To be clear, there may be (and I think it is likely there will be) constitutional challenges to particular provisions in the
SCCA, including:
-- provisions for additional grounds to revoke citizenship for acts committed
after or
while a Canadian citizen
-- procedural changes governing the revocation of citizenship
-- other procedural changes including those governing access to judicial review
How any of these challenges will be decided is, at this juncture, well beyond what I have researched and analyzed. As my first post in this topic emphasized, constitutional law is the realm of a very few experts, and these questions are likely to be very complicated.
But these issues will largely arise and be addressed in the context of specific cases, not an overriding or general review of the validity of the
SCCA, or the
Citizenship Act as revised by the
SCCA.
As I attempted to clearly show in my previous post, contrary to proclamations made in the referenced Gerami article, it is highly unlikely that the
SCCA will be struck down for being legislation which is "manifestly unconstitutional." Not going to happen.
Constitutionality of the intent-to-reside clause:
Again, to be clear, it is also highly unlikely that the added subsection 5(1)(c.1)(i), the so-called
intent-to-reside clause, will be deemed unconstitutional, and virtually certain that it is not in violation of a citizen's mobility rights as protected by section 6 of the
Charter, since it
has NO impact on a citizen's mobility.
Thus:
anon123 said:
In other words, aside from all the legalize, for a simple person, leaving Canada = chance of not being able to return.
anon123 said:
CIC can only revoke citizenship if they know that the citizen is living abroad.
In general, the first of these statements is at least in significant part wrong, and the second is outright wrong. In particular, to the extent they are based on the
intent-to-reside clause, they are totally wrong.
The intent-to-reside clause does NOT change anything in regards to either the grounds for revocation of citizenship nor the procedure for revoking citizenship.
Legalese aside, it is that simple, the
SCCA does
NOT introduce any provision which makes living abroad a reason for revoking citizenship.
Assertions and insinuations (including those in the Gerami article) to the contrary are, quite simply,
wrong.
anon123 said:
My personal opinion is that fighting Bill C24 now, is beating a dead horse. The bill already passed, there is nothing we can do about it anymore.
This goes to the
bad law versus
unconstitutional law dichotomy.
The most opportune time to challenge
bad law is, of course, while it is
proposed law, while it is still in Parliament and being debated. Indeed, once the law has been adopted and Royal Assent conferred, it is law and then the only way to challenge it would be to petition Parliament to pass a new law, either to repeal the
bad law or to amend it so as to make it good law.
That is, challenging a
bad law is a
political process, doing what needs to be done to persuade Parliament to not adopt the
bad law in the first place, or later persuading Parliament to repeal or amend the
bad law.
Bill C-24 was indeed adopted, given Royal Assent, is now the
SCCA, and there appears to be minimal likelihood of persuading Parliament, even a new Parliament under a Liberal or NDP government, to repeal or amend this law . . . with, perhaps, a very few exceptions regarding particular provisions governing the revocation of citizenship, perhaps some regarding procedure. That is, some details of the law might be reconsidered and revised by the next government, but the core of the
SCCA is likely well beyond the scope of what any government will revisit in the near future, including in particular the revised qualifications for the grant of naturalized citizenship.
So, I tend to agree with the sentiment expressed, that efforts to challenge this law politically are probably futile.
But my previous post was focused on challenges to its validity, on claims this law is itself "manifestly unconstitutional" (as asserted in the Gerami article), or the claim
intent-to-reside clause violates the
Charter and is therefore unconstitutional (as the title to this topic asserts, as the Gerami article does at least obliquely).
These challenges would be made in the courts. The reasons could be the basis of political action as well, but the ultimate questions regarding the validity of this law, its constitutionality, are questions to be decided in the Canadian courts, ultimately by the Supreme Court.
As I noted above, and which I think I documented well enough in my previous post, challenges based on the law being, allegedly, "manifestly unconstitutional," are grossly overstated and there is very little doubt such challenges will be dismissed by the courts. Similarly as to the
intent-to-reside clause, which does not have any effect on citizens, let alone the mobility rights of citizens, and is not going to be invalidated.
Revisiting these assertions for further clarification:
anon123 said:
In other words, aside from all the legalize, for a simple person, leaving Canada = chance of not being able to return.
anon123 said:
CIC can only revoke citizenship if they know that the citizen is living abroad.
As already noted, both are wrong. The second is outright wrong. Many revocation cases processed in the last several years have involved individuals living in Canada. And to the extent there are proceedings to revoke citizenship in the future, whether or not the targeted person is living in Canada or abroad will have
NO substantive relevance to the proceedings.
That is, for purposes of who can and will be targeted by revocation proceedings, where the individual is living (in or outside Canada) will be
totally irrelevant.
That said, sure, citizens living abroad and who fail to register their address abroad at the respective Canadian embassy, and who are the subject of revocation proceedings (for misrepresentation/fraud committed in the course of applying for PR status originally, or misrepresentation/fraud in the process of applying for citizenship, or revocation based on committing acts of terrorism or treason), there is the risk they will not receive
actual notice of the proceedings, which can greatly handicap their capacity to challenge the revocation.
This risk, as to notice, is true now, and has been true, and has had an impact on many revocation proceedings brought under the Harper government, many of which began well before Bill C-24 was tabled let alone adopted.
The new procedures may result in further limitations on the capacity of those affected to challenge the revocation, with a disproportionate impact on those living abroad. But to be clear, this is about the procedure and about notice, and about those individuals targeted for
misrepresentation/fraud or who have been criminally convicted of terrorism or treason. I do expect there to be significant litigation regarding some of the procedural changes implemented by the
SCCA, and it is my impression that the Canadian Supreme Court, as it is currently constituted, is likely to be sympathetic to some challenges in this vein.
But, to be clear: There is no change in the law which will justify targeting individuals because they live outside Canada. Living outside Canada will NOT be a reason to revoke anyone's citizenship.
