Bill C-24 and the compromise of the Charter of Rights and Freedoms

By H.Grant Timms

Already, and across a broad spectrum of political opinion, there has been condemnation for bill C-24, the Harper government’s “Strengthening of Canadian Citizenship Act”, which came into full force on June 11 after being given Royal Assent a year earlier.

In recent years, the titles of government bills have become increasingly ideological, and often quite mask their real purpose. C-24 does nothing to strengthen citizenship per se, which is protected under the terms of the Charter of Rights and Freedoms. What the bill does, on the contrary, is weaken citizenship rights for a minority. It does so by undermining the Charter, and so weakens citizenship for everyone.

There are provisions in the bill that one has to like. For example, the bill makes citizenship somewhat more difficult to obtain by lengthening the residency requirement. It aims at trying to establish that applicants actually intend on living in the country — and quite obviously Canada should not be granting citizenship to people who do not intend on living here. The legislation aims at reducing if not eliminating those ‘Canadians of convenience’, such as those who take out citizenship simply to advance their business interests – a cynical use of citizenship. One could, of course, see how dual or even multi-citizenships could be an advantage in the global economy; indeed, in an era of free and ever freer trade, where corporations can ignore borders, it’s a bit surprising that the pro-free trade Harper government is actually cracking down in this area.

It is other provisions of the bill that are problematic, to say the least.

Bill C-24 is a reversal of long-term Canadian tradition in that it singles out groups of more recent immigrants for ‘special treatment’. We’ve not seen the like since WWII and the internment of the Japanese. Critics indicate that the law targets upwards of 900,000 people that retain dual citizenship. Under the law, individuals of this group could be stripped of their citizenship and deported to their country of origin should they be convicted of serious crimes such as terrorism, treason or spying abroad. Constitutional experts have indicated that the provision creates a two-tier citizenship in Canada. Clearly, those of us born here, without dual citizenship, and without the possibility of attaining dual citizenship are in no danger of deportation should we be convicted of similar crimes — whether in Canada or abroad. Those targeted by the bill would be denied the protection of the government that the rest of us, as citizens, enjoy — especially if we encounter difficulties in countries that have court systems that our government hitherto has regarded as of dubious illegitimacy. One will grant that the government’s intervention on behalf of its citizens held by foreign governments is often of limited effect, and cases often take a long time to be worked through. Politics and diplomacy are invariably involved, but at least citizens have been able to rely on the fact that the Canadian government has an obligation to them, simply because they are citizens. Under Bill C-24, however, people like Mohamed Fahmy become citizens with an asterisk.

Even more troubling is the provision that would, according to legal critics, allow the government to deport persons born in the country who have foreign born parents. These second generation Canadians, if convicted of serious crimes, could be deported to their parents’ country of origin simply on the grounds that they are eligible to apply for citizenship in their parents’ country of birth. Under the new law, people like Toronto-born Omar Khadr presumably could have been (or still could be?) deported to either Egypt (his father’s country of origin) or Palestine (his mother’s), despite the fact that he never lived in either place. Doubtless the ability to dispose of people like Khadr in this way would be expedient to the government, and doubtless the deportation of Khadr would have received some public support, especially when Khadr was hidden away in the US prison at Guantanamo Bay, Cuba.

But when a government seeks to enshrine, in law, the principle of expediency and identifies certain persons as dispensable – no matter where they are from, or what they have done — the citizenry should protest. There are too many examples of this approach to ‘undesirables’ in recent history for us not to be alarmed.

One will readily grant that the crimes outlined in the bill that would permit deportation are serious ones. Persons found guilty of treason, or terrorism in a court of law, where they have been afforded adequate counsel, and tried before of judge or jury of their peers, are deserving of the full penalties of law. Canadian citizenship should not be used as a protection for such crimes.

However, the fundamental principle of the Charter is equality under the law for all Canadian citizens. Bill C-24 therefore cannot be other than an attempt to undermine the Charter, in both its letter and its spirit. It undermines the letter of the law by creating a legal distinction between a minority and the majority — and implies that the minority are ‘undesirables’ – or at least potentially so. It undermines the spirit of the law by using the existence of dual citizenship to create a loophole in the equality provisions of the Charter. It suggests that such persons are ‘less equal’ simply because they hold dual citizenship or could apply for citizenship elsewhere.

If dual citizenship is perceived by the people as a problem then perhaps it is time that the country took up a debate on the issue. But that is a different debate entirely.

Already, Toronto constitutional lawyer Rocco Galati has mounted a challenge to the law, and to parliament’s prerogative to make such a law. In his ruling against the Galati challenge, Justice Donald Rennie opined that the government does have the prerogative to amend laws pertaining to citizenship. However, in suggesting that a persons right to citizenship is neither absolute nor inherent, he cited pre-confederation law which spoke to the relationship between a sovereign and his/her subjects — a relationship that is a fundamentally different nature than that between citizens and their elected government. While there are some nuances of constitutional and common law involved in the Canadian tradition that might allow for the terms ‘subject’ and ‘citizen’ to be used interchangeably, we no longer live in pre-confederation times. We are no longer subjects, and are certainly not the subjects of Parliament, notwithstanding Minister Chris Alexander’s implication that citizenship is something dispensed by government largesse.

Mr. Galati has appealed Justice Rennie’s ruling — and a good thing. For, if the ruling is allowed to stand, one can expect that government will interpret it as a significant expansion of Parliamentary power to amend and erode the Charter. Bill C-24 provides a clear indication of how a Harper government would use that power. Indeed, the government’s thinking is clearly indicated by Minister of Citizenship and Immigration Chris Alexander, who, in defending the law, goes several steps further than Justice Rennie by stating that citizenship is not a right at all, but merely a privilege.

If the Minister were correct, the Charter of Rights and Freedoms would become a mere guidebook to be followed at the discretion, or pleasure of the government.

Thus one can only hope that Mr. Galati’s appeal, and the other challenges to the law that are sure to come, will be successful. Citizenship, once granted, must be upheld as a right. The Charter’s basic equality provisions, which include the idea that there is only one kind of citizen, must be protected. Upholding the Charter is supposed to be the chief responsibility of government. Constitutional rights guaranteed in law cannot be compromised by any government without that government becoming a menace to the people.

[Photo Credit: michael_swan/Flickr]