1st Session, 42nd Parliament,
Volume 150, Issue 114

Tuesday, May 2, 2017
The Honourable George J. Furey, Speaker

Citizenship Act

Bill to Amend—Third Reading—Motion in Amendment—Debate Suspended

Hon. Mobina S. B. Jaffer: Honourable senators, I rise to speak to Senator Lang’s amendment to Bill C-6, An Act to amend the Citizenship Act and to make consequential amendments to another Act. If passed, this amendment would allow for a sentencing judge to make a declaration leading to citizenship revocation for dual citizens in matters related to terrorism charges.

Honourable senators, if I thought for a minute that Senator Lang’s amendment would keep us safe or secure, I would immediately support this amendment.

Honourable senators, by way of background, I have seen first-hand the pain caused by terrorism. I’ve gone to refugee camps and to many places and witnessed the destruction done by ISIS and Daesh. I am, in fact, going this weekend to work with women from Pakistan, Iraq and Afghanistan, women who are specifically working in the areas to convince young men to return to their communities and work in their communities rather than against their communities. I work continuously on the issue of terrorism, but I believe that this is not the bill where we should look at adding the issue of terrorism.

The things that I have seen have significantly changed my life. For the last 16 years, I have worked and tried to deal with issues of terrorism. While working on this issue, I have seen many things. In particular, I will never forget one young woman whose limbs were missing because of barrel bombs. Terrorism and keeping Canada safe is always on my mind. However, honourable senators, this amendment will not make us more secure, but, I believe, perhaps less secure.

Further, this amendment is not in line with the essence of this bill. The essence of Bill C-6 is to bring us back to a system where a person’s citizenship can only be revoked for actions made before they became citizens. It is a pre-citizenship bill for actions as grounds for revoking Canadian citizenship of things that you did before you became a citizen.

Senator Lang’s amendment introduces post-citizenship acts as grounds for revoking citizenship of dual citizens. Honourable senators, this is just wrong. After becoming a citizen, a person and his family become part of our great Canadian family. This means that if they commit criminal acts, the persons are punished under our laws and face consequences in our country.

Before I begin, I would like to speak on how this debate is tied to our role as senators. As senators, we come here with many biases, experiences and opinions. Each of us has our own biases and ideas about how we can improve our country.

Honourable senators, I clearly remember the day I came here and how many biases I had about many issues. When I came here, I quickly realized that it was not about Mobina Jaffer. It was about being a senator from British Columbia, and I had to look at all issues with the Canadian Constitution in mind.

Honourable senators, I can genuinely tell you that every year I’ve had to break my personal barriers and my personal biases to uphold the Constitution. We have to look at every bill with a constitutional lens and not with our personal biases. When constitutional questions come before us, it is our duty to put our biases and ideas aside and to respect the rights of Canadians. It is no longer about us, senators; it is about our Canadian Constitution. It is about upholding our Canadian Constitution.

As senators, it is our role to ensure that our laws comply with the Constitution. When Bill C-24 came before us in 2014, we heard several warnings during debate and in committee telling us that Charter rights of Canadians would be violated by these provisions. Both then and now with this bill, we have heard that Bill C-24 violates several sections of the Canadian Charter of Rights and Freedoms, most notably, sections 6 and 15. When the bill came before us, we should have moved to protect the rights of Canadians. However, as a chamber, despite this fact, Bill C-24 was passed.

Honourable senators, from 2006 to 2015, for almost 10 years as a member of the Standing Senate Committee on Legal and Constitutional Affairs, many bills came before us, and many times I asked if these bills were constitutional. Were they Charter compliant? I got the answer that they were Charter compliant. Since then, many of these bills have been set aside by our courts. They have been found not to be Charter compliant.

I stand before you today and say that we have abdicated our responsibility as parliamentarians. We are not examining the bills with the lens that we should be doing here, to be looking at our Constitution. We have given this job to judges. Honourable senators, whether a bill is Charter compliant is our responsibility.

At the moment, there are five separate applications for judicial review before the Federal Court related to changes made by Bill C-24. These are the cases of Saad Gaya, Saad Khalid, Hiva Alizadeh, Asad Ansari and Misbahuddin Ahmed.

In addition to these cases, several law societies have raised their concerns about Bill C-24, including the Canadian Bar Association, the Quebec Bar, the Canadian Association of Refugee Lawyers and the British Columbia Civil Liberties Association. In fact, the application for judicial review in the Ansari case was made by the British Columbia Civil Liberties Association and the Canadian Association of Refugee Lawyers. These cases have all been adjourned for now.

Since Bill C-6 deals with the problematic elements of Bill C-24, the litigants in these cases were fighting hard for the rights of all Canadians, waiting for this chamber to restore the constitutionality of the Citizenship Act with Bill C-6. If we do not carry out our duty once again, they will continue to fight for the rights of Canadians in courts.

Honourable senators, I submit to you that this is wrong. Our job is to uphold the Constitution, not have the courts do our work. This is why, in large part, I put my support behind Bill C-6.

I will not speak at length on this subject, as I will cover this at a later time. However, I believe that it is an important step towards making sure that our citizenship laws comply with the Charter.

By restoring the constitutionality of the Citizenship Act, we can take the burden off the courts, and we do the job that we have been sent here to do and not have the courts do it. We have relied on the courts to take on our responsibility as parliamentarians for too long.

Given that so many Canadians are counting on us to protect the rights that have been violated by Bill C-24, this amendment goes against the spirit of what this bill will accomplish. Unlike Bill C-6, this amendment will create more constitutional issues.

Most notably, this amendment introduces measures that violate section 15 of the Charter in the exact same way that Bill C-24 did in 2014. It reintroduces the punishment of citizenship revocation for dual citizens for some crimes, while mono-citizens will not have to face that risk. However, under this amendment, the judge will be making the declaration instead of the minister.

Under section 15 of the Charter, all Canadians are equal, before and under the law, regardless of their national origin. This means that all Canadians must also be subject to the same punishments if they commit similar crimes.

Experts from across Canada have stated that creating a system where dual citizens can have their citizenship revoked, while mono-citizens cannot, is unconstitutional.

Audrey Macklin, who appeared before the Standing Senate Committee on Social Affairs, Science and Technology, summarized the situation well when she said:

Canada, like any other liberal democracy, holds to the idea that there is no such thing as second-class citizenship. Once you are a citizen, all citizens are equal. So to impose upon one class of citizens the threat of revocation, and not on another, is obviously to discriminate on whether one is a mono or a dual citizen.

Bill C-6 solves the issue within Bill C-24, removing the problematic element from the Citizenship Act entirely.

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This amendment will bring this problematic situation back into play. Placing the power to revoke citizenship in the hands of a judge rather than a minister does not change the fact that this proposed system is still unequal. Dual citizens will still be exposed to additional punishments when convicted of terrorism crimes.

Honourable senators, the people fighting the five court challenges against Bill C-24 are waiting for us to change the Citizenship Act so that it respects section 15 rights. In fact, each case explicitly mentions section 15 when they challenge the constitutionality of the current Citizenship Act. The people litigating these cases believe that a Canadian is a Canadian is a Canadian, regardless of origin. Therefore, they should be equal before and under the law.

Honourable senators, we should not leave it to the courts to oppose laws that threaten the rights and freedoms of Canadians. It is our job as senators to be guardians of the Constitution.

When Senator Lang presented this amendment, he claimed that having a judge handle this case instead of a minister or one of his officials would make the system fairer. The truth is that this amendment would actually create more constitutional issues than those found in Bill C-24. It introduces entirely new problems. For example, this amendment creates a system where the onus is placed on individuals to prove that their sentencing should not include the revocation of their citizenship. This is a clear violation of sections 7 and 11(d) of the Charter. Together, these two sections of the Charter grant all Canadians the right to not face conviction and punishment unless the prosecution can prove guilt beyond a reasonable doubt. For considerations that will make an individual sentence worse, this means that it is the Crown’s responsibility to prove that such punishments are justified. The burden placed on the person is a reverse onus clause, which has been ruled to be unconstitutional by the Supreme Court of Canada, even when it relates to cases where additional punishments are imposed.

For example, in R. v. Pearson, the court ruled “that where the Crown advances aggravating facts in sentencing which are contested, the Crown must establish those facts beyond reasonable doubt.”

Given these rulings, the system this amendment proposes would violate the right to reasonable doubt since it introduces an unconstitutional reverse onus clause. Rather than taking the burden of the courts, this amendment would actually go as far as adding more problems for the courts and litigants to address.

Honourable senators, there are even problems with this amendment that go beyond the constitutional arguments. When this amendment was presented, Senator Lang asserted that it was meant to address the terrorist threat that we face here in Canada.

Honourable senators, in our great chamber we have second reading, and this second reading went on for almost a year. Then we had committee hearings, and at the committee hearings, some of us studied the bill. Honourable senators, at the committee hearings, and I could be wrong, but I did not hear anybody say that taking away the citizenship of dual citizens would make our country secure.

However, the testimony at the Standing Senate Committee on Social Affairs, Science and Technology showed that revoking citizenship from dual citizens would not even serve that purpose. During his testimony to the committee, Professor Craig Forcese set out three strong reasons that show how this kind of response is ineffective.

First, there is no empirical data showing that dual citizens represent a higher threat to Canada than mono citizens. There is simply no good reason to single them out.

Second, Canada has created several programs to prevent Canadians from committing terrorist acts abroad. Senators, these criminals remain dangerous outside of Canada and can still hurt our interests after their deportation. By deporting these people, we would actually be making matters worse. Many of these people wish to contribute to terrorism abroad. If we simply deport these people, we might actually be speeding up their plans by placing them in a country they were already travelling to. We will also open up our country to receive dual citizens convicted of terrorism.

Honourable senators, I will give you an example. If a dual national of Jordan and Canada committed a terrorist act in Jordan and Jordan took their citizenship away, that person would be sent to Canada because that would be our law. We would be sending people back to their countries and our nationals would be coming back to this country. Is that the kind of system we want, where we open up our country to convicted terrorists from other parts of the world?

Third, Professor Forcese has said that revoking the citizenship of dual citizens can actually only hurt our ability to fight against terrorist acts. To quote the professor:

. . .saying “You’re not quite one of us,” is exactly the sort of narrative that is deeply detrimental to the integration and counter-radicalization effort that should be front and centre in terms of our efforts to stave off radicalization to violence.

. . . by singling out this subset of the population for this special peril, we’re playing into a propaganda discourse that is detrimental to our ultimate security objectives.

Further, by violating the equality rights of our dual citizens, we are making it so that they feel that they are never welcome here. We create two classes of citizens. How can we do that to our dual citizens, then turn to them for help with our most important security goals, such as counter-radicalization?

Instead of making us and our country, Canada, safer, this amendment would actually have the opposite effect. Canada’s national security is not helped when we become an exporter of instability. Beyond that, our country has a system that can deal with its biggest threats. Our criminal justice system ensures that those who seek to harm our country will be placed in prison and suffer the greatest consequences.

When we take responsibility for our own, we know that they will be handled in a manner that keeps Canadians safe.

Honourable senators, the face of terrorism is ugly. Recently, I visited some of the families whose members were maimed or killed in the Quebec attack. At that time, I visited one home where the mother of a person killed had recently arrived in Canada. The mother explained to me how every evening her eyes were bathed with love when her son returned home from his job as a teacher in Quebec City. She was a mother full of pride and joy for her son’s accomplishments. However, one day he was slaughtered while doing the most innocent act of praying. Now, this mother has said to me: “My eyes are bathed with tears,” and I observed this. Her chest is deflated with pain and she just stares at her beautiful grandchildren who are now fatherless.

That is the face of terrorism. This is not the bill that will deal with that issue. Senators, I know we will have many bills and amendments that will help to keep our society safe.

Can I have a few more minutes?

The Hon. the Speaker: Before asking for more time, Senator Jaffer, I have a brief announcement to make.

Honourable senators, I have just been informed that there is a major gas leak downtown near 131 Queen Street. It’s not apparently going to affect us here on the Hill, but it has required, for safety purposes, the evacuation of the Victoria Building, the Chambers Building and 56 Sparks Street, which of course will affect committee sittings and many of your offices. I just want senators to know that. It hasn’t been requested that we evacuate the Hill, but if anything does come up with respect to that, obviously we’ll be notified immediately.

Honourable senators, you need to know that your offices, if they are in any of those buildings, are being evacuated. If committees are sitting, support services in those buildings will be affected as well.

Five more minutes for Senator Jaffer?

Hon. Senators: Agreed.

The Hon. the Speaker: Senator Jaffer?

Senator Jaffer: Honourable senators, as I said to you, there will be many bills where we will look at issues of terrorism. Bill C-6 is not that bill. If we pass this bill with the amendment suggested by Senator Lang, we will have Canadians fighting Canadians, Canadians being suspicious of each other and Canadians losing trust in each other. However, this will not keep us safe.

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Senators, I urge you to remember that our role as senators is to strengthen the fabric of our community. Therefore, I ask you not to support Senator Lang’s amendment to Bill C-6. Thank you very much.

Hon. Jane Cordy: Would the honourable senator accept a question?

Senator Jaffer: Yes.

Senator Cordy: Thank you very much, and thank you for the excellent speech. In your speech you referred to all citizens being equal. I think you were quoting a judge who said that. My first question is: Do you believe that a Canadian is a Canadian is a Canadian? And second, do you believe that Senator Lang’s amendment creates two kinds of citizens, those who were born in Canada and those who were born outside of Canada and who have dual citizenship?

Senator Jaffer: As all honourable senators know, I’m a newcomer to this country, and when I came here one of the most amazing things for me was to know that the day I received that wonderful citizenship I would always belong to this great country. We were thrown out of Uganda even though my father and mother were born there. My father used to say: “You will never get thrown out of this country. Once you get citizenship, this country and its people will always be there for you.” So I take that paper as a very serious commitment from Canadians to me and from me to Canadians.

As for your question about creating dual citizenships, the unfairness of this is if you are born here and if you commit a terrorist act obviously you suffer the consequences, but that’s the end. If you were not born here but you are a mono-citizen, which means that you are not a dual citizen, your citizenship will not be taken away from you because you are not a dual citizen. But you could be born here, your father could be born here, but because of a country’s rules that you are automatically a citizen of another country even though you have not asked to be a citizen of that country, you as a dual citizen, even though you were born here, your family is Canadian, you could be sent to that country. That’s the unfairness of this bill.

Hon. Daniel Lang: I wish to make a couple of points. First, as we debate this issue on an ongoing basis, Canadians should be aware that more and more statistics are coming available.

Right now there are 17 permanent residents — that means an individual who has a passport from another country, who has applied to come to this country, has been accepted and has made the first step towards Canadian citizenship, has become a permanent resident, and there are 17 of these permanent residents right now actively involved in terrorism activities in the world.

Over and above that, we have 54 —

Senator Harder: Says who?

Senator Lang: We have 54 dual Canadian national citizens who are also active in terrorism activities. I want to ask the honourable senator this: She talks about the Constitution and says that she can’t support the revocation of Canadian citizenship for dual nationals who are involved in the most heinous crime that can be committed against humanity — terrorism — and at the same time she supports the principle that we, our judiciary, can revoke the Canadian citizenship of a dual national who has fraudulently entered this country. How can she say one is unconstitutional yet the other is constitutional?

Senator Jaffer: Senator Lang, I appreciate you asking me this question. There are two separate situations. When somebody is seeking a citizenship and they make fraudulent claims about whether they were terrorists or whether they were misrepresented, I call that a pre-citizenship application. Somebody who applies to become a citizen and utters fraudulent acts and as a result gets their citizenship is a person who has misled us.

Can I finish answering that question?

The Hon. the Speaker: Is leave granted, honourable senators, to continue answering the question?

An Hon. Senator: No.

The Hon. the Speaker: No, I’m sorry, Senator Jaffer. Senator Runciman.