Skip to Content

Precarious citizenship

The proposed overhaul of the Citizenship Act isn't likely to survive a constitutional challenge, say immigration lawyers.

Canadian Passport
Licensed by Jeff Nelson under Creative Commons(CC BY-SA 2.0)

By seeking to toughen its citizenship laws, Ottawa is getting an earful from immigration lawyers warning Ottawa that a new immigration bill is unconstitutional. This week, Immigration Minister Chris Alexander accused them of raising the alarm in order to “drum up business.”

The new bill — C-24 — aims to overhaul the citizenship regime that’s been in place since 1977. In broad strokes, the bill gives new power for the federal government to revoke Canadians’ citizenship, defines physical residency for the purposes of obtaining citizenship, toughens the application process, and removes judicial oversight for a bevy of potentially controversial situations.

The Canadian Bar Association has expressed serious concerns about a number of the proposed amendments, particularly requirements surrounding physical residency and having to demonstrate the intent to reside in Canada if granted citizenship.

What’s a citizen?

Bill C-24 introduces tough new requirements for those waiting in line to become naturalized Canadian citizens. It requires would-be citizens prove that they’ve filed tax returns during their stay in Canada, and it would force prospective citizens to promise and stay in Canada once they get their passport.

While those changes may sound relatively innocuous, Chris Veeman, an immigration lawyer in Saskatoon, says that requiring immigrants to prove that they’ve been paying taxes in order to become a Canadian is troubling. For starters, the Canada Revenue Agency already does that. The danger is not in denying those who dodge taxes. It’s in denying those who’ve made mistakes or missed a deadline.

It is unclear whether a minor breach of a tax reporting requirements put an applicant’s citizenship in jeopardy, says Veeman. “The citizenship act shouldn’t be use to enforce tax law.”

Veeman also objects to amendments that would require applicants to demonstrate an intent to reside in Canada if granted citizenship. According to Citizenship and Immigration official, “citizenship is not for individuals who solely want the convenience of holding a Canadian passport in order to benefit from generous tax-payer-funded benefits without contributing to Canadian society.”

But the proposed requirement could be challenged as unconstitutional, since it could be interpreted to violate mobility rights. And what if a naturalized citizen were required to leave the country for personal or professional reasons? Would a single officer at [Citizenship and Immigration Canada] then have the power to strip the new Canadian of his citizenship, Veeman wonders.

The big change that will impact immigrants is the long-awaited definition of ‘residency’ for the purposes of the Act.

Under the current system, applicants must reside in Canada for three of the four prior years — 1,095 out of 1,460 days.  But residency is not defined. C-24 is looking to remedy that.

“The amendments would require applicants to be physically present for four years (1,460 days) in a six-year period, and require applicants to be physically present in Canada for at least 183 days per year in four of the six years,” according to a government release.

Enforcing these requirements would be a drain on resources, says BJ Caruso, a Toronto lawyer focusing on corporate immigration. “It’s too onerous, and it has too many levels of complication.  It’s really positive that they’re going to define residence to be physical, but all the benefits that they will gain in terms of creating certainty they have negated by adding on layers on layers of requirements that will just complicate the process,” she says.

According to Veeman, there is also a risk that the new rules will target otherwise exemplary citizens — like a permanent resident who wins the Rhodes Scholarship and goes abroad to study. Then they’ve “got to now choose between giving up the scholarship and worrying about residency and citizenship.”

The practical effect, Caruso argues, will be to clog and slow down the system, while the entire goal is to speed it up.

The new requirements also mean that immigration judges will be sifting through “voluminous amounts of documents,” Caruso says, in order to determine whether applications meet the requirements.

Judges will be leafing through Visa bills, records of doctor appointments, children’s report cards — all in order to establish exactly which days the applicant was in the country.

But as other changes come into effect, judges will not longer evaluate those claims. In fact, they won’t evaluate much at all.

Let’s kill all the judges

The government bills the dramatic overhaul of the citizenship system as the move to a “one-step process” – an improvement, it contends, over the current three-step system.

“[Citizenship and Immigration] officers would decide all aspects of grant cases except where they believe that the applicant does not meet the residence requirement,” the department told National.

With the federal government conferring onto itself the exclusive power to grant citizenship, citizenship judges will become virtually irrelevant — except for playing a transitional role in helping to determine if applicants meet the new residency requirements. It’s unclear how long that transition will be, or where that power will be going.

Nevertheless, the department says that the judges won’t become completely moot: “The judge’s ceremonial role would contribute to the symbolism, solemnity and success of these events. They would also promote citizenship by doing outreach in communities,” a departmental spokesperson said in an email.

“There won’t be citizenship judges. A bureaucrat will make that decision — and they’re not independent. That’s a serious problem,” says Caruso.

While the department has asserted that Federal Court hearings will remain the norm, the CBA’s submission on the bill argues that proposed changes would close the door, with some exceptions, on the right to a Federal Court hearing for those subject to revocation of citizenship.

“The proposed process cuts out the Federal Court hearing, except where persons have engaged in conflict against Canada or have misrepresented in relation to specific inadmissibility grounds under [the Immigrant and Refugee Protection Act.] In all other cases, the Minister will decide with no requirement of a formal hearing.” the submission reads.

That will have a huge impact for the potentially large number of Canadian citizens who the government wants to exile.

Exile and banishment

Likely the most controversial aspect of C-24 is the decision to give the Citizenship Minister broad new powers to revoke Canadians’ citizenship, so long as they have citizenship in another country — or are eligible for it — even if they were born in Canada.

Revoking citizenship is usually reserved for crimes against the state — espionage, treason, or terrorism. But while the bar is set pretty high for most of those crimes — one must receive a sentence of life imprisonment before exercising such an extraordinary power. For terrorism, one need only be convicted, in Canada or abroad, and sentenced to five years.

“It’s five years because they want to get the Brampton 18, and they want to get Omar Khadr,” says Barbara Jackman, who has a long history of dealing with the intersection of security and immigration.

The lowest sentence dolled out for the Brampton 18, the group of would-be terrorists who wanted to carry out a bomb plot in Ottawa, was five years. Khadr pleaded to eight years in America.

What’s more, the new provision introducing changes to the power to revoke citizenship is retroactive.

But it goes beyond that. The bill sets out that: “if the Minister has reasonable grounds to believe that…while the person was a citizen, served as a member of an armed force of a country or as a member of an organized armed group and that country or group was engaged in an armed conflict with Canada, the person’s citizenship may be revoked.”

In theory, that could jeopardize Nelson Mandela’s dual citizenship. It also puts a big question mark over past members of the Irish Republican Army, and a slew of other international organizations that might have had armed wings attached to democratic political movements.

Minister Alexander rejected that theory. “A conviction in a country that is totalitarian or doesn't have the rule of law, is not a democracy. A conviction that was political in nature, would not be grounds for refusing citizenship in Canada. We would have the ability to make that determination,” he said before a House of Commons committee.

However, the department didn’t refute that the Mandela example, while unlikely, would be possible.

The process is rather quaint. A minister will write a letter to the citizen notifying them that their citizenship is under review, and gives them an opportunity to reply. After that, the minister will make a formal ruling.

“The fact that they’re going to a letter-writing process to take away something as fundamental as citizenship when you can get a hearing in court on a traffic ticket shows that they are very dismissive of citizenship rights,” Jackman says.

Just what constitutes a terrorism-related offence, or an armed group, Jackman says, is so vague that anyone from environmental activists to al Qaeda operatives could be captured under the law. “We’re just on such a slippery slope,” she says.

“The fact that it is retroactive means that it could apply to Germans who served in World War II,” Veeman points out.

All three lawyers expressed concern that the bill would face court challenges.