Introduction

The Ukrainian Canadian Congress, Alberta Provincial Council (UCC-APC) officially represents Ukrainian Canadians in Alberta. It provides leadership and coordination to, as well as identifies and addresses the needs of the Ukrainian Canadian community in Alberta. It also promotes linkages with Ukraine.

Members of the executive of the UCC-APC, having examined and discussed the proposed Citizenship Act of Canada (Bill C-18), believe that it is seriously flawed and that changes should be made to it before adoption as law. We are most concerned with Sections 16-18 of the proposed bill, which concern revocation of citizenship, because provisions found in these sections undermine the fundamental ideals and values of a liberal democratic society and principles upon which a democratic state should be built and governed. This brief will present an analysis and our objections to the bill, largely from a historical and cultural, not legal viewpoint. We shall also proffer some recommendations for changes to the legislation.

We have approached our assessment of this law from the broad standpoint of whether it would promote or hinder the development and functioning of Canada as a liberal democratic state and society. We believe that it would be a hindrance. It is recognized that a liberal democracy is built on a foundation of limited, constitutional government, which protects the rights of its citizens, and where all are equal before the law. This government should be constructed and function on the basis of a system of checks and balances that creates a balance of power within the state and between the state and its citizens.

Political and Philosophical Principles of Constitutional Government

The principles of limited, constitutional government were formulated and promoted by the seventeenth century political theorist John Locke, and became a cornerstone of constitutional development in Britain and especially the United States of America. Locke argued that citizens of a state are endowed with inalienable rights, that governments are constituted to protect these rights, and that it is their duty to do so. The rights of citizens have been embodied in separate sections of the constitutions of Canada in the Charter of Rights and Freedoms, and in the United States of America in the Bill of Rights.

Another fundamental principle of constitutional government (developed by the eighteenth century philosophe, Charles de Secondat, Baron de Montesquieu) is that it should be built on a foundation of checks and balances. Today, we understand this principle to mean that power should not be concentrated in any one branch, person, department, or level of government. In our parliamentary system, this would imply, at the very least, strict parliamentary supervision of executive and judicial powers, and civilian oversight of government, including its police powers.

Bill C-18 Undermines Constitutional and Democratic Government

In contravention to the principle of limited government, Bill C-18, in Sections 16-18, grants extraordinary, even inordinate, powers to the state through the Minister and judges to strip a naturalized Canadian of citizenship. The revocation process as outlined in the bill leads to and indeed requires the undermining and denial of civil liberties and rights of naturalized citizens. It undermines the fundamental principle that all citizens are equal before the law, in that it subjects naturalized citizens to legal procedures not allowed against citizens born in Canada. We maintain that the proposed law deprives naturalized citizens of Charter 7 and 15 rights. Section 16 gives the government the power to accuse a naturalized citizen of committing a crime constituting grounds for citizenship revocation, but then goes on to strip that person of citizenship in a judicial proceeding that does not provide the accused the same safeguards and protections that a Canadian born in Canada would enjoy if faced with a criminal charge.

We are particularly concerned with the secrecy and security provisions in Section 17. Section 17 sanctions the hearing of evidence in secret in citizenship revocation proceedings -- even information not admissible in courts -- that is, without the presence of the accused and his/her counsel. We believe that maintaining secrecy is anathema in such proceedings, and that, in principle, official secrecy is suspect in a free and open society, to which we aspire. Provisions in Section 17 encourage rather than limit official secrecy, and thus erode an accused person's rights to due process, since maintaining official secrecy to deny access to evidence constitutes the withholding of evidence from the accused. Section 17 encourages conducting secret trials using secret evidence, which one could expect in an authoritarian or totalitarian, but not democratic, state.

We believe that any state's security, especially the security of its citizens, rests not with granting increased powers to the state, but on maintaining the rights and liberties of its citizens and on the safeguarding of these rights. As openness and transparency are essential to a free, democratic and open society, the need for government secrecy for security reasons or to protect the safety of individuals must be compelling and, where granted, should always be circumscribed and limited in duration. The need for secrecy must be addressed in detail, something which is not done in the proposed law. We shall elaborate further below, with reference to instances of abuse for alleged security reasons.

Section 18 allows the government to strip a person of citizenship by Ministerial order, without any judicial process within five years of that person obtaining citizenship. As stripping someone of his citizenship is a radical measure, we oppose in principle the use of these purely administrative measures as a fundamental denial of due process.

The proposed legislation in sections 16-18 grants sweeping powers to the Minister and judges and concentrates power in the hands of the executive and judges, without any parliamentary or citizen oversight of procedures by which a person could be stripped of her/his citizenship. Further, limiting the right of appeal in Section 16 and 17 removes an important check on the exercise of power by the government. The secrecy and security provisions in Section 17 effectively allows for concealing evidence from scrutiny in addition to enhancing inordinately the powers of the state, inviting abuse and arbitrary behaviour against naturalized citizens. As the maintenance of a system of checks and balances within government are essential prerequisites to preventing the abuse of power and arbitrary behaviour on the part of state authorities, it is clear that the proposed bill contravenes this principle of sound, constitutional government.

The State and Security: Lessons from the Past

The historical record shows that the enhancement of the state's security powers and functions has often led to the abuse of or abrogation of individual rights and freedoms while serving as preconditions or tools for the establishment and maintenance of authoritarian and totalitarian states. In world history the French Revolution of 1789, which led to the establishment of constitutional government in France and to the adoption of The Declaration of the Rights of Man, evolved by 1793 into a dictatorship and the inauguration of the Reign of Terror, which was justified largely on the grounds of security. During and following the Bolshevik Revolution, the Communist leaders Vladimir Lenin and his successor, Joseph Stalin, founded a police state and dictatorship, where the individual's rights were extinguished for the purpose of consolidating and then safeguarding the revolutionary seizure of power and the so-called gains of the revolution. Suspected opponents, often labelled counterrevolutionaries, were dealt with summarily. In the 1930s, the Soviet state sanctioned a famine in Ukraine, resulting in the deaths of several million, and instituted what has become known as The Great Terror. In Germany, Hitler used security concerns to pass emergency decrees and the notorious Enabling Laws following the Reichstag fire of February 28, 1933, to concentrate all executive and legislative powers in the hands of his government, and in this manner establishing a legal basis for dictatorship. In the 1950s, during the Cold War, fear of Communist subversion in the U.S. led to the abuse of power by the state in the name of security and the phenomenon of McCarthyism. We thus see from world history that states have indeed used security concerns to destroy parliamentary government, establish dictatorships and initiate reigns of terror. In less extreme cases, the state has used security concerns to trample on human rights and the civil rights and liberties of its citizens.

Canadian history also provides examples of the state abusing its powers in the name of security at the expense of individual rights and freedoms, sometimes with tragic consequences. We will highlight only more egregious episodes from the last century.

In World War I, the Canadian government stripped thousands of naturalized Canadians of citizenship, and interned so-called enemy aliens, many of Ukrainian descent, in labour and detention camps. In World War II, the entire Japanese Canadian community fell victim to security excesses that led to their internment and loss of property and assets. In neither World War I nor World War II was there evidence to justify these extreme measures. That is, the real security threat was greatly exaggerated or invented.

During the early Cold War years, the Canadian government instituted policies echoing McCarthy-era measures in the U.S., also directed against Communist subversion. This resulted in unwarranted prosecutions, unjustified firings of government employees as security threats, a purge of the National Film Board, the smearing of reputations and ruining of careers, as well as other abuses and excesses. Pierre Elliot Trudeau was among those tarred with the brush of Communism and Lester B. Pearson was suspected in Washington of being a Soviet spy. The hysteria of the period and overblown charges undoubtedly led to the suicide of the Canadian diplomat Herbert Norman. In the wake of the FLQ crisis and the invocation of the War Measures Act by the Trudeau government in 1970, the McDonald Commission concluded that the RCMP, which was responsible for security, had abused its powers.

While the UCC-APC recognizes the importance of the security of all Canadian citizens, permanent residents of and visitors to Canada, as well as the government's duty to ensure the security of all Canadians, the above outline shows that the threat to security has often if not usually been exaggerated by state security organs, and that measures undertaken to counteract these exaggerated threats frequently have led to abuses of and the denial of basic rights and liberties of Canadians -- sometimes with tragic consequences. It should also be noted that repressive measures were often aimed at vulnerable minorities, including ethnic communities.

Historical injustices, not directly related to security concerns, were also committed against ethnic groups, such as head taxes levied on Chinese immigrants and the turning away from Canadian shores of the Kamagatu Maru in 1914, carrying Indian immigrants. At best, Canada has had a mixed record in its dealings with minorities and immigrants.

The Witch Hunt for War Criminals in Canada

Politically-charged policies, often but not always security-related, have resulted in serious abuses by the state against individuals as well as ethnic groups in Canada. The Ukrainian community in Canada was a security target in World War I. Starting in 1995, individual members of the community have been subjected to the misuse by the state of its powers to revoke citizenship (found in the existing citizenship law). We are referring here to denaturalization and deportation proceedings being used against persons, the majority of Ukrainian background, accused of committing war crimes in World War II. While the accused have been smeared as Nazi war criminals in the press and by prosecutors, in not one case has the government succeeded in proving direct war criminality. This, despite that fact that in all cases undertaken since 1995, the government has proceeded against the accused using lower than criminal standards. Yet, some defendants have been found guilty of entering Canada by alleged false representation or by supposedly concealing material circumstances, although the government has not proven these charges either with any direct evidence.

We consider these proceedings to be akin to witch hunts conducted largely for political reasons, specifically, of deflecting the charge that Canada is a safe haven for war criminals and to show that the government is actively pursuing war criminals in our midst. These actions constitute some of the more odious, anti-democratic, repressive, and fundamentally unjust practices undertaken in the past by the Canadian government, some of which have been mentioned above.

While the government has used the denaturalization and deportation procedures to score political points, it has ignored the ethical side of its actions as well as the human costs of its policies. The denaturalization and deportation procedures have exacted a severe emotional and financial toll (including bankruptcy) on the accused and, more importantly, on their families. Most persons accused of being World War II war criminals have lived in Canada for about 50 years. Both they and their families have long been integrated into Canadian life. The proceedings therefore constitute a form of cruel punishment on the families of the accused, who generally rally to defend their parent or grandparent. Finally, how can one justify prosecuting someone fifty years after an alleged crime was committed without solid evidence or on the allegation that an immigration violation occurred?

In the latest census, it was estimated that more than 18% of Canadians are foreign-born. A much greater proportion of the population would have a parent or other close relative who would be foreign-born. Thus, a significant percentage of Canadians should be concerned that they or their close relatives could be subject to citizenship annulment, or denaturalization or deportation proceedings under the proposed bill.

Post-September 11 and Bill C-18

It is appropriate here to note that in the aftermath of the September 11, 2001 attacks, the U.S. government passed the Patriot Act, and our government followed suit with Bill C-36, which civil libertarians have criticized as giving unwarranted and unnecessary powers to the state at the expense of civil liberties. In the wake of the September 11 attacks, we have been told that Americans and Canadians are faced with the dilemma of choosing between our security and rights, and that for greater security we must give up some of our rights.

We believe, however, that this is a false dilemma. While increasing the effectiveness of the police and security organs is desirable, and taking measures to ensure and enhance security is legitimate, this should not be done in ways that would jeopardize civil liberties. Our laws should be constructed on the principle that, in the final instance, our security and constitutional government rest on a foundation of individual rights and freedoms, and that the state's primary task is to defend and protect these. In the end, this makes us all more secure. Unfortunately, security provisions found in Section 17 of Bill C-18 are indicative of the post-September 11 stampede toward the creation of a police state.

Some General Observations on Bill C-18

Before proceeding to specific criticisms of the bill, we would like to offer some general comments. As has been noted by others, we believe that, despite the declaration of equality of citizenship in Section 12 of the proposed law, that the bill actually creates a two-tiered system of citizenship: those born in Canada (whose citizenship is inalienable), and naturalized citizens (whose citizenship, according to existing legislation and the proposed bill, can be revoked). We oppose on principle the entrenchment of two-tiered citizenship and believe that once a person becomes a citizen, he/she becomes one with the body politic and thereby gains all the rights that a Canadian-born citizen has.

We thus oppose in principle the notion that a state can revoke or annul someone's citizenship. If a naturalized citizen is accused of a crime, then that person should face the same legal procedures as any other Canadian. Proper screening during immigration and the granting of permanent residency status (a process based on uniform standards), and possibly during application for citizenship, should be sufficient to determine if someone should be allowed citizenship, after which a person's citizenship would not be subject to revocation.

However, if the government insists on proceeding in maintaining the power to annul or revoke citizenship and ability to deport denaturalised citizens, it should be incumbent on the government to prove in a court, using criminal standards, that it has sufficient grounds to implement such radical measures. In Sections 16-18, however, the government makes clear it does not want to bind itself to the high standards of criminal law, but to lower standards in order to expedite these procedures. The lower standards deprive the accused of due process and rights under the Charter, negate the principle that all are equal before the law, and invite the abuse of justice, especially in politically-charged cases. It is therefore incumbent to raise and equalize the standards of justice so that there is equality before the law. It is also incumbent on the government to limit its powers to commence any revocation procedures to a maximum of five years from the date of granting citizenship.

Section 17: Admission of Evidence and Security Concerns

We are shocked and frankly frightened at the lax standards for admission of evidence in the proposed act. Section 17 is particularly appalling in this regard. We have outlined above that evidence used in security cases has often been exaggerated or invented, leading sometimes to tragic results. Even in criminal cases, such as those of Guy Paul Morin, Donald Marshall, and David Milgard, the Crown was shown to have convicted innocent persons for murder based in part on contrived or faulty evidence. Security and police agencies have often been shown to have their own vested interests, as do individual officers, who sometimes advance their positions by exaggerating or finding threats where none exist. Instances of faulty police work justify and even demand strict civilian oversight.

Let us now turn to examine Section 17 more closely. The definition of what constitutes "information" admissible as evidence in subsection (1) of Section 17 is troubling in itself and demands clarification. There is no provision in the bill for verification of information or evidence submitted. Moreover, according to subsection (4) (b), a judge hearing a denaturalization case could accept information from a domestic source or even a foreign government while withholding that information from the accused on security grounds or safety considerations. We maintain that all evidence against the accused should be made available, notwithstanding national security or personal safety arguments, and we are firmly opposed to provisions which sanction secrecy. We repeat, that the use of secret evidence in court proceedings is a practice one finds in an authoritarian or totalitarian, not democratic, state.

However, if the government insists on proceeding with some form of secret proceedings, then these should be subjected to strict parliamentary and civilian supervision or review, and the reliability of evidence verified, especially from foreign sources. We note as well that there is no means of appeal by the accused relating to the admissibility of such evidence. We further note that in subsection (4) (j) a judge hearing a denaturalization case is allowed to accept in evidence anything deemed "appropriate", even information "inadmissible in a court of law". This constitutes not only a further lowering of standards of evidence, but also facilitates witch hunts based on fabricated evidence and hearsay, and other abuses, all in the name of security or protecting sources. Subsection (9) of Section 17 denies due process by disallowing appeals or reviews.

Section 18: Annulment of Citizenship as a Bureaucratic Function

We have shown how denaturalisation and deportation procedures as practiced under current legislation and as proposed in Bill C-18 constitute a lowering of judicial standards, and are contrary to the fundamental principle of equality before the law. Section 18, however, proposes granting powers to the Minister which should not be seriously considered in a democracy. We refer to provisions that would grant the Minister the power to annul a person's citizenship by issuing an order within five years of a person becoming a citizen. We consider that granting this power would encourage arbitrariness by allowing citizenship to be annulled as a mere bureaucratic function. Notwithstanding subsection (4), which allows for judicial review, we contend that the provisions of Section 18 further erode the right of citizens to due process and are fundamentally contrary to the principle of equality before the law. We recommend that this section be struck from the proposed law.

Conclusion

Political thinkers, like Locke and Montesquieu, and later political theorists, recognized the fundamental importance of safeguarding the rights of individuals, and of constructing states with carefully limited powers through a system of checks and balances in order to protect these rights and prevent abuses by government. We have pointed out that, despite constitutional safeguards, the historical record shows that the government of Canada has often abused its powers, even recently, sometimes with tragic consequences to individuals and entire groups. That is, it failed in its fundamental obligation to govern for the public good.

In this brief we have outlined our objections to Sections 16-18 of Bill C-18. We have pointed out how they would facilitate the abuse of power by the state and arbitrary behaviour by state officials at the expense of individual rights. We have shown how these sections are contrary to the most fundamental principles that make us a democracy, including the underlying principle of equality before the law. We therefore call upon the parliament of Canada to reframe this law on the basis of the declaratory statement found in Section 12 of the proposed act.

Respectfully submitted to the Standing Committee on Citizenship and Immigration for the Ukrainian Canadian Congress, Alberta Provincial Council on 6 February 2003

Bohdan Klid, Ph.D.,Vice-President
Catherine Chichak, President
Ukrainian Canadian Congress, Alberta Provincial Council