screech339 said:
What's your thought on Fred Rose who lost his Canadian citizenship due to treason. MP King revised the citizenship law so that citizenship wont be taken away. So if a PM can change law to prevent stripping of citizenship, surely a PM can change law to allow it.
My sense is this is not an effort to engage in sincere discussion (you have, for example, posted about Fred Rose in multiple topics where there is not even a remote relevance to the topic), but I will offer the following:
The reference to Fred Rose, after all, is to a case in the early Cold War era (soon after WW II) involving an individual who was convicted of spying in Canada for the Soviets. Even for the time period, that was a
one-off, isolated case, largely an anomaly. It occurred more than a
half century ago, and predated the modern Canadian
Citizenship Act (adopted in 1977) by two decades, and really is of no relevance to the discussions in this topic (and not remotely relevant where you have brought this up in other topics). It certainly has no roots in or relevance to the
Citizenship Act, which again has governed Canadian citizenship law since 1977, and which did not contain any provisions about revoking citizenship for treason before it was amended by Bill C-24 in 2014.
Moreover, the Fred Rose case occurred
years prior to the 1961 Convention on the Reduction of Statelessness, and
more than two decades prior to when Canada became a signatory to that Convention. It is this Convention, and additional related international agreements and treaties which Canada is a party to, which underlies the so-called two-tier citizenship created by Section 10.4 in the
Citizenship Act (as amended by Bill C-24). There was no Canadian Charter of Rights at that time. Even the Canadian "Bill of Rights" was not enacted until years later, in 1960. In short, the Fred Rose case is not relevant to any of these in any way, not even in the same ballpark.
In contrast, however, the modern Canadian
Citizenship Act, including portions remaining in it right up to 2008, has had various provisions which had the practical effect of terminating the citizenship of persons who had acquired or even were born with Canadian citizenship. These provisions give weight to the reasoning of Justice Rennie's decision in the Galati challenge, that citizenship is a privilege within the power of Parliament to prescribe not just when it is conferred or granted, but also as to conditions which may result in its loss. For example, within just the last couple days (in another topic) I referenced and linked the
former section 8 of the Citizenship Act (as it was constituted until 2008), which prescribed that Canadian citizens by birth, but born outside Canada,
ceased to be a Canadian citizen on their 28th birthday unless they made an application to retain citizenship. (This provision was repealed in an act adopted by Parliament in 2008, when the Conservatives had a minority government.)
I nonetheless think that Justice Rennie's ruling is overbroad and misstate's the nature of what citizenship status is, and in particular understates the scope of its protection as a fundamental right once it is conferred -- I get why the courts are well-settled in the view that the grant of citizenship is a privilege.*
(*see note re citizenship as a privilege below)
In any event, there is indeed much to talk about, many aspects and angles to this issue, many lacking consensus, and it can get complicated. That is, if one is in fact sincerely interested in engaging in discourse about it.
But, again, Fred Rose is not relevant. Canada had no prohibition against rendering persons stateless at that time (or for a long time thereafter). Again, additionally, there was no Canadian Charter of Rights at that time. Even the Canadian "Bill of Rights" was not enacted until 1960. And the modern
Citizenship Act was not enacted until two decades later.
There is also the obvious: the scope of Parliament's powers is more particularly defined given the Constitutional Act of 1982, long, long after the Fred Rose case or the legislation enacted the year following that case.
I have no idea who "MP King" is or what your statement "MP King revised the citizenship law so that citizenship wont be taken away," is in reference to. (I suppose you might be referring to when the Conservative Party government was in power in 1958, John Diefenbaker the PM, and Parliament passed a law prohibiting the revocation of citizenship for treason, but it is not clear that is what you meant to reference.) But then you also state: "So if a PM can change law to prevent stripping of citizenship, surely a PM can change law to allow it." But of course, assuming "PM" refers to a Prime Minister, a PM can
NOT change any Canadian law, let alone the law governing citizenship.
If by "PM" you really meant Parliament, and in that trying to be brief and thus meaning change as made through the Parliamentary process, including passage of the legislation by the Senate, and the grant of Royal Assent, the statement is nonetheless overly general, and exceedingly so. Even with a majority in Parliament, and with the assent of the Senate, and all the other formalities of adopting legislation, the legislation itself must also, otherwise, meet certain requirements, and especially pass muster per the Constitution and the Charter of Rights. The fact that Parliament may legitimately adopt this or that provision, does not really offer much insight in what other legislation may be adopted, and in particular what Parliament may repeal does prescribe the scope of what Parliament may enact.
That is, there are parameters limiting the scope of what Parliament can do, and the legitimacy of particular legislation is not directly dependent on the legitimacy of other legislation (unless it is predicated on that other legislation).
In particular, the power to remove or repeal provisions does not necessarily mirror the power to enact legislation, and vice versa. For example, Parliament cannot legitimately enact a law stripping citizenship from those advocating environmentalism any more than it could from those who are autistic, because they are environmentalists or autistic, but it might in fact enact such laws even though they would be invalid; but if such a law was ostensibly adopted and became part of Canada's laws, Parliament could legitimately repeal it.
And as things turned out, Harper's Conservatives were no stranger to adopting legislation which Parliament could not legitimately adopt, and thus the Supreme Court of Canada had to do the difficult job of invalidating various enactments by the Conservatives. Indeed, the issue about the constitutionality of sections 10.(2) (revocation grounds based on crimes committed while a citizen) and 10.4 (provision prescribing which citizens are or are not subject to 10.(2) revocation) is still before the courts. Many firmly believe that despite enacting these provisions, Parliament could not lawfully do so, and they are invalid. The Liberal government could, perhaps, avoid the judicial wrangling over this by repealing these provisions and rendering the court challenges moot. And indeed that seems likely.
My initial, "longer" response to
Bigudi's post about inequalities among citizens was largely to identify the distinction between the status of citizenship, and its fundamental nature, and the extent to which yes, indeed, there is great variety and oft times disparity in the benefits, privileges, and entitlements individual citizens are afforded. Having equal rights does not mean equality in all things, or even most things.
Harper and Justice Rennie and Sections 10.(2) and 10.4 in the
Citizenship Act proffer a rather insubstantial form of what it means to be a Canadian citizen. Justice Rennie might be right that there is
NO Jus Soli, but that does not mean there is no fundamental right to retain the status of citizen once a person is a citizen.
Just what sort of right is embedded in citizenship status itself? This question may not be answered anytime soon if the Liberals repeal Sections 10.(2) and 10.4 in the
Citizenship Act and the courts then dismiss the related challenges as moot.
*Note regarding citizenship as a "privilege:"
Just this week, once again a Federal Court justice,
Justice Gleeson in another case where CIC appealed, described "citizenship" as a privilege, citing last year's decision by
Justice LeBlanc in another CIC appeal, where Justice LeBlanc cited numerous other federal court decisions similarly describing citizenship as a "privilege" (see citations at paragraph 21 in Justice LeBlanc's decision). The language in these decisions states, specifically, that "Canadian citizenship is a privilege," but the context is really about the grant of citizenship not the nature of citizenship itself or to what extent it is a protected status once conferred. Justice Rennie's decision makes no distinction, but my sense is that the higher courts will be more nuanced. But I do not really know how this issue will be decided if the challenges to Section 10.(2) and 10.4 reach the Supreme Court of Canada, if they reach the Supreme Court. In any event, my strong sense is that the higher courts will recognize there is a profound difference in the fundamental nature of citizenship itself, versus the statutory entitlement to a grant of citizenship. It is the latter which the numerous decisions clearly establish is a
privilege, and that makes sense in the general scheme of Canadian constitutional and citizenship law.
By the way, this is in the realm of Canadian Constitutional law, a realm of jurisprudence in which there are few experts, and I am certainly not among them, not by a long shot. Nor is it the expertise of any of the Canadian lawyers I have been personally acquainted with. And the particular question, regarding the nature of citizenship itself, is one which in large part has been avoided in the higher courts, or at least not directly addressed.
