Second Class Citizenship

by

Howard Adelman

Does Bill C-24, “Strengthening Canadian Citizenship Act,” mean that dual citizens have become second class citizens? Chris Alexander, the former Minister of Citizenship and Immigration in the Harper government, lost his Ajax seat in the last election by a landslide, falling short by about 10,000 votes. In contrast to the period when he was in a position of authority and avoided the press like the plague – and then often got in trouble when he met with or talked to the media – after his defeat, Chris Alexander consented to a street interview that was aired on CBC’s Power and Politics. It was a fascinating interview. Alexander vented his spleen in an eloquent and loquacious, even if very faulty, defence of himself as a minister in the Harper government.

The interview, well worth watching, can be heard and seen here:

http://globalnews.ca/news/2301750/watch-out-of-parliament-but-unrepentant-chris-alexander-slams-hippy-trippy-liberals/; Please also check Power and Politics.

A number of topics were discussed in that interview, but in this blog I focus on only one, the very first issue that seemed to have gotten under Alexander’s skin during the election. (In a subsequent blog, I will focus on his defence of his record on the Syrian refugee issue.) One of the provisions in Bill C-24 that the Liberals, who supported the legislation, promised to amend when elected, was the circumstances and the method by which the Government of Canada could strip a Canadian of his or her citizenship. (See “Act to amend the Citizenship Act and to make consequential amendments to other acts,” Bill C-24 that was given royal assent 19 June 2014.)

The criticisms of the revocation of citizenship provision referred to in the House of Commons debates and on the hustlings seemed to irk him the most, though perhaps being called a “baby killer’ in the critique of his handling of the Syrian refugee crisis was emotionally more painful. In any case, Alexander was clearly very bitter about the way that the issue of stripping Canadians of their citizenship became an election issue, the way the item was understood and communicated, and, even, that it became an election issue at all.

There were parts of Bill C-24 that were uncontentious, such as the retention of citizenship for those born abroad to Canadians in service to their government referred to as stateless or lost Canadians. There were also many other parts of Bill C-24 that the opposition parties had criticized, including the extended time it would take under the Bill for an applicant to become a citizen. Thus, for example, under the old legislation an applicant could apply for citizenship after three years of residence in Canada; under the new Citizenship legislation passed by the government, it would take at least four years. For a student who had attended post secondary education in Canada for three years, she must first find a position and then apply for permanent residence. The application process would take a year on top of the three years she had already spent in Canada, assuming she even obtained a permanent job as soon as she graduated. Then and only then would the four year period of required residency start. She would not get credit for the time she studied in Canada or for the time it took for the file to come to the top of the pile. In other words, she would have to be in Canada at least eight years before she became a citizen. None of her previous residence in Canada would count either partially or fully towards the new requisite four years of required residence in Canada.

These and other provisions of the Bill were much criticized in the debate in the House of Commons and subsequently during the election campaign. But the one I want to concentrate on is the one that Chris Alexander offered as his primary item to defend his record as Minister of Citizenship and Immigration. In that street scrum, Alexander took issue with the opposition’s campaign focus on the provision in  Bill C-24 that gave the Minister of Citizenship and Immigration the authority, unilaterally and without a judicial process, to strip dual citizens of their Canadian citizenship if they were found guilty of terrorism and if they could be deported to another country where they had, or were entitled to have, citizenship.

Alexander harrumphed about even talking about second class citizens. “That concept does not exist in Canadian law. It should not exist in political debate. We did not introduce it into the debate. When it was introduced by the party that won the election, we did not counter it enough. But it is painful to see people stoop to those levels and for it to go unanswered by the other political participants and by commentators and media. We do not have room in elections for poison like that. And people deserve in an election to know what the law actually says, what protections they enjoy in this country, opportunities they enjoy in this country more than almost any other country in the world. That failed to be communicated.”

In his screed, Alexander began on a conceptual level, denying that two classes of citizenship were even applicable to the issue since the provisions in the Citizenship Act do not use that term. He also criticized even the propriety of raising the issue as something to be debated. The Conservatives had not introduced it into the debate and he implied that the opposition was hitting below the belt in making it an issue. He accused the Liberals of introducing the issue into the election, though Tom Mulcair was also a leading opponent. He was critical of his own party for not countering that argument, but he seemed even more critical of the media for taking up the issue. Then he characterized the way the issue was raised as “poison.” Finally, he insisted that Canadians deserve to know what the election law says and what protections Canadians enjoy. As Minister of Citizenship and Immigration, he never assumed responsibility for any failure in communication. That failure belonged in the cloud. “It” failed to be communicated, not, I failed adequately to communicate to the Canadian public.

The whole interview resembled somewhat Richard Nixon’s speech after he lost the election to be President in 1962 when he declared, “You won’t have Nixon to kick around anymore.” To clarify:

1. What does Bill C-24 say about the issue?
2. What protections do Canadians enjoy under the legislation?
3. Was it “poison” to introduce the issue into the election?
4. Were the media guilty of taking up the issue, but only by repeating the opposition’s claims rather than clarifying the Tory intent?
5. Were the Liberals responsible for introducing the issue into the campaign?
6. Was the issue one that was appropriate to be debated as an election issue?
7. Is characterizing the issue as one of introducing two classes of citizenship incorrect or even “poison”?

Alexander insisted that, “the people deserve in an election to know what the law actually says.” I agree. So, I believe would every Canadian, whether defending or opposing the law. But try to understand what the law actually says. As the Conservatives wrote it, it is difficult to understand except for those with expertise in Immigration law. And the Immigration Law Section of the Canadian Bar Association (CBA) was adamantly opposed to many sections of the Bill, especially the revocation provisions. (For its detailed critique, see http://www.cba.org/CBA/submissions/pdf/14-22-eng.pdf.) The people in Canada do deserve to know what the law states. But the convoluted prose and the whole style of the writing makes only one thing clear: the law was not intended to be read by the ordinary citizen.

What every Canadian deserves to know, what they can know and what the government helps them know are three very different things. Certainly, Chris Alexander as the ostensible author of the Bill, never made even an effort to state clearly what this provision in Bill-24 said. How did Chris Alexander interpret the Bill, specifically the revocation clauses? Though he did discuss the issue of residency requirements and the broadly supported re-acquiring of citizenship for those who inadvertently lost it, the main divisive issue was revocation.

In the debate when Alexander introduced the Bill for third reading in the House of Commons, he discussed the time line for an application and the residency requirements as well as the restoration of citizenship to children of Canadians born abroad. However, in his speech introducing Bill C-24, he said nothing about the revocation clauses. There was and remains a consensus about what the bill intended. As is currently the case, citizenship can be revoked if it was obtained by fraud, though this has been admittedly a very dragged out process as can be seen even in the cases of alleged former Nazis accused of war crimes. The revocation terms of the law explicitly now included Canadian citizens who served as members of an armed force or organized armed group engaged in armed conflict with Canada, were convicted of treason or of a terrorism offence (or an equivalent foreign terrorism conviction) and given a sentence of five years or more, but only provided they were dual citizen and, also, provided that they did not become stateless as a result, for then the law would be in breach of the Convention on the Reduction of Statelessness.

As the opposition member and immigration critic, Philip Toone, said in the House of Commons, “The minister can now decide, based on a balance of probabilities, to revoke the citizenship of a Canadian, without that person having the right to appeal, the right to natural justice or the right to present evidence to a judge. Only the minister, in his little office, with documents in front of him, on a mere balance of probabilities, can revoke an individual’s citizenship. It is beyond comprehension why the minister would want such a responsibility, because in our legal system people have the right to be respected. In this case, there is a risk of abusing that right. Once again, why create a situation where rights can be abused?” As he went on to say, the bill will almost certainly be challenged in court and, if the government’s past record is any indication, the Courts will rule that the law is in breach of the rights of citizenship.

Does the Bill introduce two classes of citizenship? Virtually every analysis and critique of the law says that it does. In fact, even the existing law, arguably, can be said to have two classes of citizens, those who acquire citizenship by birthright and those who become naturalized Canadians during their lifetime, except it is argued that those who acquire citizenship by fraud never truly became a citizen. Of course, a charge of false representation is inapplicable to Canadians who enjoy citizenship by birth. The irony is that the new law allowed revocation of citizenship even to Canadians who acquired citizenship by birthright if they, through their parents, enjoy dual nationality or the right to claim dual nationality. Further, the Canadian citizen may not have any real ties to another country even if he or she was born abroad but came to Canada as a young child.

So the law changes the classes of citizenship. Revocation applies to any citizen, whether citizenship is acquired by birth or by nationalization, provided that the person enjoys of could enjoy dual nationality. So it seems unequivocally true that the law creates two classes of citizens by implication. Why does Chris Alexander have a problem in understanding this? Is he obtuse? What something means does not require that meaning to be explicitly articulated if that is its plain meaning.

Further, as the Canadian Bar Associated stated it, “revoking citizenship in other circumstances [than fraud] poses fundamental constitutional challenges. Targeting dual nationals for citizenship revocation results in differential treatment based on ethnicity or national origin and therefore implicates section 15 of the Charter. Canadians from countries that do not recognize dual nationality would not be subject to the provisions. However, Canadians whose ancestors came from countries that recognize dual citizenship and pass citizenship to generations born abroad would face the prospect of revocation. Entire ethnic or national communities would either be subject to the provisions or not. Gradating the rights of Canadians on the basis of the laws of another state creates different classes of citizens. It is unfair and discriminatory.”

The charge of two classes of citizenship was broadly raised by law societies and human rights groups. Thus, for example, the British Columbia Civil Liberties Association and the Canadian Association of Refugee Lawyers (CARL) launched a constitutional challenge to the new Citizenship Act for relegating over one million Canadians to second-class status. The lawsuit argued that the Bill C-24 “creates a two-tier citizenship regime that discriminates against dual nationals, whether born abroad or in Canada, and naturalized citizens. These Canadians will now have more limited citizenship rights compared to other Canadians, simply because they or their parents or ancestors were born in another country.” The issue of two classes of citizenship was raised right across the country by law societies and civil rights groups.

The CBA asserted that banishment, that has not been in common use since the Middle Ages, is one of the most serious punishments that can be inflicted on a citizen. Even if it were to be restored, surely it should be undertaken only with the strictest protections. So the biggest conflict was not even over who could be targeted for revocation, but who decides, on what grounds and by what process? In Bill C-24, the decision is placed in the hands of the Minister (or his delegate), thereby leading to the fear of an indiscretionary use of power, particularly since the individual will not have a day in court or even a hearing before being issued a revocation order. Essentially, the Conservatives determined that this process would be less costly and quicker, and this is the core difference between the members of all opposition parties who held the rights of an individual citizen to be the foremost concerns, while the Conservatives believe that the voice of the people, their elected representatives and appointed Ministers should have that power.

Given the uproar over just these two issues – to whom does revocation apply and who makes the decision – who would expect the issue not to be introduced into the election debate. And it was, loudly and forceful by Tom Mulcair as well as Justin Trudeau who was accused by Alexander of being the sole culprit.  So how could anyone who believes in free speech insist that it should not “exist in political debate”? Did the Tories not counter the argument? They did so during the passage of the Bill, subsequent to its passage and during the election. Did they do enough?

Alexander said that Trudeau had introduced the issue just before the televised debate on foreign affairs. Quite aside from whether he did and how he did, it was the Tory government at the end of September that initiated steps to strip Zakania Amara, leader of the Toronto 18, of his citizenship after he pleaded guilty to plotting to bomb downtown Toronto and was sentenced to life imprisonment. As the Harper government put it, Amara, who holds Jordanian citizenship, would be free to walk the streets and travel with a Canadian passport after serving his sentence and Amara would become eligible for parole in 2016. Further, at the beginning of October, the Harper government attempted to strip Saad Gaya of his citizenship though he was born in Canada, arguing that Gaya “retroactively” became a Pakistani citizen.

The opponents of the bill, not just the political opposition parties, charged that the provisions of Bill C-24 on revocation made those born outside Canada, those born in Canada but who had a second citizenship or were able to obtain one, would be open to being stripped of their citizenship. Those critics insisted that such a decision could be made arbitrarily since the law authorized the Minister or his delegate to make the decision on his own. Contrary to the claim that raising the issue was poison, Alexander revealed an even more stubborn mindblindness to the democratic deficit that grew under the Tories. Further, he never adequately defended the provision because it is difficult if not impossible to find a legal justification under contemporary principles of natural law.

As the Immigration caucus of the Law Society of Canada insisted, citizenship is not like a car license that can be revoked for misbehaviour, nor a privilege subject to revocation except where fraud was used to obtain it. Bill C-24, rather than imitating the provisions of other Western countries, was an outlier in its revocation provisions. Once a criminal justice system punishes someone, he should not be subject to double jeopardy. If a person commits fraud and lies to obtain citizenship, then the punishment is directly related to the fraud and can be meted out by the courts. As with all human rights arguments, the issue is not just the alleged terrorists targeted by the law, but other Canadians – one million of them – who could be subject to that law. Dual citizens and people who have immigrated to Canada can have their citizenship taken away while other Canadians cannot. That is the meaning of two classes of citizenship.

What seems clear is, however loquacious and even at times eloquent Alexander was on the issue, what he said obscured issues, deflected any blame and reinforced his self-righteous stance. He proved either that he did not hear or understand the criticism raised, or, more likely even, seemingly was simply incapable of understanding them. Instead of respecting his critics while disagreeing with them, he berated them and insisted their criticisms were initiated for political motives. But evidence suggests his amendments were introduced for political reasons. After all, a majority of Canadians favoured stripping convicted terrorists of their citizenship. Last November, after the killing of a soldier on Parliament Hill and then the killing of the terrorist, a national poll found that just over half of respondents supported new anti-terror legislation and another 22% were critical , but because they wanted Canada to go even further.

Did Alexander truly believe that it is ok to remove the citizenship of Canadian-born Saad Gaya who was convicted of terrorist activities for his role in the Toronto 18? Did he really believe it was proper to retroactively regard him as a Pakistani citizen even though his own parents lost their Pakistani citizenship when they first came to Canada and he was born and raised in Canada? The opposition claimed that the courts would find those provisions in the bill to be null and void. The provision was introduced as a wedge issue to play up the Tory claim that they were strong on terrorism. Are Canadians with another nationality (and those who are eligible to obtain another nationality) now second-class citizens, even if they were born in Canada? Under Bill C-24, their citizenship can be stripped.

So why is Chris Alexander such a sore loser? He just doesn’t get it and never got it.