New Citizenship Act is Efficient. Is it Fair?

When C-24 — the Strengthening of Canadian Citizenship Act — was tabled, most of the initial comment was largely favourable. Some expressed concern about the idea of revoking citizenship for dual nationals convicted, at home or abroad, of terrorism or treason-related offences.

Since then, public debate has been muted. Other issues have been sucking up more oxygen — elections reform, online surveillance, temporary foreign workers. Mainstream media and ethnic communities have been largely unengaged, and it has been a secondary file for the opposition. Only the recent proposed court challenge by Rocco Galati drew any media attention as the bill sailed through Commons and Senate committee review.

Immigration and Citizenship Minister Chris Alexander has not felt the need to propose or accept any amendment. So C-24 will be implemented as-is. What are its implications?

The act strengthens citizenship integrity — but undermines fairness. Traditionally, Canadian citizenship policy has balanced facilitation — making citizenship easier to acquire — and meaningfulness — ensuring integrity in citizenship tools and processes.

Since the last major revision to the Citizenship Act in 1977, successive governments have emphasized facilitation. One of Jason Kenney’s lasting legacies on the file was to reverse this trend, making citizenship “harder to get and easier to lose”.

Kenney implemented a more comprehensive study guide — the Discover Canada orientation package for newcomers — a more difficult citizenship test, more rigorous application of language requirements, anti-fraud (residency) measures, an increased public profile for the citizenship program and ceremonies, and support for the Institute for Canadian Citizenship (ICC). Taken together, these measures improved the integrity of citizenship.

With the new bill, developed under Kenney, Alexander continues to emphasizes integrity.
Applicants will have to be physically present in Canada longer (four out of six years, from three out of four). Knowledge and language tests will apply to those aged 14 to 64 (the current age range is 18 to 55 years old). Applicants will have to sign an “intent to reside” commitment, and international students, live-in caregivers and temporary foreign workers will no longer be able to count part of their time towards meeting residency requirements. Consultants will be regulated, with stiff fines for consultant fraud.

Some of these measures are reasonable and comparable to other countries. Longer residency and the requirement to be physically present address fraud. There’s more to becoming Canadian than a mailing address.

Alexander maintains that teenagers “want to take the test.” But applying knowledge and language tests to 14 to 17-year-olds seems oddly bureaucratic, given that those teenagers will have been in Canadian schools for six years.

“Intent to reside” is redundant, given physical presence largely addresses citizens of convenience, and is not enforceable once a person becomes a citizen.

No longer counting pre-permanent residency time undermines competitiveness in attracting international students, is not in line with competing countries, and does not recognize that these residents have already started to integrate. Regulation of consultants protects both applicants and overall integrity.

But all this increased integrity can come at the expense of fairness.

On the positive side, most remaining “lost Canadians” — largely those descended from those born before 1947 and their children — will see their citizenship recognized. The children of Crown servants born abroad will be able to pass on their Canadian citizenship.

Reducing processing times to under one year by 2016 should improve competitiveness. An Australian approach employing public service standards and regular quarterly reports would ensure accountability.

However, knowledge test changes introduced in 2010 made achieving citizenship more difficult for groups with lower educational levels (e.g, immigrants from Afghanistan, Somalia, Cambodia, Burma and Vietnam). Restoring language and knowledge testing to 55-64 year olds creates a burden on older refugees.

A tripling of fees makes it more difficult for lower-income immigrants and refugees, but would put fees in line with what’s being charged by Australia and others.

Removing the decision-making role for citizenship judges allows for quicker and more consistent decision-making by public servants. A greater role in citizenship promotion for judges is also welcome.

Revocation for dual nationals convicted of terrorism or treason, at home or abroad, changes a policy stance this country has held since Diefenbaker — that a citizen is a citizen, whether single or dual national.

But barring people from citizenship in cases of foreign criminality for equivalent Canadian offences without a comparability test to Canadian judicial processes risks abuse, as noted by some government witnesses.

Increased ministerial discretion to revoke citizenship in case of fraud, with recourse to courts only through seeking judicial leave, is more ‘efficient’ but risks arbitrary decisions, without even the protection of oral hearings.

Most fundamentally, revocation for dual nationals convicted of terrorism or treason, at home or abroad, changes a policy stance this country has held since Diefenbaker — that a citizen is a citizen, whether single or dual national.

The government and its supporting witnesses emphasized broad support for revocation in these cases. “Nobody wants a terrorist as a neighbour,” they said. Revocation is not “harsh”and is in line with other countries, they argued. Eight out of ten Canadians support revocation. Immigrants make a choice to come to Canada and accept the “fundamental social contract of citizenship”.

Let’s turn to a specific, theoretical case. Consider the two Calgarians that were killed in Syria fighting for extremist or terrorist groups.

Damian Clairmont and Salman Ashrafi were raised and lived in Calgary. Neither chose to be Canadian. Clairmont was born in Canada. Ashrafi immigrated with his parents when he was in Grade 5 or 6. He became Canadian but also has Pakistani citizenship.

Clairmont would keep his Canadian citizenship; Ashrafi would lose his even though he spent most of his youth in Canada.

Same crime, two different results. Hard to see how the courts would rule this as being charter-compliant.

While Clairmont and Asrafi are dead, similar cases will emerge — such as Mohamed Hersi, the Somali-Canadian convicted of attempting to participate in terrorist activity, who came to Canada as a child.

In the case of the Quebec Values Charter, general polling showed high levels of support — but polling focused on the question of forcing existing Quebec government employees to conform or quit showed less support. Would Canadians necessarily support treating cases like that of Clairmont and Asrafi differently? Someone born and raised in Canada but of dual nationality?

Moreover, even witnesses supporting revocation questioned the lack of a test regarding the comparability of foreign judicial processes to Canadian processes. Others opposed the “reverse onus of proof” on the person charged to demonstrate he or she was not a dual national. Retroactivity was questioned (Omar Kadr?). The government’s assertion that revocation is common to a number of countries was convincingly challenged (only UK has a similar law and Australia is only considering one). ‘Offences’ is too broad a term, compared to ‘acts’of terrorism.

The Citizenship Act was long overdue for review. However, as is typical of this government’s approach to drafting legislation, consultations were selective and advice was likely muted on contentious issues like revocation for dual nationals. But the government listened to official advice on measures related to efficiency (e.g., a reduced role for citizenship judges, combining revocation and removal decisions, closing abandoned applications).

The new Act likely will result in fewer applicants. Canada’s traditionally high naturalization rate of 85 per cent will decline over time, continuing the trend set with tougher knowledge and language requirements introduced in 2010-11. Some communities will be affected more than others. We will only know the full effects in five to ten years, given the complexity of the Act and human dynamics.

One of Alexander’s key messages is that the Act will “reinforce the value of citizenship” and that “the higher the bar, the more attractive it becomes.” Alexander is betting that the “value”will continue to exceed the increased cost and harder requirements, and that Canada will remain competitive in attracting the ‘best and brightest’.

But Alexander’s emphasis on integrity comes at the expense of fairness, most evident in revocation.

We can expect a number of court challenges once the government initiates revocation cases. Given the government’s record before the courts and the fundamental charter issues involved, it is unlikely that these provisions will escape unscathed. The Galati case may provide an early indication.

Governments choose how they balance citizenship between “place” — encouraging citizens to remain in their new country — and “status” — as a means to secure employment and other benefits.

Alexander has come down firmly on the side of citizenship as “place.”

Ironically, for a minister with an impressive international resumé, the Act has an undertone of “little Canada” that plays to those who have a more fixed idea of Canada and Canadian citizenship, rather than the more fluid global and diverse identities many Canadians have. A valid policy choice, to be certain, and we will see over time how this debate and choice continues to shape our country.