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Key parts of citizenship revocation process struck down

“Freedom of expression is a fundamental right in this country. Balancing that with the individual’s interest in protecting personal information — you’re crossing into uncharted territory.”

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The Federal Court just beat Justin Trudeau to the punch.

In a ruling yesterday, the court found that three provisions in the Citizenship Act were unconstitutional and denied Canadian citizens the right to due process afforded to them under the Canadian Bill of Rights.

Justice Jocelyne Gagné ruled that Ottawa’s powers to strip citizenship from dual citizens, in cases where they believe the citizenship was obtained through fraud or misrepresentation, lacked safeguards.

Thanks to changes brought in under the Strengthening Canadian Citizenship Act, people facing revocation were only afforded a trial if the Minister of Citizenship and Immigration deemed it necessary. Otherwise, their representations would be made only in writing.

“The applicants should be afforded an oral hearing before a Court, or before an independent administrative tribunal, where there is a serious issue of credibility; a fair opportunity to state the case and know the case to be met; the right to an impartial and independent decision-maker; and an opportunity to have their special circumstances considered when such circumstances exist,” Gagné wrote.

In so doing, she declared three sections of the statute inoperable.

While she didn’t directly address the controversial section 10(2), which gives Ottawa the power to strip the citizenship of anyone convicted of a terrorism offence, the ruling does extend the right to a hearing to Canadians facing revocation under that section as well.

With that, all current revocation cases are on hold.

But Joel Sandaluk, an immigration lawyer at Mamann Sandaluk & Kingwell says the government’s behaviour remains “a mystery.” Sandaluk represents a client currently facing revocation.

After all, the Trudeau government introduced legislation in 2016, Bill C-6, to do exactly what the Federal Court did today. The bill, which is currently in the Senate, would also repeal section 10(2) entirely.

Even so, Ottawa has aggressively pursued hundreds of revocation cases, happily employing the streamlined process from the Strengthening Canadian Citizenship Act.

“Whether they were trying to beat the court to the punch, or whether it happened exactly how they wanted it to happen,” Sandaluk doesn’t know. He suspects that Ottawa may have looked at “having their legislation endorsed by the court.”

One big reason why passage of Bill C-6 is taking so long is because an upstart Senate has moved to tinker with the bill in recent months.

After going through the committee without amendment, it faced a raft of amendments at third reading in the upper chamber. Its amended version was passed through the Senate last week, and now heads back to the House to see if it will accept the amendments, or reject them — and risk a Parliamentary standoff.

The pause may be good news, ultimately. Sandaluk ventures that, given the Federal Court ruling — which Ottawa now seems unlikely to appeal — the Attorney General would be wise to run through Bill C-6 and ensure that everything meshes with the ruling.

“The Federal Court says there needs to be procedural safeguards,” he says. Whether those are sufficiently in C-6? “It’s too early for me to say right now.”

One amendment that was adopted in the Senate may address that very safeguard. Introduced by Senator Elaine McCoy, the changes would, amongst other things, require the minister to inform the person of their right to make representations and their ability to refer the matter to the court.