Citizenship Act Reforms: Unjust and Insecure

In the wake of the attacks in St-Jean-sur-Richelieu and Ottawa in October, and against the backdrop of the sudden and very terrifying rise of the Islamic State in Syria and northern Iraq this year, there is renewed fear and anxiety about terrorism, at home and abroad.

The Islamic State (varyingly known as IS, ISIS and ISIL) has been responsible for unimaginable acts of cruel violence and widespread human rights abuse against women and girls, followers of other religious sects or faiths, ethnic minorities and western hostages. Amnesty International researchers catalogued the horrors in a number of grim reports in recent months. Islamic State fighters have been responsible for crimes against humanity and war crimes. It is an undeniable human rights crisis.

Among the many troubling dimensions of Islamic State terrorism and violence are the reports that there may be many foreign nationals in their ranks, including significant numbers from Canada and other Western states. And with that, once again, there is both rational debate and bigoted hyperbole about foreign fighters, dual nationals and loyalty.

The rational debate considers what measures are needed to track and, if necessary, take action when Canadians head overseas to join up with a group like Islamic State, thus almost inevitably becoming implicated in such international crimes as war crimes and crimes against humanity, and nationally criminal acts of terrorism.

The bigoted hyperbole makes sweeping conclusions about naturalized Canadians and Canadians with dual nationalities, questioning their loyalty and suggesting they can’t be trusted.

We’ve been down this road before in Canada; or at least a similar road. In the days, months and years after September 11th many members of the Muslim, Arab and South Asian communities in Canada felt targeted, vilified and mistrusted. And there were many troubling instances of Muslim Canadians suffering torture and other serious human rights violations in such places as Syria, Egypt, Sudan and Guantánamo Bay, with varying degrees of complicity and responsibility on the part of Canadian law enforcement, security and diplomatic officials.

We know that from former Ontario Court of Appeal Justice Dennis O’Connor’s findings in his judicial inquiry into the case of Maher Arar. We know that from former Supreme Court of Canada Justice Frank Iacobucci’s findings in his judicial inquiry into the cases of Abdullah Almalki, Ahmad Abou Elmaati and Muayyed Nureddin. We know that from two Supreme Court of Canada rulings in the case of Omar Khadr. And we know that from a Federal Court of Canada judgment in the case of Abousfian Abdelrazik.

Unfortunately the ground has been laid for a renewed wave of suspicion of dual nationals with recent, unprecedented reforms to Canada’s Citizenship Act, which passed Parliament at the end of June. That was followed by further citizenship reforms in Bill C-44, the proposed Protection of Canada from Terrorists Act, introduced following last month’s attacks.

The reforms make it possible for a Canadian with at least one other nationality to be stripped of his or her Canadian citizenship if they have committed one of a number of enumerated offences. Those offences include treason as well as several offences under the National Defence Act and the Security of Information Act. It also includes terrorism convictions under the Criminal Code or a conviction in some other country for an offence that would constitute terrorism under the Criminal Code.

There are a number of serious procedural concerns that arise. The possibility of losing citizenship on the basis of terrorism-like convictions in other countries is particularly troubling. Going back many years Amnesty International reports are filled with cases of individuals around the world who have been convicted on terrorism and other national security-related charges which are clearly disguised attempts to punish critics, stifle opposition and target particular religious or ethnic minorities. There is also a glaring lack of fairness in the proceedings leading up to a loss of citizenship on these grounds.

More fundamentally, though, what is so very problematic is that these reforms take Canadian citizenship off in two deeply worrying directions.

First, is the introduction of the notion of using loss of citizenship as punishment. Until now citizenship could only be stripped on the basis of fraud or misrepresentation. That made sense. If citizenship had been obtained on the basis of lies and falsehoods it really, in essence, was never truly granted. Taking it away simply recognized that reality.

This is different. Now citizenship laws are being used to say to some Canadians: you are no longer worthy to be one of us. It is a return to the practice of banishment from the realm in the feudal ages. That was discredited and abandoned long ago. Instead we rely on our criminal justice system to identify, penalize and, hopefully, reform wrongdoers. We do so, in part, recognizing that whatever the forces, personalities and events are that lie behind the commission of a crime; society is often part of that picture. Banishment pretends that we were not involved. That it was not negative influences, here in Canada. That it was not pain and hardship, here in Canada. That it was not a failure to respond and offer support earlier, here in Canada.

If this is going to be our new approach to punishing criminals, why stop with terrorism and treason? Why not simply send away all serious criminals? Make their criminality some other country’s problem and responsibility.

But of course it wouldn’t be all serious criminals. It would only be serious criminals who have at least one other nationality in addition to their Canadian citizenship. And that is the other drastic departure in these reforms that is so troubling. Ironically, the explanation is, on the surface, a laudable one. It is in fact a necessary step to avoid violating international legal obligations that prohibit Canada from making someone stateless. That is why we won’t strip Canadian citizenship if the person concerned has no other nationality as a back-up.

Notably the changes also mark the first time that Canadian-born citizens face the risk of losing their citizenship. If he or she has obtained an additional citizenship, be it by virtue of a parent’s citizenship or by way of marriage, their Canadian citizenship is vulnerable. That is a dramatic change.

The bottom line is that there is now a sharp difference in how Canadians without any other nationality and Canadians with other nationalities are treated. And deliberately or not, it feeds into an ugly xenophobic sentiment, which is easy to find in Canada and in countries all over the world; a sentiment that views dual nationals as a little less loyal and a little more suspect.

That is what is particularly ugly and potentially very poisonous about this new approach to Canadian citizenship. And it is precisely the wrong message that a government should convey in a time of anxiety about terrorism, violence and human rights abuse.

Of course there should be fair and firm accountability for any criminal acts. That is, in fact, a human right obligation. But eroding concepts of citizenship and creating different tiers of citizenship do none of us any favours. The resulting divisions cleaved open among us are unjust and serve only to lay the ground for marginalization and insecurity.

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