Citizenship reforms a serious threat to rights of all Canadians

TheStar.com – Opinion/Commentary – The many problems with the Tories’ proposed changes to Canada’s citizenship legislation highlight the government’s misunderstanding of the nature of citizenship.
Feb 10 2014.   By: Lorne Waldman and Audrey Macklin

Immigration Minister Chris Alexander’s reforms to Canada’s citizenship legislation represent a serious threat to the rights of all Canadians. Although Alexander claims the reforms will strengthen Canadian citizenship, what they really do is make citizens vulnerable to abuse of power by the government. They broadly expand the requirements for citizenship in ways that will make it inaccessible to many while dramatically reducing a person’s due process rights when the government seeks to take citizenship away.

Consider this. Under the proposed changes a person will be eligible for citizenship only if they satisfy the minister that they intend to reside in Canada after becoming a citizen.

This only applies to naturalized citizens, of course. The government does not presume to dictate to Canadians by birth whether and for how long they may reside elsewhere. It’s reasonable for the government to encourage present and future Canadians to reside in Canada. But that’s not what this provision does. Rather, it empowers officials to speculate on a citizenship applicant’s future intentions, and then potentially deny citizenship on the basis of that conjecture.

The provision also holds out the implicit threat that if a naturalized Canadian citizen takes up a job somewhere else (as many Canadians do), or leaves Canada to study abroad (as many Canadians do), the government may move to strip the person of citizenship because they misrepresented their intention to reside in Canada when they were granted citizenship. Whether the government acts on the threat is not the issue; it is enough that people will be made insecure and apprehensive by the possibility that the government may arbitrarily decide to launch revocation proceedings against them if they leave Canada too soon, or remain away too long. That’s not a way to foster a citizenship of commitment. That’s how to foster a citizenship of fear.

The proposed law also greatly reduces a person’s due process rights when the government seeks to revoke citizenship. Under the current law, citizenship can only be removed after a hearing before a judge. Under the new proposals, the minister alone will, in most cases, make the decision without a hearing.

Today’s judicial proceeding will be replaced by an informal administrative process. An official will send a letter stating that the minister believes the person misrepresented when they obtained citizenship. Any response must be made in writing. There is no automatic right to a hearing although the legislation does say that there might be one in some unspecified circumstances. After receiving submissions the minister can order that the citizenship be revoked. That’s the sad extent of due process.

And if that’s not enough, the proposal reduces the right of citizens to appeal to the courts. Under the new proposal, a person whose citizenship is revoked will have to apply to the Federal Court for permission to start an appeal, previously an automatic right. And of course, under basic legal principles the Federal Court will be reluctant to disagree with the minister’s assessment of the evidence so the scope of any review by the courts will be very limited indeed. Fair judicial process for revocation has been replaced by ministerial discretion.

As disturbing, the new law will allow the minister to revoke citizenship if a Canadian is convicted of terrorism offences. Why, for those convicted in Canada, is the punishment of the courts not sufficient? Banishment as a punishment was rejected by most civilized societies hundreds of years ago. And what about those convicted of a terrorism offence outside of Canada? The new provision would allow for revocation of citizenship based on convictions from undemocratic regimes where there is no due process. Surely that ought not to be acceptable.

Rather than strengthening the rights of citizens, the new law demeans citizenship. Like the changes to the refugee laws that Ottawa sold by branding refugees as bogus, these proposals represent new Canadians as objects of suspicion and mistrust. That is the only justification for changes that will make citizenship unattainable for many and will facilitate its revocation.

As Canadians, we make our citizenship feeble if we give government ministers the unfettered power to extinguish it. As the United States Supreme Court stated a half-century ago, citizenship is not a license that expires upon misbehaviour. It is not a mere privilege. It is nothing less than the right to have rights.

Lorne Waldman is president of the Canadian Association of Refugee Lawyers. Audrey Macklin is a professor of law at the University of Toronto.

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