Citizenship strippings expose flaws in 'Strengthening Canadian Citizenship Act'

Photo: flickr/ Doug

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Enthusiastically exercising its newly expanded powers of denationalization, the Conservative government recently announced that it would be stripping the citizenship of at least seven men convicted of terrorism. Zakaria Amara, Asad Ansari, Saad Khalid, and Saad Gaya were four of the so-called Toronto 18, which hatched an abortive plot to bomb several sites in Toronto in 2006. Hiva Mohammad Alizadeh and Misbahuddin Ahmed were apprehended in the RCMP's (bizarrely named) Project Samosa investigation, and sentenced (to 24 years and 12 years, respectively) for planning bombings in Canada in 2010. Mohamed Hersi received a 10-year sentence for attempting to join the Somali militant group al-Shabaab in 2014. 

The strippings were effected under the Conservatives' Strengthening Canadian Citizenship Act, previously known as Bill C-24, which permits the government to remove citizenship for offences related to terrorism, treason, and espionage. Previously, Canadian citizenship could only be revoked if naturalization was achieved through fraudulent misrepresentation.

The new law enables the government to forcibly denationalize dual citizens convicted of terrorism offences anywhere in the world, at any point in time, and sentence to at least five years in prison.

The initial applications of Strengthening Canadian Citizenship highlight several of the law's weaknesses, problems, and dangers. In addition to those elucidated in numerous other analyses of the legislation (see, for example, here and here), these flaws include:  

1. The law's retroactive application

Strengthening Canadian Citizenship resurrects the medieval punishment of exile, imposing it as an additional penalty to what is already meted out under Canadian criminal law. Moreover, the law applies retroactively -- meaning that individuals convicted long before C-24 was even a twinkle in Stephen Harper's eye (like Amara, Ansari, Khalid, and Gaya) may be subject to denationalization.

This undermines an axiomatic legal principle: that a criminal offence cannot be punished with a heavier penalty than existed at the time of commission. As the Canadian Bar Association pointed out in its submission on the bill, this is a basic matter of fairness: "Individuals should have adequate notice of the consequences of their actions. If Parliament sets a precedent allowing for retrospective banishment, citizens are unable to determine with certainty what conduct may place them at risk."

2. Its broad scope

Our prime minister, and his Minister of National Defence and Multiculturalism Jason Kenney, have justified citizenship-stripping as apt punishment for individuals who disloyally commit or plan acts of terrorism against their fellow Canadians. However, as the case of Mohamed Hersi (convicted of attempting to join al-Shabaab in Somalia) indicates, denationalization is not restricted to those who execute violence on Canadian soil, and/or against Canadian citizens.

Indeed, there is nothing in the legislation limiting strip-ability to those who threaten Canadian persons, property, or interests. On the contrary, the law's reach is global, encompassing acts labelled and convicted as "terrorist" anywhere in the world.

This universal scope raises concerns regarding the broadness and fluidity of "terrorism offences" in a large number of countries. Indeed, as Professor of Human Rights Law at the London School of Economics Conor Gearty observes, "The whole point of the subject of terrorism [is] that there [is] no definition. The importance of the subject, its utility to those who matter, relies upon the impossibility of it ever being tied down."

In many states, terrorism prosecutions are notoriously used as government instruments for silencing and stigmatizing political opposition, and vitiating freedom of expression. And yet, Strengthening Canadian Citizenship contains inadequate safeguards against denaturalization based on politically motivated and procedurally unsound terrorism convictions.

Furthermore, the threshold of five-year imprisonment for citizenship-stripping is relatively low, belying reassurances that only the most heinous of "terrorists" -- those who execute or plan large-scale murder and destruction -- are vulnerable to revocation.

In Canada's criminal code, terrorism offences punishable by sentences meeting or exceeding the five-year threshold include: "providing, receiving or recruiting a person to receive training"; "entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist group"; "leaving [or attempting to leave] Canada to participate in the activity of a terrorist group" or to "facilitate terrorist activity"; and, with the passage of the new Anti-Terrorism Act (Bill C-51), advocacy or promotion of terrorism offences.

In the United States, individuals have been imprisoned for providing satellite television services to Hezbollah station Al-Manar (six-year sentence), and for translating al-Qaeda texts on the Internet (17.5-year sentence). And under Egypt's new anti-terrorism law, "the establishment of a social media account or a website that promotes ideas and beliefs that call for the commission of terrorist acts, or that broadcasts information and news that misleads the security forces or obstructs the administration of justice" draws a five-year jail term.    

3. Its under-inclusiveness

Strengthening Canadian Citizenship potentially targets those convicted of a wide range of offences deemed "terrorist," but leaves the citizenship of other, "non-terroristic" perpetrators of violence secure -- no matter how grotesque or costly their acts of violence may be.

Take Justin Bourque, who went on an anti-RCMP shooting rampage in 2014, killing three officers and severely wounding two. Bourque was charged with "murder," not "terrorism," leaving him outside the reach of the government's citizenship-stripping power. And so, those who successfully kill and are charged with murder remain Canadian, while those who attempt but fail to commit violence and are charged with terrorism may lose their citizenship: a paradoxical result.

The paradox symptomizes the problem with using such a politically laden and malleable concept as "terrorism" as the basis for banishment from citizenship. Despite Conservative rhetoric, terrorism is not the natural epitome of evil -- an inherently different and more atrocious form of violence than "non-terrorism" -- but a particular, constructed category of political crime.

Patriotic name notwithstanding, Strengthening Canadian Citizenship does not fortify Canadian citizenship but weakens it, rendering it practically and symbolically more vulnerable to current political proclivities.

Azeezah Kanji is a graduate of University of Toronto's Faculty of Law, and a Master of Law candidate at the School of Oriental and African Studies, University of London.

Photo: flickr/ Doug

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