Citizenship laws give government rare powers but aren’t questioned

Presumption of innocence is now lost, writes Lauren Heuser.

Canada’s citizenship laws were amended in extraordinary ways this past summer to enable the government to strip the citizenship of Canadians, and instead of invoking concern, the changes have been met largely with equanimity, if not outright support.

Recent polls, for instance, have put public acceptance of the amendments at around 80 per cent, and in last week’s National Post column, Rex Murphy spelled out the case for why revocation of a person’s citizenship would be justified in circumstances where, to use his example, a Canadian citizen heads abroad, enlists with a terrorist organization, summons a camera crew and then takes off the head of another.

The new Citizenship Act provisions authorize the government to revoke the citizenship of Canadians who have been convicted of specific crimes, such as terrorism, and — more strikingly — to revoke the citizenship of persons who have not been convicted of crimes, so long as the minister has “reasonable grounds” to believe that the person has served in an organized armed group engaged in “armed conflict with Canada.” The act does include the safeguard that a person’s citizenship cannot be revoked if the effect would be to render the person stateless (which in practice means that only dual citizens can be singled out), but the act places the onus of proving that one is not of dual nationality on the impugned person, and not the government.

In addition to these powers, the government has another, separate set of tools at its disposal under the act’s regulations, which enable it to revoke a citizen’s passport if the minister is of the opinion that revocation is “necessary for the national security of Canada or another country.” These passport provisions, which have been in effect since 2004, are in certain respects more troubling than the new citizenship laws, because they rely on a broad and illdefined “national security” test, do not require proof of guilt through a conviction, and are not limited in their application to dual citizens. One can imagine how, in some circumstances, the exercise of this power could be as severe as the revocation of citizenship itself, as a person whose passport is invalidated while abroad would suffer a similar deprivation to one whose citizenship has been revoked; and if that person

Passport provisions … are … more troubling than the new citizenship laws.

was not a dual national, their deprivation might even be greater.

The grounds for concern with these laws are therefore considerable, not least due to their discriminatory application toward single versus dual citizens, and their allowance for the retrenchment of a right that was previously irrevocable for those born in Canada. But among a series of negatives, arguably the most problematic are the provisions that enable the government to exercise significant discretion in taking actions that impose severe punishment (i.e. actual or effective loss of citizenship) on persons whose guilt has not been established beyond all reasonable doubt.

While it is tempting to use the example posed by Rex Murphy as the basis for justifying these laws, this reasoning is flawed. The act of beheading an individual on camera represents the most flagrant flouting of laws imaginable, leaving the world with little doubt as to the guilt of the perpetrator, and in some cases, his or her identity. But in the vast majority of cases, it will be far from clear why a person has left the country and what sorts of activities the person has engaged in while there.

The safeguards that surround the process leading up to a conviction in a well-functioning legal system ensure that judgments about a person’s guilt are not made by a single party, who may have a vested interest in an outcome, and who lacks all the evidence. Adherence to the presumption of innocence and process-driven decision-making is neither strange nor irresponsible, but rather necessary — and not less so, but especially so, in these troubled times.