Is Discrimination on the Basis of Citizenship Legitimate?

Recently, a private member’s bill was introduced to “remove citizenship” from terrorists, while the Canadian Collegiate Athletic Association added further restrictions to the ability of non Canadians to play varsity sports. At the same time, the City of Toronto voted to extend the right to vote to permanent residents, as opposed to restricting it to “citizens”. Are we witnessing the articulation of different conceptions of citizenship? If so, which one is appropriate, legitimate or even moral?

The private member’s bill is grounded in the belief that citizenship is a privilege that can be withdrawn by a State, unhappy with the behavior of one person. The proponents of the bill suggest that behavior that seeks to destroy Canada through terrorism should warrant a destruction of the citizenship link. On that theory, Canada could decide to withdraw the legal protection of citizenship to anyone who is not complying with its moral code. Convicted terrorists could be rendered stateless, but so possibly could other criminals. It is deprivation of citizenship as the ultimate form of punishment, a modern equivalent of the banishment of older tribes. Presently, citizenship status has many legal consequences, including the constitutional protection of the ability to travel freely in and out of Canada, access to the Canadian passport, the right to vote in provincial and federal elections and protection against deportation. Is citizenship a legal status that belongs to the State, a certain honorific guarantee, or does it belong to the individual, just as other personal characteristics, gender, race or religion? Certainly, many would say that Canada bears some responsibility for all people that have grown up here, whether they become international stars or international pariahs. That view would suggest that it is illegitimate to even consider removing the status.

When on the other hand the CCAA refuses to allow international students, non-Canadians, to play on a basketball or soccer team, it proceeds from the conception that it is perfectly normal and appropriate that people with non-citizenship status, with international visas, be treated differently. They should be happy to have access to the other college facilities, the library or the cafeteria, but not the important symbolic sport teams. They can win a prize for the best essay but not try out for the basketball team. The CCAA defends its discriminatory treatment on the grounds that it is necessary to ensure a level playing field among college teams, that is, that there is a fear that international students could improve the standing of a team who does not recruit good enough Canadian athletes. At the core, the CCAA’s policy is rooted in the idea that citizenship discrimination is justifiable for any good reason and that it is not as serious or morally repugnant as other types of discrimination. The CCAA would not dare to use “race” as a tool to ensure the “level playing field among college teams”, but it feels justified in using citizenship.

It is ironic that the first case on section 15 of the Canadian Charter of rights and freedoms was a case of discrimination on the basis of citizenship. Andrews, a British citizen, wanted to become a member of the Law Society of British Columbia whose statute stipulated that only citizens could be lawyers. Mr. Andrews won his case, although there was a debate as to whether the distinction was “justifiable”. Since then, discrimination on the basis of citizenship has persisted in many sectors, including public service employment. Nebulous reasoning supports such distinctions between citizens and non-citizens, mostly rooted in the fear of the foreigners and the desire to keep some privileges to people born in Canada, or who have “chosen” and been “chosen” by Canada. The Charter should require an evidence- based inquiry as to the reasons advanced to maintain discriminatory treatment, but we seem to accept more readily the distinction without insisting on rigorous analysis.

Citizenship is an accident of geography and history. People are born into it, as they are born with a gender, a sexual orientation and a race. Like religion, citizenship is unwieldy to change. Canadian citizenship can be acquired, but the process has become lengthier, more difficult, and more administratively cumbersome. Ultimately, it is the government who confers citizenship, denies it, changes the rules or proceeds speedily or tardily in conferring the status. If the private member’s bill raises the question as to whether once citizenship is conferred, it can be removed, the CCAA’s policy assumes that it is legitimate to attach a myriad of other benefits, such participation in sport competitions, to the citizenship status. In my view, the extension of the right to vote in municipal elections to permanent residents as proposed in Toronto appropriately disaggregates citizenship from other aspects of participation in a democracy.

A proper conception of citizenship must reflect its legal nature. In my view, the most appropriate analogy may be with marital status. It is inappropriate to discriminate on the basis of marital status, and the State cannot unilaterally decide to “un-marry” people. The status becomes part of the identity of the people who have chosen it. In the end, I would argue that a proper conception of citizenship would streamline its use to benefits clearly linked to the objective of international identification and certainly would not use citizenship to discriminate in sports or employment, nor would I accept that the status can be removed after it has been legitimately granted. The Private Member’s bill should not be adopted and the CCAA should abandon its discriminatory policies.