Racial profiling concerns raised after ‘DNA sweep’ targeting Middle Eastern men alleged in B.C.

Of note:

Civil liberties watchdogs say they’re troubled by a recent media report that suggested homicide investigators in B.C. targeted numerous Middle Eastern men in a voluntary DNA collection “sweep” as part of their investigation into the killing of a teenager.

The use of a DNA dragnet, they say, raises immediate concerns about racial profiling, coercion and the targeting of vulnerable populations, as well as questions about what’s done with DNA samples after they’ve been collected.

“If you’re trying to build trust in communities to further your investigation, make this something people will find credible,” said Micheal Vonn, policy director of the B.C. Civil Liberties Association.

The body of 13-year-old Marrisa Shen was found in a wooded area of Central Park in Burnaby, B.C., in July 2017, prompting a massive investigation that at its peak eclipsed 300 investigators.

Two months ago, the region’s Integrated Homicide Investigation Team (IHIT) announced that a suspect, Ibrahim Ali, 28, had been arrested and charged with first-degree murder. Ali, a permanent resident of Canada, had arrived in the country in March 2017 as a privately sponsored refugee from Syria.

Police would not say how they homed in on Ali. During their 14-month investigation, they canvassed more than 1,300 residents, conducted 600 interviews and identified and eliminated 2,000 “persons of interest.”  The killing was said to have been a random act.

This week, the Burnaby Now newspaper reported that prior to Ali’s arrest, police had approached numerous Middle Eastern men across the region — including those who escaped “persecution in totalitarian regimes” — asking them if they would voluntarily provide samples of their DNA.

One of those men, Ayub Faek, fled Iraq as a refugee and came to Canada in the early 2000s. He said homicide investigators called him out of the blue and asked if they could come talk to him.

“When they came, I asked them, ‘Why me?’ and they say, ‘Not only you; many people,’” Faek told the newspaper. “I said, ‘Do you have clue like about why, for example, me?’ Maybe they have clue. They didn’t tell me. They didn’t tell me anything.”

Faek said he was asked about his work and visits to the park and was shown Shen’s picture. He agreed to provide a sample of his blood from his finger. “You don’t want to do that … but you have to say yes,” he said.

The Burnaby Now also spoke with Ariyan Fadhil, another Burnaby resident who fled Iraq in the early 2000s. He said he was questioned in a van during his lunch break and agreed to give a DNA sample.

“I knew that, if they want, they’re going to get an order from court or something, I don’t know, to take it from me, so that’s why I gave it,” he said.

Both men told the paper they were skeptical about the assurances they got that their DNA samples would be destroyed after the investigation was complete.

Cpl. Frank Jang, a spokesman for IHIT, said in an email Wednesday that it would be improper to comment while the case is before the courts.

“What I can tell you is that IHIT strictly adheres to Canadian law and RCMP policy with respect to the handling of DNA exhibits.”

The RCMP’s website states that DNA profiles must be removed from a database in a “timely manner” if the donor asks for its removal or if it is no longer useful in the investigation for which it was obtained.

But Vonn said police agencies should take the extra step of providing written verification to people that samples have been destroyed.

“You should be able to take that to the bank,” she said.

As for the act of collecting DNA samples in the first place, Vonn said while it is described as voluntary, there’s still an inevitable “element of coercion” involved because if you don’t agree to give a sample, that could make you a target of suspicion.

“No doubt police are very alive to how delicate a balance this is,” she said. “In other cases, we’ve heard in media reports people say the officer made it clear, ‘You don’t do this. We’ll put you under a microscope.’”

The use of DNA sweeps has come under scrutiny in the past. In 2016, in response to a complaint, Ontario’s Office of the Independent Police Review Director examined the use of the technique by Ontario Provincial Police detectives investigating a sexual assault in Bayham, a rural municipality in southwestern Ontario.

While police succeeded in finding the culprit — a migrant worker from Trinidad — the review found that the DNA canvass carried out by police had been “overly broad.”

DNA was obtained from virtually “every local migrant worker of colour,” regardless of physical characteristics, the review found.

The scope of the DNA sweep “could reasonably be expected to have an impact on the migrant workers’ sense of vulnerability, lack of security and fairness. It could also send the wrong message to others in the local community about how migrant workers, as a group, should be regarded,” the review found.

And while DNA samples of those individuals cleared in the investigation were destroyed, the OPP “took no steps” to notify migrant workers this had taken place.

Dozens of migrant workers from that case have since filed complaints with the Human Rights Council of Ontario.

And one of those workers is the plaintiff in a proposed class-action lawsuit against the province of Ontario alleging that the results of DNA samples collected in this and other cases have been retained unlawfully.

Source: Racial profiling concerns raised after ‘DNA sweep’ targeting Middle Eastern men alleged in B.C.

Trudeau government revoking citizenship at much higher rate than Conservatives

The lack of procedural protections for citizenship revocation in cases of fraud or misrepresentation, flagged as a concern in both hearings on the Harper government’s C-24 and the Trudeau government’s C-6, continues to draw attention, given both the increased number of revocations and the Monsef case (although I would argue misrepresentation of her birthplace by her mother is not material in the way that misrepresenting residency).

And while the Trudeau government continued use of this power is questionable, the higher rate reflects in part the increased number of investigations following implementation of this provision in C-24 on 28 May 2015.

IRCC data shows 24 investigations initiated before this provision came into force, and 324 in the seven months after. The number of cases in the pipeline increased, and thus normal that more revocations would result, as the government applies the law:

The Trudeau government used powers granted by the Harper government’s controversial citizenship law to make 184 revocation decisions without legal hearings between November 2015 and the end of August. About 90 per cent of the decisions resulted in a negative finding and the loss of a person’s citizenship.

The numbers show that the Trudeau government has used the law far more aggressively than the Harper government itself.

But in a Federal Court filing late Friday, the government said it would not grant a moratorium on revocation cases, and added that claims by some that the system was revoking large numbers of citizenship are speculative.

Liberal Leader Justin Trudeau made the sanctity of citizenship an issue in last year’s federal election.

“A Canadian is a Canadian is a Canadian,” Trudeau said in a leaders’ debate three weeks before storming to victory.

He used it to dress down Stephen Harper for passing Bill C-24, a law that aimed to strip dual citizens of their Canadian passports if they were convicted of crimes of terrorism, treason or espionage against Canada, or took up arms against Canada.

Immigrant communities rallied to the Liberal Party, concerned that Canadians born overseas would be reduced by C-24 to an insecure second-class status.

Once elected, one of the Liberals’ first acts was to repeal the parts of C-24 that applied to those convicted of terrorism-related crimes, ensuring that they can keep their Canadian passports.

But the Trudeau government left intact other parts of the law that allow the government to strip citizenship from other holders of Canadian passports for misrepresentation.

The 184 revocation decisions of the first 10 months of the Trudeau government nearly match the total number of decisions over a 27-year period between 1988 and the last month of the Harper government in October 2015.

Revocations increase as Trudeau takes office

Although the powers being used come from a law passed by Stephen Harper’s Conservatives, the law has been used much more aggressively under Trudeau.

In the first full month of the law’s operation, June 2015, only three revocation decisions were made. None were made in July or August, two in September and two more in October.

The Trudeau cabinet was sworn in on Nov. 4, 2015. That month saw 21 revocation decisions. The following month there were 59. The year 2016 averaged 13 decisions a month up to Aug. 31, the latest data CBC News has been able to obtain.

The monthly average under the Harper government from 2013 to 2015 was only 2.4 cases a month, some under the auspices of C-24 and some under rules that existed previously.

Citizenship revocation decisions by year (in persons)

2013 2014 2015 2016 (8 months)
January 13
February 4 7 25
March 17 7
April 5 14
May 5 16 18
June 4 1 3 7
July 10
August 10
September 4 2
October 1 2
November 4 21
December 7 59
Total 15 15 132 104

Source: Immigration, Refugees and Citizenship Canada

Liberals accused of hypocrisy

In recent days, following revelations that the birthplace of one of its own cabinet ministers was misrepresented on her passport documents, the government has said it is open to reforming the system.

But in the preceding months, it had used the revocation measures at an unprecedented rate.

“The Liberals criticized these provisions when they were in opposition,” says Laura Track of the B.C. Civil Liberties Association. “They said they were going to fix it. And yet they have been using it even more than the Conservatives did.”

The government says the revocation decisions are being taken to protect the integrity of the citizenship system and are aimed at cases of fraud.

Nancy Caron of Immigration, Refugees and Citizenship Canada said “many cases that are being processed for revocation are as a result of large-scale investigations into possible residence fraud.”

The department carried out those investigations with Canada Border Services Agency and the RCMP. Investigations led by those agencies have resulted in the conviction of immigration consultants who helped individuals obtain citizenship illegally.

“The revocation process is then undertaken to determine whether the individuals associated with these investigations, fraudulently obtained their Canadian citizenship through having intentionally misled the government of Canada about key aspects of their citizenship application such as concealing past criminal activities or submitting false documents to demonstrate residence in Canada when in fact they were not living in Canada‎. Many of the decisions to revoke citizenship that have been made since May 2015 directly result from those investigations,” Caron said in an email to CBC News.

Source: Trudeau government revoking citizenship at much higher rate than Conservatives – Politics – CBC News

Maryam Monsef case highlights ‘absurdity’ of Canadian law, refugee lawyers say

The Minister did commit during parliamentary committee hearings last spring to address the lack of due process for citizenship revocation in cases of fraud or misrepresentation. This court challenge likely reflects frustration that no action has been taken to date:

Maryam Monsef could be stripped of her citizenship without a hearing under a law the Liberals denounced while in opposition but which they’ve been enforcing aggressively since taking power, civil liberties and refugee lawyers say.

The democratic institutions minister revealed last week that she was born in Iran, not Afghanistan as she’d long believed. She said her mother, who fled Afghanistan with her daughters when Monsef was 11, didn’t think it mattered where the minister was born since she was still legally considered an Afghan citizen.

Monsef has said she will have to correct her birthplace information on her passport.

If Monsef’s birthplace was misrepresented on her citizenship application as well, that would be grounds for revocation of citizenship, regardless of whether it was an innocent mistake or the fault of her mother, said immigration lawyer Lorne Waldman.

Misrepresentation could lead to deportation

And if the misrepresentation was on her permanent residence and refugee applications, she could even be deported, said Waldman, part of a group that launched a constitutional challenge of the law Monday.

The Canadian Association of Refugee Lawyers and the British Columbia Civil Liberties Association argue that the law, known as Bill C-24, is procedurally unfair and a violation of the Charter of Rights and Freedoms.

Josh Paterson, the BCCLA’s executive director, said Monsef’s case demonstrates the absurdity of the law, which was passed by the previous Conservative government.

“The minister’s situation … is exactly the kind of situation that many other Canadians are facing right now because of this unjust process,” Paterson told a news conference.

“When we get a parking ticket, we have a right to a court hearing … You leave your garbage in the wrong place and you get a ticket, you have the right to a hearing and yet for citizens to lose their entitlement to membership in Canada based on allegations of something they may or may not have said 20 years ago, they have no hearing? It just doesn’t make any sense.”

Law to be enforced

When he was in opposition, John McCallum denounced the law as “dictatorial” and since becoming immigration minister, he’s promised to amend it to create an appeal process, Paterson said.

Nevertheless, repeated requests that the government stop enforcing the law until it can be changed have been ignored. As recently as two weeks ago, Paterson said Justice Department lawyers informed his group that the law would continue to be enforced.

Source: Maryam Monsef case highlights ‘absurdity’ of Canadian law, refugee lawyers say – Politics – CBC News

Laura Track: Citizenship comes with the same rights and responsibilities, regardless of birthplace

Citizenship - Conference Board April 2016.001Laura Track of the British Columbia Civil Liberties Association supporting the Government’s planned repeal of the revocation for terror or treason provisions (the above chart has been revised with full-year data for 2015):

Critics point out that the government can still revoke someone’s citizenship on the basis that they lied or committed fraud in order to obtain it. How can that be a more serious offence than terrorism, some wonder? However, the two scenarios are fundamentally different. Citizenship obtained by fraud is a citizenship that should never have been granted. Revoking it is akin to correcting an error. Revoking citizenship from a Canadian based on a crime they committed after citizenship was legitimately obtained is a punitive response that amounts to the ancient punishment of exile. Such medieval practices have no place in a rights-respecting democracy.

It’s no secret who would have been targeted by the law: new Canadians of colour who arrived in Canada only one or two generations ago. This unequal treatment is why the BC Civil Liberties Association and Canadian Association of Refugee Lawyers challenged the law in court last summer, arguing that it is discriminatory and violates key constitutional rights. It is also poor security policy, and fundamentally wrong.

We applaud the government for taking the first steps towards bringing about the law’s demise. The reforms are not perfect, and still leave too much power in the hands of government bureaucrats to revoke citizenship in cases of fraud or misrepresentation, without the involvement of a judge. But it’s a step in the right direction — the direction of equal rights for all Canadians.

Source: Laura Track: Citizenship comes with the same rights and responsibilities, regardless of birthplace | National Post

Court challenge slams new Citizenship Act as ‘anti-Canadian’

The expected court challenge by BCCLA and CARL. We will see whether or not the assertions of the Government regarding these changes to the Citizenship Act being constitutional hold water:

This citizenship-stripping law is unjust, legally unsound and violates the core values of equality enshrined in the Charter of Rights and Freedoms,” says Toronto lawyer Lorne Waldman, one of the litigators handling the case and a member of the executive of the Canadian Association of Refugee Lawyers.

“With this law the federal government shows a flagrant disregard for these values, and for the basic rights of all Canadians. We are asking the court to strike the law down.”

The Minister of Immigration Chris Alexander vigorously defended Bill C-24 both when it was first introduced and as it was debated in Parliament.

…“The value of citizenship has never been more widely recognized as it is today, but it only has value because there are rules governing it,” Alexander told the Star last year, rejecting the growing criticism and opposition to the act.

“Citizenship of course involves rights and enormous privileges in Canada, but it also, for those of us born here and for naturalized Canadians, involves responsibilities.

“This act reminds us where we come from and why citizenship has value. When we take on the obligations of citizens we’re following in the footsteps of millions of people who came here and made outstanding contributions over centuries. And we’re celebrating that diversity, solidifying the order and rule of law we have here.”

But according to Waldman, the law doesn’t do that at all, but rather creates two classes of citizens, a profoundly unfair process and exposes many Canadians to not only losing their citizenship without due process but also their rights to move and travel out of the country.

…“All Canadian citizens used to have the same citizenship rights, no matter what their origins,” says Josh Paterson, executive director of the BCCLA. “Now this new law has divided us into classes of citizens — those who can lose their citizenship and those who can’t. Bill C-24 is anti-immigrant, anti-Canadian, and anti-democratic. It undermines — quite literally — what it means to be Canadian.”

This is fundamentally an issue of equality, Paterson says in an interview with the Star.

Court challenge slams new Citizenship Act as ‘anti-Canadian’ | Toronto Star.

Blood, soil, birth tourism and anchor babies – Globe Editorial

The Globe’s editorial take on birth tourism – evidence-based policy, which Minister Alexander appears committed to, given his and his spokesperson’s recent comments stating that decisions “will be informed by facts” (in contrast to earlier anecdotes dramatizing the issue):

At present, however, birth certificates are the most common proof of Canadian citizenship. They do not include any information about a newborn baby’s parents’ citizenship.

Hospitals are a provincial jurisdiction. That is one of the reasons why the provinces and territories have been in charge of birth certificates for a long time. The subnational governments of Canada would doubtless not be eager to spend a huge amount of money to overhaul their birth-certificate system – let alone unanimously.

Ottawa could choose to foot the bill. But if the government is to go any further, it should commission a rigorous study to discover whether so-called birth tourism is a significant phenomenon. So far, the evidence is anecdotal. The available numbers in a given year are in the low hundreds. The real numbers may be higher, but it would be premature to remake the basics of our citizenship on a hunch.

Blood, soil, birth tourism and anchor babies – The Globe and Mail.

Related to this, the BC Civil Liberties Association and the Canadian Association of Refugee Lawyers (Carmen Cheung and Audrey Macklin) wrote a comprehensive response to the earlier Jan Wong article on birth tourism (see my post Canada’s birthright citizenship policy makes us a nation of suckers):

But how serious an issue is birth tourism? While the government does not publish statistics on actual cases of birth tourism, Statistics Canada reports that of the 377,913 live births recorded in Canada for 2011, only 277 of those were by mothers who lived outside of Canada. The numbers were slightly higher in 2010 – 305 babies born to non-resident mothers out of 377,518 live births. That is less than one tenth of one percent of all births in Canada.

A recent article in Toronto Life magazine proposed another metric for measuring birth tourism, by collecting the number of uninsured mothers giving birth in Toronto-area hospitals over a five-year period. Based on those numbers, we’re still looking at less than one percent of all live births in the city of Toronto.

Using the number of uninsured mothers as a proxy also likely overstates the problem. Provincial health cards are only issued after a minimum period of residency in the province – this is the case whether an individual has arrived from another country as a landed immigrant, or has just moved from British Columbia to Ontario. There are also foreign nationals who are excluded from provincial health care schemes, such as students, temporary foreign workers and diplomats. Particularly vulnerable Canadian citizens – such as the homeless or transient – may also not be able to prove their eligibility for provincial health insurance because of lost documentation.

By any measure, the number of babies born to non-resident non-Canadian mothers is negligible.

Born Equal: Citizenship by Birth is Canada’s Valuable Legacy

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

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?

Citizenship reform bill has 26,000 opponents, according to B.C. petition – The Globe and Mail

More opposition to C-24, spearheaded by the legal community:

“The BCCLA [BC Civil Liberties Association] does take the government to court from time to time so when laws are passed like this that are unconstitutional, it’s always something that we think about – whether there’s some kind of legal avenue that we might take,” Mr. Paterson [executive director] said.

“We haven’t made any decisions about that right now.”

The petition was gathered online over the last few weeks. Signatories were from across Canada and elsewhere in the world, said Mr. Paterson, who noted had not done a “scientific evaluation” of the material that would allow him to be more precise on this point.

Petition was mentioned by opposition in C-24 hearings as example that not everyone agreed with the Government’s approach (the Conservatives at times appeared to imply the opposite).

And no surprise that consideration being given to taking the Government to court, given the extensive testimony by virtually all lawyers questioning the constitutionality of a number of provisions, particularly revocation.

Immigration reform bill has 26,000 opponents, according to B.C. petition – The Globe and Mail.