In a commentary in the Globe and Mail, Prof. Kent Roach and Craig Forcese (University of Ottawa) analyze the new law that enables Canada to revoke the citizenship of dual citizens convicted of terrorism offences ("Banishment is a poor tool in fight against terrorism," September 29, 2015).
Read the commentary on the Globe and Mail website, or below.
Banishment is a poor tool in fight against terrorism
By Kent Roach and Craig Forcese
September 29, 2015
Ottawa has decided to turn at least six Canadians convicted of terrorism into non-Canadians, permitting their deportation from Canada. But banishment is doubtful security policy. And it will be challenged under the Charter. Perhaps that is the point.
Over the weekend, Defence Minister Jason Kenney urged that the new powers were directed at the “worst of the worst” and tweeted out polling data showing how popular citizenship revocation is.
For their part, both the NDP and Liberals oppose revocation, raising the spectre of another anti-terror political wedge issue.
Meanwhile, civil liberties groups are challenging the 2014 law on constitutional grounds.
Opponents observe (correctly) that the revocation measures are restricted to those who also possess another nationality – statistically less than 3 per cent of Canadians, the vast majority of whom are immigrants. The law creates, in this manner, a probationary, provisional citizenship for new Canadians who come from countries whose laws stop them from renouncing their older citizenships.
Given all this, how should we evaluate revocation as anti-terrorism? Cancelling the citizenship of convicted terrorists may be politically popular because it appeals to our fear and anger at terrorists. However, there are both principled and practical concerns about revocation as an anti-terror tool.
The principled issue can be summarized simply: Whether a government can take away citizenship (for something other than fraud in acquiring it) is a totally novel constitutional issue. The question has never arisen, because revocation of this sort has never existed since the Charter came into existence. But if Canadian courts follow the path of their U.S. counterparts, they will guard sternly against revocations.
Add to that the discriminatory nature of the citizenship-stripping law – confined to dual nationals – and the due process minimalism that afflicts the system and you have the makings for a serious constitutional dust-up.
But focus also on the practical issues. In the best-case scenario, the government actually banishes a truly dangerous individual, but only by displacing risk to a foreign country, even assuming that foreign state co-operates in their removal.
In the worst case, the government tries to remove the individual to the tender embraces of a torturing state. Under international law, no one can be removed to face torture and maltreatment. And whatever it might have said in earlier cases, the Supreme Court would have to ignore a lot of its recent Charter pronouncements to permit deportations to torture.
And so, since the men the government wishes to banish would be removed to countries with poor records on torture, we should expect citizenship revocation proceedings to spill over to endless disputes over deportation.
The last time we tried this – with “security certificates” – the government was budgeting more than $5-million a year, a person, by 2009 in its decade-long effort (so far 100-per-cent unsuccessful) to use a procedurally doubtful process to remove people to maltreatment.
To put that in context: The entire national annual budget for the RCMP’s much-delayed front-line “terrorism prevention program” has been $1.1-million (slated to rise to a very modest $3.1-million under the 2015 budget).
There is every reason to believe, therefore, that Canada is now repeating its prioritization of expensive, noisy, controversial, often-fruitless efforts to chase problems out of the country, rather than focus on fixing them before they become problems.
Moreover, despite intelligence warnings about prison radicalization, Canada has no developed policy countering prison radicalization.
Inattention to what experts call terrorist “disengagement” is a mistake. If the Islamic State’s call to violence resonates among the disaffected, there should be more prosecutions and convictions. Some convicts, such as the VIA train plotters, will be sentenced to life imprisonment, but others will not. They will eventually be released. It is in all our interests to attempt to rehabilitate them.
Citizenship-stripping of those terrorists who have dual nationality reduces pressure to take this matter seriously by fostering the illusion that we can simply prosecute and deport our way out of the problem of IS-inspired terrorism.
Revocation may also have unintended and negative consequences on Canada’s creaky system of terrorism prosecutions. Accused who know that they will face lengthy imprisonment followed by banishment will have every incentive to fight a terrorism charge by every means possible. There will be no incentive to plead guilty. Prosecutions and appeals may take even longer. And then sentencing judges may take into the account the penalty of banishment in deciding to shorten sentences.
Anti-terrorism efforts require a long list of tactics that must be webbed together by strategy. Canada’s drift toward anti-terrorism populism may make for good political theatre. It may also produce poor security.
