The Conservative government is giving Immigration Minister Chris Alexander unilateral power to strip Canadians of citizenship in certain cases – a provision that dovetails with the federal government's tough-on-crime messaging, but that some lawyers warn is unconstitutional.
Under changes to the Citizenship Act tabled this week as Bill C-24, Mr. Alexander – or any staffer he authorizes – can strip citizenship from a dual citizen the government suspects committed certain types of fraud in applying to become Canadian. More complex cases are sent to court.
Until now, such cases have all typically gone through the courts and cabinet – which heavily slowed Tory efforts, announced in 2012, to strip citizenship from 11,000 alleged fraudsters.
Now, in what the government calls "routine" cases, a subject's only recourse is to send written information to the minister's office to try to prove that person didn't commit fraud. The final decision rests with Mr. Alexander or anyone he authorizes to act for him.
"What's happening here is they're proposing that citizens could lose their citizenship on a paper-based process with no hearing at all and no independent tribunal – forget about going in front of a judge to make the decision; you may not get to speak to or even see the officer," said Peter Edelmann, a Vancouver immigration lawyer who sits on the executive committee of the Canadian Bar Association's Immigration Law Section. "They're making it much easier to revoke citizenship."
The proposed changes come along with higher maximum fines and jail terms for citizenship fraud, as well as new options to – through the courts – strip citizenship from dual citizens convicted of certain serious crimes, such as terrorism. Many of the provisions are retroactive, leaving lawyers to wonder whether they'll affect past high-profile cases, such as those in the "Toronto 18" terrorist plot.
But "several aspects" of the citizenship-stripping provisions wouldn't likely survive a constitutional challenge, said Audrey Macklin, chair of Human Rights Law at the University of Toronto, who once served on the Immigration and Refugee Board. Other lawyers agreed.
"This isn't the first time the government has passed legislation that flagrantly exceeds constitutional limits. One wonders whether the government cares only about whether legislation can work to political advantage, not whether the legislation is actually lawful," Prof. Macklin said, saying the government may hope to blame the judiciary should the law be struck down. "So win or lose in court, maybe the government figures it will win politically," she said.
Mr. Alexander told CTV this week the existing revocation process is "one of the most time-consuming, document-intensive bureaucratic processes I've ever seen." His spokeswoman, Codie Taylor, said the unilateral system is meant to "reduce duplication and bureaucracy. We are making the citizenship system more efficient, which will result in decreased backlogs and improved processing times."
Canada can't leave a person stateless under international treaty law, so the rules apply only to dual citizens. The law also puts the onus on those accused to prove they'd be left stateless – not on government to prove they wouldn't. Mr. Alexander also now has the sole right to grant "discretionary" citizenship, though the government says it will not make public the list of those who get it.
The changes in Bill C-24 omit Sections 10 and 18 of the existing Citizenship Act, which dealt with revocation and a subject's right to appeal to court. While court will no longer be an option in some cases, Winnipeg immigration lawyer David Matas noted other cases actually will be sent to a higher court than before. "This new legislation, as far as I can see, is an improvement," he said.