CIMM Committee Report
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CITIZENSHIP REVOCATION: A QUESTION OF DUE
PROCESS AND RESPECTING CHARTER RIGHTS
When the House of Commons Standing Committee on Citizenship and Immigration first organized at the beginning of this Parliament, we determined that a study of Canada’s citizenship laws would be our first priority. The current Citizenship Act came into force in 1977 and although the necessity of revising this legislation has been widely recognized since the late 1980s, attempts to amend and update the law have faltered. A government discussion paper led to a report by this committee in 1994. That was followed by a series of bills, all of which died on the Order Paper, the last being Bill C-18 in the 37th Parliament. At the beginning of the 38th Parliament, then-Minister Judy Sgro requested input from the Committee prior to the tabling of a new bill that was projected to be introduced this spring. In November 2004, the Committee tabled a report entitled Updating Canada’s Citizenship Laws: Issues to be Addressed. In that report, the Committee identified the citizenship issues that we believed were most pressing.
Unfortunately, the government has not chosen to introduce a bill to date. Like his predecessor, the new Minister Joseph Volpe has requested this committee’s input on various matters. Specifically in the context of citizenship revocation, he asked: “What are the appropriate reasons to remove citizenship and what process would be most appropriate?”1 This report will address that question.
The Committee has decided to report only on citizenship revocation before the summer break of the House of Commons. However, we do intend to table a comprehensive report on all citizenship matters upon our return this fall. Given the importance of the issue of revocation, we felt it necessary to provide our advice at the earliest opportunity.
On 28 October 2004, the Committee passed a motion providing that the evidence and documentation presented to the Committee during the 36th Parliament and the Second Session of the 37th Parliament in relation to the study of citizenship legislation be deemed received by the Committee in this session. We reviewed this material and it formed the basis for our November 2004 report. Since that time, we have also heard presentations from witnesses in Ottawa, including officials with Citizenship and Immigration Canada (CIC), and in April 2005 the Committee traveled the country, visiting all the provincial capitals as well as Calgary, Montreal, Vancouver and Waterloo. While citizenship was just one of three issues being studied in the course of our cross-Canada consultation, a large number of Canadians came forward to provide their views on a new Citizenship Act. In total, we have heard from 131 witnesses on the issue of citizenship during this Parliament.
THE CURRENT CITIZENSHIP REVOCATION PROCESS
The current Citizenship Act provides that the Governor in Council may make an order that a person ceases to be a citizen where the person obtained citizenship or permanent residence by false representation, fraud, or by knowingly concealing material circumstances. The order can only be made following a report of the Minister of Citizenship and Immigration. The Act sets out the procedure the Minister must follow, beginning with notice to the individual. The person may request that the Minister refer the case to the Federal Court. If referred, a judge of the Court must agree that, on a balance of probabilities, the person improperly obtained citizenship before the Minister may make a report to Cabinet.
The vast majority of witnesses argued that there is an appearance that this process is unduly political as the Governor in Council makes the final decision on revocation. Most agreed that moving the power of revocation from Cabinet to the courts is necessary. On this, the Committee agrees. After careful deliberation, the Committee has identified the key issues involved in the revocation process and makes the following comments and recommendations.
Citizenship — particularly the potential loss of citizenship — evokes strong emotional responses. In the course of our hearings, many witnesses spoke passionately about what their Canadian citizenship means to them. Naturalized Canadians who testified before the Committee were particularly emphatic about their attachment to Canada and their fear that their citizenship status is somehow different from those born in the country.
While citizenship carries with it certain rights and responsibilities, it is also highly symbolic. It is an expression of common values and collective aspirations. It is abundantly clear to the Committee that Canadian citizenship is not something to be treated lightly and, thus, the revocation of citizenship must be very carefully proscribed.
The Committee agrees that the grounds for revocation should not be changed. False representation or fraud or knowingly concealing material circumstances in an application for citizenship or in the initial application for permanent residence should continue to be the basis for citizenship revocation.
The witnesses appearing before the Committee were practically unanimous in stating that conduct after the grant of citizenship should not be taken into account. We understand that some countries do permit revocation based on offences such as treason or terrorism, but the majority of the Committee is of the opinion that once citizenship is properly granted, any future conduct should be addressed through Canada’s criminal justice system. If citizenship is legitimately awarded and there is no question as to fraud in the application process, a person who later commits a crime is “our criminal.”
RECOMMENDATION 1
Revocation should be based on false representation or fraud or knowingly concealing material circumstances in the application for citizenship or in the application for permanent residence. A person’s conduct after being granted citizenship should not be relevant to revocation.
There was considerable debate regarding the appropriate procedure to be established for citizenship revocation. Most witnesses argued that the current Act is problematic in that the power of revocation lies with the Governor in Council. The Committee agrees that a fully judicial process would be preferable. Leaving the final decision to the Cabinet fosters a perception that the process is neither fair nor transparent.
We note as well that the government demonstrated a desire to move in this direction in Bill C-18, which would have removed the involvement of the Governor in Council in revocation matters. However, Bill C-18 and its two predecessors would also have granted a new power to be exercised at the discretion of the Minister of Citizenship and Immigration: the power to annul citizenship. A limited period of applicability was provided in Bill C-18 — the power would have to be exercised within five years of the original citizenship decision —and the person would be given notice regarding the proposed order, after which he or she could make representations to the Minister. There would not have been a formal hearing and no appeal of an annulment order would have been permitted.
As noted in our November 2004 report, if the intention is to move to a fully judicial revocation process in an effort to remove the perception of unfairness inherent in the current system, it would seem anomalous to create an administrative revocation power from which no appeal would be permitted.
RECOMMENDATION 2
The process for revoking citizenship should be exclusively a judicial process.
RECOMMENDATION 3
There should be no provision in the law for an administrative power to annul citizenship.
The appropriate standard of proof to be applied in revocation proceedings was a crucial issue for the Committee. Some witnesses argued in favour of maintaining the current civil standard of a balance of probabilities. Others pointed to the Oberlander and Odynsky cases2 and argued that the civil standard of proof resulted in unfair decisions; in both cases, the Court found that there was no evidence that either had participated personally in any atrocities but that it was “more probable than not” that they had been asked about their wartime activities and had not been truthful. The concerns of some witnesses and Committee members were compounded by the fact that no appeal of the Federal Court decision is permitted under the current Act.
![Text Box: ...[A] person who has been charged with shoplifting is afforded more rights under our law than the citizen who faces revocation of his or her citizenship. — Witness Testimony](graphics/08-rap-2-e.gif)
The majority of the Committee agrees that the current standard of proof is too low. In stripping someone of something as fundamental to their identity as their citizenship, we feel that the government should be required to meet a more onerous burden. Some witnesses argued that a higher civil standard should be legislated and suggested that “clear and convincing evidence” of fraud should be required. Others advocated for moving to the criminal standard of proof beyond a reasonable doubt. Given the importance of citizenship — some witnesses indicated that they would choose incarceration over losing their citizenship — the majority of the Committee has agreed that the criminal standard would be appropriate. Indeed, the offence of false representation, fraud or knowingly concealing material circumstances already exists in the Citizenship Act independently of the revocation provisions. A charge under section 29 of the Act would result in a criminal court process. The majority of the Committee believes that this is the appropriate procedure to invoke for revocation and we recommend that revocation be tied to the offences of false representation, fraud or knowingly concealing material circumstances in an application for permanent residence or citizenship.
RECOMMENDATION 4
To revoke citizenship, false representation or fraud or knowingly concealing material circumstances should be proven beyond a reasonable doubt in a criminal court.
The question of the applicability of the Canadian Charter of Rights and Freedoms to revocation proceedings — in particular section 7 — has also been discussed in the course of our hearings. With respect to the argument that revocation does not infringe one’s security of the person and thus does not engage section 7 of the Charter, the Committee cannot agree. We note the recent judgment of the Honourable Mr. Justice R.D. Reilly of the Ontario Superior Court in Oberlander3 who stated:
There can be no question that the revocation of citizenship, particularly in the circumstances of this case, triggers s. 7 of the Charter. A revocation of citizenship engages both liberty interests and security of the person….In sum, I can think of no consequence, apart from a sentence of several years imprisonment in a penitentiary, which would be more significant to a responsible citizen than the loss of that citizenship.
The legal protections of the Charter must apply to revocation proceedings.
RECOMMENDATION 5
The legal protections of the Canadian Charter of Rights and Freedoms — specifically section 7 to 14 — must apply to citizenship revocation proceedings.
As we have recommended that revocation proceedings be dealt with in the criminal justice system, the normal criminal rules of evidence should apply.
Bill C-18 had proposed a special revocation process for those accused of terrorism, war crimes or organized crime. The process would have allowed for the protection of sensitive information in these cases when a judge determined that disclosure could be injurious to national security or to the safety of any person. The subject of the revocation proceeding would be given only a summary of the evidence, with the judge excluding any information deemed to be sensitive. This procedure mirrored the provisions in sections 76-81 of the Immigration and Refugee Protection Act relating to the protection of information on security grounds. As in “standard” revocation proceedings, it was anticipated that the revocation decision would be made on the balance of probabilities. However, no appeal or judicial review would be permitted.
As noted in our November 2004 report, the witnesses who addressed this process objected to it most strenuously, arguing that it violates the most basic tenets of due process. The Committee understands that court challenges have been made in the immigration context. While the security certificate process has been upheld thus far, other cases are still pending. In our last report we suggested waiting for the results of the reviews of the Anti-terrorism Act that are currently underway in the House of Commons and the Senate.4 While some members of the Committee have concluded that the process is so troubling that it should not be invoked for citizenship revocation cases — indeed, some would like to see it removed from the Immigration and Refugee Protection Act — the majority of the Committee has decided that we should wait for the House of Commons and Senate committees that are studying this issue to table their reports. Pending their recommendations, the Committee reiterates that it would not be appropriate to include a security certificate process in Canada’s Citizenship Act. However, we wish to make clear that the introduction of a new Citizenship Act should not be delayed pending these reports.
RECOMMENDATION 6
The criminal rules of evidence should apply to citizenship revocation proceedings.
RECOMMENDATION 7
The government should not include a security certificate process for citizenship revocation proceedings in its proposed new Citizenship Act, but may consider such a process after the House of Commons and Senate committees who are reviewing the Anti-terrorism Act report on the issue of immigration security certificates.
Under the current legislation, no appeal is permitted from the decision of a Federal Court that a person has obtained citizenship by false representation or fraud or by knowingly concealing material circumstances. Given the numerous widely publicized cases involving wrongful criminal convictions, we are very cognizant of the possibility of error. The Committee sees no reason to preclude an appeal of a revocation order. It would help to ensure the integrity of the revocation process. We further note that Bill C-18 would have permitted an appeal to the Federal Court of Appeal and, with leave, to the Supreme Court of Canada.
RECOMMENDATION 8
There should be no special limits placed on the right to appeal a decision of a court that has made a finding of false representation or fraud or knowingly concealing material circumstances.
Once a finding has been made by a judge that the Crown has proven beyond a reasonable doubt that a person acquired citizenship based on false representation or fraud or knowingly concealing material circumstances, the Committee believes that there should be some flexibility in determining the consequences. To begin with, the majority of the Committee is of the opinion that revocation should not automatically result from a finding of guilt. The trial judge should be given the option of ordering revocation of citizenship or another punishment, such as a fine or period of incarceration, based on the particular circumstances of the case.
Many witnesses also argued that there should be a temporal limit placed on revocation. That is, after a certain period of time in Canada, a person should be able to be secure in their status as a citizen and revocation should not be permitted. The Committee was divided on this issue.
Since revocation is pursued in so few cases, some Committee members feel that the six million naturalized Canadians should not be concerned about the possibility of having their citizenship revoked. As for those who committed egregious crimes before entering Canada and lied about their past, they should be constantly looking over their shoulder and worrying about their crimes catching up to them. Committee members opposed to any temporal limitation on revocation also argued that people should not be able to benefit from their fraud simply because they were able to get away with it for a long enough period of time.
On the other side of the argument, some Committee members suggested that after a certain amount of time, the government has to take responsibility for its decision to grant citizenship. Keeping the possibility of revocation open indefinitely to address a very small minority of naturalized citizens creates uncertainty for the millions of others.
![Text Box: You never feel quite the same as the persons born here. Every time you see the question arising about conditions under which your citizenship could be revoked...[t]he question that comes up is: how long is enough? How long before I become a real Canadian? I have Canadian-born children. They can do anything, but when is it that I'm going to be here permanently? — Witness Testimony](graphics/08-rap-6-e.gif)
The Committee realizes that no citizenship screening process can be foolproof and has therefore rejected the suggestion made by some witnesses that citizenship should be completely irrevocable once granted. In our discussions about establishing a limitation period for citizenship revocation, some Committee members suggested that a five year window would be appropriate. At the end of the day, however, it was agreed that as long as proof beyond a reasonable doubt is required for revocation and an appeal process exists, there is no pressing need to set a limitation period on commencing revocation proceedings.
The Committee has also been asked to address the prospect that citizenship revocation may render some individuals stateless. As witnesses pointed out, statelessness has been increasing in recent years, leaving many people in legal limbo, often without rights in their country of residence and no possibility of emigrating elsewhere. They argued that Canada should be playing a leading role in reducing statelessness and that our Citizenship Act should conform to this objective. That said, the Committee understands that it is permissible in international law — more specifically, under the Convention on the Reduction of Statelessness5 — for a person to be rendered stateless when their citizenship was acquired by fraud.
The Committee has decided that the potential of rendering someone stateless should not preclude initiating revocation proceedings. If a person has obtained citizenship fraudulently, they should not be permitted to retain their ill-gotten status simply because revocation might leave them stateless. We also note that the government has the ability to grant status for non-deportable stateless persons, allowing them to work and study in Canada.
Finally, the Committee has been asked to address the question of deportation of those whose citizenship is revoked. Currently, if a person’s citizenship is revoked, a second process must be commenced in the Immigration Division of the Immigration and Refugee Board for a declaration that they are inadmissible to Canada. Bill C-18 would have permitted the Minister to seek a second judgment from the Federal Court regarding inadmissibility after a ruling that the person’s citizenship was revoked and many witnesses were supportive of streamlining the removal process. The Committee believes that some sort of procedural consolidation would be logical. In cases where revocation is ordered based on false representation or fraud or knowingly concealing material circumstances in an application for permanent residence, the Committee believes that the judge should also be able to issue a deportation order against the individual. In other situations, the person’s status would revert to that of permanent resident and CIC could initiate removal proceedings based on the Immigration and Refugee Protection Act, if merited.
When deportation is being considered, the Committee wants to ensure that Canada’s commitments under the Convention against Torture (CAT) are upheld. Canada has ratified the CAT which explicitly prohibits state parties from returning people to torture. Article 3(1) states:
No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
Under no circumstances are states permitted to deviate from this absolute prohibition. Article 2(2) of the CAT reads:
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
Both Human Rights Watch and Amnesty International have recently reported on this issue and the United Nations Committee against Torture has voiced its concerns regarding Canadian practice. Specifically, the United Nations Committee stated:
The Committee expresses its concern at…the failure of the Supreme Court of Canada in Suresh v Minister of Citizenship and Immigration to recognise, at the level of domestic law, the absolute nature of the protection of article 3 of the Convention that is subject to no exceptions whatsoever…6
The U.N. Committee recommended that Canada unconditionally undertake to respect the absolute nature of Article 3 in all circumstances and fully incorporate the provision of Article 3 into domestic law.
We agree that no one should be deported to face torture. Thus, when citizenship revocation has the potential of resulting in a deportation order, a risk assessment must be undertaken. Deportation should not be permitted where there are reasonable grounds to believe that torture will occur.
RECOMMENDATION 9
Whether to revoke citizenship or impose another punishment should be left to the discretion of the trial judge.
RECOMMENDATION 10
When following a finding of guilt a judge orders that a person’s citizenship is revoked, the judge should also be empowered to order that the person be deported if the false representation or fraud or knowing concealment of material circumstances related to the person’s application for permanent residence in Canada.
RECOMMENDATION 11
Before deporting an individual, there must be a risk assessment to determine whether they will face torture. Where there are reasonable grounds to believe that torture will occur, deportation should not be permitted under any circumstances.
A new citizenship bill will of course have to address the issue of processes that are currently underway under the existing legislation. Should they be discontinued and proceedings commenced under the new legislation, if appropriate? In Bill C-18, the government had proposed a transitional provision that would have allowed pending revocation proceedings to continue under the current Act if some evidence had been received or a decision already rendered by the Federal Court.
The Committee has determined that if Parliament, in responding to the perception that the current practice is unfair, sees fit to switch to a fully judicial process, it would be illogical to maintain pending proceedings. New citizenship legislation would obviously be intended to improve upon the existing system. It is therefore appropriate that individuals engaged in revocation proceedings when the new law takes effect be given the choice of proceeding under the new legislation or under the 1977 Citizenship Act.
RECOMMENDATION 12
People engaged in revocation proceedings when the new law takes effect should be given the choice of proceeding under the new legislation or under the 1977 Citizenship Act.
We hope that the fact that we have selected to report on the topic of citizenship revocation will emphasize the importance it holds for Committee members and the witnesses who appeared before us. We are continuing to hear witnesses on other citizenship issues and, as noted, will table a comprehensive report following the summer break.
| 1 | Minister Volpe’s letter to the Committee is attached as Appendix A to this report. |
| 2 | Minister of Citizenship and Immigration v. Helmut Oberlander, [2000] F.C.J. No. 229 (T.D.); Minister of Citizenship and Immigration v. Wasyl Odynsky, [2001] F.C.J. No. 286 (T.D.). |
| 3 | Helmut Oberlander v. Attorney General of Canada and The Minister of Citizenship and Immigration, 2004 CanLII 15504 (ON S.C.) |
| 4 | Although the Anti-terrorism Act does not contain the security certificate provisions, both the House of Commons and Senate committees have decided to review the process as part of the general context of anti-terrorism measures. |
| 5 | Convention on the Reduction of Statelessness, 989 U.N.T.S. 175, entered into force December 13, 1975. Article 8 provides as follows: 1. A Contracting State shall not deprive a person of his nationality if such deprivation would render him stateless. 2. Notwithstanding the provisions of paragraph 1 of this article, a person may be deprived of the nationality of a Contracting State:
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| 6 | Suresh v. Canada (Minister of Citizenship and Immigration), [2002] SCC 1, dealt with a deportation order against an individual who argued that he would face torture if returned to his home country. The Supreme Court of Canada unanimously held when examining the issue that the prohibition on returning a person to face a risk of torture is also the prevailing international norm; that is, it is customary international law. In direct contradiction, however, was a section of the former Immigration Act that permitted deportation to a country where the person’s life would be threatened if the person was inadmissible for any specified reason and was designated to be a danger to the security of Canada. (This continues to be the case under the new Immigration and Refugee Protection Act.) In essence, Canadian law provides that in certain situations, people may be deported to face torture. Mr. Suresh was allegedly a member of and fundraiser for the Tamil Tigers. Although the Court allowed Suresh’s appeal and ordered that he was entitled to a new deportation hearing, the legislation was upheld as valid. The principles of fundamental justice in section 7 of the Charter would guide the new hearing and the Court suggested that the Minister should “generally decline to deport refugees where on the evidence there is a substantial risk of torture.” The Court set out its restrictive view of when deportation under these circumstances could take place as follows: “We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1 … Insofar as Canada is unable to deport a person where there are substantial grounds to believe that he or she would be tortured on return, this is not because Article 3 of the CAT directly constrains the actions of the Canadian government, but because the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture on a case-by-case basis.” |