Federal Court judge.
History of Revocation Powers
Prior to Bill C-24, the Minister’s power to revoke citizenship had been limited to instances where a person had obtained citizenship by virtue of a material misrepresentation and/or fraud.
Bill C-24’s expanded revocation provisions had already been rejected by a Parliamentary Standing Committee of Citizenship and Immigration in 2005, which concluded that matters of criminality were most appropriately dealt with through Canada’s criminal justice system. The government’s ability to pass the amendments in 2014 may be a reflection of its current majority position within the House of Commons, as compared to its minority status in 2005.
Controversy re: Revocation Powers
The expansion of the Minister’s citizenship revocation powers has attracted controversy, with critics including Amnesty International, British Columbia Civil Liberties Association (BCCLA), Canadian Association of Refugee Lawyers (CARL), Canadian Bar Association (CBA), Canadian Council for Refugees, New Democratic Party, Ontario Council of Agencies Serving Immigrants, and UNICEF Canada. CARL and the BCCLA gathered over 45,000 signatures in a petition opposing the amendments.
Critics argue that the amendments turn citizenship from a legitimately acquired right (by birth or naturalization) to a privilege that is both harder to get and easier to lose. Constitutional lawyer and law professor Audrey Macklin contends that the Act renders Canadian citizenship “an enhanced form of permanent resident status.” Critics have argued that the effect of the new amendments is that dual citizens now hold a status (i.e. right to remain in Canada) that is more precarious than that of other Canadians.
Critics also decry the new Act as creating “two-tiered” citizenship. For instance, the Canadian Bar Association has submitted that under the new Act revocation is a risk faced by “those born in Canada who are presumed to be able to claim citizenship in another state through one of their parents, notwithstanding that the Canadian may have no ties with the other country at all.”
Other critics note that someone who is incorrectly perceived by the Minister to hold citizenship elsewhere could become stateless.
Lawyers have criticized this absence of a guaranteed right to a hearing as a denial of due process.
Critics further point out that deporting a citizen to a country to which they have no connection on allegations of terrorism or treason (in Canada or abroad) could lead to torture or death abroad, such that the government of Canada could find itself complicit in crimes against humanity. They have noted that under the new Act, the Canadian citizenship of Canadian journalist Mohamed Fahmy, imprisoned by the Egyptian government, is rendered precarious.
Some also observe that the interplay between the Act and Canada’s criminal justice system sets up a system of “double punishment” for those dual and naturalized Canadian citizens who are already serving time for criminal convictions. They note that this would be redundant for Canadians guilty of a crime, and dangerous for those who are not.
The arbitrariness of new Act, some critics argue, lies in its targeting people with dual or naturalized citizenship, its granting unprecedented discretionary powers to the Minister to grant or revoke citizenship, and its making it harder for Canadians to appeal decisions about their citizenship.
Finally, critics further note that these restrictions come at a time when there are fewer refugees and fewer permanent residents and more temporary residents in Canada than ever before – in part because of amendments the Immigration and Refugee Protection Act that have rendered permanent residency (required before one can apply for citizenship) and refugee status harder to get in Canada.
On June 25, lawyers Rocco Galati and Manuel Azevedo and the Constitutional Rights Centre filed a legal challenge, seeking a declaration from the Federal Court that Parliament does not have the constitutional power to revoke citizenship from Canadian-born citizens, based on the principle of citizenship conferred by virtue of being born on Canadian soil. The Federal Court heard the application on October 23, 2014; however, to date a decision has not been rendered.
CARL and the BCCLA have announced plans to challenge the Act, based on its violation of the Canadian Charter of Rights and Freedoms.
- 1977: Citizenship Act enacted
- 2005: Parliamentary Committee rejects amendments to Citizenship Act seeking to revoke Canadian citizenship based on terrorism convictions
- June 19, 2014: Bill C-24, also known as the Strengthening Canadian Citizenship Act, receives Royal Assent, significantly limiting the ability to attain and maintain Canadian citizenship.
- June 25, 2014: Rocco Galati, Manuel Azevedo, and the Constitutional Rights Centre file a constitutional challenge to the Act.
- October 23, 2014: The Federal Court of Canada heard challenge to the constitutionality of the Act for which decision has yet to be released.
Role or Position
Implications and Consequences
- Democracy and Equality: All Canadians expect to engage and participate in Canadian society equally without risk of reprisal or threat of removal of democratic rights. Citizenship is the fundamental basis of suffrage or electoral participation. The threat of revocation of citizenship creates an uncertainty, contingency, or hierarchy among citizens, whereby dual nationals, naturalized Canadians, and “second-generation” Canadians will now be at risk of losing their democratic rights despite having lawfully obtained citizenship in Canada.
- Abuse of Power: The Minister has now been granted increased powers with few checks, permitting him to unilaterally revoke citizenship based on terrorism offenses whether domestic or foreign.
- Arbitrariness: On its face, the law also permits the Minister to revoke citizenship based on evidence of convictions registered within a state whose judicial process may be tainted by human rights abuses and lack of due process.
- Due Process: The Minister has the sole discretion to revoke citizenship based on terrorism offenses. The Minister may also decide, in his discretion, whether to allow for a hearing. The due process rights of the concerned person are accordingly limited and arguably may be violated by the new Act.
- Due Process: The Minister can revoked a Canadian’s citizenship based on a foreign conviction, without regard to the human rights practices of the foreign country where the conviction was registered, including a denial of due process and/or reliance upon torture in that country.
- Due Process: The Minister can attribute to a Canadian citizenship in another country, but the burden is on the Canadian to disprove a second citizenship.
- Rule of Law: Canadians expect to be governed according to a consistent and fair system of rules. Where conviction for certain offenses may also lead to exile and removal from the country, arguably an added punishment has been created. This would appear to second-guess the utility of the Canadian criminal justice system, by failing to enhance Canadian security or accord with any principles that are relevant to criminal sentencing. The notion of exiling citizens who are seen to be politically undesirable is inimical to a democratic system that must offer consistent treatment of all its citizens – whether they are free persons or convicted of serious crimes.
- Democracy: The Act is predicated on the notion that people seeking immigration status in Canada are necessarily cheating. The Act reinforces a paranoia of “bogus,” terrorist, criminal, lying immigrants and refugees, all of whom are seen as needing to be banished and deported speedily. This kind of fear-mongering is harmful to community cohesion in the Canadian politic.
Published: Nov. 21, 2014