Update:Legal challenge against Bill C-24

[dpenabill]

I have had an opportunity to review some of the media stories and in looking at media accounts of the legal challenge initiated in August by CARL (which means essentially by Lorne Waldman), those indicate, apparently, a challenge based on Section 6 in the Charter, claiming that the intent to reside clause breaches the right of citizens to enter and leave Canada freely.

So it appears to be true that Waldman and I disagree. That said, I would put this one in the same category as Galati's initial claim against the grant of Royal Assent itself, another easy one to predict. As in easily dismissed as unfounded.

That Waldman is still advancing this is both a bit of a surprise and a disappointment. There really is no substantive basis for this challenge. The intent clause has no impact at all on citizens and thus in no way impairs the Charter 6 Right of citizens to enter and leave Canada.

I cannot explain why Waldman would still include this among the other challenges which are at the least arguably cogent based on substantive law.

While similarly just one other person's opinion, consider that expressed by Andrew Griffith, a former Director General within CIC, in The Hill Times and the piece is also published in his blog "Multicultural Meanderings" (see older posts at Multicultural Meanderings, looking for the post titled "Citizenship: getting the balance right" dated 2015/10/06 ), where he describes changes which can "only be achieved through legislation. These include abolishing the 'intent to reside' provision [and] restoring pre-Permanent Resident time credit towards citizenship . . . " (among others). No matter how bad these are as policy, they are not invalid, and thus can only be changed by an Act of Parliament. (I refer to Andrew's blog and writings because they are a good example of carefully drawn and well informed views based on reasoned analysis and a depth of experience in this area.)

This is not to say there are not valid criticisms of the intent to reside clause, many of which have been discussed at length in multiple topics here, including what I have posted as to some serious concerns (particularly as to the potential risk for an abuse of discretion in how this requirement might in practice be implemented). But those are not about its validity.

I have read many criticisms of Bill C-24, including those by lawyers, including Waldman's in 2014, and more by law students. None have advanced any substantive ground as to why the intent to reside clause is invalid, at least none other than the (clearly erroneous) conclusion that it somehow improperly restrains the freedom of movement protected by the Charter, despite the simple fact it does not affect the mobility rights of citizens in any respect.

And to be frank, I would hope better from Waldman. Many of the other issues regarding other aspects of what was implemented through Bill C-24 (especially those centralizing profound decision-making power in the Minister and otherwise affecting procedural rights) raise real concerns demanding careful judicial examination. I always cringe when I see good cases undermined by including unfounded and easily rejected arguments. Too often the flawed arguments grab all the attention and the more serious issues get overlooked. This is in large part what happened in the public debate, to the extent there was some, regarding Bill C-24 while it was still a pending Bill in Parliament . . . way too much attention was focused on red herring arguments about the impact of the intent to reside clause on citizens, with virtually no real consideration for its actual impact on the process of evaluating the qualifications of those seeking Canadian citizenship.

From various sources, going back some to the early 2014 criticisms authored by Waldman, as best I can sort out how it is that, according to Waldman, the intent to reside clause impairs the mobility rights of citizens, it is something of a vagueness argument claiming that the clause is ambiguous and thus could be used to revoke the citizenship of a naturalized citizen who moves abroad, as a citizen, based on having misrepresented his intent. While there are many flaws in this argument (the clause is actually not ambiguous for example), ultimately citizenship can only be revoked for misrepresentation if there was in fact misrepresentation. If there was misrepresentation, few would disagree that the proper outcome is any other than revocation. The fact the person lives abroad later in time, after becoming a citizen, is not the ground for revoking citizenship. Misrepresentation is.

At best, what the argument depends on is the proposition that, given the clause's ambiguity (despite there being none), the risk of being falsely accused of misrepresentation due to leaving Canada is substantial enough a risk it chills the mobility of naturalized citizens and thus constitutes an unconstitutional restriction on their mobility rights. The argument is dependent on an over-extended daisy-chain of remote possibilities way, way short of what is required to make the case that the clause is unconstitutional. Here too, no particular expertise in Canadian constitutional law is necessary to see the obvious outcome.

The other issues raised, though, demand examination and careful consideration. Again, I cannot begin to guess how the courts will rule regarding matters like the centralizing of decision-making in the Minister, diminishing the role of the courts, and provisions to revoke citizenship on the gounds of criminal acts committed while a citizen. There are many tough questions underlying these issues.

The validity of the intent to reside clause is not a tough issue.

 

[links18]

The law is what the people with the robes (and wigs) on say it is. If a distinguished barrister such as Lorne Waldman thinks he has a reasonable shot of invalidating the intent to reside clause on constitutional grounds than he should probably pursue it. Of course, a negative response from the courts would mean--even if the new Liberal government eventually scraps this part of the law in Parliament--a future conservative government would know they could reinstate it and not worry much about a legal challenge. Man, all this repeal and reinstatement stuff if starting to look rather Third World. Of course, it wouldn't be an issue if the previous government would have listened to the policy experts, the vast majority of whom I believe said the intent to reside clause was a bad idea.

 

[dpenabill]

The law is what the people with the robes (and wigs) on say it is. If a distinguished barrister such as Lorne Waldman thinks he has a reasonable shot of invalidating the intent to reside clause on constitutional grounds than he should probably pursue it. Of course, a negative response from the courts would mean--even if the new Liberal government eventually scraps this part of the law in Parliament--a future conservative government would know they could reinstate it and not worry much about a legal challenge. Man, all this repeal and reinstatement stuff if starting to look rather Third World. Of course, it wouldn't be an issue if the previous government would have listened to the policy experts, the vast majority of whom I believe said the intent to reside clause was a bad idea.

Actually, the discussion about legal challenges versus legislative revision, including repeal, illustrates a modern nation with a robust independent judiciary, governed by the rule of law and democratic processes, with a strong constitutional framework which offers real, substantive protections to not just citizens but all those who reside in the country. It is the polar opposite of a third world nation-state governed by the caprice of whoever manages to hold the authoritarian reins at the time. While far from perfect, far, far from perfect, the Canadian justice system and democratic institutions deserve very high regard and respect. While I have had my doubts in the last couple years, given the extent to which the Harper-controlled Conservatives have run an incredibly leader-centric government, the response of Canadians in the last election was a big relief and cause for much hope.

I am not sure Lorne Waldman is a distinguished jurist. He is widely-known due to his work with (as?) CARL. Rocco Galati may warrant the accolade, given that he was the lawyer whose work in the 90s has had a profound impact on what procedural fairness requires (I forget the name of the key Supreme Court decision, even though it is so commonly cited in CIC cases my bad for not knowing it off the top of my head).

Even though Galati's challenge directed at the Governor General and the grant of Royal Assent was not at all well-founded, my sense is that was a tactical maneuver. I do not fully grasp the underlying procedural mechanisms involved in bringing an action in a manner which will put it on track for a high court ruling on issues of much import, but I know it is very tricky terrain. Thus, while the substantive basis for that claim was clearly lacking, I suspect it was employed as a means to get the challenge heard.

Perhaps similar motivations are underlying Waldman's inclusion of the unfounded claim against the intent to reside clause (again, this is about its constitutional validity, not whether it is a bad law; Parliament enjoys an absolute right to adopt bad law so long as it is not unconstitutional, and the recourse for bad law is for a subsequent Parliament to change it).

That noted, the argument about the intent to reside clause is more akin to criminal defense tactics, throwing any arguably arguable claim at the wall hoping something sticks. This is typically what it appears to be, largely desperation.

Constitutional law challenges, at least serious one outside the scope of criminal defense, ordinarily are more sober, well-reasoned, and rooted in fundamental principles of both constitutional and statutory law. That is, based on real jurisprudence. Outside the scope of criminal defense, constitutional law challenges are not usually exercises in publicity. (More often it is the opposite, there is some exercise in publicity in order to raise awareness and disseminate information about the challenge.)

Without revisiting my older research, from 2014, my recall is that in addition to the submissions by Waldman before Bill C-24 was adopted (when the public discussion was dominated by red herrings and rhetoric, and the more serious issues were lost in the shuffle), later in the year CARL, in conjunction with the BC Civil Liberties Association, published continuing legal education materials which offered as much detail about the argument (that the intent to reside clause is invalid) as any I have come across. It was nonetheless diminutive, largely an expression of the bare conclusion that the clause impairs the mobility rights of naturalized citizens and is thus invalid. But the very same language in those materials has appeared in multiple sources since (including almost the same language in an article purportedly co-authored by another Canadian immigration lawyer published early this year). The thing about those materials and that argument, they were authored by a law student, not a lawyer, and were rife with language borrowed from earlier public discussions while scarcely supported by legal analysis or citations of authority. I apprehend Waldman may be recycling old material without fully vetting the substantive argument.

Much of which seems likely to get brushed aside pending promises to revise the Citizenship Act. However, to do this beyond a few relatively simple revisions, such as simply repealing Section 10.(2) (grounds for revoking citizenship based on convictions for criminal offences committed while a citizen) and related procedural provisions, is likely to be a complicated task. Remember, the Conservatives had an agenda to amend the residency requirements at least as far back as when Harper formed his first government in 2006 and it took until June 2015 for them to do it, even with the firmly controlled machine Harper ran during much of that time. Eight, nine years to do it, and still had to ram it through with minimal committee consultation and restricted debate. This stuff takes time. This is not a third world country. The leader-of-the-day cannot just dictate these kinds of changes. Not even Harper could come close.

As I have previously noted, I don't think anyone has to worry about grounds to revoke citizenship based on criminal convictions, not even those currently in Canadian prisons pursuant to convictions for terrorism offences. My sense is that this government can just stop pursuing any such proceedings. The Minister (who will be named in a few days) can simply decline to exercise the power to revoke citizenship on such grounds. This will allow the government time to figure out the best approach to revising this part of the law.

But the bad news for those who were cut-off from qualifying for citizenship when the new requirements took effect, and were hoping for changes which would make them eligible sooner than the current requirements (the Bill C-24 requirements), such as regaining credit based on time in Canada prior to becoming a PR, is that any changes in this regard are going to take a long while, whether compelled through the courts or effected by an Act of Parliament. The benefit of such changes will accrue more for immigrants whose eligibility is in the future. Sorry.

I have gone into depth some regarding this in an effort to foreclose the growing suggestion or impression that such changes would come soon and enable many who had been cut-off from eligibility by the new requirements to become eligible in the relatively near future. Not going to happen soon. It will take time. For example, anyone who would be eligible today but only under the previous rules, sorry, but any changes are not likely to come in time to accelerate when you can apply, not by much anyway.

 

[neutral]

I agree with dpenabill . Trudeau is only interested in keeping all terrorists with dual citizenship in Canada, that's it. He's not going to eliminate all Bill C-24, that's only in your dreams.

 

[Natan]

I agree with dpenabill . Trudeau is only interested in keeping all terrorists with dual citizenship in Canada, that's it. He's not going to eliminate all Bill C-24, that's only in your dreams.

dpenabill said no such thing! For shame!

 

[links18]

Actually, the discussion about legal challenges versus legislative revision, including repeal, illustrates a modern nation with a robust independent judiciary, governed by the rule of law and democratic processes, with a strong constitutional framework which offers real, substantive protections to not just citizens but all those who reside in the country. It is the polar opposite of a third world nation-state governed by the caprice of whoever manages to hold the authoritarian reins at the time. While far from perfect, far, far from perfect, the Canadian justice system and democratic institutions deserve very high regard and respect. While I have had my doubts in the last couple years, given the extent to which the Harper-controlled Conservatives have run an incredibly leader-centric government, the response of Canadians in the last election was a big relief and cause for much hope.

Disagree. A modern nation-state is supposed to be have something like "state continuity." Going back and forth repealing and reinstating laws is not that. Of course, this is what happens when one party in particular goes off the rails and puts politics before policy and refused to listen to policy experts. This is not limited to Canada of course, i.e. Republicans desperate attempts to repeal Obamacare (which so far have failed).

So is your position now that Waldman probabaly doesn't think the intent to reside provision is unconstitutional? He is just raising that as some kind of tactical maneouver?

 

[dpenabill]

Disagree. A modern nation-state is supposed to be have something like "state continuity." Going back and forth repealing and reinstating laws is not that. Of course, this is what happens when one party in particular goes off the rails and puts politics before policy and refused to listen to policy experts. This is not limited to Canada of course, i.e. Republicans desperate attempts to repeal Obamacare (which so far have failed).

So is your position now that Waldman probabaly doesn't think the intent to reside provision is unconstitutional? He is just raising that as some kind of tactical maneouver?

I do not really know Waldman's state of mind.

If he believes that there is a case to be made that the intent to reside clause is invalid because it impairs the mobility rights of citizens protected by Section 6 in the Charter (at least the article in The Star a couple months ago said this was the claim), then we disagree.

And, I am confident the claim the intent to reside clause unconstitutionally impairs the mobility rights of citizens is wrong, unfounded. There really is very, very little, if any doubt, that the courts will not rule the intent to reside clause is invalid. It really is a farfetched argument at its best.

I do not say this lightly. In contrast there are many other aspects of the various challenges made (by Waldman, Galati, and others) which are not at all so clear. How those will fare before the courts is very much in question. Jurists and scholars may have varying or even conflicting views as to what the outcome should be, what they opine is the correct resolution of those challenges, and have this or that argument to support their opinion. But, for many of the other issues no knows for sure which way the courts will decide.

There is no such doubt about the claim that the intent to reside clause unconstitutionally impairs the mobility rights of citizens. It does not. It is not and will not be ruled to be invalid.

There are a couple reasons why recognizing this is important:

1) For those waiting to see if and when the current requirements for citizenship might change, there should be no expectation that the current naturalization requirements will be invalidated by the courts. Virtually no chance. This is NOT going to happen.

Thus, for example, for all those whose application is made after June 11, 2015, the intent to reside clause will apply and thus, for most purposes, that means the applicant could be denied if he or she moves abroad while the application is pending.

2) The only prospect for change in the applicable naturalization requirements, including the intent to reside clause, the 4/6 rule, and no-credit-for-pre-PR-time, is entirely dependent on Parliament revising the Citizenship Act. This will take time. It could easily take years. I cannot guess what the timeline will be or even if, for sure, the new government will tackle this issue. Again, the Liberal Platform listed restoring credit for time as students or workers, but that does not indicate how much a priority that is for the Liberals. That does not necessarily promise any other revision or reduction in the requirements.


Frankly, restoring pre-landing credit is not something which could be easily done within the framework of the current physical presence requirements, at least not in a manner which would offer much of a practical credit. Note, for example, if a one-half credit is added to the current requirements, just two days absence in a calendar year still knocks that year out of qualifying as one of the required four calendar years with 183 days presence. Overall, for individuals who never leave Canada at all, adding in a credit for time prior to landing may make a significant difference in how soon they qualify. But for the majority of immigrants, the change would have to be more than just a one-for-two credit for up to a year (which is essentially what the old provision provided) to make a practical difference. But to do that is NOT so simple, and really would, very likely, take a long while to get done, for any change to be made and implemented.

The simple course would be to repeal the changes made by Bill C-24 to the requirements for naturalization, and restore the requirements to the previous law. While this is in the realm of possibility, it seems very unlikely because there is one thing about the prior law which was universally (or almost so) accepted, and that is that the prior law was in desperate need of being changed. There really should be no going back. Almost impossible to imagine any well-informed legal adviser among the Liberals who would not jump up and shout, if necessary, NO, NO, NO, no going back to the way it was. Scores of Federal Court justices have railed against the old law for over three decades. The chorus of no would be deafening. But, sure, that is possible. Not at all likely, but possible.

Which means that the effort to restore credit for pre-landing time is not likely to come about soon or easily.

By the way, in contrast it would be fairly easy for the new government to remove the intent to reside clause from the naturalization requirements. It is essentially a stand-alone requirement. In some respects it might be said to add little to the substantive elements of what is required to become a Canadian citizen. It is, in many respects, more of a gotcha element which could be exploited against applicants CIC is looking for reasons to challenge or deny, for sure opening the door to dig into an applicant's personal affairs very deeply. And this may be part of what the Liberals meant, in their platform, when they referred to unfair hurdles imposed on immigrants.

There are many strong arguments why there should not be an intent to reside clause. (No viable arguments that it is invalid, but a lot of strong arguments that it is bad law.) So maybe this is something that Parliament will address in the near future. Still will take time, probably a long while.


Another by the way:

One of the more dominant myths perpetrated by some is that if, for example, a challenge against the intent to reside clause wins, that would invalidate all the new requirements and put the law back to what it was before. This aspect gets into more complicated jurisprudence regarding what constitutes separable clauses. Thus, the impact of a ruling that this or that provision violates the Charter or is otherwise unconstitutional, depends on many things, including whether the offending provision is separable and just how the clause offends the Charter or constitution. It is a bit of a guess, but nonetheless a strong guess I think, to say that even if the intent to reside clause was found to be invalid (not going to happen, but for the sake of argument, even if it was), it will be deemed separable and is not going to have any impact on the validity and implementation of the other requirements. This is to say, if Waldman or some other litigant managed to persuade the courts to rule that the intent to reside clause is not valid, that is NOT going to change any of the other requirements. No effect on the 4/6 rule. No effect on the lack of credit for pre-landing time.



As to state continuity:

This is more about institutional and process continuity, established in the rule of law and a governing constitution.

In modern Parliamentary democracies, minority governments can come and go rather frequently. Majority governments are typically limited to four years. Change is inevitable.

And the scope of change can indeed be profound. Change is not just inevitable, but rather the process for implementing change is a big part of the institution. The scope of change, and how it radically it can be done, especially timewise, is framed by the Constitution and the actual mechanics of democratic process. This is part of why these things take time, but the process of change is a critical part of the modern, democratic government.

Governments will make mistakes. Sometimes big mistakes. The modern government is relatively equipped to deal with and address past mistakes and move progressively toward the future. Canada is among those nations which are a model in this regard. But democracy is also cumbersome and sometimes rather messy. Democratic governments can fumble badly. The best of them will stumble and fumble sometimes. The best of them will recover, get their footing, and proceed. While far from perfect, Canada seems high on the list of those doing a better job at this.

 

[Diplomatru]

Frankly, restoring pre-landing credit is not something which could be easily done within the framework of the current physical presence requirements, at least not in a manner which would offer much of a practical credit. Note, for example, if a one-half credit is added to the current requirements, just two days absence in a calendar year still knocks that year out of qualifying as one of the required four calendar years with 183 days presence. Overall, for individuals who never leave Canada at all, adding in a credit for time prior to landing may make a significant difference in how soon they qualify. But for the majority of immigrants, the change would have to be more than just a one-for-two credit for up to a year (which is essentially what the old provision provided) to make a practical difference. But to do that is NOT so simple, and really would, very likely, take a long while to get done, for any change to be made and implemented.

1) Even if you miss 183 days requirement for one year, the days spent in Canada under PR status during that period ARE still counted towards the 1460 days total. So, it won't hurt for most international students and temporary workers to take advantage of the time spent in Canada before becoming PR.
2) During public consultations on committee stage members of the civic society were unanimous in their demand to give hundred percent credit for the time spent in Canada under SP/WP and the person who I expect will become the new CIC minister (John McCallum) seemed to agree on this. That's a very reasonable request and such is the case in Australia where they even count days spent as a visitor for future citizenship applicants. So, the Liberals may actually not only repeal the preclusion of pre-landing credit, but actually give a full-fledged advantage to persons, who were granted PR status after their landing in Canada.

https://www.youtube.com/watch?v=T5sCPDNG-Nw

 

[neutral]

dpenabill said no such thing! For shame!

I said I agree with him, I didn't quote him. And calm down.

 

[ilotey]

youtube.com/watch?v=7UbfsU05YBg

Please see last 20 minutes of this video by new Liberal Immigration Minister John McCallum on which parts of Bill C-24 he does not agree with. From this, it would be logical to infer which sections of the bill he will seek to repeal ...