Senate Hearings on C-6: Witnesses February 15-16

The Senate’ Social Affairs, Science and Technology (SOCI) committee started hearings this week on Bill C-6 repeal and other changes to the previous government’s C-24 legislation that made citizenship “harder to get and easier to lose”

Witnesses reflected a balance of views on the proposed changes with few surprises compared to the House Citizenship and Immigration Committee hearings last year, or for that matter, much of the discussion around C-24 in 2014.

The changed composition of the Senate compared to the 2014 C-24 review (more non-affiliated senators, Trudeau appointments) was reflected in the selection of witnesses and questions.

As expected, discussion focussed on the main elements of C-6:

Revocation (terror or treason): Witnesses from the CBA, Quebec Bar, Audrey Macklin, and Craig Forcese all supported repeal of this provision, Reis Paghtakan opposed its repeal but only for terrorist convictions in Canada, and CIJA and Julie Taub opposed its repeal in all cases. Questioning by Senators included the legal and constitutional aspects of revocation, whether or not this acted as a deterrent, and the possible impact this could have with respect to war crimes.   There was a useful discussion on the difference between revocation for misrepresentation and for crimes of terror or treason; the former pertaining to crimes committed before being granted citizenship, where misrepresentation was the issue, and crimes committed after being granted citizenship, where the issue was whether the criminal system was sufficient to handle such cases or a supplementary punishment through revocation was warranted. Needless to say, the issue of differential treatment for dual nationals and Charter rights was raised repeatedly. Forcese and Macklin noted the negative impact such differential treatment had with respect to integration and countering violent extremism.

Revocation (misrepresentation): While not part of C-6, the absence of procedural protections – paper process, no right to a hearing, no right to an appeal – was raised repeatedly with virtually all witnesses indicating this remained an issue. Most favoured a return to the previous system of appeals to the Federal Court. Taub, however, emphasized how easy it was to commit residency fraud and misrepresentation, the need for smart Permanent Resident cards to track entry and exit, but did not comment on the need or not for protections. CIJA acknowledged the need for some procedural protections but wanted to ensure that these did result in endless appeals as happened in the Oberlander case.

Language and knowledge assessment: All agreed language was important to integration. No witnesses disagreed with the proposed removal of language and knowledge testing for 14-17 year olds. Metro Toronto Chinese & Southeast Asian Legal Clinic (MTCSALC) noted time, money and educational challenges for their low-income and refugee clientele, the need for expanded language training and related supports such as child care and income support and greater flexibility to waive requirements on humanitarian and compassionate grounds. The cost of language assessment was also mentioned. CBA noted that writing the knowledge test in english or french imposed a double requirement and they would have been happy with keeping the testing requirement for 55-64 year olds but with the flexibility to do the test with an interpreter.

The most interesting recommendation was from Paghtakan, where he continues to advocate for scrapping language assessment as is a pre-requisite for economic class immigrants for permanent residency status. Duplication meant more expense to the government and more costs to immigrants. Most family class immigrants are parents and grandparents who would thus be exempt given the proposed change in age requirements while refugees could wait until they attain 55.

Chair noted earlier work by committee that showed 55-64 year olds formed about one-third of the active workforce.

Residency: Taub questioned the change in residency from four out of six years to three out of five, arguing that it was more generous than other countries and that this and other measures would increase the number of citizens of convenience. Paghtakan, while he had supported the four of six requirement of C-24, had no issue with the change to three of five given the maintenance of physical presence. The strength of Taub’s intervention on residency-related questions prompted Senator Petitclerc why all Taub’s points were so negative without mentioning the positive benefits of citizens contributing abroad. Taub cited citizens who install their family and return to the Gulf or Hong Kong where they can make more money and not pay Canadian income tax.

Intent to reside: Only Taub supported maintaining the intent to reside provision given its symbolic importance. The other lawyers testifying noted that situations can change following applying for citizenship and the consequent risk of misrepresentation cases and thus supported its repeal.

Pre-Permanent Residency time partial credit: Again, only Taub opposed restoring this pre-C-24 provision for Temporary Foreign Workers and international students, stating that this facilitated citizens of convenience.

Other issues

Oath: Paghtakan endorsed the TRC recommendation to amend the citizenship oath by adding the words “including Treaties with Indigenous Peoples” to assist new Canadians appreciate and understand this aspect of Canadian history and society.

Parental passing citizenship to children with no genetic link (in vitro): Quebec Bar raised gap in current legislation which based parental status on the genetic link (save for adoptions) rather than the relationship as in case of in vitro children.

Religious accommodation language testing: CIJA noted that many language testing centres only provided this service on Saturday (Sabbath), with extensive delays in accommodation.

Smart permanent resident card (chip or magnetic strip): Taub argued strongly that the PR card should be a smart card like any gym card that would allow tracking of entry and exit and make it easier for applicants to prove they met the residency requirements without having to search through documentation. (Comment: sounds good in theory but not a simple change, compounded by government challenges in managing complex IT projects as seen with Phoenix and Shared Services Canada.)

Fees: MTCSALC noted that the increase in citizenship processing fees from $100 to $530 made it prohibitive for many low income and refugee immigrants. The recent CBC article on the impact of citizenship fees on the number of applications was cited by Senator Eggleton. Taub argued that reduction was not just related to the increase of fees, that other factors — change in residency requirements, language testing — were also factors. She supported full cost recovery but with subsidies for low-income applicants.

Why stripping citizenship is a weak tool to fight terrorism: Roach and Forces

Usual good analysis and assessment:

First, even assuming that citizenship revocations produced the removal of dangerous people from Canada, that strategy would amount to anti-terrorism NIMBYism. More concretely, Canada would embark of a policy of catch and release – setting up today’s convicts as tomorrow’s foreign fighters, with travel to foreign locales facilitated by the Canadian government. It seems unlikely other countries would embrace the “return” of people converted to violence in Canada, and deposited on their doorstep because of a potentially tenuous residual link of nationality.

Nor would it be sensible to assume that deported former Canadians would thereafter be unable or uninterested in engineering acts dangerous to Canada and Canadians. Operating far from Canada and its security services, they would enjoy a greater freedom to do so than would those kept closer to home, under watch and potentially more invasive strictures, such as peace bonds.

Second, the provisions only applied to dual nationals. The rationale for this focus was simple – making someone stateless would violate Canada’s international obligations. But this focus on a small subset of Canadians encouraged the dangerous delusion that terrorism is (or can be made into) a foreign threat and problem. The so-called Toronto 18 plot, the terrorist attacks of October, 2014, and the 1985 Air India bombing underline the fact that terrorism is a Canadian phenomenon. Some of those plotters were dual nationals, others were not. In almost all of the recent terrorism cases, the violent radicalization of plotters was made-in-Canada, not the product of residence in some foreign locale.

Citizenship revocation for dual nationals is at best a capricious and close to arbitrary tool, focused not on a class of people who are the most objectively dangerous, but on a population most legally vulnerable to the extraordinary revocation power.

Third, the law now being repealed would in most cases commit Canada to long and costly battles about whether it can deport a convicted terrorist to countries such as Iran without the person running the risk of torture. This is a path we have been down before, with the infamous (and to date fruitless) security certificate disputes – legal proceedings that have consumed millions of taxpayer dollars and have yet to result in the removal of any of the five foreign-born men accused of terrorism and subjected to removal orders after the terrorist attacks of Sept. 11, 2001.

The costs here stem not only from the extensive litigation but also from the reputational hit Canada incurs when it risks complicity with torture. The O’Connor and Iacobucci inquiries into the role of Canadian authorities in contributing to the maltreatment of Canadians in foreign jails are now a decade old, but their lessons remain acute. Stripping someone’s nationality before sending him to a foreign jail in a torturing country does not change in the least the ethical or legal implications of such conduct.

Fourth, the prospect of deporting terrorists who have served their prison terms provides Canada with another excuse not to dedicate resources to problems of prison disengagement from terrorism and rehabilitation. The Western world is slowly awakening to the reality that many people convicted under broad, post-9/11 laws enacted to prevent terrorism before it happens will eventually be released. The idea of citizenship stripping encourages the illusion that Canada can displace the risk of terrorism, rather than take responsibility for fighting it through programs that counter violent extremism, including for people convicted of terrorist plots.

All of these points condemn citizenship revocation even without considering questions of constitutional law and principle. But those, too, are ripe – not least, the issue of whether our courts would have followed their U.S. counterparts and condemned citizenship revocation as an underhanded supplemental punishment for things a citizen did, while still a citizen.

Source: Why stripping citizenship is a weak tool to fight terrorism – The Globe and Mail

How law to strip terrorists of citizenship fits into global picture

Good piece by Sean Fine in the Globe comparing revocation practices in other countries:

What other democracies allow citizenship to be revoked?

Twenty-two countries in Europe allow denaturalization for terrorism or other behaviour contrary to the national interest, according to a 2014 paper by University of Ottawa law professor Craig Forcese. These include Britain, Belgium, Denmark, France, Germany, Greece, Spain, Switzerland and the Netherlands. Australia introduced a new law in June to revoke the citizenship of dual nationals who engage in terrorism. Britain has broadened its revocation powers; the government may now make an individual stateless.

Why does the United States, with its well-known ‘war on terror,’ not revoke terrorists’ citizenship?

The U.S. Supreme Court has expressed abhorrence: In a 1958 case, chief justice Earl Warren called it “a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development.” In a 1949 case, the court deplored the removal “of a right no less precious than life or liberty.”

What does the Canadian Charter of Rights and Freedoms say about citizenship?

Section 6 says, “Every citizen of Canada has the right to enter, remain in and leave Canada.” But Section 1 says rights and freedoms are subject to limits that government can justify as reasonable in a free and democratic society. However, Section 6 is not subject to the Charter’s “notwithstanding” clause (Section 33); government cannot opt out of a court ruling on citizenship rights.

Source: How law to strip terrorists of citizenship fits into global picture – The Globe and Mail

Banishment is a poor tool in fight against terrorism: Roach and Forcese

Apart from the principled concern regarding revocation (two classes of citizenship), Roach and Forcese outline practical concerns:

Given all this, how should we evaluate revocation as anti-terrorism? Cancelling the citizenship of convicted terrorists may be politically popular because it appeals to our fear and anger at terrorists. However, there are both principled and practical concerns about revocation as an anti-terror tool.

The principled issue can be summarized simply: Whether a government can take away citizenship (for something other than fraud in acquiring it) is a totally novel constitutional issue. The question has never arisen, because revocation of this sort has never existed since the Charter came into existence. But if Canadian courts follow the path of their U.S. counterparts, they will guard sternly against revocations.

Add to that the discriminatory nature of the citizenship-stripping law – confined to dual nationals – and the due process minimalism that afflicts the system and you have the makings for a serious constitutional dust-up.

But focus also on the practical issues. In the best-case scenario, the government actually banishes a truly dangerous individual, but only by displacing risk to a foreign country, even assuming that foreign state co-operates in their removal.

In the worst case, the government tries to remove the individual to the tender embraces of a torturing state. Under international law, no one can be removed to face torture and maltreatment. And whatever it might have said in earlier cases, the Supreme Court would have to ignore a lot of its recent Charter pronouncements to permit deportations to torture.

And so, since the men the government wishes to banish would be removed to countries with poor records on torture, we should expect citizenship revocation proceedings to spill over to endless disputes over deportation.

The last time we tried this – with “security certificates” – the government was budgeting more than $5-million a year, a person, by 2009 in its decade-long effort (so far 100-per-cent unsuccessful) to use a procedurally doubtful process to remove people to maltreatment.

To put that in context: The entire national annual budget for the RCMP’s much-delayed front-line “terrorism prevention program” has been $1.1-million (slated to rise to a very modest $3.1-million under the 2015 budget).

There is every reason to believe, therefore, that Canada is now repeating its prioritization of expensive, noisy, controversial, often-fruitless efforts to chase problems out of the country, rather than focus on fixing them before they become problems.

Moreover, despite intelligence warnings about prison radicalization, Canada has no developed policy countering prison radicalization.

Inattention to what experts call terrorist “disengagement” is a mistake. If the Islamic State’s call to violence resonates among the disaffected, there should be more prosecutions and convictions. Some convicts, such as the VIA train plotters, will be sentenced to life imprisonment, but others will not. They will eventually be released. It is in all our interests to attempt to rehabilitate them.

Citizenship-stripping of those terrorists who have dual nationality reduces pressure to take this matter seriously by fostering the illusion that we can simply prosecute and deport our way out of the problem of IS-inspired terrorism.

Source: Banishment is a poor tool in fight against terrorism – The Globe and Mail

Kent Roach & Craig Forcese: Press the reset button on security

Always worth reading, and likely one of the first in a series of ‘transition advice’ should there be a change of government:

The problem is, however, that our anti-terrorism dilemmas are more acute than “C-51 good; C-51 bad.” To be sure, we believe strongly that it is bad. It infringes the Charter rights of Canadians without appreciable security gains.

That said, Canadians are right to be concerned about terrorism. A close examination of the data suggests it is not an existential threat, but it is a real one. Terrorist attacks are overt acts of political violence, the scope and lethality of which are limited only by the capacity and imagination of their perpetrators. They are unpredictable and designed to make us do things, or at the very least fear things. Terrorism is a conscious assault on freedom, in a way that is dramatically different from the accidental perils of living. Such conduct demands a response from the state.

But Canadians are also right to be concerned about the freedoms sacrificed by C-51. They should be even more alarmed that those rights are sacrificed unnecessarily, for no appreciable security gain. And they should be especially concerned that no party has so far shown itself prepared to grapple with the real problems that ail anti-terrorism efforts in Canada.

In our new book, False Security: The Radicalization of Canadian Anti-terrorism, we urge that C-51’s misguided “quick fixes” are no substitute for efficient terrorism investigations and prosecutions leading to convictions and meaningful prison terms for terrorism offences. They are also no substitute at the front end for multi-disciplinary and community-based programs attempting to curb radicalization to violent extremism, including in prison.

Bill C-51, read in association with the earlier Bill C-44, runs the serious risk of undermining anti-terrorism efforts, while at the same time sacrificing elemental constitutional rights. But even if C-51 were swept from the earth, we would still have a woefully deficient anti-terrorism strategy. There are many reasons for this, but two stand out.

First, as compared to other democracies, Canadian terrorism prosecutions are unnecessarily unwieldy, complex and remarkably infrequent. The inquiry into the Air India bombings pointed urgently to the need to resolve this issue in its 2010 report, and also underscored long-standing (and still persisting) difficulties in the process by which CSIS intelligence can be used as evidence in criminal trials.

The government ignored the Air India report even in the face of decisions, like one from the famous Toronto 18 case, where a trial judge reported that, “CSIS was aware of the location of the terrorist training camp.… This information was not provided to the RCMP, who had to uncover that information by their own means.”

Any suggestion that C-51 fixes the structural reasons for this dangerous conduct is nonsense. It allows information to be shared about just about everything, but does not compel CSIS to share information about terrorism.

Second, Canada lags behind other democracies in developing multidisciplinary programs to counter violent extremism. Counter violence extremism initiatives require close attention, and then careful consideration of empirical evidence on how best to dissuade persons from moving toward political violence (or for those at risk of further radicalization in prison, disengage from it).

Bill C-51’s new speech crime, the government’s political messaging and its near exclusive focus on hard-nosed tactics without a meaningful overall anti-terrorism strategy are serious barriers to success.

Exactly what the parties would do in these and related areas if elected is unclear. Certainly, we welcome proposals for enhanced accountability review of the security services — long overdue and identified in detail by the Arar inquiry almost a decade ago. We support the idea of a more informed parliamentary process, including parliamentarians competent to review secret information. Our book outlines suggestions in both these areas.

But accountability reform alone is insufficient.

After Oct. 19, a government of some sort will take office. Canadians deserve a government willing to embrace complexity, and the maturity to step back from anti-terrorism as a subset of gotcha politics. There are members in each political party who share this ambition — we have spoken to them. We hope those voices are raised in the weeks to come.

Source: Kent Roach & Craig Forcese: Press the reset button on security

Roach and Forcese: The government’s new speech crime could undermine its anti-terror strategy

A different and valid take:

Here’s why: the data suggests that our most promising means of combating radicalization is with on-the-ground programs that anticipate threats and steer people away from violence. Thus the RCMP has launched its new counter-violent extremism (CVE) program, an all-of-civil-society initiative designed to navigate people away from trouble in the “pre-criminal space” — that is, before they violate the law.

This is an uncertain and challenging undertaking. However, it may be the most rational response to a social problem that no prosecutor or penitentiary will ever solve, and may actually make worse. And the government’s new speech crime could undermine it. Let us illustrate why, with a very plausible hypothetical situation.

The new CVE program reaches out to a mosque, wishing to involve it and its membership. It wants people to assess honestly the merits of, and confront squarely, the Al-Qaeda-inspired world view that says Islam is under attack by “Western crusaders,” and that it is the duty of good Muslims to act in defence, even with violence. This airing of views will require, at minimum, a venue in which people can speak freely, and the mosque is asked to provide it.

The imam is aware of the new speech offence, and is worried that some of his members, though they show no propensity for violence, nevertheless hold radical views. He fears what will happen if the RCMP hear statements such as, “the use of violence in defence of Islam is just and religiously sanctified and should be supported.” Some community members are also keen to send money to groups overseas whose conduct may include acts of violence.

And so, wisely, the imam decides to consult with a local lawyer, who concludes that statements like the one above might well be seen as knowing and active encouragement of the concept of “terrorism offences in general.” And he concludes that in making these statements at the CVE meeting, the speaker may be aware that some of his fellows may commit some terrorist offence, including perhaps sending money to group listed as, or associated with, a terrorist group.

Reasonably, the lawyer concludes there is a risk that the meeting could violate the new speech crime. The RCMP’s “pre-criminal” CVE space then turns into a “criminal space.” The imam has no choice but to cancel the meeting.

Roach & Forcese: The government’s new speech crime could undermine its anti-terror strategy

Anti-terror bill: Can government balance security and civil rights?

The debate continues over the scope over the Government’s plans to introduce a bill with new measures on Friday:

The ideological debate is summarized by University of Ottawa national security law expert Craig Forcese.

“A risk-minimizing society would permit mass detentions in the expectation that the minimal increase in public safety from the dragnet would outweigh the massive injury to civil liberties,” he writes.

“A rights-maximizing society, however, would deny the state the power to detain except through conventional criminal proceedings, for which it would impose demanding standards, even at the risk of leaving people free whose intent and capacity are clear but whose terrorist acts lie in the future.”

In a recent statement to the Citizen, Privacy Commissioner Daniel Therrien said: “Canadians want to be safe, but they also care profoundly about their privacy rights.

“Horrific attacks on innocent people obviously raise concerns about safety. But I was struck by the fact that, immediately after the attacks in Ottawa and in Paris, many people were talking about the importance of also protecting democratic rights such as free speech and privacy.

“Security is essential to maintain democratic rights, but our national security responses to acts of terror must be proportionate and designed in a way that protects the democratic values that are pillars of our Canadian society.”

Anti-terror bill: Can government balance security and civil rights? | Ottawa Citizen.

Kent Roach and Craig Forcese: Putting CSIS surveillance on a firmer legal footing

Hard to disagree:

A smarter bill would link the enlargement of CSIS’s powers with better Parliamentary review. It also would address more integrated review of how CSIS’s actions affect terrorism policing and investigations. The Air India commission proposed that this difficult task be handled by a National Security Co-ordinator, but the government rejected this fix.

In sum: The government deserves credit for a legal initiative that will put CSIS extraterritorial surveillance on a more clear legal footing, clearly acknowledges a judge may violate international and foreign law in authorizing this surveillance, and that will protect CSIS sources, subject to an innocence-at-stake exception (in criminal proceedings, at least).

In so doing, it squarely puts on the table important policy issues that should be debated in full. But along the way, it will be useful to add more to the “accountability” side of the “reform of CSIS” ledger.

Kent Roach and Craig Forcese: Putting CSIS surveillance on a firmer legal footing

Ahmad Waseem case illustrates Canadas foreign fighter problem

Good range of commentary on the challenges on stopping “terror tourism” and Australia’s legal framework:

Its telling that Waseem is wanted by the RCMP on charges of passport fraud but not terror-related crimes. In his case, says [Craig] Forcese, it is more than likely that if he ever returns to Canada, hell be prosecuted on those charges — which carry a sentence of up to 14 years in prison — rather than for his activities in Syria.

“It’s sort of an Al Capone strategy,” Forcese said, referring to the FBIs inability to pin any charges but tax evasion against the notorious Chicago gangster.

Alex Neve, the secretary general of Amnesty International Canada, said his concerns lie with whether foreign fighters violate the Geneva Convention, which set out the international rules of war, during their travels.

“Human-rights law would be concerned that if an individual is going to take part in an armed conflict or insurgency … and there’s reason to believe that in doing so, they’re likely to be involved in the commission of war crimes or crimes against humanity, then it would be important to look at what kinds of legal restrictions would be imposed,” Neve said.

Another consideration is that the labels “terrorist” and “insurgent” are highly charged.

“Some of these terms can be very politicized,” Neve said.

Forcese’s proposal? Adopting a Canadian “neutrality act” modelled after Australia’s Crimes Incursions and Recruitment Act, with a blanket ban on taking up arms with any non-government army.

The Australian law includes a maximum prison sentence of  20 years if a citizen or resident enters a foreign state with intent to engage in hostile activity.

“That includes trying to overthrow the government or injuring public office holders, or basically engaging in a war,” Forcese said.

It would also prohibit financing armed groups on behalf of a faction that isn’t part of a foreign government.

Would have been interesting to know the experience Australia has in enforcing the law.

Ahmad Waseem case illustrates Canadas foreign fighter problem – Canada – CBC News.