About this Project

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Sunday
Apr232017

The Citizenship Revocation Zombie: The Endless Saga of Bill C-6

Bill C-6 constitutes the Liberal government’s efforts to reverse the Tory changes to the Citizenship Act.  Among other things, it restores fraud in acquisition as the sole basis of revoking Canadian nationality.  It repeals the Tory provisions permitting revocation for those dual nationals who commit terrorism offences.

Why this is a good thing

For reasons discussed here and here and here and here, I do not agree with revocation for dual national terrorists.  I understand why it superficially seems like a good idea.  I also understand the impulse that demands denunciation and exclusion.

But revocation does little to make us more secure, while at the same time throwing other values under the bus.

As I discuss here, the Tory regime suffers from obvious constitutional infirmities. And as I discuss here, it is a measure motivated by a sense of grievance, not a cold-eyed assessment of its usefulness as a counter-terrorism tool.  Indeed, in all the parliamentary proceedings, there has been no cogent evidence of which I am aware setting out how revocation makes us safer.  The security presumption amounts to a naïve “Not in My Backyard” supposition.  Pick at the logic of that assumption, and all you are left with is that it just feels good to denounce terrorists.

Which of course is important – and it is exactly what we do with the criminal law, a much more robust and meaningful tool. If we have a problem with anti-terrorism in Canada, it is that we resort too often to administrative measures – which would include revocation – and not enough to prosecutions. But that is another discussion.

Bill C-6’s tardy trajectory

Reverting to C-6, that bill has taken a dog’s age in an apparently very dilatory parliamentary process. Now it is at third reading in the Senate, where under Senate rules it can be further amended.  And proposed amendments there are, including on additional due process standards for the classic revocation for fraud.  That is a good thing, assessed by my lawyerly eye.

But there is also an amendment proposed by Conservative Senator Lang that would restore a species of revocation for a terrorism offence.  The cross-referencing in all these changes is difficult to follow, but as I understand the language: the amendment would permit a criminal court judge trying a terrorism offence to make a declaration as part of any sentencing.  This declaration would have the effect of stripping nationality, but only (in practical effect) for dual nationals.  (The amendment replicates the existing standard guarding against revocation that would violate Canada’s international obligations and produce statelessness).

Meanwhile, the defendant would (still) have the onus of proving that they are not a dual national to avoid this prospect.

Why this is a bad thing

I will give Senator Lang credit for a system more honest that the existing scheme.  The existing scheme introduced by the Harper government was all dressed up as an administrative proceeding, but was clearly punitive.  At least Senator Lang’s proposal embeds revocation in an unequivocal penal setting.  (Although, not having researched it, I cannot think of another instance where a sentencing element for a crime is external to the Criminal Code).

At the very least, the close link to a Canadian criminal proceeding obviates concern about revocation being used in response to some doubtful foreign prosecution, or used by a political minister (the current system) rather than a judge.

But, it will surprise no one to learn that I still think it is a bad idea, on stilts.  First, it does precisely nothing to address my concerns about the security downside of revocation, discussed here, or the practical incongruity of where it would be available (in practice, for terrorist plotters but not actual terroristic killers never charged with terrorism offences, for the sort of reasons discussed here).

But second, the Charter section 11 protections in penal matters clearly now attach.  And there will be no doubt about the applicability of section 7 (fundamental justice) or section 12 (cruel and unusual treatment).  As discussed here, in the United States, the US Supreme Court held long ago that punitive revocation was cruel and unusual – it does not take much imagination to contemplate Canada’s Supreme Court following this reasoning.

As for onus of proof, the jurisprudence on onus of proof under section 11(d) and section 7 could be clearer, but placing the onus on a person to prove that they are not in the category of persons who may be punished by revocation (a form of aggravated punishment) strikes me as, well, supremely problematic.

Take this passage from the Supreme Court's decision in Pearson, directly related to onus of proof in sentencing: "it is clear law that where the Crown advances aggravating facts in sentencing which are contested, the Crown must establish those facts beyond reasonable doubt ...While the presumption of innocence as specifically articulated in s. 11(d) may not cover the question of the standard of proof of contested aggravating facts at sentencing, the broader substantive principle in s. 7 almost certainly would." (The Court cited with approval the earlier case of Gardiner and the following passage from an article by JA Olah: "... because the sentencing process poses the ultimate jeopardy to an individual . . . in the criminal process, it is just and reasonable that he be granted the protection of the reasonable doubt rule at this vital juncture of the process.")

A majority of the Court again cited these authorities more recently in R v. DB to conclude: "the Crown is obliged to prove, beyond a reasonable doubt, any aggravating factors in sentencing on which it relies" (at para 78).

It is also notable that in the US, revocations (where available at all -- basically, fraud) attract robust due process protections to a criminal standard of proof standard.

A Dual National Canadian is Not-Quite Canadian Enough

All that should be enough to deter any reasonable parliamentarian from venturing down this impossible path. But that’s all nothing as compared to the nuclear issue: The Lang amendment creates a separate penalty regime for dual national and for single-nationality Canadians. For exactly the same conduct and for exactly the same offence, the dual national is exposed to the considerable consequences of revocation, on top of criminal sentence. The single-national is not. 

(Perhaps you could argue that this additional peril might be mitigated by a sentencing judge, for instance, tempering the prison sentence in favour of revocation.  But there is no obligation that they do so.  And the Supreme Court in Pham suggested that there are limits in terms of whether immigration consequences can figure into criminal sentencing.  Nor, as I have suggested, do I think preferring revocation over incarceration is a great idea from a security perspective. Nor do I think you can quantify the relative implications of revocation – leading ultimately to permanent banishment – as compared to a sentence of years. Citizenship, after all, has been properly called the “right to have rights” and the consequences stemming from its revocation may be both more serious and enduring than a criminal sentence. In this last respect, this story of what happened to two former Britons is sobering).

So bottom line: as with the Harper government scheme, we still have a massive section 15 equality problem. Dual nationals would not be equal before and under the law, based entirely on the fact that they have (and perhaps are often stuck with) a dual nationality – or because they can’t prove that they are not dual nationals.  I discuss the niceties of section 15 issues at length here.

The takeaway

Generally, lawyers and law professors are reluctant to speak definitively about how courts might decide questions of constitutional law.  That is because prediction in this area is more idiosyncratic art than true science, and it is embarrassing not to be omniscient. 

But I am going to go out on a limb here (and yes, if ever proved wrong, I will leave this post up): zombies shall walk the earth and winged pigs flock to the sky before a system as proposed in this amendment satisfies the Charter.