Lawyers argue law to revoke Canadian citizenship is unconstitutional

A case to watch:

“Once you are a citizen, you are a citizen,” said lawyer Rocco Galati, who brought the case before the court along with lawyer Manuel Azevedo and the Constitutional Rights Centre Inc.

Calling Ottawa’s act “an indirect amendment to the Canadian constitutions,” Paul Slansky, who represented the constitutional rights centre, said the government only has the authority over “aliens and naturalization,” but does not have the power to strip the citizenship of Canadian-born people.

“The issue is whether it can be taken away without your consent with the natural-born and naturalized citizens,” he told Justice Donald Rennie. “The government does not have the authority to legislate on this issue.”

Government lawyers asked the court to dismiss the case because the revocation provision has yet to be enforced and any constitutional challenge should be dealt with when an affected individual brings a case forward.

Federal legal strategy interesting – prefer to have this decided through case law.

Lawyers argue law to revoke Canadian citizenship is unconstitutional | Toronto Star.

And Chris Selley reminds us of the counter-productive aspects of revocation:

Now imagine Rouleau’s and Zehaf-Bibeau’s attacks had been thwarted at the last minute. Presumably they would now be facing terrorism charges. And now imagine they were dual citizens. There would now be mass calls to strip their Canadian citizenship and fire them out of a cannon toward whichever foreign capital issued their second passport. And this would be feasible, in theory anyway, under very popular new Citizenship Act amendments passed into law in June.

I have several philosophical objections to those amendments. But the Rouleau case illustrates its most basic practical flaw. Our sensible strategy is to keep the closest possible tabs on terrorism risks — and, if anything, closer tabs, one would think, on convicted terrorists who are eventually set free. Deportation is the very opposite of close tabs.

On the one hand, we’re seizing passports from people we fear may wind up on the ISIS battlefront. The government is actively publicizing this. On the other hand, the government has endorsed precisely the opposite notion: Get rid of terrorists entirely, and we’ll somehow be more safe.

In fact, a fairly common sentiment on Wednesday was that we would be better off not seizing these people’s passports. Fly to Istanbul, head down to Syria, see if we care. They’ll not be long for this world if they go, according to this view; we can cancel their passports once they leave, marooning them in the Levant; and denying them travel just invites them to turn their anger toward Canadian targets.

These two men were Canada’s responsibility. We nearly caught at least one of them

It’s difficult to overstate how churlish this is. It would amount to bolstering the forces of an enemy with which we’re at war. Perhaps 100 or so Canuck jihadists wouldn’t make much of a difference to the overall mission — but they could make an awful lot of innocent people’s lives miserable before finding themselves in the crosshairs of a coalition jet.

The Conservatives aren’t making that case, of course. It would be seen as morally bankrupt, which it is. But its difficult to draw a moral line between that case and the Conservatives’ own stated eagerness to pass off our terrorist garbage on other nations — indeed, the latter encourages the former.

These two men were Canada’s responsibility. We nearly caught at least one of them. We need to redouble our efforts and keep our eyes on the ball, not indulge childish exile fantasies.

Chris Selley: Our bad jihadi apples: Squash them or chuck them?

The lawyer who challenged the Harper government and won

Well worth a read, the Globe’s profile of Rocco Galati, the lawyer who successfully challenged the Nadon appointment, and a reminder that Canadian multiculturalism was not always so tolerant and welcoming:

The government never thought someone named Galati could defeat it, he says.“They were so arrogant in assuming that an argument from me couldn’t win or shouldn’t win, because we live in a tribal culture. You’re only an expert if you’re anglo or francophone.… That’s been made clear to me for 26 years. I’d put my win ratio in impossible cases up against anybody’s, yet I’m still ridiculed when I bring a challenge. How does that work?”

…. “Because of my sense of history, I don’t like the idea of injustice. Growing up in Toronto was no picnic in the sixties and seventies. It was a very brutal, racist environment. The police were enforcing wartime regulations. On College Street, up until Trudeau rewrote the loitering laws, more than two Italian males could not congregate. They’d get billy-sticked home by the police.”

Silence of his previous announcement that he would challenge the revocation provisions of the new Citizenship Act:

The lawyer who challenged the Harper government and won – The Globe and Mail.

ICYMI: Immigration experts say Bill C-24 discriminatory and weakens citizenship

Star overview on the impact of the changes in C-24 Citizenship Act changes from the perspective of the major critics of C-24. Would have been better to include some of the supporters as well for balance (e.g., Collacott, Saperia, Siddiqui):

He [Alexander] seems to relish the idea of rewriting what it is to be Canadian and to hold citizenship. “If there was a time when new Canadians made the mistake that we only had a peacekeeping tradition or our rights and freedoms began with the Charter, then I’m glad our reforms are broadening their perspective.”

Neither he nor the Conservative Party seem worried about the ongoing debate Bill C-24 has triggered across the nation. “This act reminds us where we come from and why citizenship has value,” said the minister. “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 are celebrating that diversity, solidifying the order and rule of law we have here; we’re committing ourselves to participate as citizens in the life of a very vibrant democracy.”

Immigration experts say Bill C-24 discriminatory and weakens citizenship | Toronto Star.

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

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.

Rocco Galati launches lawsuit over Citizenship Act changes

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.

Treat all Canadian citizens equally under the law – Globe Editorial

Thanks to Rocco Galati, renewed attention being paid to C-24 Citizenship Act revocation provisions. Globe editorial has it about right:

Rocco Galati, a Toronto lawyer, is right to be calling upon the federal government to present a reference question to Supreme Court, on the proposed revocation-of-citizenship amendments to the Citizenship Act. If the Harper government won’t refer the matter to the court, Mr. Galati says there should be a Charter challenge – and he’s right.

It is one thing to revoke a Canadian citizenship that was obtained by fraud or false pretenses; that is a long-standing part of our law, and should be. The Harper government, however, is proposing to strip citizenship from people found guilty of some serious crimes, in cases where the offender is a naturalized citizen – an immigrant to Canada – or even someone born in Canada, but who for whatever reason also holds the citizenship of another country.

The classes of crime in question are serious: treason, terrorism and specific military crimes such as spying for the enemy in time of war. But however serious the offence, when someone is born here, or has been accepted into this country legally and fairly, he or she is Canadian, for good or ill.

The Charter of Rights is very clear: “Every citizen of Canada has the right to enter, remain in and leave Canada.” The principle is so fundamental that the Charter’s notwithstanding clause cannot be used to override this section.

It would be invidious to send into exile a foreign-born citizen who committed a crime as a Canadian, while imposing a prison sentence on a natural-born Canadian found guilty of the same crime. Canadian law should treat Canadians, including Canadians who break the law, as Canadians.

Stripping a citizen of citizenship is characteristic of a totalitarian regime such as the Soviet Union, which banished dissidents, including the writer Alexander Solzhenitsyn in 1974. It’s not a model for Canada to emulate.

Andrew Thompson, a political scientist at the University of Waterloo, has rightly pointed out how easily the proposed new citizenship-revocation law could have condemned Maher Arar, a dual Canadian-Syrian national, suspected of terrorism by Canada, to a life of imprisonment and torture in a Syrian prison. The amendments now before Parliament would have afforded him little opportunity to defend himself.

Treat all Canadian citizens equally under the law – The Globe and Mail.

Chris Alexander says citizenship bill will withstand constitutional test

The Senate hearings on C-24 were more of a sideshow to this spirited exchange on Power and Politics.

In an interview on CBC News Networks Power & Politics on Tuesday, Alexander said the challenge “doesn’t have much of a hope.”

“There is no constitutional issue here,” he told host Evan Solomon.

Bill C-24 would give the government powers to strip Canadian citizenship from dual nationals “who were members of an armed force or an organized armed group engaged in armed conflict in Canada.” Citizenship would also be revoked from dual nationals who have been “convicted of terrorism, high treason, or spying offences.”

Toronto lawyer Rocco Galati warned MPs, senators and the Governor General, in separate letters sent on Monday, not to pass Bill C-24 until the government referred a key provision of the bill to the Supreme Court for a legal opinion.

At the heart of Galatis challenge are provisions contained in the citizenship bill that would strip dual nationals of their citizenship and bar them from reacquiring it.

Galati said he would apply for a judicial review with the Federal Court if he did not receive a response from the Governor General by Monday.

Galati, who also appeared on CBC News Networks Power & Politics Tuesday, said the federal government does not have the power to remove the citizenship of persons born in Canada.

“They are acting completely outside of the Constitution in a renegade, reckless and flagrant manner. And they know it,” Galati said.

Revoking the citizenship of dual nationals is “offensive,” “unconstitutional” and simply “beyond the governments authority,” he argued.

… Alexander noted that Galati represented a relative of former Guantanamo Bay detainee Omar Khadr, who is now serving a sentence of eight years behind bars in Canada after pleading guilty to five war crimes.”

He also defended, a senior member, the patriarch of the Khadr family, who was a senior member of al-Qaeda,” Alexander said.

Galati once represented Khadrs older brother, Abdurahman Khadr, who was held for a time as an enemy combatant at Guantanamo Bay.

“His objection here seems to be to the idea that committing an act of terrorism, treason, or espionage says anything about your qualifications to be a Canadian citizen. We think it does,” Alexander said.

… The Canadian Bar Association has also raised “serious concerns” with the citizenship bill.

In a 30-page submission to Parliament in April, the Bar Association said the citizenship bill raised “serious human rights concerns” and key provisions in the bill were “likely unconstitutional.”​

Alexander said the concerns came from “a small section” of the Bar Association and did not represent the views of Canadians.

Galati’s has a narrower challenge than the criticism of the substantial majority of lawyers testifying before the Commons and Senate committees that revocation for dual nationals is not Charter compliant.

Galati’s case pertains to dual nationals who were born in Canada, not those who immigrated to Canada, either as children or adults, and became naturalized.

Alexander is getting quite good at Poilievre-type slurs, rather than more positive messaging on the merits of the Bill.

Chris Alexander says citizenship bill will withstand constitutional test – Politics – CBC News.