Some Observations:
The Canadian Bill of Rights is statutory.
The Charter of Rights is constitutional.
Parliament can enact and the government can apply laws which deprive Canadians of the rights prescribed in either the Canadian Bill of Rights or in the Charter of Rights.
The difference is in what is required to make a law which limits, abridges, infringes, or restricts a right protected by the Charter or the Bill of Rights.
In general, for either, the need, the reason, must be part of the legislation itself which imposes the limitation. Generally, limitations on Charter Rights must meet a higher threshold of need (stronger, more compelling government interest) than limitations on those rights prescribed by the Bill of Rights. (Getting into this in much depth demands an expertise most lawyers do
NOT have or even pretend to have. Analyzing the elements of balancing tests and such can make nuclear physics seem sophomoric by comparison.)
For some Charter rights, like mobility rights (Section 6 in the Charter), there are relatively specific limits described for such rights. The Charter also enumerates several specific exceptions to the right of liberty, for example.
But otherwise, in general any of the rights prescribed in the Charter may be subject
to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Thus, for example, if Parliament has a rational purpose for limiting certain rights of individuals, such that the purpose and government interest outweighs the negative effect on the individual's rights, Parliament may enact a valid limitation on those rights. Thus, for example, there are many Canadians held involuntarily in prisons pursuant to a whole body of law which prescribes the public interest in incarcerating certain individuals so long as certain fair process requirements are met. (I know of no one who genuinely feels that locking up criminals is an unconstitutional deprivation of the right to liberty; there is much disagreement about how much is fair and just, but not about the right of the government to prescribe what constitutes an offense for which incarceration may be imposed.)
So the mere fact that a law impinges or restricts an individual right, under either the Bill of Rights or the Charter of Rights, does not mean the law is inoperative, invalid, or unconstitutional. Identifying the nature and extent to which it has a detrimental impact on rights is
merely a beginning point in analyzing the validity or constitutionality of a law.
Note: the Constitution, including the Charter of Rights (which is Part I of the Constitution Act, 1982) can be changed. The procedure to amend or change the Constitution is far more difficult than adopting statutory provisions. That difficulty is in large part the hurdle the Liberals could not hope to overcome in reforming the electoral process, and so gave up on that. That difficulty is a huge part of why so many dismissed NDP promises, if elected, to abolish the Senate.
But make no mistake, the Constitution may be amended.
To my view, my sense is that Justice Gagné's ruling is probably DISAPPOINTING.
The official decision is not yet publicly published. The news media stories about the force and effect of this decision are inconsistent.
CBC reports:
[Justice Gagné's ruling]
. . . means going forward, the Minister of Citizenship and Immigration will no longer have the power to decide on their own, to revoke someone's citizenship if they feel it was obtained by lying or concealing information.
In contrast, the
Globe and Mail stated it differently, quoting one of the lawyers involved, Lorne Waldman (a well known and regarded activist but also known for hyperbole):
The ruling, which would halt the current citizenship revocation process, comes into effect in 60 days, and the government has 30 days to appeal.
“Legally, the government can still use the revocation process for 60 days. I would hope that they won’t continue using it, because the court found it unconstitutional,” Mr. Waldman said.
Obviously both cannot be correct. And we know that Mr. Waldman's characterization is, in particular, not entirely correct since all the various reports about this decision indicate that Justice Gagné did
NOT find these provisions in the
Citizenship Act to be "unconstitutional," but on the contrary the provisions allowing for revocation without a hearing violates the individuals' right to a fair hearing. This is contrary to Section 2(e) in the Canadian Bill of Rights, which are statutory rights (
not constitutional), pursuant to which a law may not (unless it meets certain requirements and is expressly declared as such)
"(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations; "
If the common elements in the various media stories are accurate, however, that means that Justice Gagné rejected the argument that the procedure prescribed by Section 10(3) and 10(4) in the
Citizenship Act is contrary to Section 7 in the Charger of Rights:
"7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
Other Federal Court justices have, by the way, in effect enforced the revocation of citizenship pursuant to the revised no-hearing provisions in the current
Citizenship Act, or otherwise refused to also stay revocation in other cases. They did not see a violation of the Bill of Rights let alone the Charter.
Some additional decisions related to revocation under the
revised (no hearing) procedure include:
http://canlii.ca/t/h32c8
http://canlii.ca/t/gxj8v
Esnan v. Canada (Immigration, Refugees, and Citizenship), 2016 FC 1264 (CanLII) and Al Madani v. Canada (Immigration, Refugees, and Citizenship), 2016 FC 1263 (CanLII) are companion cases in which a stay was denied.
http://canlii.ca/t/gx1rg is a decision by Justice Strickland upholding revocation pursuant to the same provisions challenged in the case decided by Justice Gagné.
And there is Justice Manson's decision in the Montoya case
http://canlii.ca/t/gsmn8
Why this is disappointing:
To my view, taking away a person's citizenship is not like seizing the person's car or bank account. Citizenship is not a mere incident of property.
However one characterizes what it is that citizenship is, as a privilege or a right, it is not like a license to sell real estate.
Some of the discussion in the other cases makes distinctions like losing citizenship is not equivalent to deportation, emphasizing that the government must meet a whole other set of requirements to deport someone. That, to my view, is a cheap and disingenuous evasion.
To my view, any approach to citizenship which fails to recognize that it is an essential element of life, liberty and security itself, undermines the very fabric of a democratic society . . . after all, to take away a person's citizenship disenfranchises that person.
I do not know the precise reasoning employed by Justice Gagné, but I do know that it would be unjust to have a system of law which reduces the role of citizenship to be on a par with a license to practice dental hygiene, or any other licensing or regulation of professions, for which there is a substantial body of law illustrating the procedural protections against arbitrary termination. That is, a right to a fair hearing is
not enough.
The current law is an outrage. There is virtually no disagreement about this outside the Conservatives who adopted and implemented it. It was profoundly disappointing that the Liberals did not address this serious flaw in the
Citizenship Act when Bill C-6 was being drafted.
Unfortunately I am not sure the language of the proposed amendment in this regard is the right approach. This kind of legislation demands very careful coordination with all its moving and static parts. My sense is the amendment is, as Lorne Waldman is urging, the better path, even if it is short of perfect and will need further ironing later.
In the meantime, however, there remains more than a little to be disappointed about: from the less than encouraging, and sometimes disingenuous approach in how the Minister of IRCC has handled several of these revocation cases, to the way in which the Liberals are continuing to apply the draconian provisions for cessation of protected person status, pursuant to which some persons long qualified for citizenship have been denied citizenship based on some travel they did a decade ago (long before the Harper government implemented the provision to, in effect, penalize these persons by
automatically terminating their PR status, with no consideration for H&C factors).
