On Tuesday September 9, the Federal Court released its decision in the case of Deepan Budlakoti, an Ottawa-born man fighting to regain the citizenship he lost four years ago. Justice Phelan refused to declare Budlakoti a citizen — noting that such action is a matter for the Minister of Citizenship and Immigration –and ruled that Budlakoti’s rights under section 6 and 7 of the Charter of Rights and Freedoms have not been infringed.

The decision means that Budlakoti will continue to live under the authority of the Immigration and Refugee Protection Act (IRPA). He is now left in legal limbo, effectively stateless and eternally incarcerated. Yet he was born in Canada, holds an Ontario birth certificate, a Canadian passport and has no other nationality. 

Central to Phelan’s decision is the question of whether Budlakoti’s parents were employed by the Indian High Commissioner in Ottawa at the time of his birth. Section 3 of the Citizenship Act states that children of diplomats and other foreign officials born on Canadian soil are not considered citizens of this country.

Fair enough — this is basic state sovereignty in action. Yet Phelan himself acknowledges that the facts surrounding Budlakoti’s birth and his parent’s employment are subject to “significant factual dispute.”

While Budlakoti’s parents and their employers claim that they stopped working for the Indian High Commission in July 1989 — Budlakoti was born in October of that year — some government documents don’t register the termination of their official diplomatic privilege until January 1990. The facts are not clear, but Justice Phelan’s (and the IRB court before him) obsession with them misses the point.

While the case remains mired in procedural detail, Budlakoti will continue to live in Kafkaesque uncertainty. Even if we were able to clearly ascertain the “facts” regarding Budlakoti’s birth in 1989 this would hardly justify the removal of his citizenship 25 years after he was issued a birth certificate.

Surely Canadians are not prepared to abdicate their responsibility to this young man on such a flimsy pretense?

Justice Phelan’s decision also dismisses the idea that Budlakoti’s section 7 right to “Life, Liberty and Security of the Person” is at play in this case. In this, Justice Phelan misses the fact that the removal of Budlakoti’s citizenship, when Budlakoti has no other nationality, is grossly disproportional, in direct violation of Canada’s well-developed doctrine of fundamental justice and, considered more broadly, may even constitute cruel and unusual punishment, protected under section 12 of the Charter.

The latter, though not argued before this judge, was used in the recent decision in Canadian Doctors for Refugee Care et al v. Canada (2014). There, Justice Mactavish reprimanded the federal government for unfairly targeting vulnerable populations in their rollback of health care provisions for refugees.

Budlakoti too is being subject to unreasonable punishment by being denied basic health care coverage and left in legal limbo as a stateless man. 

Justice Phelan may try to hide behind a narrow interpretation of the case before him, but what is truly at stake here is a legacy of what principles Canadians and their courts choose to take up.

Canada has a legal responsibility to reduce statelessness — we are signatories to the 1961 Convention on the Reduction of Statelessness. We also have a responsibility to Budlakoti, a young man that has had no reason to doubt his status for the 25 years he lived in Ottawa since his birth.

Hiding behind this sparsely worded judgment, Phelan distances himself and the case from the obvious outcome — without a declaration of citizenship Budlakoti is no longer welcome in Canada and is not a national of any other country. He will be effectively incarcerated until the day the government rescinds the deportation order or another country chooses to grant him status, both of which are about as likely as Harper stopping development of the tar sands.

Whether administrative error or not, Budlakoti should not be disproportionally punished 25 years after the fact.

Editor’s note: An earlier version of this piece stated Deepan was born in December. In fact, he was born in October.

Stacy Douglas is Assistant Professor of Law and Legal Studies at Carleton University in Ottawa, Canada. Former Co-Director of the Centre for Law, Gender, and Sexuality at Kent Law School, as well as Editorial Board member of Feminist Legal Studies and [email protected], she has published academic and political commentary in Law and Critique; Law, Culture & the Humanities; Theory & Event; Radical Philosophy; Australian Feminist Law Journal; Canadian Dimension; and Truthout, and recently co-edited a special issue of the Canadian Journal of Law and Society on law and decolonization. She is winner of the 2014 Julien Mezey dissertation prize from the Association for Law, Culture, and the Humanities.