B’nai Brith C-24 Brief – April 30

Proposed Citizenship Law

by David Matas

(Submission by B’nai Brith Canada to the House of Commons Standing Committee on Citizenship and Immigration 30 April 2014)

Improvements

The proposed changes to the Citizenship Act[1] are a mix of good and bad news. The good news is that the Government proposes to remove the defects which had hampered the effort to use revocation as a remedy for international criminal fugitives in Canada. The proposed law is better than the present law because it removes the cabinet from the process, it allows for an appeal[2] and consolidates revocation and removal proceeding[3].

The old law, requiring cabinet approval, meant that the government legal arm could win in court, and then the political arm, cabinet, could reverse the result. That is what happened in the cases of Wasyl Odynsky and Vladimir Katriuk who the courts said both entered Canada by hiding their Nazi past.

The cabinet nonetheless, without reasons, said they could stay. The League for Human Rights of B’nai Brith Canada went to court to argue that cabinet could not do that, that cabinet had to revoke citizenship.

However, the courts said cabinet could do that, could let those who the court found lied about their Nazi past on entry remain in Canada[4]. It is a relief to see the proposed law takes away from cabinet this power which has been so badly used.

The absence of an appeal meant that the courts could reach inconsistent decisions on the interpretation of the law and nothing could be done about it. There was no way of straightening those inconsistencies out. The proposed law, by allowing for an appeal, means that the courts can speak with one voice, instead of several.

The Nazis in Canada who hid their past on entry were brought to court decades later, when they were much older. Their strategy was litigation to death, which mostly worked.

Even those who lost their cases in courts at every stage had to go through so many steps that the process was never completed before they died natural deaths. The proposed law, by cutting down on fragmentation, by providing for consolidation of two steps, revocation of citizenship and deportation, into one combats this strategy of endless litigation. It too is a welcome change.

Grounds of revocation

So that is the good news. But there is bad as well. The bad news is that it makes citizenship all too easy to lose in cases that have nothing to do with international crimes. Right now citizenship can be revoked only one ground, false representation or fraud or knowingly concealing material circumstances. The Bill proposes expanding the grounds for revocation.

One new ground for revocation is convictions for treason or terrorism offences[5]. A second new ground for revocation is reasonable grounds to believe that the person served as the member of an armed force of a country or an organized armed group and that country or group was engaged in armed conflict with Canada.

For terrorism offences, convictions can be abroad as well as in Canada[6]. Yet, terrorism is a charge that repressive regimes use against their opponents who resort to violence to attempt to dislodge them.

The Universal Declaration of Human Rights provides in a preamble:

“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,”

The Universal Declaration of Human Rights then recognizes that tyranny and oppression can lead to rebellion. When tyrants and oppressors convict their rebellious opponents of terrorism and the opponents are Canadian citizens, Canada should not legally be able to revoke the citizenship of those citizens merely because the oppressors and tyrants label that rebellion terrorism.

In Canada, commission of an act and conviction for an offence normally go together. There is the odd case of wrongful conviction, but there are remedies in place even for that.

In tyrannies, where there is no rule of law, commission of an act and conviction for an offence can easily diverge. In the case of terrorism, convictions are all too often imposed on peaceful political opponents of the regime, because of their political opposition and not because of anything resembling an act of terrorism. Tyrannical regimes use the label of terrorism as a strategy to attempt to delegitimize their political opposition.

We endorse the concept that a terrorist act committed abroad before the person became a Canadian citizen could lead, after the person became a citizen, to the loss of that citizenship. However, the Bill does not say that. Instead of revocation flowing from a terrorist act abroad, the Bill provides that revocation would flow from conviction for a terrorist offence abroad.

The Bill provides for equivalence. However, what is equated is not the act but the offence. It would make sense to say that an act committed abroad, which if committed in Canada would amount to a terrorist offence, could lead to loss of Canadian citizenship. Instead though, the Bill says that a conviction abroad for an offence which equates to a Canadian offence of terrorism could lead to the loss of citizenship.

The equivalence exercise for which the Bill provides is a legal formalistic analysis. All that, according to the Bill, is being equated is the structure of foreign offence with a comparable Canadian offence, regardless of what is the actual act which led to the foreign conviction.

That sort of equivalence is a threat to free speech and a reinforcement of tyranny. That sort of equivalence, if we are really serious about getting at terrorism, makes no sense at all.

As well, focussing on convictions is imbalanced because it ignores state supported terrorism. Canadian law elsewhere stands against state supported terrorism.

As an exception to the grant of immunity in the State Immunity Act to officials acting in the name of the state, officials of states designated as supporters of terrorism can be sued for their support for terrorist activity[7]. Right now Iran and Syria are so designated. As well, a person is inadmissible and a permanent resident can have his or status revoked if the person is a senior official in the service of a government that has engaged in terrorism[8].

State officials who sponsor terrorism will never be convicted of terrorism in their own countries. Only their opposition will. The Bill then manifests a double standard, allowing for revocation of citizenship of opposition figures who engage in terrorism, but not of state officials who engage in terrorism.

There are two ways of getting this part of the Bill right. One is to change the equivalence from offences to acts. An act committed abroad which, if committed in Canada, would lead to a conviction for terrorism could form the basis of revocation.

The other way is to introduce a caveat to the conviction equivalence. The caveat would be that not any foreign conviction for terrorism can lead to loss of Canadian citizenship. The foreign conviction, if it is imposed in disregard of accepted international due process standards, should not be recognized in Canada. This concept, of taking into account accepted international due process standards for convictions, is already employed elsewhere in Canadian law[9].

Despite the possibility of revocation for commission of offences, the Bill is under inclusive. It has been anomaly that you could lose citizenship for hiding on entry to Canada Nazi crimes against humanity, but not for actually having committed those crimes. Often, lying on entry is easier to prove than the commission of the crimes, but not always. Immigration records may have been lost, but proof of the crimes themselves may be readily available. Revocation for commission of the major international offences found in the statute of the International Criminal Court – war crimes, crimes against humanity and genocide – should be possible.

The crimes which allow for revocation though should be committed before the person became a citizen. Revocation for acts committed after a person is a citizen is problematic, even if one limits revocation to dual citizens as the proposed law does.

A person can be a dual citizen from birth. A person can be a dual citizen without even knowing he or she is a dual citizen, because he or she is unfamiliar with the citizenship laws of the other country. We should not be revoking the citizenship for crimes committed after the acquisition of citizenship, no matter what the crime.

Once the person becomes a Canadian citizen and commits a crime, then he is our criminal. We should not pretend otherwise. 

Procedure

The Bill also proposes a new procedure for revocation. The old procedure was a Federal Court hearing. The new procedure is a Ministerial decision subject to judicial review[10]. The Bill keeps the old procedure, with variations, and allocates revocation cases between the old varied procedure and the new procedure. The new procedure has fewer safeguards than the old procedure.

Creating two procedures and then dividing revocation cases amongst them is inherently problematic. Such a division creates jurisdictional issues.

The justification for the division is that some cases are straightforward and do not need the more elaborate procedure. Yet, the cases the Government says are simple are not so simple.

The Bill provides that applications for judicial review could proceed only if leave is granted[11].   The requirement for leave now exists for all immigration decisions. There are additional differences between the two procedures ‑ Federal Court declaration and Federal Court judicial review.

Judicial review can commence only after a final Ministerial decision is made. With the declaration procedure, revocation occurs only after the Court declaration. With the judicial review procedure, revocation occurs at the time of the Ministerial decision.

Judicial review can occur only on limited grounds. When the grounds are factual, the basis for review is that the decision was perverse, capricious or made without regard to the material before the Minister. For a declaration, the Court will decide the very facts at issue, whether there was false representation or fraud or knowing concealment of material circumstances and not just whether the decision of the Minister was reasonable.

The structure of the Bill is to divide into three what is being hidden by false representation or fraud or by knowingly concealing material circumstances. If what the Minister has reasonable grounds to believe is being hidden is what the Immigration and Refugee Protection Act refers to as security, human right or international violations or organized criminality, the Minister goes to Court for a declaration[12]. Within that cluster, if what the Minister has reasonable grounds to believe is being hidden is also either a serious Canadian or foreign conviction, the decision of the Minister to revoke is effective immediately, subject only to judicial review. If what the Minister has reasonable grounds to believe is being hidden falls outside that cluster of security, human right or international violations or organized criminality, including foreign or Canadian convictions for serious crimes, then the decision of the Minister to revoke is also effective immediately, subject only to judicial review.   An example in this third group would be failure on entry to Canada to disclose a child or spouse.

The division in the Bill, choosing different procedures for revocation depending on what underlying facts the Minister has reasonable grounds to believe are hidden, is odd in light of the fact that proof of false representation or fraud or knowingly concealing material circumstances does not require proof of any underlying hidden facts. All it requires, according to the current jurisprudence, is foreclosure of inquiries with respect to those facts.

Many revocation cases have proceeded on the basis that the person concerned on entry did not disclose accurately his work history (e.g. working for an S.S. Division of the Nazi armed forces). That non‑disclosure was sufficient to lead to revocation on the basis that it foreclosed inquiries about whether the person had committed war crimes. There was no need to establish that the person had indeed committed war crimes. We assume that the Government does not, through this legislation, intend to repeal that jurisprudence about foreclosure of inquiries, since it is a jurisprudence the Government very much supports and on which it relies in the cases it brings to Court.

However, if you do not have to prove the underlying facts, how do you establish which procedure to use, since the allocation of procedures is based on what the underlying facts are?   One begins by a decision on what the Minister has reasonable grounds to believe was hidden on entry. However, that decision is subject to judicial review, albeit by way of leave.

Would the Government have to establish the underlying fact supposedly hidden on entry for the purpose of determining the procedure, but then not have to establish the fact for the purpose of revocation? That would seem to undermine the law of foreclosure of inquiries as well as its purpose, which is to prevent the need for establishing long after the event facts which the dishonest individual has made more difficult to prove by the cover up.   Presumably what the Government would have to show only is that there were reasonable grounds to believe that the initial deception led to foreclosure of inquiries about one or another underlying fact.

Since the more elaborate procedure relates to hidden facts about security, human right or international violations or organized criminality, the issue of procedure is likely to come up only if the Minister does not seek a declaration and claims that what was hidden either does not relate to criminality at all or, if it does, relates only or also to Canadian or foreign convictions. If we leave aside the possibility of constitutional challenges and just follow the proposed legislation as written, the individual would then have to argue on judicial review that the more elaborate procedure should be followed because the Minister does not have reasonable grounds to believe that the person was convicted in Canada or abroad of a serious crime, but does have reasonable grounds to believe that what was being hidden on entry to Canada was security, human right or international violations, or organized criminality. It seems unlikely that an individual would ever take that position in Court.

A more likely position for the individual is simply to challenge the conclusion of the Minister of reasonable grounds to believe foreclosure of inquires about a serious foreign conviction which equates to a Canadian conviction.   Since the law of equivalence of foreign convictions to Canadian convictions is quite complex, there is a reasonable likelihood that at least some of these challenges would succeed. If the Minister chooses the judicial review over the declaration route for these foreign convictions and then loses on judicial review and appeal, that would seem to be the end of the road for the Minister.

For the Minister to choose then the judicial review over declaration route where there is evidence of foreclosure of inquiries on entry both of foreign convictions for serious crimes equivalent to Canadian crimes and evidence of security, human right or international violations or organized criminality becomes a high stakes Ministerial game. The Minister, by choosing the simpler procedure, could end up losing a case against potentially a major war criminal. We question the value of giving the Minister this choice.   It can only tempt the Minister, in some cases, to make the wrong choice. Better to have no choice at all and have all cases go the declaration route.

As well, the ultimate issues in these cases is not the underlying, initially hidden, facts but rather where there was false representation or fraud or knowing concealment of material circumstances on entry to Canada of those facts. This is so for all revocation cases, other than the new ones where revocation is based on a conviction for crimes listed in the proposed legislation. Again it seems odd to divide the procedure on the basis of previously hidden underlying facts when the ultimate issue is not those facts but rather a common issue, no matter what the underlying facts, whether there was false representation or fraud or knowing concealment of material circumstances on entry to Canada.

Take the simplest case, a Canadian conviction. It may be straightforward to establish whether there was or was not a Canadian conviction. However, it is not so straightforward to establish whether there was false representation or fraud or knowing concealment of material circumstances on entry to Canada of that conviction. Suppose, for example, if a person on a later entry did not disclose a Canadian conviction after an earlier entry but Canadian authorities knew about it anyways. Is the dishonesty then material? This is already in other contexts a much litigated issue. It would seem preferable, in light of the commonality of issues for false representation or fraud or knowing concealment of material circumstances no matter what the underlying facts, to have one procedure for them all rather than divide procedures depending upon the underlying hidden facts.

The justification of the Minister of simplicity does not bear scrutiny. In fact, what the Bill does is increase complexity in order to determine how to separate what the Minister considers is the simpler cases from the other cases. The drafting does not seem to have been properly thought through.

Conclusions

So in sum, we commend the government for its consolidation of revocation and deportation, its introduction of an appeal and its removal of cabinet from the process. We deplore the possibility of revocation for crimes committed after one is a citizen, the impossibility of revocation for commission war crimes, crimes against humanity and genocide and the introduction of a less fair procedure for revocation in some cases.

The possibility of revocation of citizenship for crimes committed after one is a citizen should be dropped. The possibility of revocation of citizenship for commission of war crimes, crimes against humanity and genocide, where the crimes were committed before the acquisition of citizenship, should be introduced.

The possibility of revocation for a foreign conviction of terrorism, committed before the acquisition of citizenship, should either be changed to revocation for a foreign act of terrorism or be limited to convictions which conform to international due process standards. The less fair procedure of revocation Ministerial decision subject to judicial review in some cases should be replaced by the more fair procedure of Federal Court declaration in all cases.

……………………………………………………………………………………………………………………

David Matas is honorary senior counsel to B’nai Brith Canada. He is a lawyer in private practice in Winnipeg.

 

[1] Bill C-24

[2] Section 8 of the Bill proposing to add to the Act section 10.7.

[3] Section 8 of the Bill proposing to add to the Act section 10.5.

[4] League for Human Rights of B’Nai Brith Canada v. Odynsky, 2010 FCA 307

[5] Section 8 of the Bill proposing to insert section 10(2) into the Act.

[6] Section 8 of the Bill proposing to insert section 10(2)(b) into the Act.

[7] State Immunity Act section 6.1(2) and (11).

[8] Immigration and Refugee Protection Act section 35(1)(b)

[9] Immigration and Refugee Protection Act section 97(1)(b)(iii)

[10] Section 8 of the Bill proposing to insert section 10(2) into the Act.

[11] Section 20 of the Bill inserting into the Act section 22.1(1).

[12] Section 8 of the Bill proposing to insert section 10.1(1) into the Act.