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Amendments to the Canadian Citizenship Act. The short life of reactive expatriation under Canadian Citizenship Law

By Tom Boekstein, GLOBALCIT Collaborator

On June 19, Bill C-6, a long-awaited piece of legislation introduced shortly after the Liberals won the Canadian Elections in 2015, received Royal Assent and entered into force. It reverts some of the most controversial changes introduced to the Canadian Citizenship Act 1981 by the former Conservative Government in 2014.

To understand the importance of this amendment, it is necessary to recall one of the core changes introduced by the Strengthening Canadian Citizenship Act (Bill C-24) of 2014, which has been excellently discussed, and ultimately rejected, by Audrey Macklin.

In short, Bill C-24 expanded the grounds on which individuals could be deprived of their Canadian citizenship. Traditionally, this had only been possible if citizenship had been fraudulently obtained. Following the global trend of using nationality law to combat terrorism, section 10(2), inserted in 2014, added a shopping list of new grounds upon which Citizenship could be revoked. Through these grounds, reactive expatriation was introduced into the Canadian Citizenship Act. Most controversially, dual-nationals could now be stripped of their Citizenship if they had been sentenced to at least five years of imprisonment for a terrorism offence in Canada or abroad. 

Why only dual-nationals? International law prohibits depriving mono-nationals of their nationality, as this would result in statelessness, the status under which a person does not hold the nationality of any country. To ensure compliance with international law, section 10.4 specifies that expatriation under section 10(2) can only be applied to dual-nationals.

The rationale behind this section 10(2) is simple and appealing: following the deprivation of Canadian Citizenship, the individual can be expelled from the country and thereby effectively precluded from committing new attacks within Canada. The measure can be labelled reactive expatriation, as the deprivation of nationality only occurs after the individual has already been convicted of a terrorist offence. The deprivation is always preceded by a criminal trial and seeks to prevent the individual from committing other attacks in the future.

This changes now that Bill C-6 has entered into force. Following the 2015 elections, the new liberal Government had announced to remove reactive expatriation from the Canadian Citizenship again. In this regard, clause 3 of the bill is of particular importance: It makes short work of reactive expatriation by simply repealing section 10(2), thereby removing this possibility from the Canadian Citizenship Act. Effectively, the grounds of revocation will be reverted to their pre-Bill C-24 form. Subsequently, Canadian Citizenship can only be revoked if obtained fraudulently in the first place. Revocation in response to a conviction for treason, terrorism offences, espionage, or communication of sensitive information to foreign entities or terrorist organisations is no longer possible. 

This article could be concluded here. With regard to reactive expatriation, Bill C-6 does nothing more or less than abolishing it. However, as expatriation in the context of terrorism is being introduced in more and more states, it is necessary to discuss why the innovation introduced in 2014 is being reverted, and what the significance of Bill C-6 for the use of nationality law in western anti-terrorism policies is. 

Even before it had entered into force, Bill C-24 had already been faced with serious and extensive criticism from Canadian lawyers, legal scholars, and civil rights associations. To fully understand the impact of the reversion of the changes introduced by Bill C-24, it is necessary to recapitulate five of the most pressing issues arising under the soon-to-be-reversed regime:

1.Expatriation does not resolve the terrorist threat, but only exports it: as seen above, individuals can only be expatriated if they hold the nationality of another state, as the measure would otherwise lead to statelessness. This is problematic however, as nationals generally enjoy the right to return to their country of nationality. Even though the individuals are no longer present in Canada, it remains possible that they will commit another terrorist attack. Countries should rather resolve the threat posed by certain individuals properly, rather than simply exporting it to another country. 

Next to being morally questionable, the practise further poses the risk of triggering a viscous circle in which states race for the adoption of ever stricter laws on expatriation to be able to deprive nationals posing a terrorist threat of their nationality before another state can do so. This issue has also been discussed extensively in by Rainer Bauböck.

2.Expatriation reintroduces banishment as a form of punishment outside criminal law: Bill C-24 does not explicitly reintroduce banishment as punishment for committing or aiding a terrorist offence, as discussed by Saskia Sassen. In practice, however, the consequences are comparable. What triggers the expatriation is a conviction for a terrorist offence and as a consequence the individual will be expelled from the country. 

Although the factual reintroduction of banishment as a form of punishment is seriously problematic in itself, this new sanction is imposed through administrative law for possible future conduct. The imposition of punishment outside criminal law is highly problematic given the lower standards of safeguards in place to protect the individual, especially when seeking to prevent future harm that may never materialise.  

3.Expatriation also applies to individuals convicted outside Canada: Under section 10(2), individuals can also be deprived of their nationality if they have been convicted of a terrorist offence abroad that would also have constituted a terrorist offence in Canada. This raises serious concerns where the convicting country is unwilling or unable to guarantee fair trial standards, or when the criminal justice system is abused to persecute political opponents of the regime.

4.The standard of protection against statelessness is insufficient: As discussed above, section 10.4 of the Canadian Citizenship Act prohibits the deprivation of nationality where doing so would render the individual stateless. But the standard of protection created by the section is insufficient. Once the authorities have made the initial finding that the individual to be expatriated possesses a second nationality, the burden to disprove this claim is shifted to the individual. A mono-national without the possibility or resources to rebut the authorities’ claim can be expatriated and subsequently rendered stateless under this section, a result that is firmly opposed by the UN High Commissioner for Refugees.

5.Expatriation of dual-nationals creates two tiers of citizenship: As discussed, only dual-nationals can be expatriated. This creates two tiers of citizenship: mono-nationals, or exaggeratedly phrased: ‘pure Canadians’, who cannot lose their citizenship regardless of their misconduct, and dual-nationals, who can be expatriated for merely aiding a terrorist offence. This is particularly problematic in an immigration country such as Canada.  

In light of such extensive critique, it should not come as a surprise that Bill C-6 has been widely welcomed by Canadian lawyers and legal scholars, with the Canadian Civil Liberties Association (CCLA) embracing it for the ‘restauration of equality in citizenship’ and the Canadian Council for Refugees (CCR) supporting the abolition of the expatriation as a form of extra-criminal law punishment.

Last, but certainly not least, brief note must be taken of a recent court decision regarding the revocation of citizenship. Even though it addressed situations in which citizenship obtained by fraud had been revoked, the rulings are nevertheless important. In assessing the revocation procedure, the Federal Court of Canada held that Citizenship may only be revoked after the individual case has been heard by an independent decision maker. So far, revocation was possible simply by decision of the immigration authorities without hearing. This is particularly relevant for the individuals who have had their nationality revoked under the soon to be abolished section 10(2). Should the Government not appeal the decision of the Federal Court, individuals expatriated under section 10(2) would have the possibility of challenging the revocation of their citizenship in court, with good chances of having it restored.

Although the critique summarized here will fortunately become redundant for Canadian citizenship law with the entering into force of Bill C-6, it should not be disregarded as outdated. The concerns uttered by Canadian lawyers and legal scholars remain valid and continue to apply in analogy to the expatriation laws adopted in i.a. Australia, Belgium, or the Netherlands.

Indeed, the reversion of the changes introduced by the Strengthening of Canadian Citizenship Act is contrasting the developments the nationality laws of many other western countries are currently undergoing. Reactive expatriation is no longer an exotic or exceptional measure to counter terrorist threats, and many countries, including the Netherlands, are in the process of expanding the possibilities of revoking nationality for this purpose. 

The fact that Canada has deliberately chosen to abandon this rather troublesome practise is a welcome precedent that will hopefully be followed by more states. There are less intrusive and more effective measures to counteract the threat posed by terrorism. Not only can expatriation in this context be considered a modern form of banishment, it is also of doubtful effectiveness as argued by Peter Spiro. Nationality – the right to have rights – should not be abused for these extreme and intrusive purposes in an effort to achieve reassure the public.

Following the above, the current developments in Canadian nationality law should serve as an example for all western states who are (in the process of) resorting to reactive expatriation. Hopefully, the adoption of Bill C-6 marks the beginning of the end of this worrisome development.