A Tale of Two Citizenships: Citizenship Revocation and, oh, Charter Rights Again

Press reports point to a sudden government warming to a private members bill entitled C-425 An Act to amend the Citizenship Act (honouring the Canadian Armed Forces).  In its present form, the bill would amend the Citizenship Act to provide: 

(1.1) A Canadian citizen who is also a citizen or a legal resident of a country other than Canada is deemed to have made an application for renunciation of their Canadian citizenship if they engage in an act of war against the Canadian Armed Forces.

Minister Kenney reportedly is interested in amending the bill to include terrorism as an alternative ground for citizenship revocation.  After all, such things exist elsewhere, including in the United Kingdom.  And the government's appetite has obviously been whetted by recent allegations that Canadian passport holders (maybe even people who should have them) are implicated in terrorist acts in Bulgaria and Algeria. 

Citizenship revocation is, however, a fraught legal issue.

Citizenship revocation in the present Citizenship Act was famously an issue throughout the 1990s with accused Nazi collaborators who obtained Canadian citizenship in the aftermath of the Second World War.  Those proceedings were mired in court battles, not least because the grounds for revocation were limited to fraud: obtaining citizenship by "false representation or fraud or by knowingly concealing material circumstances".  Proving fraud was a thorny undertaking where records on long distant citizenship applications had since evaporated.

On its face, revocation for terrorism would not present as many conundrums.  Think again.

Here are the obvious issues:

1. Two Tier Citizenship: The private members bill anticipates revocation only where the person is also a national of another state. It would apply, in other words to only dual nationals.  It has to.  To revoke citizenship of someone who is a Canadian-only would render that person stateless.  Stateless people are anathema in modern international relations and to render a person stateless is conceivably a violation of customary international law.  Even if it is not, it presents obvious practical difficulties.  If you render a person stateless, what do you then do with them?  There is no where to remove them to.  They are in limbo.  They remain your problem.

On the other hand, opening the door to revocation for dual nationals creates two classes of citizenship: those who have only one nationality and cannot be stripped of it, and the others (of which there are hundreds of thousands in Canada).  This double standards screams "s.15 Charter challenge".  Whatever that section's inadequacies in the modern jurisprudence, it does clearly specify that "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination ... based on ... national or ethnic origin".  Dual nationality is precisely a creature of "national origin". 

I could imagine no more poster-perfect example of a law that discriminates on the basis of national origin than that found in C-425.

I can also conceive of no plausible s.1 justification for it, or even a broadened terrorism based revocation.  I just can't see how it could overcome the Oakes requirements. What does it accomplish?  Stops Canadians from going overseas to conduct terrorism using their Canadian passports?  Passport revocation already does that.  The Criminal Code can stop that.  Stops Canadians from using Canada as a haven?  That is exactly why we have the Criminal Code

In other words, revocation would not serve any purpose not already accomplished by other areas of the law; areas of the law that do not violate s.15.  It constitutes a loyalty based conception of citizenship whose virtues are unlikely to exceed its constitutional vices.

2. Security Certificate Conundrums:  The second problem flows from the experience of security certificates.  Revocation on terrorism concerns will be just like removal on terrorism grounds: hard fought, dependent on intelligence and secret sources, including information provided from foreign governments. 

Right now, the open court principle and plain vanilla common law procedural fairness will strip all that information out of government and deposit it in the public domain if revocation cases were brought.  Or the government will protect this intelligence under the Canada Evidence Act, and never be able to use it.  And so they will lose cases.  If the government does want to use intelligence, it will have to build a security-certificate edifice of closed courts and in camera proceedings.  If it does that, it will likely also have accept security certificate-style special advocates.

After all, revocation then leads to removal on immigration grounds and removal of an alleged terrorist to a second country of nationality may well raise the same concerns about abuse that have been raised in security certificate cases.  Section 7 would be triggered in these circumstances, unless a court was prepared to parse the chain of causation and conclude that citizenship revocation is too far removed from maltreatment to trigger section 7.  The Supreme Court's decision in Charkaoui, as well as the more venerable Singh and Burns suggests that the Court is not keen on thinly sliced conceptions of causality where a slippery slope leads inexorably to a violation of the protected right. 

And so if the government endorses the bill C-425, it would have to be re-crafted to incorporate all the IRPA-style, constitutionally required special proceedings rules.  And if it does not, enter another few years of s.7 constitutional litigation to spice up the s.15 challenges.

So let's sum up: Citizenship revocation does nothing from a national security perspective that can't already be accomplished through other areas of the law.  It will equal years of constitutional litigation, followed by years of security certificate-like proceedings, followed (if the citizenship is revoked) by years of proceedings contesting removals (including ironically, under the security certificate process itself if the recently revoked citizen is then named under a certificate).  Millions of dollars.  Tens of thousands of hours. 

Would the country be safer for all the effort?  Of course not.  Better to spend the money and effort on Criminal Code prosecutions.  But one wonders if that consideration figures at all in the political theatre driving this idea.