This post is long. Really long.
This post is largely (albeit not entirely) tangled in, if not dominated by jurisprudence, and thus probably of minimal interest to many if not most. It is, thus, to a large extent a technical discussion about law, interpreting the law, and assessing the constitutional validity of legislation. That is, it tends to be technical and complicated.
Some aspects are not so complicated, however, such as understanding that the mobility rights protected by section 6 of the
Charter are not absolute. As I have mentioned before, obviously Canadian citizens convicted of crimes can and will have their mobility rights severely limited. Thus, for example, a law which has an impact on and in some way infringes the mobility of Canadian citizens, is
not unconstitutional on its face. It depends. There is much, much more to it than that. This is one of the things I elaborate regarding below.
I recognize that the vast majority of claims that the
SCCA is unconstitutional are really not about the legality of this legislation but are more about political, social, ideological, or philosophical objections to this legislation, mostly arguments that it is
bad law. It may indeed be bad law. I do not address that issue in this post.
What I do address is the constitutionality of the legislation and why assertions it is unconstitutional are, at best, grossly overstated.
This is important to recognize because for the most part those who have strong objections to this legislation and want to actively pursue recourse against it, the remedies are almost all political, with minimal judicial remedies available (except in individual cases dealing with how the law is applied to particular facts, which will be far more about how the law is interpreted and applied, not much about its validity).
That is, those who want to fight this law are not likely to find the courts amendable to their claims. If they sincerely want to pursue the fight, it is a political fight they need to wage.
In any event, this particular post was triggered by discovering a recently published article, authored by a serious Canadian immigration lawyer, which does indeed assert that the
SCCA is an unconstitutional act, which according to the author will "undoubtedly be struck down in due course by the courts." A rather bold, definitive statement, and, I would add,
undoubtedly an overstatement at best. Here's why:
dpenabill said:
Overall, I have seen no statement by a serious jurist that expresses the opinion that Section 5(1)(c.1) (as it will read in the Citizenship Act when the respective provisions come into force) is unconstitutional.
Now I have seen a statement by a serious jurist expressing the opinion that Section 5(1)(c.1) (as it will read in the
Citizenship Act when the respective provisions come into force) is unconstitutional.
Indeed, such a statement was published in the March 2015 issue of the Journal of Parliamentary and Political Law, in an article titled
The Democratic and Constitutional Challenges of the Citizenship Bill (Bill C-24 of 2014): The Effect of Impulsive Legislative Action on the Parliamentary Process, co-authored by
Arghavan Gerami, who is the founder and managing director of the Gerami Law Professional Corporation (her LinkedIn profile highlights immigration law, while her Firm's website, in addition to several aspects of immigration law,
also highlights providing citizenship services).
Except, the article is poorly written, more poorly supported by citation, and while it explicitly states that Section 6 of the
Charter is violated by the
SCCA it offers no citation to any specific provision in the
SCCA which interferes with or restricts a
citizen's mobility. Gerami's discussion of this particular issue revolves mostly around the "exile, banishment or deportation of citizens," and the oft repeated argument that the
SCCA "creates two tiers of citizens," but also obliquely refers to the required "intent to reside" provision in the
SCCA.
I say the reference is oblique because the
SCCA in no way requires that citizens, naturalized or otherwise, have such an intent. The article does not illuminate how in particular the
SCCA, purportedly, interferes with or restricts a naturalized citizen's mobility, and it refers to section 6 of the
Charter in the aggregate, without distinction as to the mobility rights of citizens as prescribed by subsection 6(1) as opposed to the lesser mobility rights of PRs (in addition to citizens) prescribed by subsection 6(2).
Those of us well familiar with the
SCCA know that to be qualified for a grant of citizenship it will require an applicant PR have the intent to continue residing in Canada. This is subsection 5(1)(c.1)(i) in the
Citizenship Act (as revised, once the relevant provisions of
SCCA are in force).
Gerami's only citation of section 3 of the
SCCA, referring to the amendments to section 5(1)(c) of the current
Citizenship Act (the
SCCA replaces the current section 5(1)(c) which includes adding subsection 5(1)(c.1)(i), the
intent to reside clause), is in support of the following statement:
New citizens are required to declare that they intend to reside in Canada and the Minister has the power to deny citizenship to those who do not articulate such intentions.
Criticism based on syntax and isolated terms is often more distracting than informative, but in this instance the structure and meaning of this statement cannot be overlooked. In particular, there is nothing in the
SCCA which will require
"new citizens" to declare they intend to reside in Canada. Rather,
Permanent Residents applying for citizenship may be required to make such a declaration, and indeed, such an intent will be one of the qualifications necessary for a grant of citizenship.
The distinction is not trivial. In fact it is critical, both in respect to what it actually requires, and in respect to what it does not require.
What it actually requires demands the clear articulation of what subsection 5(1)(c.1)(i) will specify (when in force). Here is what the so-called
intent to reside provision actually specifies (emphasis added):
[. . . to be qualified for the grant of citizenship, a PR must intend], "if granted citizenship, to continue to reside in Canada."
I and others have amply discussed the profound import of this requirement, including the impact it will have, especially in regards to it providing the government a ground for denying citizenship to any applicant who is living abroad while the application is pending. It is, after all, logically impossible to intend to
continue residing anywhere other than where a person is at the time residing, so anyone residing abroad cannot have the requisite intent to continue residing in Canada.
In contrast, it does not impose any intent requirement on someone who is a citizen, regardless of whether that individual is a citizen by birth or naturalization, including any "new citizen."
Gerami also states:
"Most importantly, Bill C-24 is a manifestly unconstitutional legislation; it will undoubtedly be struck down in due course by the courts and this will also be upheld by Canada's highest court, the Supreme Court of Canada. The Canadian government would have been surely alerted to the high risk of such outcome by its own lawyers in the legislative drafting process. Nonetheless, these changes were implemented and will be enforced . . . "
While I am not a Canadian lawyer per se, let alone one well-versed in Canadian constitutional law, even if several provisions in the
SCCA are eventually found to be conflict with the
Charter, or otherwise deemed unconstitutional, as an experienced jurist familiar with basic constitutional jurisprudence in Canada (and the U.S.), this appears to be a gross overstatement. The threshold for finding a legislative enactment unconstitutional to an extent that warrants invalidating it in its entirety is high and there is no hint this legislation is in any danger of this.
Perhaps
Justice Rennie's decision does not reflect what other justices in the Federal Court, Federal Court of Appeal, or the Canadian Supreme Court will rule relative to the issues raised, but it surely is a big clue that the legislation is not so blatantly unconstitutional "on its face" as to warrant a wholesale quashing of the
SCCA. At the least, Justice Rennie rules that the
SCCA is
NOT patently unconstitutional.
Justice Hughes also stated, in
another challenge to the SCCA, that if he was to address the substantive issues in the challenges, he "would accept and follow Justice Rennie’s reasoning in the Galati case and find, for the same reasons he gave in respect of the substantive issues, that judicial review is not available in the circumstances of this case." In that case, brought by David Prabakar Jayaraj, the applicant's challenge was broader than the Galati challenge, asserting (much like the Gerami article) that several sections of the
SCCA violate the
Charter of Rights. While the decision by Justice Hughes does not enumerate the particular sections challenged, overall the
Charter based challenges are dismissed "for lack of evidence." Obviously, Justice Hughes does not perceive the
SCCA to be, as the Gerami article asserts, "manifestly unconstitutional."
Like Justice Rennie's ruling on the substantive issues, the statements of Justice Hughes are what I would characterize as
dicta, thus not definitive statements of law, not binding precedent, but more or less an expression of opinion by the respective Justices of the Federal Court (noting that subsequently Justice Rennie has been promoted to the Court of Appeals).
Thus, while I am not fully persuaded that Justice Rennie and Justice Hughes have gotten it fully right, and that at the least there are some serious constitutional questions to be addressed regarding various provisions in the
SCCA (mostly regarding grounds for revoking citizenship, procedure for revoking citizenship, and procedure generally albeit especially as to availability of judicial review), their decisions are strong indications that the Gerami article's broad conclusion, that the
SCCA is manifestly unconstitutional, is at the least a gross overstatement if not patently wrong.
Reminder: while Justice Rennie was not ruling on the constitutionality of the revised subsections 5(1)(c) or 5(1)(c.1), as amended per the SCCA, he did rule that the SCCA was not "patently unconstitutional," that citizenship is an entirely statutory construct, and as such it is well within the scope of Parliament's authority to not only impose conditions on the grant of citizenship but on the continued status of citizenship even for those who were born in Canada.
Justice Rennie's substantive conclusions are specifically about section 8 of the SCCA, that is the Galati challenges to section 8 which replaces section 10 of the Citizenship Act with revised provisions governing both grounds for revocation of citizenship and the procedure for revoking citizenship, including availability of judicial review.
The challenges raised in the case decided by Justice Hughes, however, did address Charter challenges to other provisions in the SCCA.
In any event, the Gerami article, published in the March issue, does not refer to the Galati challenge let alone address or cite the January 22nd decision by Justice Rennie.
Credibility of the Gerami article generally:
Criticizing a lawyer's work specifically addressing the propositions made and authorities cited is basic jurisprudence, since after all argument is an essential element of law.
In contrast, criticizing credibility tends to be unseemly.
The discourse surrounding the
SCCA, however, has invited more commentary in the vein of editorial page opinion than jurisprudence, more activist, political advocacy than careful analysis of legal principles. The article published last September by CARL is a prime example. This article authored by Gerami is another.
The integrity of the legal propositions advanced in a written argument is a fundamental factor in weighing the argument made, but there is a distinction between overtly erroneous or misleading statements of law, and reasonably arguable positions. The latter, involving differing opinions in relation to reasonably arguable propositions, can be and often are the subject of adversarial discourse. The former, overtly erroneous or misleading statements of law, should be noted for what they are, dismissed of course, but also taken into due consideration in assessing the overall weight to be given the source. Integrity matters.
In the Gerami article discussion of the
Charter of Rights section 6 mobility rights, the nature and scope of the citizen's mobility rights, as protected by section 6, are glossed over and to a significant extent misrepresented.
The Gerami article states:
"In fact, the right of citizens to remain in Canada covers . . . the right not to be extradited . . ."
A Supreme Court case from 1989 is cited for this proposition. Gerami's statement would probably shock the scores of Canadian citizens who have in fact been extradited since that decision, that is, if it was the case that section 6 covers "the right to not be extradited."
In contrast, what the Supreme Court actually ruled in that case (
U.S. v. Cotroni et al, 1 SCR 1469):
"The objectives underlying extradition are pressing and substantial and are sufficiently important to make it a reasonable limit . . . to the Charter right set out in s. 6(1)."
. . .
Extradition impairs the right under s. 6(1) as little as is reasonably possible.
The Supreme Court did say that the extradition of a Canadian citizen is a
prima facie infringement of the citizen's right to remain in Canada, as guaranteed by s. 6(1) of the
Charter, but that extradition itself "
lies at the outer edges of the core values being protected by [s. 6(1)]," and where appropriate as defined by law, extradition constitutes a
reasonable limit on a citizen's mobility rights.
This issue does not involve complicated or sophisticated jurisprudence. This is quite simple stuff. Obviously, a procedure resulting in the removal from Canada of a Canadian citizen would infringe that citizen's mobility rights
unless there are grounds, based on a legitimate government interest, for the removal. Of course due process is required. Of course, in exercising discretion in surrendering a Canadian citizen to a foreign government, the fact that doing so has a profound impact on the individual's fundamental rights, must be a factor considered . . . which, I would note, is comparable to the process required to deprive a Canadian of freedom generally by imposing a term of incarceration, which likewise amounts to a severe infringement on the individual's mobility rights but which is provided for in the law and imposed upon thousands of Canadians every year.
That is, it is not merely a matter of differing opinions, but rather it is either blatantly erroneous or misleading to throw out a statement, asserting that section 6 of the
Charter covers a right to not be extradited, without qualification, in support of the argument that (emphasis added):
"Considering the plain meaning of s. 6 and the absolute wording of this provision, it can be inferred that the framers of the Charter intended to prevent the exile, banishment or deportation of citizens for any reason."
The
Cotroni case, on the contrary, affirms that indeed a Canadian citizen may be extradited, even though
not convicted of any crime, for any of the reasons prescribed by the applicable law. It describes extradition as a "somewhat peripheral" infringement of the
Charter.
It would be one thing if that case was the only section 6(1) jurisprudence illuminating the nature and scope of the Canadian citizen's mobility rights. It isn't. The
Cotroni case itself has been cited in dozens of court decisions. There are numerous Federal Court decisions, for example, regarding whether international agreements and protocols for transferring Canadian citizens back to Canada, to serve terms of imprisonment imposed by foreign jurisdictions, even engages the
Charter's protection of the citizen's mobility rights (right to enter Canada), most of which decisions (by a big margin) ruling that section 6 was not engaged; these ultimately culminated in
a relatively recent decision, in the Divito case (cited by, so obviously known by Gerami) in which, similar to the
U.S. v. Cotroni et al, 1 SCR 1469 decision's ruling regarding extradition, that
Charter mobility rights are relevant, but that the statutory limitations are
"justified."
Overall, there is no doubt that even if the
SCCA imposes a restriction on a citizen's mobility rights, that does not in itself render the Act unconstitutional, on its face or otherwise.
The constitutionality question generally
As I earlier described the arguments posed by CARL and Galati, that theirs is typically a more political if not activist perspective, rife with rhetoric, tending toward the bombastic, lacking the cerebral intensity imperative in earnest, competent constitutional jurisprudence, I think this description also applies to at least the article authored by Gerami.
As I previously in effect stated, constitutional jurisprudence is not the forte of many, not even among lawyers, not necessarily even among lawyers who have engaged in this or that constitutional argument. But there are some basic principles of constitutional law most lawyers understand well.
These principles have been stated succinctly by Graham Garton,
in The Canadian Charter of Rights Decisions Digest, in section 7 regarding the interpretation of legislation:
"Underlying the modern approach to statutory interpretation is the presumption that legislation is enacted to comply with constitutional norms, including the rights and freedoms enshrined in the Charter.
Where two readings of a provision are equally plausible, the interpretation which accords with Charter values should be adopted."
These principles are not applied to render as constitutional that legislation which is otherwise patently or on its face unconstitutional.
This dovetails into the discussion about Gerami's characterization of Section 6 mobility rights, as if those rights were absolute and an infringement or restriction of those rights is "on its face unconstitutional." As noted in the discussion about extradition, and contrary to what the Gerami article argues, extradition is a reasonable limitation on
Charter section 6 mobility rights.
There is, at minimum, a question as to whether the amendments to the
Citizenship Act made by the
SCCA impose limitations on
Charter section 6 mobility rights. But even if there are such provisions in the
SCCA, provisions which impose limitations on these mobility rights, that does not mean any of those provisions, let alone the entirety of the
SCCA, violates the
Charter and is on its face unconstitutional.
I have seen no logical argument that the new subsection (in the
Citizenship Act as revised, when section 3 of the
SCCA comes into force) set out in 5(1)(c.1)(i)
even applies to a "citizen," let alone that it infringes on the mobility rights of a citizen. Even if an interpretation of 5(1)(c.1)(i) might be arguably made that would, in some manner, apply this in a way to infringe on the mobility rights of a citizen, that would
not show that it is unconstitutional on its face. At most it might compel an assessment pursuant to section 1 of the
Charter of Rights which explicitly allows for "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society," but it would only compel even that assessment if there is no other
plausible interpretation of 5(1)(c.1)(i) which would avoid the restriction on a citizen's mobility rights.
For example, Gerami, like a number of others, argues that
" . . . the Minister can strip their citizenship at a future point if they are found to have misrepresented their intention to reside when they were granted citizenship."
The essence of this argument is that even if the intent to reside clause only applies to the PR during the application process (which, actually, is what it does), given the Minister's power to revoke citizenship for misrepresentation, all naturalized citizens will have the implicit threat of revocation hanging over their heads if they were to leave Canada to live elsewhere in the world, something millions of Canadians are doing at any given time. This threat in itself would be so chilling of the naturalized citizen's
Charter mobility rights as to constitute an unconstitutional infringement of those rights.
Except, the Minister is bound by the
Charter to not apply the law in a way that would infringe the
Charter rights of a citizen. And the courts are bound to interpret the
Citizenship Act, including amendments made by the
SCCA, so as to preclude the Minister applying it in a way that would infringe the
Charter rights of a citizen.
Thus, even if there was any such credible threat that a CIC Minister might attempt to interpret and apply 5(1)(c.1)(i) in a manner that will unconstitutionally infringe a citizen's mobility rights, such an interpretation or application is prohibited. That is, such an interpretation or attempted application is what would be deemed unconstitutional, not valid. This would not affect the constitutionality of the
Citizenship Act itself, or the
SCCA itself.
Final observation regarding constitutionality:
Anyone interested in the basic jurisprudence for assessing the constitutionality of statutory provisions which have an impact on the fundamental rights protected by the
Charter of Rights should probably begin their inquiry with the
Supreme Court decision in Oakes (1 SCR 103), which is probably the most oft cited authority for assessing whether a limitation on a
Charter protected right is justified, articulating the burden of proving that a limitation is "reasonable and demonstrably justified in a free and democratic society" as is prescribed by Section 1 of the
Charter of Rights.
To my view, the total absence of any such analysis in virtually any of the claims that the
SCCA violates the
Charter and is unconstitutional, highlights the political activist nature of these criticisms, including those made in the Gerami article, as opposed to a legitimate consideration and application of constitutional principles.
The other dominant decision governing questions of constitutionality is the
Schachter v. Canada, [1992] 2 SCR 679 decision, which states:
Generally speaking, when only a part of a statute or provision violates the Constitution, only the offending portion should be declared to be of no force or effect. The doctrine of severance requires that a court define carefully the extent of the inconsistency between the statute in question and the requirements of the Constitution, and then declare inoperative (a) the inconsistent portion, and (b) such part of the remainder of which it cannot be safely assumed that the legislature would have enacted it without the inconsistent portion.
What this means is that if, for example, this or that particular provision in the
SCCA was deemed to violate the
Charter, it is
that particular provision which is invalidated, NOT the entire legislative act. Only if severance is not feasible will other remedies be considered. Among other remedies sanctioned by
Schachter is a
reading in pursuant to which the Court can interpret the legislation reading in certain terms or provisions so as to make the legislation consistent with the Constitution and
Charter.
Here too, there is no hint, in the Gerami article, of an analysis of this sort underlying the bold and broad imperative assertion that the
SCCA is manifestly unconstitutional; the article states:
"Most importantly, Bill C-24 is a manifestly unconstitutional legislation; it will undoubtedly be struck down in due course by the courts and this will also be upheld by Canada's highest court, the Supreme Court of Canada. . . .
. . . Bill C-24 is unconstitutional legislation . . . [and it] falls on the courts as the guardians of the constitution to strike down this legislation."
But Gerami's article offers not so much as a clue as to legal authority which would render this legislation manifestly unconstitutional rather than the potential for particular offending provisions to be invalidated.
What I am not saying:
To be clear, I am not asserting that there are no constitutional problems with the
SCCA. Indeed, it is difficult to not see this Supreme Court embrace a rather different approach to the analysis of citizenship itself than that set out in Justice Rennie's decision (cited and linked above).
In particular, the underlying importance of citizenship as itself a fundamental interest is, at the least, suggested in the following, from the
the Divito case:
"Mobility rights are protected by s. 6 of the Charter. These include the right in s. 6(1) of every citizen to enter, remain in, and leave Canada. The right of a Canadian citizen to enter and to remain in Canada is a fundamental right associated with citizenship. Without the ability to enter one’s country of citizenship, the “right to have rights” within that country cannot be fully exercised. The right to enter should therefore be given a generous interpretation consistent with its purpose, the interests it was intended to protect and the broad construction of the right to enter in international law."
The language here that strikes me as foretelling, which is to some extent echoed in the concurring opinion by Chief Justice McLachlin, is the reference to
"the right to have rights." What comes first? citizenship or the rights afforded by citizenship? How can the latter even be protected if they are limited to a status which Parliament is free to confer or not confer?
That is, my sense is that Justice Rennie's ruling, that
"Nationality and citizenship are entirely statutory constructs," will not be embraced, at least not without severe limitations, by the Supreme Court. And thus, there are some elements in the
SCCA which will at least be scrutinized closely in the constitutional context. This does not suggest that the
SCCA generally is invalid or will be struck down. This does not suggest that the "intent" requirement (5(1)(c.1)(i) as and when revised) will be deemed invalid or unconstitutional (in fact, in regards to the latter, I feel quite certain it will not encounter any significant constitutional challenge let alone actually be invalidated).
Additional cautionary note: at the Gerami web site the general web page for
for citizenship services states
"If your citizenship application has been rejected, you must appeal your case within 60 days to the Federal Court.", which is inaccurate. The more
specific web page for citizenship appeals, however, accurately states the time within which an appeal must be made following a refusal (30 days).
