In a punishment being likened to the centuries-old practice of exile, the Canadian government is attempting for the first time to revoke the citizenship of a convicted terrorist who was born in Canada, using new powers the Conservative government introduced last year.
And the Canadian at the centre of it – Montreal-born Saad Gaya, now serving an 18-year sentence for his role in an unsuccessful plot to kill his fellow Canadians – has no automatic right to a court hearing to stop the revocation. The denaturalization powers in the new citizenship act are not only much stronger than in the days when Canada could strip suspected Nazi war criminals of their citizenship if they lied about their past, but the process is almost entirely in the hands of the citizenship and immigration minister and his department rather than the courts.
Mr. Gaya, 28, was sentenced for his role in the "Toronto 18" bomb plot when he was 18. His parents were born in Pakistan, and the Canadian government says they, and he, have Pakistani citizenship. The federal citizenship law does not allow the government to leave anyone stateless. Mr. Gaya says he has never applied for citizenship in Pakistan and is not a citizen of that country.
The move comes as the Conservatives are fighting for re-election with a focus on security and law and order. In July, the government sent out several citizenship revocation notices, giving the recipients 60 days to respond. NDP Leader Thomas Mulcair has said such actions are an attempt by Conservative Leader Stephen Harper to appeal to his party's "right-wing base."
In a constitutional challenge to revocation filed in the Federal Court of Canada on Mr. Gaya's behalf, lawyer Lorne Waldman says it is "the modern enactment of the 18th- and 19th-century criminal punishment of transportation, and constitutes de facto exile."
Chris Alexander, Minister of Citizenship and Immigration, said in a statement that "those who commit these most heinous crimes – crimes which are fundamentally incompatible with Canadian values – in effect choose to forfeit their Canadian citizenship through their actions." He said "citizenship revocation only occurs in accordance with all the principles of natural justice, due process, and constitutionally enshrined safeguards," and that the government will defend its new powers "on behalf of the overwhelming majority of Canadians who agree with its premise."
Under the new law, Mr. Gaya or anyone else who challenges revocation has no guarantee a judge would hear the case, and the Federal Court can reject a written request for a review without giving reasons. However, the Federal Court has agreed to hear a constitutional challenge in the citizenship revocation of Asad Ansari, a Pakistan-born member of the Toronto 18, and Mr. Waldman expects Mr. Gaya's case to be put on hold pending the outcome.
Under the pre-2014 law, when the citizenship minister decided to strip a suspected war criminal's citizenship, the individual had an automatic right to a hearing at the Federal Court of Canada, according to a government backgrounder. If the government won, cabinet approval was then needed to revoke citizenship.
In the new process, Mr. Gaya does not even have the right to an oral hearing with the minister or departmental staff; his only guaranteed right, apart from being told the legal basis for revocation, is to make a written reply. And the government does not need to give him and his lawyer evidence on which it based its decision – such as information on whether he is a citizen of Pakistan. (The old rules required the government to disclose all relevant information.)
The law requires Mr. Gaya to prove he is not a citizen of Pakistan. "How do you prove a negative?" Mr. Waldman asked in an interview. And the minister's decision would not need cabinet approval.
Mr. Waldman also acts for a woman seeking the right to wear a niqab while taking the citizenship oath. He said the law "cheapens citizenship" by replacing a judicial process with an administrative one, making it easier to strip citizenship. The end result could be mistakes that leave a person born in Canada stateless, he said.
Both the Liberals and New Democrats oppose stripping citizenship from convicted terrorists. New Democrat Andrew Cash, the incumbent in the Toronto riding of Davenport, accused the Conservatives of "playing the politics of fear and division. A Canadian is a Canadian is a Canadian."
Liberal candidate Marco Mendicino, a former federal prosecutor who worked on the Toronto 18 case, said in a statement: "That Stephen Harper would use the powers of his office to strip Canadians of their citizenship for partisan gain tells you everything you need to know about this Conservative government."
Stephen Toope, director of the University of Toronto's Munk School of Global Affairs, said the "rule of law principle" means the same penalties should potentially apply to all. He called the citizenship revocation "a fundamental breach of the rule of law," and combined with the weaker procedural safeguards, "you've got a pretty aggressive piece of legislation."