BACKGROUNDER: Understanding the Citizenship Law Legal Challenge

TORONTO, AUGUST 20, 2015—The BC Civil Liberties Association (BCCLA) and the Canadian Association of Refugee Lawyers (CARL) are challenging the federal government’s new citizenship legislation as anti-immigrant, anti-Canadian, anti-democratic, and unconstitutional.

The New Law is Discriminatory and Creates Two-Tier Citizenship

Under the new law, new Canadians born abroad and who obtain their citizenship since the passage of Bill C-24 can potentially be stripped of their citizenship if they move abroad for work, school or family reasons.

Canadians who are dual citizens, whether born in Canada or abroad, or who are  eligible for the citizenship of another country simply because of the citizenship of their parents or ancestors, can be stripped of their citizenship and exiled if they:

• are convicted of certain serious crimes in Canada, or
• are merely suspected or convicted of certain serious crimes abroad, even in a dictatorship that does not have a fair legal system.

The federal government raises the specter of terrorism to justify the law, suggesting that its citizenship stripping provisions will only be used against those convicted of terrorism or espionage.  But the law’s current list of crimes can just as easily be used against non-terrorists, for example, a journalist—for example, a journalist who is convicted of a “terrorism offence” in another country for reporting on government human rights violations.

Canadians who do not have another nationality, or who are ineligible for one, can move wherever they like and will not lose their Canadian citizenship under any circumstance.  For these first-class citizens, Canadian citizenship is absolute and permanent.

This concept of conditional citizenship is a sweeping change to our understanding of what it means to be Canadian—and it is fundamentally unfair.

While not raised as a constitutional issue in this case, C-24’s changes also make it more difficult for immigrants to gain citizenship by extending the length of time it takes, increasing the costs, adding language and knowledge testing for the oldest and youngest immigrants, and removing the possibility of appeal.  Historically, Canada has had the some of the highest naturalization rates in the world.  High naturalization rates are associated with higher employment rates and greater integration.

Millions of Canadians Affected

This law affects anyone who holds or is eligible for another citizenship.  Millions of Canadians fall into this category, including nearly one million dual citizens (Statistics Canada National Household Survey (NHS) 2011), plus potentially millions more of the over 32 million first, second or third generation Canadians (NHS 2011) who may, through their parents or grandparents, be eligible for the citizenship of their family’s country of origin.

Individuals could lose their citizenship if they commit, or are suspected of, certain offences or prohibited conduct.  Parliament can expand the scope of “prohibited conduct” at will. In the case of those convicted abroad in systems without the rule of law, they may not have committed any crime at all.

Furthermore, the law applies to dual nationals who may not currently hold another citizenship, but are eligible for one.  Just because a person is eligible for another citizenship does not mean that they will be granted that citizenship.  The law could therefore render individuals stateless, in violation of international law, if they are stripped of their Canadian citizenship.

The law came into effect in June and the federal government has quietly begun the process of stripping Canadians of their citizenship.

The New Law is Unconstitutional

BCCLA and CARL argue that the law is unconstitutional:

• The law violates the equality rights guaranteed to all Canadians under section 15 of the Charter. It discriminates against some Canadians and affords them more limited rights because they, their parents, or their ancestors were born in another country.
• The law breaches the right of Canadian citizens to leave and enter Canada freely under section 6 of the Charter, because it requires new Canadians to promise they intend to reside in Canada and threatens them with potential citizenship stripping if they move abroad.
• The law violates due process rights guaranteed in section 7 of the Charter, by leaving citizenship revocation decision to Ottawa officials rather than a court of law.
• The law violates section 11 of the Charter because citizenship revocation after an individual has served their sentence for a crime amounts to double punishment, which is prohibited.
• The law subjects Canadians to the punishment of exile and permanent separation from one’s home.  This amounts to cruel and unusual treatment or punishment, contrary to section 12 of the Charter.

Under the current law, citizenship can be stripped mainly on the basis of crimes considered threats to national security (like terrorism or espionage) or demonstrations of disloyalty (such as treason).  There is nothing, however, to stop the government from greatly expanding this list in the future.

The law punishes criminal activity with exile—a practice abandoned hundreds of years ago in the civilized world and which has no place in a modern democracy.

The New Law Makes Canadians—and the World—Less Safe

Contrary to the government’s assertions, the new law will not keep Canadians safe.

In fact, policies like this make the world—and Canada—fundamentally less safe.  Instead of relying on the Canadian criminal justice system to punish serious offenders in accordance with the law, to rehabilitate offenders, and working to reintegrate them into society, the federal government will deport potentially dangerous individuals to countries where they could pursue further violence against Canada and others.

Organizations filing the case:

The British Columbia Civil Liberties Association (“BCCLA”) is a non-profit, non-partisan, unaffiliated advocacy group. It is a registered charity, and a BC society founded in 1962. The objectives of the BCCLA include the promotion, defence, sustainment and extension of civil liberties and human rights throughout British Columbia and Canada. To that end, the BCCLA prepares position papers, engages in public education, assists individuals to address violations of their rights and takes legal action as both an intervener and a plaintiff. The BCCLA is one of Canada's most active litigating non-profits, and recently won a historic victory at the Supreme Court of Canada guaranteeing the right to physician-assisted dying to qualifying Canadians. The BCCLA has litigated over seventy cases at the Supreme Court of Canada as a party or an intervenor.

The Canadian Association of Refugee Lawyers (“CARL”) was formed and incorporated in September 2011 as a non-profit and non-partisan association of lawyers and academics with an interest in legal issues related to refugees, asylum seekers, and the rights of immigrants. CARL serves as an informed national voice on refugee law and human rights, and promotes just and consistent practices in the treatment of refugees in Canada. CARL carries out its work promoting the human rights of refugees in the courts, before parliamentary committees, in the media, among its membership via bi-annual conferences, and elsewhere in the public sphere. Relying on the broad experience of this membership, CARL has a mandate to research, litigate and advocate on refugee rights and related issues. CARL recently won a test case to restore refugee health cuts in Canadian Doctors for Refugee Care v. Canada (Attorney General).