Re: Conviction necessary for Minister to revoke citizenship
I think the discussion about this is based on section 10.(2)(b) of the Citizenship Act, this being the provision which prescribes that citizenship may be revoked if there is a conviction for a terrorism offence. It does explicitly prescribe "an offence outside Canada that, if committed in Canada, would constitute a terrorism offence . . . and sentenced to at least five years of imprisonment.
So, for example it appears Mohamed Famy's Canadian citizenship is safe. He has only been sentenced to three years imprisonment.
The reason why so many apprehend that the scope of this is far, far too broad, however, is that the scope of what may constitute a terrorist offence in Canada is itself incredibly broad.
Section 83.03 of the Criminal Code (which falls within the definition of terrorism for purposes of Section 10 in the Citizenship Code), for example, defines a crime of terrorism which could extend not just to the individual throwing the rock, but to a doctor who bandages the individual who threw the rock, or, for that matter, the nurse who gives the doctor the bandages, or even the individual who delivers the medical supplies to the nurse which end up being used by the doctor to treat the person who threw the rock, if it is shown the nurse or supplier knew the doctor would treat a person throwing the rock who was part of a terrorist group.
So long as the person is charged and convicted . . . in a country which imposes a sentence of five years or more.
Before this is dismissed as ludicrous, recall the case of the PR, a doctor, who the Minister sought to deport because he had worked, in his capacity as a doctor, for an organization which was later (long after the doctor left that organization's employ) deemed to be involved in supporting terrorism (not directly engaged in terrorism, but by providing aid to a terrorist group, again, however, years later), and "knowing" someone who, again much later allegedly became involved in Al-Qaeda, possibly providing that individual medical care at a medical clinic in Bosnia in the mid-90s.
See the El Werfalli v. Canada (Public Safety and Emergency Preparedness), 2013 FC 612 case (link to case in CanLII)
In 2009, eight years after applying for citizenship, instead of being scheduled for an interview or hearing regarding his citizenship application, Doctor Werfalli was summoned for an interview with CBSA pursuant to an investigation of inadmissibility. In 2010 Dr. Werfalli was found to be inadmissible because, literally, he was "found to be a member" of the aid organization he worked for in providing medical services, and there were "reasonable grounds to believe that this organization engaged in terrorism." The latter, again, was based on that organization in turn allegedly providing aid to Al-Qaeda long after Dr. Werfalli was a doctor for the organization.
It is worth noting that abuse of Dr. Werfalli spanned both Liberal and Conservative governments, and while it was under Harper/Kenney's watch that the more egregious abuses took place, it is readily apparent that no party has a monopoly on overreaching.
It is highly, highly unlikely a jury in Canada would find someone guilty of terrorism based on the fact of having provided medical services for an organization which later in time has a connection to a terrorist group. The Minister however had no problem in advocating this. The IAD was persuaded. Dr. Werfalli was well on his way to being deported and only the right to review in the Federal Court could stop that.
But if Syria or Egypt or Israel had prosecuted someone in a similar situation for terrorism and obtained a conviction, alleging merely an indirect aid (providing medical services to someone who could be tied to terrorism) to someone involved in supporting or engaging in a terrorist group, that would meet the definition of Section 83.03 of the Canadian Criminal Act. The only question then would be was a sentence of five years or more imposed. If so, Canadian citizenship could be revoked. That, under current law, is a decision to be made by the Minister. The Minister's decision cannot be set aside by a court, under current law, no matter how much the Federal Court disagrees with the decision . . . only if the Court finds the Minister's decision was unreasonable relative to the Minister's interpretation and application of the law, can a court stop the revocation. That is, no matter how unreasonable a Court thinks the decision on the facts is, it cannot be overruled unless it is an unreasonable interpretation or application of the law . . . and Section 83.03 (and the other provisions as well) of the Criminal Code in conjunction with Section 10 of the Citizenship Act open the door very, very wide.
Dr. Werfalli's case is not about revoking citizenship, because he did not become a citizen (at least not as of June 2013), because CIC failed processed his citizenship application, failed to do so for more than eight years. He was on the brink of having his PR status revoked and being separated from his Canadian family because he provided medical services in the midst of ongoing conflict for an organization which later developed alleged ties to some alleged terrorists. Took 12 years from when he applied for citizenship just to have his case sent back to the IAD to be re-determined by another panel.
When one law is overbroad and subject to potentially abusive discretion, that is not good. But the situation which has so many concerned is the extent to which there are multiple laws which are interrelated and each in turn has overbroad elements which, in conjunction, could indeed result in grave injustices to some. The way in which Section 83.01 et seq. in the Criminal Code (particularly given the amendments adopted by Harper in 2013 in addition to those he adopted in 2010) works in conjunction with Section 10.(2)(b) of the Citizenship Act (adopted as part of the SCCA in 2014, in effect May 2015) and with provisions in the recently (this spring) adopted Bill C-51, the door is wide, wide open for there to be abuses and injustices.
My wife believes Canada should revoke the citizenship of anyone convicted of crimes like murder or rape, let alone treason or terrorism. She is not alone, probably not even all that unusual. Personally I feel as though she misunderstands the meaning of citizenship. But her sense of it is in line with what Justice Rennie has ruled on the issue. That is that Parliament has the power to adopt laws providing for the revocation of citizenship on whatever grounds (other than certain prohibited types of discrimination) it decides.
Personally I have nothing to worry about. I may get a traffic ticket every other decade (well, total of three in nearly fifty years of driving, well over a decade since the last), and almost as many parking tickets (once for going overtime, well over a quarter century ago, and one other one here in Canada because I did not notice the sign), which I feel quite confident is far below the level of serious criminality citizenship revocation could possibly go. I do not plan to try slipping into a Harper event wearing an Alan Should Be Here tee-shirt for example (apparently that warrants getting slapped in cuffs), let alone engaging in Greenpeace or PETA civil disobedience. I oppose the Keystone pipeline but that appears to be history anyway, and I am not one inclined to engage in ordinary protests much let alone civil disobedience.
But again, I should like to be able to love my country and still love justice (and again, that's from Albert Camus). It is not all about me. It is hardly at all about me. It is, however, about having come to make a life in a country I admire and respect and which I want to do my part to make it a country which continues to deserve admiration and respect.
The ruling by Justice Rennie aside, my strong sense is that the Canadian courts are likely to at least draw some rather limiting fences around the provisions for revoking citizenship. My bet is that the concept of revoking citizenship for acts committed after becoming a citizen will be either invalidated altogether or so narrowly restricted as to be of virtually no effect. That's the serious window Section 10 in the Citizenship Act opens, that Parliament has the power to prescribe the loss of citizenship for acts committed while a citizen, and that is the window I expect the courts to either slam shut or at least reduce to an opening practically impossible to use.
Nonetheless, the concept of banishment is archaic, a remnant of less civilized times, and the mere fact that this was one of the cornerstone elements in the Perrin/Kenney/Harper plan (which eventually became Bill C-24) says enough about Harper and his agenda. When this is all mere history, many will look back, wince and shake their heads and wonder . . . what? really?
I want to go back to Dr. Werfalli for a bit, though, because, to be clear, the Minister argued:
" . . . that the timing of membership [in the organization which is determined to have aided a terrorist group] is not relevant to the Board’s determination of inadmissibility."
Literally. The Minister argued that Dr. Werfalli was inadmissible (sufficient to deny citizenship, revoke PR status, and deport him), for having been a member (as an employee to provide medical services) of an organization with ties to terrorism because that organization much later (after Dr. Werfalli's employment terminated) became involved in activities connected to terrorism. (See paragraphs 94 and 95 in the decision.)
Too much power in any Minister's hands, whatever the political party, is not a good thing.
I think the discussion about this is based on section 10.(2)(b) of the Citizenship Act, this being the provision which prescribes that citizenship may be revoked if there is a conviction for a terrorism offence. It does explicitly prescribe "an offence outside Canada that, if committed in Canada, would constitute a terrorism offence . . . and sentenced to at least five years of imprisonment.
So, for example it appears Mohamed Famy's Canadian citizenship is safe. He has only been sentenced to three years imprisonment.
The reason why so many apprehend that the scope of this is far, far too broad, however, is that the scope of what may constitute a terrorist offence in Canada is itself incredibly broad.
Section 83.03 of the Criminal Code (which falls within the definition of terrorism for purposes of Section 10 in the Citizenship Code), for example, defines a crime of terrorism which could extend not just to the individual throwing the rock, but to a doctor who bandages the individual who threw the rock, or, for that matter, the nurse who gives the doctor the bandages, or even the individual who delivers the medical supplies to the nurse which end up being used by the doctor to treat the person who threw the rock, if it is shown the nurse or supplier knew the doctor would treat a person throwing the rock who was part of a terrorist group.
So long as the person is charged and convicted . . . in a country which imposes a sentence of five years or more.
Before this is dismissed as ludicrous, recall the case of the PR, a doctor, who the Minister sought to deport because he had worked, in his capacity as a doctor, for an organization which was later (long after the doctor left that organization's employ) deemed to be involved in supporting terrorism (not directly engaged in terrorism, but by providing aid to a terrorist group, again, however, years later), and "knowing" someone who, again much later allegedly became involved in Al-Qaeda, possibly providing that individual medical care at a medical clinic in Bosnia in the mid-90s.
See the El Werfalli v. Canada (Public Safety and Emergency Preparedness), 2013 FC 612 case (link to case in CanLII)
In 2009, eight years after applying for citizenship, instead of being scheduled for an interview or hearing regarding his citizenship application, Doctor Werfalli was summoned for an interview with CBSA pursuant to an investigation of inadmissibility. In 2010 Dr. Werfalli was found to be inadmissible because, literally, he was "found to be a member" of the aid organization he worked for in providing medical services, and there were "reasonable grounds to believe that this organization engaged in terrorism." The latter, again, was based on that organization in turn allegedly providing aid to Al-Qaeda long after Dr. Werfalli was a doctor for the organization.
It is worth noting that abuse of Dr. Werfalli spanned both Liberal and Conservative governments, and while it was under Harper/Kenney's watch that the more egregious abuses took place, it is readily apparent that no party has a monopoly on overreaching.
It is highly, highly unlikely a jury in Canada would find someone guilty of terrorism based on the fact of having provided medical services for an organization which later in time has a connection to a terrorist group. The Minister however had no problem in advocating this. The IAD was persuaded. Dr. Werfalli was well on his way to being deported and only the right to review in the Federal Court could stop that.
But if Syria or Egypt or Israel had prosecuted someone in a similar situation for terrorism and obtained a conviction, alleging merely an indirect aid (providing medical services to someone who could be tied to terrorism) to someone involved in supporting or engaging in a terrorist group, that would meet the definition of Section 83.03 of the Canadian Criminal Act. The only question then would be was a sentence of five years or more imposed. If so, Canadian citizenship could be revoked. That, under current law, is a decision to be made by the Minister. The Minister's decision cannot be set aside by a court, under current law, no matter how much the Federal Court disagrees with the decision . . . only if the Court finds the Minister's decision was unreasonable relative to the Minister's interpretation and application of the law, can a court stop the revocation. That is, no matter how unreasonable a Court thinks the decision on the facts is, it cannot be overruled unless it is an unreasonable interpretation or application of the law . . . and Section 83.03 (and the other provisions as well) of the Criminal Code in conjunction with Section 10 of the Citizenship Act open the door very, very wide.
Dr. Werfalli's case is not about revoking citizenship, because he did not become a citizen (at least not as of June 2013), because CIC failed processed his citizenship application, failed to do so for more than eight years. He was on the brink of having his PR status revoked and being separated from his Canadian family because he provided medical services in the midst of ongoing conflict for an organization which later developed alleged ties to some alleged terrorists. Took 12 years from when he applied for citizenship just to have his case sent back to the IAD to be re-determined by another panel.
When one law is overbroad and subject to potentially abusive discretion, that is not good. But the situation which has so many concerned is the extent to which there are multiple laws which are interrelated and each in turn has overbroad elements which, in conjunction, could indeed result in grave injustices to some. The way in which Section 83.01 et seq. in the Criminal Code (particularly given the amendments adopted by Harper in 2013 in addition to those he adopted in 2010) works in conjunction with Section 10.(2)(b) of the Citizenship Act (adopted as part of the SCCA in 2014, in effect May 2015) and with provisions in the recently (this spring) adopted Bill C-51, the door is wide, wide open for there to be abuses and injustices.
My wife believes Canada should revoke the citizenship of anyone convicted of crimes like murder or rape, let alone treason or terrorism. She is not alone, probably not even all that unusual. Personally I feel as though she misunderstands the meaning of citizenship. But her sense of it is in line with what Justice Rennie has ruled on the issue. That is that Parliament has the power to adopt laws providing for the revocation of citizenship on whatever grounds (other than certain prohibited types of discrimination) it decides.
Personally I have nothing to worry about. I may get a traffic ticket every other decade (well, total of three in nearly fifty years of driving, well over a decade since the last), and almost as many parking tickets (once for going overtime, well over a quarter century ago, and one other one here in Canada because I did not notice the sign), which I feel quite confident is far below the level of serious criminality citizenship revocation could possibly go. I do not plan to try slipping into a Harper event wearing an Alan Should Be Here tee-shirt for example (apparently that warrants getting slapped in cuffs), let alone engaging in Greenpeace or PETA civil disobedience. I oppose the Keystone pipeline but that appears to be history anyway, and I am not one inclined to engage in ordinary protests much let alone civil disobedience.
But again, I should like to be able to love my country and still love justice (and again, that's from Albert Camus). It is not all about me. It is hardly at all about me. It is, however, about having come to make a life in a country I admire and respect and which I want to do my part to make it a country which continues to deserve admiration and respect.
The ruling by Justice Rennie aside, my strong sense is that the Canadian courts are likely to at least draw some rather limiting fences around the provisions for revoking citizenship. My bet is that the concept of revoking citizenship for acts committed after becoming a citizen will be either invalidated altogether or so narrowly restricted as to be of virtually no effect. That's the serious window Section 10 in the Citizenship Act opens, that Parliament has the power to prescribe the loss of citizenship for acts committed while a citizen, and that is the window I expect the courts to either slam shut or at least reduce to an opening practically impossible to use.
Nonetheless, the concept of banishment is archaic, a remnant of less civilized times, and the mere fact that this was one of the cornerstone elements in the Perrin/Kenney/Harper plan (which eventually became Bill C-24) says enough about Harper and his agenda. When this is all mere history, many will look back, wince and shake their heads and wonder . . . what? really?
I want to go back to Dr. Werfalli for a bit, though, because, to be clear, the Minister argued:
" . . . that the timing of membership [in the organization which is determined to have aided a terrorist group] is not relevant to the Board’s determination of inadmissibility."
Literally. The Minister argued that Dr. Werfalli was inadmissible (sufficient to deny citizenship, revoke PR status, and deport him), for having been a member (as an employee to provide medical services) of an organization with ties to terrorism because that organization much later (after Dr. Werfalli's employment terminated) became involved in activities connected to terrorism. (See paragraphs 94 and 95 in the decision.)
Too much power in any Minister's hands, whatever the political party, is not a good thing.
