Prof. Audrey Macklin - "Case of Mohamed Fahmy shows failing of new citizenship rules"

The Canadian government has been severely criticized for its failure to do enough to assist Mohamed Fahmy, the Canadian journalist sentenced to seven years imprisonment in Egypt for terrorism after a trial that has been uniformly condemned as a travesty of justice.

But with the recent passage of the controversial Strengthening Canadian Citizenship Act, the government can now answer their critics this way: “Hey, stop complaining. Last week, we passed a law that gives the minister of citizenship and immigration the power to strip Fahmy of his Canadian citizenship now that Egypt has deemed him a terrorist. So just be grateful we are publicly announcing that we do not intend to do that. But, by the way, we can change our mind anytime.”

For it is only the whim of the minister that stands between Fahmy and the appalling prospect that his work as a fearless journalist could cost him his Canadian citizenship. One of the most insidious features of the new legislation is that it grants the minister the power to revoke the citizenship of a person convicted of certain offences outside Canada (including terrorism) if he/she is sentenced to at least five years imprisonment. The conviction could be in any country, no matter how tyrannical, by any judge, no matter how corrupt, and after any judicial process, no matter how unfair. Worse still, the law is also retroactive.

The legislation was pushed through over the objections of civil and human rights organizations because the government maintained that the new powers were essential to protect Canadian citizenship. Most of the witnesses who appeared before the committee reviewing the legislation demonstrated that it violates the Canadian Charter of Rights and Freedoms, and Canada's international obligations. They also argued that it was poorly drafted and bad policy, whether the objective was national security, enhancing the value of Canadian citizenship or even achieving deterrence.

Yet the government steadfastly refused to consider any amendments, even one that would have allowed a person to argue that the foreign conviction was unfair. In the face of specific illustrations of unconstitutional provisions, Minister Chris Alexander did not attempt to defend the legislation's constitutionality. He simply declared it to be constitutional.

And if you think that Fahmy’s case is an exception, consider two more: Bashir Makhtal is a Canadian citizen serving a life sentence in Ethiopia after being convicted at a trial that denied him all of the basic rights anyone can expect under Canadian or international legal standards. Canada has been actively trying to obtain his freedom and has asserted his innocence.

Indeed, in 2010 John Baird, then the minister of transport, went to Ethiopia in an attempt to secure his release. And when the Ethiopian foreign minister suggested that Makhtal be transferred to Canada to serve his sentence, Baird declined on the grounds that Bashir is innocent and, therefore, should be released a free man rather than transferred into a Canadian prison. Yet the Canadian government could, under its new citizenship law, now revoke Bashir’s Canadian citizenship based on the unfair conviction in Ethiopia.

Maher Arar, the Canadian citizen rendered to Syria by the United States, was alleged to have confessed under torture to attending a terrorist training camp. Today, we all know that Maher Arar is an innocent man. But if the new law had been in force in 2003, the government could have relied on the false confession as grounds for revoking his citizenship based on another ground of citizenship revocation in the new law — that he had served “as a member of an organized armed group” engaged in armed conflict against Canada.

These cases are simply three examples that show why the new citizenship law has been condemned as fundamentally flawed and why several organizations have indicated they will challenge it under the Charter. The law will create two classes of citizens: dual citizens who are vulnerable to revocation and those who are not. But the bill is also problematic in other ways. Naturalized citizens (unlike citizens by birth) will not be able travel and live abroad for extended periods without fear of jeopardizing their citizenship. Other provisions will make citizenship more inaccessible to those who need it most — refugees.

Instead of listening to the legitimate concerns of those who criticized the legislation, the government attacked the messengers and impugned their motives. Undoubtedly the government thinks that this new law will be well received by its conservative base. We think that when most Canadians come to realize the implications of this new legislation they will reject it. Canada is a big country, but there is no room for second-class citizenship.