Citizenship and Immigration Committee on May 5th, 2014

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madame Saperia.

Our third witness is joining us via videoconference from Toronto, Audrey Macklin. She's a member of the Canadian Association of Refugee Lawyers Executive Committee, as well as Professor and Chair in Human Rights Law in the University of Toronto's Faculty of Law.

Welcome, Madame Macklin. Before giving you the floor, I will give the floor to Madame Basnicki for eight minutes. Then it will be your turn.

[Maureen Basnicki, Co-Founder of the Canadian Coalition Against Terror, and Founder and Executive Director, Alliance of Canadian Terror Victims Foundation]

Thank you.

Thank you for inviting me to provide input to the deliberations. I speak to you as a Canadian 9/11 widow, and as the founder of the Alliance of Canadian Terror Victims.

Since the 9/11 attack in New York, I have worked to raise awareness of the plight of Canadian families who lose loved ones in terrorist acts in Canada and elsewhere in the world. Today, I specifically want to address the matter of revoking Canadian citizenship from convicted terrorists in the light of what I see as a set of profoundly Canadian values. Canada, as a nation, has a proud track record in the world as a defender of human rights and democracy. Canada values and protects a form of society that gives individuals the opportunity to live productive and fulfilling lives.

Canada, in my view, is a shining example of everything that is admirable about the western world. Canada accepts many immigrants from all over the world who come here to seek a better life. In return for opening our doors to them, Canada expects them to live in Canada in accordance with a minimum set of standards. Canada provides, in its support of multiculturalism, all manner of freedom for immigrants to practise the lifestyles they were used to before they arrived. Most immigrants do adjust and become productive members of Canadian society, in actions, if not in spirit, accepting Canadian values.

Terrorist acts are the exact antithesis of such values. Terrorists, in executing innocent people, denigrate and violate every tenet of the values that make up Canada. Therefore, if Canada allows a convicted terrorist to retain Canadian citizenship, Canada is in effect saying that we accept the terrorist act as part of the fabric of life in Canada. In as much as citizenship in Canada is a privilege, it should be subject to revocation if the holder of such privilege demonstrates, through terrorist acts, that there is no intention to adhere to the minimum standards Canada expects from its citizens. Canada needs to make a definite statement that it will not tolerate terrorist activity on the part of anyone.

Revocation of citizenship is a straightforward statement that, by your actions, you have forfeited your Canadian citizenship. In effect, Canada needs to say loud and clear that if you violate Canadian values by carrying out terrorist acts, we take away the privilege of being a Canadian. A zero tolerance policy in this area is the only way Canada can remain a beacon in the world, upholding and promoting the values we all hold dear. Allowing citizens convicted of terrorist acts to remain in Canada is, in my view, the worst sort of cowardice and an affront to all Canadian citizens who abide by the law.

Thank you, again, for inviting me to comment.

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Ms. Basnicki, for your opening remarks.

Now we're going to Ms. Macklin. You have up to eight minutes.

[Professor Audrey Macklin, Professor and Chair in Human Rights Law, Faculty of Law, University of Toronto, and Executive Member, Canadian Association of Refugee Lawyers]

Thank you very much.

Thank you for inviting me to join you today via videoconference.

I am going to give my presentation in English.

I will take questions in English as well, but I look forward to the committee's inquiries.

I'm going to confine my presentation as well to the revocation provisions. Within that I will limit myself more narrowly to the legality of those provisions.

First, I'd like to clarify the provisions regarding revocation for fraud, misrepresentation, or concealment of material facts.

I understand that you have heard testimony from the minister that the inclusion of a condition requiring an applicant to intend to reside in Canada after citizenship is a provision that would not be applicable after obtaining citizenship. Perhaps the minister is there expressing the way he would desire or intend to use the law that is proposed, but I'd like to clarify that's not, in fact, how the law presently drafted is written.

What Bill C-24 does is take existing conditions for citizenship by naturalization. These are: that one reside in Canada for a certain length of time, that one pass language and knowledge of Canada tests, and that one have, broadly speaking, a clean record. The way these conditions work is that if they are not fulfilled or if an applicant conceals, misrepresents, or commits fraud with respect to any of those conditions, then citizenship obtained through that means can be revoked after the fact.

The proposed law adds a requirement that one intend to reside in Canada after acquiring naturalization to the conditions of citizenship acquisition. It follows from the structure of the provision that, if the minister takes the view that one committed fraud or misrepresentation or concealment of facts in one's intention to reside in Canada after citizenship acquisition, then the minister could, in principle, seek revocation for fraud or misrepresentation. Whether the minister chooses to do so or not, of course, is a matter of his discretion, but I'd like to insist here that the law, as presently drafted, does grant the minister power to seek revocation for an individual who, after obtaining citizenship, the minister believes did not honestly state his or her intention to reside in Canada after obtaining citizenship. So that's one clarification about the law and the legality.

Secondly, I'd like to turn to the constitutionality of the revocation provisions. Here I'm going to begin not with the revocation on grounds of fraud or misrepresentation, but the provisions that our two previous witnesses testified about, which is revocation for misconduct as a citizen; in other words, the use of citizenship revocation as punishment.

Here I think it is important to understand that we have a jurisprudence in Canada that deals with the constitutionality under the Canadian Charter of Rights and Freedoms of certain forms of punishment. The most relevant case for our purposes today is a case called Sauvé. In Sauvé we had a law that denied the right to vote to inmates of Canadian prisons serving more than two years. In other words, they were denied their constitutional rights under section 2 of the charter to vote for the period of time that they were prisoners.

This law was struck down by the Supreme Court of Canada as a violation of section 2 of the charter that could not be justified under section 1 of the charter. I'd just like to reference a couple of parts of that judgment that are particularly relevant to considering revocation as punishment here.

Can you revoke somebody's citizenship in order to punish them for what we'll call crimes against citizenship? Let me draw to your attention what the Supreme Court of Canada said, because it goes directly to this claim that was made by the two other speakers about this idea of the social contract, this idea that it's a part of the social contract that people do not commit certain kinds of crime, and if they do, they have broken their part of the social contract, and it follows from that they could have their citizenship revoked from them.

Here's what the Supreme Court of Canada said about that kind of approach:

The social compact requires the citizen to obey the laws created by the democratic process. But it does not follow that failure to do so nullifies the citizen’s continued membership in the self-governing polity. Indeed, the remedy of imprisonment for a term rather than permanent exile implies our acceptance of continued membership in the social order.

In other words, the Supreme Court of Canada stated quite clearly that punishing somebody by depriving them of their constitutional rights, indeed, by denying them all constitutional rights and casting them out in the name of the social contract, is not constitutional. It isn't constitutional to deny somebody the right to vote, just in order to punish them. That's one right under the charter. It seems to follow that denying them of all constitutional rights, which is the effect of stripping someone of citizenship and exiling them from Canada, could not be constitutional either.

So it seemed to me that reading the Sauvé case provides a fairly complete answer to the constitutionality of banishment as a valid punishment under the Canadian Charter of Rights and Freedoms.

But certainly if one wants to go further and consider other aspects of citizenship ratification under the charter, there are certainly other dimensions of it that also appear unconstitutional on their face. For example, it is required under section 11 of the charter that if somebody is going to face a penal consequence for their actions—in this case, punishment by citizenship revocation—they're entitled to certain procedural rights.

Those rights include, under section 11 of the charter, the presumption of innocence. In the present legislation, the presumption of innocence is violated in the following way. If the minister believes that the person is a dual citizen, and therefore exposed to the risk of denationalization through citizenship stripping, the minister puts the burden on the citizen to prove that he or she is not a citizen of another country, in other words, to prove a negative in order to escape the consequence of citizenship revocation. A reverse onus violates section 11 of the charter and has been found to be unconstitutional. Bill C-24 contains a reverse-onus provision.

The charter requires that before somebody is found guilty and sentenced to a crime and punished, that person be found guilty beyond a reasonable doubt. Bill C-24 requires no such standard of proof of guilt beyond a reasonable doubt.

Our charter requires that if somebody is going to be punished, that they be tried in an open and fair trial before an independent and impartial tribunal. The Minister of Citizenship and Immigration doesn't qualify as an independent and impartial tribunal. He's a government minister, not a judge.

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Madame Macklin, you have 30 seconds to conclude, please. Thank you.

[Prof. Audrey Macklin]

Lastly, section 15 of the charter is violated in two ways. This legislation discriminates against naturalized citizens, as compared to those who acquire citizenship at birth. Secondly, it also discriminates in other ways against dual citizens, as opposed to what I'll call “mono-citizens”. Neither of those forms of discrimination, in my view, would pass constitutional muster and be justified under section 1.

Thank you.

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Thank you kindly, Ms. Macklin.

We will now go to members' questions.

Mr. Shory, you have seven minutes. Please go ahead.

[Devinder Shory, Conservative, Calgary Northeast, AB]

Thank you, Madam Chair.

Thank you to the witnesses for coming to share their views with the committee, which will definitely help us in our study of Bill C-24.

I'll start with Ms. Basnicki.

Ms. Basnicki, I know that your life has been personally touched by terrorism and you have lived through it. I can tell you that no one in this room has the level of understanding of what terrorism is, what effect on one's life terrorism can have, as much as you do. That's very clear in my mind.

I'll also be talking about this revocation part of Bill C-24. When we talk about revocation, we are talking about that group of convicted terrorists who have done a heinous act against humanity. In my view, when we talk about Canadian passports, when we talk about Canadian citizenship, I always say this: I am an immigrant.

I immigrated to Canada only in 1989. I always say that any individual who has the opportunity to come and live in Canada has actually hit the jackpot. This is my belief. We must do everything to protect those values. That is that, in my personal belief—I have seen this.

Everybody knows that a Canadian passport is very highly regarded around the world. When I fill out that landing paper anywhere, when I write “Canadian”, it reminds me of the day when I talked to the CBSA guys for the first time, and I'm very thankful for that day and very thankful to this country. Very thankful to God as well.

Here we are talking about the reputation of Canada as a safe country and a law-abiding nation in the world. We see more and more Canadian passports being used to fly under the radar and commit terrorist acts abroad.

Could you give me your opinion on Bill C-24 and what it proposes to do to combat those actions and those individuals?

[Maureen Basnicki]

I'd like to go back prior to 9/11. I never would have imagined that my husband would be murdered by terrorists. But prior to that I was an Air Canada flight attendant. It was my experience as a flight attendant—and I had over thirty years of it—first of all seeing the maple leaf on the tail of the airplane when I was overseas in another country and thinking, “I'm going back home”, and also personally observing many immigrants who were landing in Toronto for the first time. Again, this is an observation. The majority of immigrants saw this as a true blessing, and as you mentioned, that it was a gift, that they were coming to the promised land.

There were, unfortunately, other observations that I had. Some, fortunately a minority, were already calculating how they could flush their passports down the toilet and seek the benefits of Canadian citizenship, have their English language rights and their OHIP card—I live in Ontario—and all these things. Again, thankfully it was a minority.

That's what I believe this bill addresses, shall we say. Not the immigrants who come and contribute to our Canadian society, but, as it's been mentioned, the “convenient Canadians”.

I hear this word “punishment”. I don't think of it in terms of punishment. I think it's more a message of our Canadian values. What message are we giving to the global community if we're saying that someone convicted of terrorism—they’re convicted, you know? They’ve had a rightful trial. We believe in the rule of law. I'm not a lawyer, but certainly I would like to see safeguards that there was a proper conviction.

What message do we give the global community if somebody has been convicted of terrorism in another country and we say, “Welcome to Canada”? I don't understand this. From my lens, it's not good.

[Devinder Shory, Conservative, Calgary Northeast, AB]

Agreed.

You made mention of immigrants. As I said before, I'm an immigrant. Immigrants have made great contributions to this country. I always say that Canada is built by immigrants. Some came thousands of years ago. Some maybe 500 years ago, and they will keep on coming. But you're right that we are talking about that small portion of people who like to have the right to be Canadian but no responsibility toward Canadian citizenship. That is the key here and that is very important to understand. Lately we see articles like the one from The Globe and Mail just this past February stating that CSIS is tracking 130 Canadians who have gone abroad to participate in extremist activities with known terrorist groups. It's not like they are there just by chance. They know what they are doing.

In your opinion, are we beginning to see an erosion in the value and prestige of the Canadian passport and Canadian citizenship? Do you think that Bill C-24 is on the right track to maintain Canada's reputation on the world stage, as well as to protect the safety of our own citizens?

[Maureen Basnicki]

Personally, I look through the lens of being a terror victim and yes, terrorism is a global situation. Even though Canada has been fortunate in not having large numbers of Canadians who have been killed by terrorists, we do have them, by the way, from 9/11 and from Air India and many other acts of terror. So we can't disregard that. We do have Canadians who choose to engage in terrorist activities. So if this bill or any such legislation could help deter and help Canada with its statement of intolerance for the most heinous crimes—not to create a hierarchy but it targets innocent civilians—if this can help then I think it's a good thing.

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madame Basnicki.

Mr. Sandhu, you have the floor.

[Jasbir Sandhu, NDP, Surrey North, BC]

Again, good afternoon, and thank you to all the witnesses for being here this afternoon.

My first question would be to Madam Macklin.

Madam Macklin, you pointed out a number of cases where this Bill C-24 is not consistent with the Charter of Rights and Freedoms. You mentioned section 15 of the charter. You mentioned other sections of the charter. Is there one section of this particular bill you haven't had a chance to talk about? Would you like to have a few minutes to talk about that?

[Prof. Audrey Macklin]

Thank you.

I think I have mentioned most of the affected constitutional provisions. I will add only a couple. One is section 12 of the charter that prohibits cruel and unusual punishment or treatment. Now, in a line of U.S. constitutional cases culminating in a case called Afroyim v. Rusk, the United States effectively made it unconstitutional to strip U.S. citizens of their citizenship. In some of those cases, they relied on the U.S. equivalent of the prohibition on cruel and unusual treatment or punishment to do so. So that's one provision, again, one aspect of the charter violations here.

Another is the prohibition on retroactive punishment. We consider it unjust to punish somebody for an act that was not prohibited before the law was passed. So in this case, Bill C-24 would impose retroactive punishment on people who are convicted of the listed offences before section 24 came into effect. So it would also violate the charter prohibition on retroactive punishment.

In addition to that, section 11 of the charter also guarantees the right not to be punished twice for the same offence, so in the listed offences, what you have are convictions for terrorism, treason, etc., and punishments that are meted out in a court of law by an independent judge, like imprisonment, and then, supplementing that, ministerial discretion to add yet another punishment in the form of citizenship revocation and ultimately banishment.

So those are yet more charter violations that are imposed under the provisions of this bill.

[Jasbir Sandhu, NDP, Surrey North, BC]

Madam Macklin, we've heard in this committee that providing for a revocation for dual citizens, dual nationals, would actually create two classes of citizenship: those who have only one nationality, which cannot be stripped, and those others. Could you talk about what section of the charter this would apply to?

[Prof. Audrey Macklin]

The provisions of Bill C-24 that permit revocation for what I will broadly talk of as crimes against citizenship, crimes committed while a citizen—terrorism, treason, and so on—are only applicable against people who are dual citizens, because to strip citizenship from a mono-citizen would create statelessness.

But what this means, of course, is that dual citizens are vulnerable to a kind of punishment that mono-citizen individuals are not. Yet in all other respects one would expect they are similarly situated. For example, there is no reason to think that an offence committed by somebody who is a dual citizen is any more severe, graver, or harsher, as it were, than a crime committed by somebody who is only a citizen of Canada, yet they are exposed to differential punishment. That's a kind of inequality that would breach section 15 of the charter and be very difficult to justify under section 1.

After all, whatever objectives one seeks to achieve through stripping citizenship, apparently you can't do it to people who are mono-citizens. So clearly, whatever the objectives are can't be so significant that you can't achieve them through other mechanisms of punishment. We have lots of ways of punishing people who are convicted of treason, terrorism, and other offences. We have a functioning criminal justice system. There is no reason to think that it is inadequate to deal with people who commit those offences, who also happen to be dual citizens.

[Jasbir Sandhu, NDP, Surrey North, BC]

Madam Macklin, I'm not a lawyer but we often talk about due process. Does denying due process to citizens facing revocation violate any sections of the charter?

[Prof. Audrey Macklin]

I've gone through some of the due process considerations. Those are things like the presumption of innocence, which is violated here; the requirement of proof beyond a reasonable doubt; an open and fair trial before an impartial tribunal; probation on retroactive laws; the right not to be punished twice for the same offence. Let me add one more element to it.

When I say the right to “an open and fair trial”, what happens under this statute doesn't resemble anything like an open and fair trial insofar as the entire process will be in writing unless the minister decides otherwise. So an individual would get notice that the minister intends to revoke his or her citizenship and will be invited to submit written comments, after which the minister will make a decision and issue reasons in writing. That decision will not be open to challenge unless a court grants what's called leave to seek judicial review. There is, in many cases, no role for the judiciary at all, and in other cases, a very limited role, which I can describe, if you like.

[Jasbir Sandhu, NDP, Surrey North, BC]

Please, do go ahead.

[Prof. Audrey Macklin]

Only in the cases where a person is subject to revocation for misrepresenting or committing fraud in relation to acts done before acquiring citizenship, which are related to terrorism and national security, will a court be called upon to make a declaration that the person so engaged in those acts. It's not a trial. It's just that the court will be called upon to declare that those acts occurred.

Similarly, where the ground for revocation is serving in an armed force that is engaged in conflict against Canada—where that is the ground for revocation—there again a judge will be called upon to make a declaration that the person so served in an enemy force. But again, it's not a trial.

Let me just add something about that latter ground as well. Bill C-24, An Act to amend the Citizenship Act and to make consequential amendments to other Acts empowers the minister—

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Forgive me, but I have to cut you off there, Ms. Macklin. Mr. Sandhu's time is up.

It is now Mr. McKay's turn.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Thank you.

I don't normally serve on this committee, but it seems I'm helicoptering in from time to time.

What strikes me from the time I was here previously and now is that good facts tend to make bad law. People seem to think they know what a convicted terrorist is, yet when you're pressing them on certain factual situations that are out of their realm of comfort, then maybe they're a little bit less comfortable.

For instance, this weekend The Globe and Mail had a story about Rwanda. The President of Rwanda is systematically hunting down people who are convicted of “terrorist activities” in Rwanda and have fled, some to South Africa but some to here in Canada.

Would you see those people who are here in Canada, who have been convicted of a “terrorist offence” as being vulnerable to having their citizenship revoked?

[Maureen Basnicki]

Are you directing this question to me?

[John McKay, Liberal, Scarborough—Guildwood, ON]

Either one of you....

[Sheryl Saperia]

In terms of a person who is accused of terrorism—did you say accused or convicted?