“Citizenship is not a right, it’s a privilege.” This was Minister Chris Alexander’s justification for the sweeping changes to Canadian citizenship introduced last June. The reforms change many things, the most serious of which is the power given to the Minister of Citizenship and Immigration to revoke the citizenship of some Canadian citizens convicted of serious crimes.
Previously, citizenship could only be revoked if it had been acquired fraudulently. But after this past year’s reform, citizenship is conditional on good conduct. A citizen who is a dual national or who can claim another nationality can be stripped of Canadian citizenship if convicted of terrorism, treason or espionage, anywhere in the world. Citizenship is no longer a right, but a privilege conditional on conduct.
It is worth reflecting on how this reform has changed the meaning of Canadian citizenship. Citizen stripping has yet to be used. But the year ahead may reveal which Canadians will be targeted for removal.
Revoking citizenship is no small matter. Citizenship is an essential right in a world order based on sovereign nation states. Hannah Arendt, the foremost author on statelessness, defined it as “the right (of man) never to be excluded from the rights granted by his community.” The consequence of exclusion is the total denial of the rights and protections afforded to citizens by the state.
Never before has Canadian citizenship been a privilege conditional on the conduct of citizens. The federal government’s decision to qualify it profoundly diminishes the value of this fundamental right.
First, citizenship no longer protects all Canadians equally. Because Canada is a signatory to the 1961 Convention on the Reduction of Statelessness, it cannot revoke the citizenship of individuals who have no other possible nationality. Accordingly, the reform applies only to citizens who have another citizenship or can claim another nationality elsewhere.
From Haiti to Israel and the Philippines, numerous countries confer nationality not by place of birth but by parentage, religion, ethnicity or other ties. The children and grandchildren of parents born abroad could have their citizenship revoked because they can theoretically take citizenship in their country of origin even if they have never been there before. The changes are discriminatory, privileging citizens who are sufficiently native to Canada that they cannot claim another nationality. Rather than protecting all citizens equally, the changes create different grades of citizenship with different consequences even when citizens commit the same crimes.
Second, the reform criminalizes citizenship, continuing the federal government’s overall criminalization of immigration. The detention and deportation of non-citizens convicted of crimes in Canada has become a priority for the Conservative government, often resulting in individuals with irregular legal status suffering the double punishment of incarceration followed by deportation. The result of this reform is that deportation for criminal behaviour is no longer restricted to non-citizens but also affects citizens with secure legal status.
Citizenship is now a punitive tool. Citizens convicted of crimes covered by the Criminal Code will not be punished under criminal law but rather through the immigration regime. This approach is completely at odds with the United States’ protection of citizenship. In 1958, the United States Supreme Court ruled that deprivation of citizenship is not a weapon in the hands of government to punish citizen conduct however reprehensible. Canada is in the minority, as most western states have not ventured on this punishing path.
The government’s motives in choosing immigration law rather than criminal law to respond to these crimes are most worrisome. As the Canadian Association of Refugee Lawyers has stated, the justice system is capable of effectively punishing individuals who violate the law, adding, “We do not need to revive the medieval practice of banishment to achieve the goals of punishment, namely deterrence, retribution, denunciation and rehabilitation.”
But the deprivation of citizenship might be advantageous to government because it would deny individuals the right to a trial and the protection of the criminal justice system. As non-citizens, individuals could be punished outside the confines of the law, including by rendition and torture. Maher Arar’s case proves that the possibility of such heinous human rights abuse is not beyond Canada. Non-citizens are the most vulnerable to government power as they have the fewest avenues to enforce their rights under Canadian and international law.
Or perhaps the reason is purely political. The federal government and some Canadians believe that certain citizens deserve to be banished for their crimes. Canada’s most publicly vilified “convicted terrorist,” Omar Khadr, is the fuel for this argument. The Harper government vehemently upholds Khadr’s conviction as legitimate. This is despite the fact that the U.S. military commissions at Guantanamo Bay violate the rule of law and are tainted by torture. Khadr is a Canadian citizen by birth, but he is Egyptian by origin and can claim Egyptian citizenship. Khadr’s case makes clear the federal government’s prime motivation — the desire to score political points by ridding Canada of whomever the public deems unworthy.
The United Kingdom is the other western country that has adopted citizenship revocation and, unlike Canada, uses it extensively. It has come under criticism for denying citizens due process, acting on suspicion, and for using its power to shut down political activists. Baroness Helena Kennedy, a U.K. human rights lawyer and member of the House of Lords, argued against the government line stating: “Citizenship is not a privilege; it is a protected legal status. . . . The answer to conduct we deem criminal is to prosecute it.” She added, “Deprivation with all its consequences in the modern world is equivalent to a penal sanction of the most serious kind — but imposed without a criminal trial, without conviction, without close and open examination of the evidence and without the opportunity to defend yourself.”
The final troubling result of this reform is that citizenship is now a political tool. Before the reform, naturalized citizens facing revocation for fraud had the right to a hearing before a judge for review of the government’s decision. Not now. Instead of a judge, a politician will have the final say on who meets the criteria for revocation, what is considered a legitimate foreign conviction, and whose citizenship will be spared or revoked. The courts have been cut out of the process in most cases.
Citizenship and immigration is highly political terrain, especially under the current government. But politicizing the revocation of citizenship will endanger the lives of Canadian citizens. The Harper government views the Guantanamo commission’s convictions as legitimate. What other trumped-up charges from foreign governments will be considered lawful? Political activists and journalists among others could have their citizenship opened up for reconsideration if unjustly charged with these crimes abroad. It is the minister’s responsibility to decide whether a foreign conviction meets the standards of Canadian law, but it is clear this will be a political rather than legal evaluation.
Some Canadians certainly will lose no sleep over the revocation of citizenship for criminals. But first, second and third generation Canadians have cause for concern. A wrongful conviction at home or abroad could upend one’s life. Do we trust government to arrive at a just and thorough decision? And even if a citizen has committed a crime, is criminality cause for banishment?
The reform has made it possible for citizenship to be withdrawn at the whim of politicians. In the year to come, it will become clear which citizens will be targeted for removal and who will be extended the privilege to belong. Canadian citizenship will be shamefully reduced when Ottawa begins to discard its own citizens.
- Humera Jabir is a law student at McGill University