INDEX
[1] Executive Summary.
[2] The nature and meaning of citizenship: its intrinsic democratic principles and Canadian values.
[3] Promises and guarantees of the Charter, the Act and Canadian democratic processes.
[4] The Faults, Deficits, Shortcomings and Unconscionable/Un-Canadian aspects of Part 2.
[5] The Risks to a "Canadian By Choice" Under Part 2 of Bill C-18.
[6] Solutions - Abandon Part 2 and the Whole Unholy Concept.
Appendices
[A1] Historical Background.
Abbreviations
D&D - Denaturalization & Deportation.
Charter - The Charter of Rights & Freedoms.
The Act - The Citizenship Act, C.29, RSC 1985.
C-18 - Bill C-18 [2002].
Part 2 - Part 2 of Bill C-18.
Note
All underlining and highlighting is by the author.
Canada's Parliament is reviewing the Citizenship Act (C.29, RSC 1985) and proposing amendments as set out in Bill C-18.
The amendments include:
[1] A continuation of denaturalization by revocation of citizenship;
[2] A continuation of deportation as a penalty;
[3] Creation of a new ministerial power of denaturalization by annulment of a citizenship;
[4] Allowance for use of secret evidence to which a citizen or his lawyer have no access and no opportunity to cross-examine;
[5] A disregard for fundamental legal rights to due process - fair and open trial; legal service of notice of charge; civil instead of criminal onus in burden of proof [beyond a reasonable doubt]; accused compelled to submit to examination for discovery [no right to remain silent]; etc.
The proposed inclusion of Part 2 of C-18 as part of an amended Citizenship Act has unleashed a maelstrom of concern about the undercutting of democracy in Canada and a deterioration of fundamental Canadian values. Part 2 applies only to naturalized citizens [former immigrants and refugees] and not to native born Canadians.
About 6 million citizens of Canada's current population arrived here as immigrants or refugees, to become naturalized "Canadians by choice". C-18 discriminates against citizens by choice because the laws of revocation and annulment apply solely and exclusively to that class of citizens. Part 2 creates citizens by choice as second-class citizens with fewer legal rights than citizens by birth's, in doing so creates a discriminatory two-tiered citizenship which is contrary to the Charter of Rights and Freedoms and in contradiction to other provisions of the Act and C-18.
Part 2 preserves the existing power of revocation of citizenship, adds a new power of annulment of citizenship by non-judicial process, and includes provisions for "secret evidence" - by withholding evidence and rights of cross-examination thereon by a respondent or his lawyer. Numerous other rules undercut the right to due process of law.
The provisions of Part 2 contravene fundamental Canadian values which are the pillars of Canadian democracy and have made Canada one of the most respected nations in the world. These are rights that are established by tradition and precedent, and are preserved in legislation like the Charter of Rights & Freedoms, as well as being recited in the Act and C-18. The derogation of rights and freedoms in C-18 undermines the spirit and intent of the Charter and Canada's democratic traditions.
The curtailment of rights by the utilization of non-judicial processes and constrictive processes, for example, the use of an administrative immigration process to strip citizenship because of a suspected criminal act, is a perverse act that abuses the legal tradition that it is "not legal to do indirectly what cannot be legally done directly".
The history of the revocation process confirms that this process was reverted to solely for convenience and expedition in prosecution. It was instituted as a substitute - an easy remedy - in lieu of criminal proceedings. It is criminal proceedings in disguise. Where criminal proceedings are onerous, and require proof beyond a reasonable doubt, the proceedings in Part 2 make it easier to punish the alleged respondent with a substitute offence.
And the punishment is severe. After stripping a citizen of his citizenship to create him a stateless person, he is subject to be deported. His spouse and children are not deportable! While the penalty for capital offences in Canada is imprisonment for 25 years or less, deportation is permanent.
The rules of procedure in Part 2 are slanted to make prosecutions easier. It is a case of convenience taking precedence over civil rights. Our democracy is in trouble !
A refugee in Canada has more legal rights than citizens by choice! A refugee can appeal his case all the way to the Supreme Court of Canada - something the citizen cannot do under Part 2.
Resolution
These draconian laws and inquisitorial process do not need to exist. Alternatives for accomplishing national security while preserving human civil rights exist, and new ones have been added recently. Canada should be striving to improve its human rights, not to destroy them.
Improved immigration screening processes can help reduce the number of undesirables who may attempt to obtain permanent residency or citizenship.
Canada can withhold or refuse a grant of citizenship: it cannot be compelled to grant citizenship.
Conclusion
Part 2 must be done away with in its entirety.
Citizenship is a status, not just a licence. A grant of Canadian citizenship is a promise and guarantee of freedom, safety and security by the state to its citizen. The citizen contracts to defend his country even at risk of his life. It is a significant contract.
Canadian citizenship is a great treasure, widely sought and cherished with pride on attainment. To retract it summarily as an indirect punishment for an unproven, potentially false and undeclared reason is to start the crumbling of the pillars of Canadian values.
We cannot stand by and watch our own government create a climate of fear for 6 million of our fellow Canadians. It is the obligation of every caring citizen to ensure that this wrongful proposal is defeated.
WHAT IS CITIZENSHIP ?
[1] CITIZENSHIP is a STATUS, and not just a licence.
[2] It is a legal status of great importance in law. [A citizen can be sent to war to die for his country. It gives a person status in the world, as his citizenship is formally recognized by all other nations].
[3] It is a relationship between the state and the citizen, and a mutual pact among citizens [similar to the relationship between a parent and child].
[4] It gives a "nationality" to an individual.
[5] It prevents "statelessness". Statelessness is not tolerated by any country: countries will not accept stateless persons. A stateless person has no home in the world: he lives in a sort of legal vacuum. It is contrary to established international custom.
DEMOCRACY
is government of the people, by the people and for the people. It focuses exclusively on the citizen. It is there for the welfare of the citizen and not for the state as such.
It is a bundle of rights endowed on citizens by government through their elected representatives. Under the single title of democracy we have a broad and dynamic range of human and civil rights which are ensconced in legislation, human rights traditions, precedent and practice.
The elements of democracy include freedom from discrimination; equality in social and legal aspects, and justice administered by due process providing for accessibility, transparency, fairness and objectivity.
Canada is internationally noted for the quality of its democracy. But democracy is a fragile thing, and must be guarded. The Canadian anthem charges us all to "Stand on Guard" for our nation, which includes standing on guard for democracy.
CANADIAN VALUES
are those additional traits that have developed on their own in our society, including things like: respect for diversity, honesty, responsibility, compassion, volunteerism, fair dealing, rights of peaceful recourse, cooperation, respect for others and their rights, recourse to negotiation and mediation, respect for family, respect for law, fulfillment of obligations, desire for universal peace, etc.
These values are the lubricants which make our society function smoothly and by which we avoid domestic wars or strife and live in safety and security and without fear.
"A promise made is a debt unpaid, and the trail has its own stern code" - Robert Service in "The Cremation of Sam McGee".
The Act and now C-18 propose to pave the trail with broken promises !
THE PROMISES INCLUDE:
[3.1] CITIZENSHIP AS A STATUS
The current Act - Section 6.
A citizen, whether or not born in Canada, is entitled to all rights, powers and privileges and is subject to all obligations, duties and liabilities to which a person who is a citizen under paragraph 3(1)(a)[born in Canada after Feb 14, 1977] is entitled or subject and has a like status to that of such person.
C-18 - Section 12.
"All citizens have the same rights, powers, privileges, obligations, duties, responsibilities and status without regard to the manner in which their citizenship was acquired".
C-18 - Section 3.
"The purpose of this Act is:
[d] to reaffirm that all citizens, no matter how they became citizens, have the same status;
[g] to promote respect for the principles and values underlying a free and democratic society."
[3.2] EQUALITY RIGHTS
The Constitution Act of Canada [1982] confirms equality of all before the law:
Section 15 - Equality Rights.
"Every Individual is equal before and under the law and has the right to the equal protection and equal benefit of the law WITHOUT DISCRIMINATION.....".
Commentary:
These sections commit Canada to [1] equality of all citizens, whether born in Canada or not, and [2] confirm that citizenship is a status and not just a licence of some kind. A status represents a relationship of consequence; essentially an unchangeable relationship. It is like the relationship between parent and child - they may not like each other but the relationship is permanent.
Enjoyment of status and equality in the Act are both a promise by the state to its citizens. Status would become meaningless if it could be cancelled.
C-18 and the Act and the Constitution Act are both completely compromised by Part 2. If their words are to be meaningless, what is the fate of our future?
[3.3] GUARANTEES IN LEGISLATION
The Canadian Charter of Rights and Freedoms [Part 1 of the Constitution Act,1982] gives guarantees as follows:
Section 1
"The ...Charter...guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
Section 7
"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
Commentary:
Part 2 contravenes the principles of fundamental justice. Fundamental justice is found in the spirit and purpose of the legislation, as well as in the words, and takes its intention of the legislation into consideration.
It is legislation which cannot be "demonstrably justified" under any circumstances because it is a perversion of judicial process in the sense that it is use of an administrative process in an deliberate attempt to administer a punishment [deportation] that is so serious that it should be applied only in the most serious of crimes, and not as an administrative penalty. The seriousness of the penalty demands that the process be one which provides the fullest rights to a defence.
It is established law that one cannot do indirectly what it is not empowered to do directly.
[4] The Faults, Deficits, Shortcomings and Unconscionable and Un- Canadian aspects of Part 2.
[4.1] Manipulation of process - a "Split Trial" ??
Have we rigged the rules to make it virtually impossible for a respondent to win? This is not a crap game where the house always wins.
True justice has always been the hallmark of Canadian jurisprudence. Using immigration rules to deport a citizen on purported grounds of misrepresentation when you really think he might have committed an criminal act but won't take the time or trouble to prove it is a dreadful subterfuge and perversion of justice.
The concept of a split trial is a unique perversion in legal history: a first of which we should not be proud. It is a complete perversion of fairness.
The Act directs the Federal Court to hold a hearing limited to determination of facts. The Court is estopped from making any substantive decision on liability, guilt of the "suspected" offence or penalty. [this is an abuse of the use of the Federal Court]. The Court merely reports its facts to the Minister, and then Cabinet continues a "second half" of the process which is essentially a PRIVATE TRIAL and decision by the politicians in Cabinet, in the absence of the respondent, to decide on guilt or liability [which is it, because this is now some kind of a hybrid process ?] and then makes a determination on punishment [deportation] without allowing any representation by the respondent or his counsel. Talk about reviving the Star Chamber! [Star Chamber was the heinous/notorious English court of civil and criminal jurisdiction primarily concerned with offences affecting Crown interests, and was noted for its summary and arbitrary procedures. It was abolished in 1640.]
[4.2] Perversion (Abuse) of Intention and Process.
Part 2 perverts the prosecution process for the sake of convenience and effectiveness only. The changes in the process are done for the convenience of the government and may be driven by political considerations, and not for the benefit of the respondent. His rights are trammeled. Individual rights are being sacrificed on the altar of convenience.
[4.3] Political Misrepresentation of Utilization of section 10 Act process.
Perhaps citizens should not be shocked anymore by politicians going back on their word, but in 1995 Justice Minister Alan Rock said that the D&D process would only be invoked where there was evidence of criminality proven on the part of the respondent.
Commentary: So much for that promise ! It has been honored only in the breach thereof. Look what's happening now. Some respondents are being brought up on accusations of criminal conduct, and deported notwithstanding that the Federal Court has declared that no evidence of criminality was found. The respondent may be deported in any event, if there is a finding that there was some manner of misrepresentation at the time of entry or application.
[4.4] The Issue of Materiality to a Finding of Misrepresentation.
There is little definition of what constitutes materiality related to any misrepresentation or withholding of information at time of entry to Canada or on the application for citizenship.
Did the misrepresentation cause injury or damage to Canada ? What was that injury or damage? What were the harmful consequences of the act if any ? None of this appears to be part of the court's mandate in its determination. It should be a significant aspect of the process. A harmless representation that causes no injury hardly deserves deportation.
[4.5] Breach of Charter Right - section#11 [d] right to Due Process:
(11)"Any person charged with an offence has the right
...
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;"
Commentary: "Hearing" in this context means a full and complete hearing with a decision rendered on the facts, and not a split hearing with the court finding facts and the Cabinet deciding on deportation. There is no provision for the respondent to make representations to Cabinet about the penalty. What's worse, Courts have now denied appeals from the fact-findings of the Federal Court on the grounds that this process is not a trial process because it did not lead to any decision/judgment. Has the Federal Court been turned into an errand boy for the Cabinet?
Under the present process there is no "fair and public hearing by an independent and impartial tribunal", because there was no official hearing at all. The rights of the citizen respondent have been compromised into zero by the government's rules of process.
[4.6] What is this process ? Administrative? Civil ? Immigration ? Quasi-Judicial ?
If there is evidence of criminality shouldn't it be criminal ?! What rules should apply?
Reference: Charter Sec. 1, 7, 11.
Constitution Act [1982]
[4.7] Breach of Charter Right - section [11] [c] - against self-incrimination.
(11) "Any person charged with an offence has the right
...
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;"
Commentary: The "Strip and Ship" (S&S) process requires the respondent to submit to an examination for discovery by the prosecutor before the commencement of court proceedings. This is unheard of in law except for the days of the Spanish Inquisition.
These S&S hearings are quasi-criminal at a minimum. The respondent is entitled as a fundamental right to remain silent. The respondent is not given any corresponding right to examine the prosecutor's witnesses for discovery. Talk about a one-sided side-show!
If the respondent refuses to submit to an examination for discovery, he is in contempt of court and can be sentenced to several years in jail without any trial of the issue.
[4.8] The punishment of Deportation is "Cruel & Unusual Treatment or Punishment".
Charter: section 12 - Punishment
"Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."
Commentary:
[4.8.1] Deportation is a cruel and unusual punishment.
Deportation makes the person stateless. This is contrary to humanitarian considerations.
[4.8.2] Deportation is a cruel and unusual punishment affecting innocent parties.
-If a person is deported, are his spouse and children deported with him ?
-Will Canada ensure that another country will take the deportee willingly?
-Will Canada ensure the safety from capital punishment in the country to which it deports a person?
-Will Canada agree to accept deportees from other countries by reciprocity ?
-Will Canada accept the return of Canadian deportees if they have misbehaved in the host country, or if they have been absent from Canada for the equivalent of a corresponding jail term that would have been imposed if the citizen had been tried and punished in Canada ?
-Will Canada pay to deport its citizen and finance him until he establishes himself in his new country?
-Will Canada support the deportee's family left in Canada on welfare ?
[4.8.3] How will Canada's dumping of its citizens in another country be viewed by the rest of the world ? Will it negatively impact on Canada's image? Will It affect immigration? Will it create tension between countries ? Will it appear that Canada is too weak or too immature to manage its own problems and so dumps them on others?
[4.8.4] "Stripping & Shipping" reflects poorly on Canada and is damaging to its own status.
[4.9] EXCERPTS FROM THE COMMENTARY OF THE CANADIAN BAR ASSOCIATION
[4.9.1] Part 2 of C-18 is the offensive part which deals with REVOCATION & ANNULMENT of CITIZENSHIP and DEPORTATION. [The 'STRIPPING & SHIPPING' sections].
Here are extracts of comments from the CBA National Citizenship & Immigration Law Section ['CBA-NCILS']:(NOV., 2002) report.
[4.9.2] [@ P.12] "Revocation & annulment of citizenship are amongst the most serious penalties that the state may invoke against its citizens. ....These consequences are obviously severe and require strict adherence to DUE PROCESS, PROCEDURAL FAIRNESS AND APPROPRIATE APPEAL RIGHTS".
[4.9.3] [@p.12-13] "...The loss of citizenship provisions are still CONSIDERABLY EXPANDED from the current Act, and there continues to be grounds for concern regarding
-CRITERIA & PROCESS for LOSS OF CITIZENSHIP for MISREPRESENTATION,
-the Minister's authority to annul citizenship,
-the expanded S.28 "other prohibitions" against citizenship, and
-the new provisions for facilitating Federal court proceedings WITHOUT DISCLOSURE of EVIDENCE or INFORMATION to the citizen concerned.
We strongly recommend further amendment in each of these areas".
[4.9.4] [@ p.16] some aspects of allowance of evidence [retroactive use of after-event evidence] are a "...significant assault on well-established principles of certainty of status and equal treatment of citizens......"
[4.9.5] [CBA] "This is also relevant to the Minister's NEW POWER OF ANNULMENT OF CITIZENSHIP.."
"....we are concerned that this authority brings us closer to creating a lesser citizenship for permanent residents susceptible to revocation for conduct as a citizen."
[4.9.6] [CBA] "Section 17, a NEW PROVISION introduces the use of SECRET EVIDENCE against citizens in revocation proceedings." [p. 17 for details].
"The CBA ...opposes [secret evidence] in Bill C-18, particularly as applied against citizens. National security interest...must be balanced against the legitimate expectation of a fair and open hearing, and the entitlement of the citizen to know the case against them."
[4.9.7] Section17 - Annulment. A new power to Minister [or delegated authority].
[CBA] - "The Minister ...may administratively declare, without independent hearing or judicial determination, that citizenship is void if the Minister [or delegated authority] is satisfied that citizenship has been acquired by using a false identity or in contravention of s.28 prohibitions."
[4.9.8] [@ p.20] -DUE PROCESS: 30 days notice from time of mailing letter [without proof of receipt] and the Minister may unilaterally annul a citizenship.
CBA asks for proof of service and extended time for response.
[5] THE RISKS TO A CANADIAN CITIZEN BY CHOICE UNDER PART 2 OF BILL C-18
[5.1] loss of citizenship;
[5.2] without due process; [right to notice; right to full hearing; right to know all evidence against you and to face your accusers].
[5.3] and deportation [splitting families; burdening another country; withdrawing means of livelihood and support from alleged accuseds' families; etc].
[5.3.1] It unfairly dumps the alleged criminal and his problem onto another country's lap. This is not likely to endear Canada to the recipient country. International incidents ?
[5.4] denaturalization and deportation proceedings are immigration proceedings, so they do not deal with the heart of a war crimes issue, which is the commission of a crime. D&D amounts to a "sluffing off" of responsibility of the government in dealing with war crimes.
[5.5] It is also unfair to an accused because it never deals with the issue of innocence or guilt of a war crime, but leaves him under a cloud of suspicion because of the imposition of the penalty of deportation and denaturalization.
[6] SOLUTIONS - ABANDON PART 2 AND THE WHOLE UNHOLY CONCEPT
There are adequate legal processes and remedies available in existing law and agencies to manage problems arising in immigration and citizenship issues without the necessity of developing new laws, systems, processes and punishments as proposed in Part 2.
The denaturalization process is duplicitous of other better processes for managing immigrant criminal problems.
Part 2 is bad law and overkill in punishment. It is un-Canadian ! It creates a whole new burden of rules and work for an already overburdened Federal Court. If judges were able to speak publicly, I expect they would prefer not to have the system of Part 2 imposed on them.
The law may well be unconstitutional and contrary to section 52 of the Constitution Act. Unhappily, establishing this would take a lengthy interval and be a costly process: one that individual citizens should not have to bear.
Trashing Part 2 is desirable for all of the many reasons discussed here and by others. It should be an embarrassment to Parliament and the Government, and it is to the Canadian legal profession, and likely to the judiciary.
I suggest that it be disposed of immediately and completely and offer this suggestion as to that process:
[6.1]-Repeal offending sections of the Act [10,11,18].
[6.2]-Scrub Part 2 of C18.
[6.3]- Whatever you do, don't agree to any retention of Part 2, even if the Minister offers some so-called "fine-tuning". Part 2 is fundamentally sick law and has to be eliminated.
[6.4]- Declare that citizenship is not to be trifled with for lame excuses of convenience in a tainted, undemocratic, un-Canadian and contemptuous inquisitorial process.
The whole concept of revocation, annulment and deportation is offensive to democracy, fundamental human rights, and the Canadian conscience.
Appendices
[A1] Historical Background.
Historical Background
When a fear gripped the Canadian government that Canada might be warehousing war criminals of WW2 it established a War Crimes Division of the Department of Justice to ferret out these suspects and bring them to justice.
Several prosecutions were brought under the Criminal code, but in large measure were unsuccessful for several reasons including, primarily the lack of witnesses and probative evidence, and secondarily the difficulty of proving guilt beyond a reasonable doubt, the required onus in criminal cases.
In order to improve its success ratio, and politically to demonstrate its effectiveness, the government borrowed a 1978 idea from the USA. Rather than prosecuting suspects under the criminal law, in 1995 Justice Minister Alan Rock decided to utilize the power of revocation of citizenship and deportation which was found in the Citizenship Act, instead of criminal proceedings. Sections 10, 18, 19, and 20 were rarely used provisions to that time.
These sections describe an administrative or quasi-judicial immigration-oriented hearing process to determine if an immigrant who was granted citizenship received it because of a material misrepresentation or fraud. It was a quick way to get rid of questionable suspects without having to tolerate a long judicial criminal process. The penalty is deportation.
This process became popular because of its speed, lower burden of proof [proof only on a balance of probabilities], fewer rights of appeal, and the prospect of disposing of a suspected war criminal by deportation. The process allowed the prosecution to shoehorn any allegations or suspicions of war crimes into an immigration hearing.
The Federal Court was charged with conducting a hearing limited only to the issue of whether there were facts supporting the obtaining of citizenship falsely. The court reported its findings to the Federal Cabinet, which then made a decision on deportation. The Cabinet is a political and not a legal body. Several respondents whom the Court cleared of any criminal wrongdoing were deported in any event because the Court concluded that, on a balance of probabilities, the citizen must have misrepresented something in applying for entry to Canada and citizenship. The use of this process was justified on grounds of expediency.
It is possible that Minister Rock, himself a lawyer, may have had reservations about the use of this process because at the time he announced the utilization of this policy instead of criminal proceedings he declared: "The government will only proceed with cases where there is proven criminal wrongdoing" The Department's press release stated "The key criterion in all these proceedings is the existence of some element of individual criminality. If that cannot be proven, no proceedings will be considered".
In itself this is a blatant admission that the use of this process was a subterfuge for chasing criminals. This is an abuse of the law and process, and an unconscionable act, especially for a lawyer Cabinet Minister of Justice who is charged with maintaining the law.
Notwithstanding these declarations, cases where criminal activity has been negatived by the Court have still gone to conclusion.
In October, 2002 the Government introduced Bill C-18, a Bill to amend the Citizenship Act.