Conditional Citizenship: Redefining Cruel and Unusual Punishment?

BY LINET SUAREZ- The Canadian Ministry of Citizenship and Immigration recently passed a controversial new law that is challenging conventional notions of citizenship. The new law was first introduced in February 2014 as the Strengthening Canadian Citizenship Act.[1] The new law modifies residency requirements, increases fees for applications for citizenship, and expands the age range for those required to demonstrate language proficiency among other changes.[2] Most notably, the Strengthening Canadian Citizenship Act allows for revocation of citizenship.[3]

Under the Strengthening Canadian Citizenship Act, Canadian citizenship could be revoked if a person is found guilty of certain serious crimes such as terrorism, treason, or espionage.[4] However, this law only applies to dual citizens.[5] Natural born Canadian citizens who do not have any other nationality are not susceptible to revocation.[6]

Opponents of the new law argue that this creates a “two tier citizenship” because some citizens are considered second-class that are susceptible to losing citizenship.[7] Liberal leader Justin Trudeau pledged to repeal the Strengthening Canadian Citizenship Act and simply stated, “a Canadian is a Canadian is a Canadian.” [8] On the other hand, Conservative leaders view citizenship more of a privilege than a right. For example, Defense Minister Jason Kenney is a supporter of the new law and is quoted as saying, “if you basically take up arms against your country or plan to do so, and you’re convicted … through your violent disloyalty you are forfeiting your own citizenship.” [9]

The citizenship revocation process under the Strengthening Canadian Citizenship Act further fuels the debate surrounding the new law. Previously, the Citizenship and Immigration Minister, the Federal Court, and the Governor in Council oversaw the citizenship revocation process. [10] Currently, under the new law, the Citizenship and Immigration Minister will decide the majority of citizenship revocation cases.[11] The reasoning behind this change is that it will result in more efficiency.[12] However, opponents of the new law could argue that efficiency comes at the cost. For example, Liberal leader Justin Trudeau claims, “no elected official should ever have the exclusive power to revoke Canadian citizenship.”[13]

Since its passing, more than half-a-dozen Canadians have been notified that the government might revoke their citizenship under the Strengthening Canadian Citizenship Act.[14] Saad Gaya is one of those Canadians.[15] Gaya is one of four men that received notices of citizenship revocation because of their role in the Toronto 18 bomb plot.[16] However, Gaya is the only one of the four men who is a natural born Canadian citizen.[17] Gaya’s parents are Pakistani immigrants that lost their Pakistani citizenship 30 years ago when they became Canadian citizens.[18] Their son, Gaya, was born in Montreal.[19]

Gaya is currently trying to reverse the revocation of citizenship in court.[20] The Canadian government argues that Gaya’s parents had their Pakistani citizenship retroactively restored in 2014 thus making Gaya is a dual citizen eligible to lose his Canadian citizenship.[21] Gaya claims that he never applied for Pakistani citizenship and revoking his Canadian citizenship would be a form of “cruel and unusual punishment.”[22] Additionally, civil rights groups in support of Gaya have challenged the legality of the Strengthening Canadian Citizenship Act based due process and constitutional grounds.[23] More specifically, civil rights groups claim that the Strengthening Canadian Citizenship Act violates fundamental sections of the Canadian Charter of Rights and Freedoms.[24]

The result of Gaya’s case could significantly impact immigration policies on an international scale. Most countries have vowed to fight terrorism, but it is debatable whether disassociation from convicted terrorists is truly the best method to address terrorism.[25] According to Ben Saul, a professor of international law at the University of Sydney, all Canada is saying with this new law is, “we’re disclaiming any responsibility for the terrorists we’ve created.”[26]Mr. Saul also goes on to warn that stripping Gaya of his citizenship could trigger an “arms race” because countries will start trying to ride themselves of their terrorists.[27]

The legality of the Strengthening Canadian Citizenship Act is ambiguous at the moment. However, one thing is clear. Canada’s approach to terrorism might have created more problems for the country than solutions.[28]

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