The Federal Court says the law allowing the government to strip Canadians of their citizenship without a fair hearing is a violation of their rights and has given Ottawa two months to fix it.
In a decision Wednesday, Justice Jocelyne Gagné said the law violates Section 2(e) of the Canadian Bill of Rights, which says no law should deprive someone of the right to a fair hearing. Justice Gagné said the eight applicants who either had their citizenship revoked or were issued a notice of revocation must be given a fair oral hearing in front of an independent decision-maker and an opportunity to have any special circumstances considered before a decision is made.
"It affirms the notion that citizenship is a very important right and that if a government is going to try and take it away, it has to do it in a process that is fair and transparent and where the decision-maker is independent," said Lorne Waldman, a lawyer who represented one of the applicants, who were barred from going to court to fight the loss of their Canadian citizenship.
The ruling, which would halt the current citizenship revocation process, comes into effect in 60 days, and the government has 30 days to appeal.
"Legally, the government can still use the revocation process for 60 days. I would hope that they won't continue using it, because the court found it unconstitutional," Mr. Waldman said.
Immigration Minister Ahmed Hussen's office said the government will review the decision, noting that the court has provided an opportunity for appeal.
The decision comes as the government considers an amendment to its citizenship legislation that would restore the right to a court hearing before citizenship is revoked.
While Bill C-6 would repeal many parts of the former, Conservative government's citizenship legislation, the Liberals failed to address the law that eliminated the right to a Federal Court hearing when a citizenship revocation was based on fraud. Under the current law, the government sends a letter informing the individual that their citizenship will be revoked and gives them 60 days to respond in writing. The prosecutor who sends the letter also makes the decision about citizenship revocation.
The Senate passed an amendment to Bill C-6 that would reinstate the right to a fair hearing. The bill now heads back to the House of Commons for review, where MPs can accept, reject or modify the Senate's amendment. Mr. Hussen has said only that the government would consider the amendment.
Mr. Waldman said Wednesday's decision, combined with the amendment, puts pressure on the government to respond soon. He said the easiest path forward would be for the government to accept the Senate's amendment.
Another lawyer on the case, Mario Bellissimo, said his client will be relieved by the court's decision. His client, who asked not to be named because of privacy concerns, is facing citizenship revocation because she failed to mention on her permanent residency application a decade ago that she was no longer living with her sponsor, who was also her husband. The 35-year-old woman came to Canada from China when she was 20. Soon after arriving, the couple started having marital problems and divorced – something Mr. Bellissimo said the government was aware of before she received her citizenship in 2007.
Almost seven years later, she received a notice of intent to revoke her citizenship. By that point, she had remarried and given birth to four children in Canada. Mr. Bellissimo said his client is a citizen of good standing who speaks English and is working toward her chartered professional accountant certification.
He said citizenship revocation would leave his client stateless because she had to give up her Chinese citizenship when she became a Canadian. She would also have to wait 10 years before applying for Canadian citizenship again.