Five bills likely to stoke Harper’s conflict with Supreme Court

2014/06/28 Leave a comment

On the list:

C-24, the “Strengthening Canadian Citizenship Act,” received royal assent and became law June 19.

The government billed C-24 as a once-in-a-generation overhaul of citizenship law, but some of its provisions proved deeply divisive. Foremost among those is a clause that allows the government to strip citizenship from Canadian-born citizens if they’ve been convicted of treason, espionage or terrorism and have citizenship in another country.

Toronto lawyer Rocco Galati launched a legal challenge against the provision on June 25, saying the government doesn’t have the constitutional authority to make the change. That was after several earlier warnings during committee consideration of the bill.

“It appears to be against the Charter, and I expect there will be significant litigation,” Barbara Jackman, a member of the Canadian Bar Association’s National Immigration Law Section, told a Senate committee considering the bill.

The CBA also took issue with a change in the bill that asks applicants to declare an intent to reside in Canada. Citizenship and Immigration Minister Chris Alexander has brushed aside concerns, saying Canadians aren’t required to stay in the country, but critics have pointed to provisions in the bill that allow citizenship-stripping in cases of fraud, and asked whether the “intent” clause could be considered in a fraud case. The CBA said the provision is “likely unconstitutional.

”Mr. Alexander assured a committee studying the bill that it was constitutional, a point put to Ms. Jackman by the committee.“I would remind the committee that [government has] passed other legislation that, again and again, the Supreme Court of Canada has struck down just recently. So the fact that the Department of Justice and the minister say it is constitutional doesn’t mean it is,” she replied.

Audrey Macklin, a professor and Chair in Human Rights Law at the University of Toronto, echoed many of the warnings on Charter compliance but also said that under C-24, those about to be stripped of citizenship are given the onus to prove they do not hold citizenship elsewhere – which would stop the process, as Canada won’t leave someone stateless – rather than making the government prove that person does hold citizenship elsewhere. Prof. Macklin warned that such a “reverse-onus provision” also violates the Charter.

The Canadian Civil Liberties Association also has raised warnings about the constitutionality of C-24.

“CCLA is seriously concerned that Bill C-24 has created a second tier of citizenship that is incompatible with equality principles,” General Counsel and Executive Director Sukanya Pillay said in an e-mail. “…We must remember that citizenship includes rights, and to strip individuals of citizenship is to re-introduce archaic punishments such as exile and banishment – the possibility of statelessness is also a serious concern. Any arbitrary loss of citizenship is incompatible with democratic values and fundamental rights.”

Five bills likely to stoke Harper’s conflict with Supreme Court – The Globe and Mail.

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Denying dual citizenship is a double-edged sword | The Australian

2014/06/27 2 Comments

The Australian debate on citizenship revocation. Similar to that on C-24 revocation provisions. Commentary by Ben Saul, an international law professor at University of Sydney:

Finally, stripping citizenship is unnecessary because Australia has enough laws to deal with the threats. Since 9/11, the Australian parliament has been among the most hyperactive counter-terrorism lawmakers on the planet.

Australians who fight overseas can be prosecuted for innumerable offences, including terrorism, war crimes, crimes against hum­anity and foreign incursion. Prosecution takes terrorists off the streets altogether, and does not ­irresponsibly shunt them on to other countries. It also ensures ­decisions are made based on evidence with judicial safeguards. Stripping citizenship based on untested intelligence about what a person is doing overseas risks miscarriages of justice.

Instead of prosecution, federal police can apply for control orders to prevent terrorism by restricting a person’s freedoms. In emergencies, preventive police detention is available, and ASIO has questioning and detention powers. Other powers range from surveillance to passport cancellation.

Governments are often tempted to reach for new laws when ­security is threatened. Intelligence agencies never say they have enough power or stop asking for more. Giving more power to the government, and making citizenship more provisional, is not the answer.

The answer lies in ­better intelligence and action to prevent people leaving, and in bringing them home to prosecute them.

Denying dual citizenship is a double-edged sword | The Australian.

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Rocco Galati launches lawsuit over Citizenship Act changes

2014/06/26 1 Comment

No surprise:

Toronto lawyer Rocco Galati is suing Gov. Gen. David Johnston, Immigration Minister Chris Alexander and Justice Minister Peter MacKay over changes to Canada’s Citizenship Act.

In documents filed Wednesday morning in Federal Court, Galati asks the court to invalidate key provisions included in a new law that gives the government the power to revoke the citizenship of Canadian-born citizens convicted of “terrorism, high treason, or spying offences” if they hold dual citizenship.

Rocco Galati launches lawsuit over Citizenship Act changes – Politics – CBC News.

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Should non-resident Canadians get the vote? – Globe Editorial

2014/06/26 Leave a comment

Globe has it basically right:

In a procedural decision in this case this week, Justice Robert Sharpe of the Ontario Court of Appeal, put the issue clearly: Is the five-year limit “necessary to sustain our geographically determined, constituency-based system of representation?” The highest court will eventually have to answer that question. We think it can reasonably answer “yes.”

Parliament, especially the Commons, since its beginnings in medieval England, has been a body that consents to – or rejects – taxes. But Canadian expatriates pay their taxes in the country where they live, and receive the benefits of government there, too. They do not pay taxes here, or receive most public services. It is reasonable for the law to say that, if you live outside Canada for a sufficiently long time, after some number of years you can no longer exercise the right to vote for members of the House of Commons. You do not lose Canadian citizenship – that can never be taken away. And no matter how long someone lives abroad, they have the absolute right to return to Canada whenever they wish.

The five-year limit is not strictly necessary. But there’s a compelling logic to placing some limit on how long one can live abroad and still vote in Canada. It makes it more likely that Canadian voters will have a strong, living connection to Canada.

Should non-resident Canadians get the vote? – The Globe and Mail.

Tim Harper in the Star takes the contrary view:

The numbers may not be huge, but the symbolism from this government is massive.

The Canadian diaspora numbers about 2.8 million and has been called the “missing province.”

About a million of them have been out of the country for more than five years; most of them live in the U.S.

About seven in 10 expats, according to a 2009 study by the Asia Pacific Foundation of Canada, said they intended to return home. Two out of three left the country for work reasons and one in three worked for a Canadian company, the government or a Canadian non-governmental agency.

Non-resident Canadians paid about $6 billion in taxes to the Canadian treasury in 2008-09, according to the APF study.

The five-year cutoff is a product of the 1993 Progressive Conservative majority government which for the first time provided a mechanism for Canadians living outside the country to vote.

In 2005, following a recommendation by then-Elections Canada chief John-Pierre Kingsley, a parliamentary committee recommended the five-year limit be removed. All four party leaders endorsed the committee decision. Nothing ever happened….

Suppressing vote of expats latest Conservative court battle: Tim Harper

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Expat voting: Court denies Ottawas fight for 5-year rule for voters abroad

2014/06/25 Leave a comment

While the Government failed to get a stay for the by-elections this coming Monday, expect that the Government will make a formal appeal of the earlier decision removing the five-year limit for the 2015 elections (see earlier Expat voters launch legal challenge of ‘5-year rule’):

In Mondays ruling denying the federal governments request of a stay, Justice Robert Sharpe wrote that while there was “an arguable appeal” from the Attorney General of Canada, “the balance of convenience weights in favour of refusing a stay.”

Sharpe dismissed the government’s argument that it could cause “irreparable harm” if a close election came down to the single vote of a non-resident who, it might turn out, was ineligible to vote. But such a scenario would be “fairly remote,” Sharpe said.

He also reasoned that Elections Canada had already taken administrative steps to allow citizens abroad to vote after the lower court ruling, and it was counterproductive to “undo what [Elections Canada] has already done.”

Only 13 Canadian ex-pats have so far registered to vote since the May decision.

Even so, Sharpe wrote today: “To grant a stay in this case would require Elections Canada to rescind the registrations of up to 13 non-resident electors and claw back the vote of citizens who may well in the end have the right to cast their ballot.”

Expat voting: Court denies Ottawas fight for 5-year rule for voters abroad – Politics – CBC News.

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Mohamed Fahmy, Egyptian injustice and Canada’s spineless response: Neil Macdonald

2014/06/25 Leave a comment

Good overview piece on Ottawa’s reaction to Mohammed Fahmy’s sentence.

Does seem a bit out of step with the normal language and rhetoric out of the Government, and particularly out of step with the US, UK and Australia:

The government of Canada, on the day that one of its citizens was sentenced to a long prison term in Egypt for the crime of committing journalism, was moved to note that Egyptians are, after all, “progressing toward democracy.”

And, added our prime minister’s parliamentary secretary, “We don’t want to insult them.”Because, you know, that would just be rude.

Instead, the government in Ottawa, which runs around the world, chin out and elbows up, lecturing other governments about respecting human rights and democratic self-determination, prefers soft-spoken diplomacy toward the regime in Cairo….

It’s probably best, the Harper government has apparently concluded, to remain largely silent as a journalist who carries a Canadian passport is sent off to some hellishly violent Egyptian prison for doing his job.

Best to have cabinet members avoid cameras on this sensitive and unsettling day, instead sending out Harper’s parliamentary secretary, Paul Callandra, to advise against giving any insult to Cairo.

Technically speaking, this foreign conviction could trigger revocation (the Government refused an amendment to the Citizenship Act requiring an explicit test of equivalence in judicial processes), although unlikely the Government would do so.

Mohamed Fahmy, Egyptian injustice and Canada’s spineless response: Neil Macdonald – World – CBC News.

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Dual citizenship can complicate diplomatic protection

2014/06/25 Leave a comment

A good overview on some of the implications on dual citizenship when visiting one’s country of origin, in light of the Mohammed Fahmy verdict (Mohamed Fahmy, jailed Egyptian-Canadian journalist, sentenced to 7 years).

A counter example to some of the comments on the Government side during the debate on C-24 Citizenship Act, who talked about the benefits of dual citizenship, not the risks.

As Macklin notes, some countries do not allow dual nationals to enter with their Canadian passports:

As well, unlike Canada, many countries, in particular non-G8 countries, do not recognize dual citizenship. Canada doesn’t require an individual to give up any citizenship of another country. But whether that persons country of origin recognizes their dual citizenship is a question from country to country, Niren said.

Some applicants will have to give up their home citizenship because they’re not going to be recognized anymore. For example, many Chinese nationals coming to Canada must give up their Chinese citizenship, as China doesn’t recognize dual citizenship.

A government of Canada website also cautions Canadians who have dual citizenship that it “may not be legal in the country of your second nationality, which could result in serious difficulties.

“You may have outstanding obligations in the second country, such as military service or taxes. Dual citizenship can also cause problems in a third country if there is confusion over which citizenship you used to gain entry,” the website says. It advises people to contact the appropriate foreign government office in Canada before heading abroad.

Some countries may also feel more justified on their claim on a dual citizen who has gotten in trouble with the law if that person used that country’s passport to enter.

An easy solution for Canadians would seem to be to always use their Canadian passport.

But “some countries take the position that they don’t mind if you’re a dual citizen, we don’t care, but when you’re coming into our country, you use your passport from this country,” Macklin said.

Dual citizenship can complicate diplomatic protection – Canada – CBC News.

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Chris Selley: Stripping jihadis’ citizenship feels good. But what good does it do?

2014/06/21 1 Comment

Another good column by Chris Selley on citizenship revocation (see his earlier Actually, my citizenship is a right | National Post). Quite funny in places too, but his fundamental point is serious:

But that only leads us to the biggest question, which is why we would want to banish terrorists at all — not in our guts which is understandable but as policy. British terrorism suspects recently stripped of their citizenship are currently at large in Sudan, Kenya, Somalia, Afghanistan and other places that could certainly use fewer terrorism suspects rather than more. Home Secretary Theresa May has denaturalized and deported at least one British citizen over the advice of her own security officials, who would have much preferred to keep an eye on him.

FOX News types pitch a fit whenever a former Guantanamo detainee pops up on the frontlines — as many have. They went nuts when it emerged the Americans released Abu Bakr al-Baghdadi from custody in Iraq in 2009, only to have to deal with him now as leader of the Islamic State in Iraq and the Levant.

You can’t keep people in custody forever. Sometimes you have to make tough choices and cross your fingers. But why would we deliberately choose to set ostensibly dangerous people loose in the Middle East? No doubt it would give some of us a cheap thrill. But Chris Alexander is not Minister of Cheap Thrills.

National Post | Chris Selley: Stripping jihadis’ citizenship feels good. But what good does it do?

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Ottawa to fight court ruling giving ex-pats a vote

2014/06/21 2 Comments

“Is there a substantial change in the ex-pat Canadian citizen that takes place after five years and one day?” O’Brien asked in court.

Well, not for one day after, but the longer one lives outside Canada, the less the direct connection to Canadian issues and debates, not to mention expatriates do not pay Canadian taxes. Government is right on this one.

Ottawa to fight court ruling giving ex-pats a vote – Politics – CBC News.

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Government welcomes Royal Assent of Bill C-24, Civil Liberties Groups Plan Legal Challenge

2014/06/20 Leave a comment

Key messages from the CIC’s Press Release:

Improving efficiency

Canada’s citizenship program is being improved by reducing the decision-making process from three steps to one. It is expected that, by 2015–2016, this change will bring the average processing time for citizenship applications down to under a year. It is also projected that by 2015-2016, the current backlog will be reduced by more than 80 percent.

Reinforcing the value of Canadian citizenship

The government is ensuring citizenship applicants maintain strong ties to Canada. These amendments to the Citizenship Act provide a clearer indication that the “residence” period to qualify for citizenship in fact requires physical presence in Canada.

More applicants will now be required to meet language requirements and pass a knowledge test to ensure that new citizens are better prepared to fully participate in Canadian society. New provisions will also help individuals with strong ties to Canada, such as by automatically extending citizenship to additional “Lost Canadians” who were born before 1947 as well as to their children born in the first generation outside Canada.

Cracking down on citizenship fraud

The updated Citizenship Act includes stronger penalties for fraud and misrepresentation a maximum fine of $100,000 and/or five years in prison and expands the grounds to bar an application for citizenship to include foreign criminality, which will help improve program integrity.

Protecting and promoting Canada’s interests and values

Finally, the amendments bring Canada in line with most of our peer countries, by providing that citizenship can be revoked from dual nationals who are convicted of serious crimes such as terrorism, high treason and spying offences depending on the sentence received or who take up arms against Canada. Permanent residents who commit these acts will be barred from citizenship.

As a way of recognizing the important contributions of those who serve Canada in uniform, permanent residents who are members of the Canadian Armed Forces will have quicker access to Canadian citizenship. The Act also stipulates that children born to Canadian parents serving abroad as servants of the Crown are able to pass on Canadian citizenship to children they have or adopt outside Canada.

Government welcomes Royal Assent of Bill C-24 – Canada News Centre.

And the press release from the Canadian Association Of Refugee Lawyers and British Columbia Civil Liberties Association (BCCLA):

Bill C-24, introducing sweeping changes to Canada’s citizenship laws that make citizenship harder to get and easier to lose, has passed through the House of Commons and is now being considered by the Senate.  CARL, BCCLA and Amnesty International take the position that this proposed law has dramatically negative effects on Canadian citizenship, eliminating equal citizenship rights for all, and violates the Charter of Rights and Freedoms as well as international human rights. According to the organizations, the new law will take away rights from countless Canadians, creating a two-tier citizenship regime that discriminates against dual nationals and naturalized citizens.

“This proposed law would allow certain Canadians to be stripped of citizenship that was validly obtained by birth or by naturalization. We think that is unconstitutional, and we intend to challenge this law if it is passed,” said Lorne Waldman, President of the Canadian Association of Refugee Lawyers. “We have presented our arguments to the House of Commons and to the Senate, in an attempt to get them to change or stop this Bill. But the government hasn’t listened, it refuses to amend the bill, and we feel we will have little choice but to challenge it in the courts.” …

“The ‘Strengthening Canadian Citizenship Act’ does exactly the opposite of what the title proclaims. It makes citizenship less secure,” said Josh Paterson, Executive Director of the BC Civil Liberties Association. “In Canada, lawfully-obtained citizenship has always been permanent – once a Canadian, always a Canadian – and all Canadians have always had equal citizenship rights. This bill turns the whole idea of being Canadian upside-down, so that the Canadian citizenship of some people will be worth less than the Canadian citizenship of others. That is wrong, and it must be challenged.”

PRESS RELEASE: New citizenship law will be challenged on constitutional grounds, if passed, say rights groups

In case you missed it, my assessment, The new citizenship act is efficient. Is it fair?

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