The Federal Court finds that the Current Citizenship Revocation Regime is Unconstitutional
On Wednesday morning, the Federal Court of Canada upheld the sanctity of Canadian citizenship and once again affirmed the Canadian Bill of Rights as an important safeguard for human rights.
In Hassouna et al v Minister of Citizenship and Immigration Canada, eight separate applicants (one of whom was represented by Gerami Law P.C.) challenged amendments made to Canada’s citizenship laws via the 2014 Strengthening Canadian Citizenship Act. These amendments allowed the Minister of Citizenship and Immigration to revoke the citizenship of any Canadian who he considered had obtained this status by means of fraud, misrepresentation, or knowingly concealing material information without the right to an oral hearing. This was a drastic departure from the previous regime, which required the Government provide the opportunity for applicants to respond to the Minister’s concerns in an oral hearing before a Federal Court judge prior to their citizenship revocation, and empowered the Governor in Council – not the Minister – to make the final decision.
In the Federal Court decision, Hassouna et al v Minister of Citizenship and Immigration Canada Justice Gagne found that in the context of citizenship revocation, affected individuals are entitled to disclosure, an oral hearing (where there are serious credibility issues) in front of an independent decision-maker, and having the opportunity to present their special circumstances before the decision is made. This is based on section 2(e) of the Canadian Bill of Rights, which precludes the Government’s ability to “deprive a person to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.”
Importantly, Justice Gagne asserted that, “once acquired, the rights flowing from citizenship have vested” and they subsequently become rights. Furthermore, to comply with procedural fairness requirements, individuals whose credibility is seriously at issue must have the opportunity to respond in an oral hearing. In addition, disclosure must be guaranteed in order to provide the affected individuals’ a fair opportunity to state and know the case; the investigator and decision-maker must be separate individuals (currently, both roles are assumed by the Minister of Citizenship and Immigration); and given the high impact on the affected individual’s lives, the decision maker must consider equity and humanitarian and compassionate considerations.
Justice Gagne declined, however, to find that the current amendments violate sections 7 and 12 of the Canadian Charter of Rights and Freedoms. This is important, because the Government can easily overcome the rights enshrined in the Canadian Bill of Rights by explicitly stating as such (known as a ‘notwithstanding’ clause). While the Government could additionally maintain laws which violate the Charter, their ability to do so is much more constrained. Section 7 protects the “life, liberty, and security” of all individuals in Canada, and citizenship revocation as a general policy as not seen to engage these rights, as there is no general right to status as a citizen. Meanwhile, the effects of having been stripped of status were not determinative enough to trigger section 7, as they varied in each case (for example, deportation was available but not guaranteed). Likewise, the threshold for a section 12 violation – which protects against cruel and unusual treatment – was also not met: government policies are not considered treatments unless they specifically target identifiable groups (which was not considered to be the case), and citizenship revocation is not cruel nor unusual because individuals do not have a right to citizenship in the first place (only to keep it once conferred).
This decision further challenges the limitations of the Liberal Government’s Bill C-6, which seeks to amend the Strengthening Canadian Citizenship Act by recalling many of the barriers to citizenship imposed. Unfortunately, Bill C-6 does not currently address the issues litigated in this case. While the Senate has responded by passing an amendment calling for changes to this scheme, this Federal Court ruling requires changes to be made within the next 60 days unless the Government chooses to appeal within the next 30. In the meantime, these provisions still stand, and individuals whose citizenship is under review could still see it revoked. Nevertheless, this ruling has set an important precedent that once a Canadian, you have the right to remain a Canadian until an accountable, transparent, and just system finds otherwise.