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Bill C-24, An Act to amend the Citizenship Act and to make consequential amendments to other Acts - Second Reading

 

The Hon. the Speaker pro tempore: Continuing debate, Senator Joyal.

Hon. Serge Joyal: Thank you, Mr. Speaker.

I would like to thank the Honourable Senator Eaton for her presentation of the bill and Senator Eggleton for his analysis of it.

I didn't participate in the pre-study of this bill. I listened carefully, though, to both interventions. I have a conceptual apprehension about the way the right to revoke citizenship is framed in the bill.

There are two sets of rights defined in the Charter of Rights and Freedoms. I will draw the attention of my colleague Senator Baker in relation to this. They are the rights that pertain to everyone or every person.

For instance, the Charter states that everyone has the following fundamental freedoms: freedom of conscience and religion, freedom of thought and freedom of association. There are other rights, for instance the right to life and security of person. Everyone has the right to life, or everyone has the right to be secure.

Section 11 relates to any person charged with an offence, so there are the groups of rights that pertain to everyone and every person.

Then there is another group of rights in the Charter, especially section 3, that specifically mentions citizens. In other words, to have those rights you have to be a citizen.

In section 3, every citizen of Canada has the right to vote in an election of members of the House of Commons. Or section 6, the mobility rights; every citizen of Canada has the right to enter, remain in and leave Canada. Those two sets of rights are intertwined in our legislation.

Canada signed the Universal Declaration of Human Rights, section 15 of which states quite clearly that anyone is entitled to a nationality. In other words, once you are born on a land, on a territory, you immediately enjoy the protection of that state. This is a very old concept. It's a concept that dates back to the Romans.

Anyone who has learned the antiquity history of Greece or Italy will remember that you could be a citizen of Sparta or Athens or Rome, but those who were not within the precincts of those cities could not enjoy the rights that were granted to those citizens.

There have been two classes almost since time immemorial, and the Charter, in a way, recognized that there are two sets of rights; but I am puzzled in relation to this bill. I was born in Canada and my ancestors came to Canada in 1659, almost at the same time as Senator Eaton's. I could be stripped of my citizenship if I took arms against Canada or I had — let me state what the bill says — membership in an armed force against Canada, or I was a spy or was convicted of treason.

Well, in my humble opinion, if my citizenship could be revoked, it should be revoked under limits that are reasonable in a free and democratic society, section 1. If we affect section 6 of the Charter — that is, "Every citizen of Canada has the right to enter, remain in and leave Canada" — then Parliament can legislate but only with the limits provided in section 1, which is subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

So if that limit exists in relation to citizenship, it will be viewed by the court according to the Universal Declaration of Human Rights, section 15, plus the Convention on the Reduction of Statelessness of 1961 because Canada is part of those two conventions.

In other words, I'm not convinced of this approach. I have not studied it in depth, and I apologize for that, honourable senators, but again, if this approach is right, it means that I can lose my Charter rights as protected by the Constitution of Canada without the full protection of due process. I draw the attention of my colleague Senator Baker to what section 12 of the Charter says. It's easy; I'll read it: "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."

There would be no doubt that seeing my citizenship revoked could be seen as unusual and cruel punishment. If I am subjected to that, I have the full protection of the other sections of the Charter in terms of due process. So if it is due process, it's certainly not what the Honourable Senator Eggleton has been describing to us in terms of what is natural justice and what somebody can expect, like me as a Canadian citizen, to enjoy under the Constitution if I do something wrong, like taking arms against Canada. If I take arms against Canada, I expect that my process and my punishment, which could be at the end, in theory, revocation of my citizenship, will be done fully in accordance with the spirit and the letter of the Charter.

Honourable senators, I draw your attention to this because I tried to understand the conceptual framework of this bill and how we can reconcile the substance of the bill with the fundamental principles that are enshrined in the Charter and in the Constitution and the international obligations that Canada subscribes to.

I put my notes together listening carefully to Senator Eaton and Senator Eggleton, but I hope that the committee will have an opportunity to look into those issues further because certainly someone somewhere will raise those issues and it will find its way into court. I think in this chamber, the chamber of sober second thought, it is expected that those issues should be canvassed and aired and a proper interpretation found so that the bill meets the test of the court on the basis of the principles that are enshrined in the law of the land.

Hon. Jane Cordy: Senator Joyal, would you be willing to take a question?

Senator Joyal: Yes, if I have enough time.

The Hon. the Speaker pro tempore: Yes.

Senator Cordy: Thank you very much. It's always so helpful to have a constitutional expert in our midst because you certainly are able to zero in. You said you didn't know the bill very well, but you've certainly been able to zero in quickly on what I believe are the main concerns and issues with the bill. Those would be the intent to reside aspect of it and revoking citizenship, about which you spoke at great length and very knowledgably; and with respect to the rights of Canadian citizens and that we shouldn't have two classes of Canadian citizens.

First, I don't believe that we should be revoking Canadian citizenship, and I don't believe that we should have two classes of citizens, and that's what this bill will give us, two classes of citizens.

You talked about the definition of a terrorist and being charged, and I have great faith in the justice system of Canada, but I'm greatly concerned about the justice system in some other countries around the world. We know the case of Nelson Mandela. He was considered by many of us to be a freedom fighter, but in his country he was considered to be a terrorist, and he was jailed. We have given Nelson Mandela honorary Canadian citizenship, so we could, I guess, say that he has dual citizenship. Somebody like Nelson Mandela, who was found guilty in his country, although we felt he was a freedom fighter, could in fact have his citizenship revoked because he was found guilty in his country.

I'm wondering if you find it difficult to believe that these decisions could be made based on what would happen in another country. First of all, I think that if you're a Canadian citizen, you're a Canadian citizen, you're a Canadian citizen, and if you break Canadian laws, then you should face consequences as any Canadian citizen, be put in jail or whatever the consequences happen to be, but I'm concerned that we will be basing some of these judgments on what happens in other countries.

Senator Joyal: Very quickly, Your Honour, I think the honourable senator has raised the fundamental elements in relation to the criminal justice system. As a Canadian citizen, if I take up arms or spy against my country, I would face, as we say in French, the rigueur of the law, the weight of the law, because it's a criminal act, and it's well spelled out in the Criminal Code. I have no quarrel at all that if I do that I will have to face the court system, the justice system, and I could be punished. But if I'm punished, I want to be punished within the framework of the Criminal Code with the protection of the Charter of Rights and Freedoms and with my right of full defence and on the representation of sentences under section 12, unusual or cruel punishment. That's what I expect as an individual, that as a citizen I will be protected. That is why I strongly believe in the Constitution of Canada, because the Constitution of Canada is the guardian of my rights, whatever I do, legal or illegal. That's the nature of the system. That's why we believe in the rule of law. That's where we are protected.

When I see that a punishment as dear as the revocation of citizenship is done through a process that is not managed within the confines of the Constitution of Canada but through an administrative process of the minister, I feel that there is something there that hurts the rationale of the system the way we have devised it in the Constitution in relation to criminal justice.

In my opinion, to revoke citizenship because somebody has spied, or has committed treason, or has — again that wording — participated in the membership of an armed force against the country, if those are crimes, they have to be sanctioned as crimes. It is not the minister or a minister who, through his own administrative needs, could come to those conclusions and decide to impose a sanction on a Canadian citizen. To me, there's something wrong there. There is something that hurts the principles of the system.

That's why, as I say again, I confess that I might not have gone through the understanding of the bill. Again, I hope the committee will do that once it receives this mandate from the house. Those principles are so fundamental that before we do that, we should really be satisfied that this is in sync with what we expect the Constitution means.

Senator Eaton: Senator Joyal, I'm not the constitutional expert you are. I understood from the bill that if I'm a dual citizen — let's say I'm Canadian and American — and I'm caught spying against Canada or using arms against the Canadian Army, then I would be tried in a Canadian court, found guilty and sentenced, and it is only then that the minister would consider a revocation of my Canadian citizenship, which would now make me an American. That is obvious, if I'm going to spy against my country, Canada, or take up arms against it and I am a dual citizen. Do you have a problem if the person is tried in a Canadian court?

[Translation]

The Hon. the Speaker pro tempore: Senator Joyal, before you answer the question, would you like to ask for five more minutes?

[English]

Senator Joyal: Yes. On the contrary, I think the whole process should take place in court. If the minister wants to go to court and represent that the ultimate sanction should be the revocation of citizenship, this is for the court to hear. This is for the judge or the sentencing judge, if you want. As my colleague Senator Baker would explain, it is for the sentencing judge to be seized with that request or intervention from the Minister of Immigration and seek revocation of citizenship as punishment because I would have been found guilty if I had dual citizenship. I have been listening carefully, and this is only in the context of dual citizenship, but there could be a lot of discussion about valid dual citizenship; however, I close the parentheses.

It's only in those cases where I feel that the procedure of revocation of citizenship should take place, and not in an administrative context. As you properly said, the full court system of Canada has the steps for sentencing and for being found guilty of one of the crimes that you mentioned in your presentation.

That's where I feel the bill might be defective because, when the judge comes to the conclusion that I should be revoked of my citizenship, I will defend myself under section 12 of the Charter and then it will be for the court to decide whether this is cruel and unusual punishment in the overall context of the case.

I'm not against the principle of revoking citizenship. I understand it could happen in an ultimate case, but there are many parameters before we arrive there and those parameters have to be checked by the court. Canada has international obligations, as I mentioned, and in those cases, the Supreme Court of Canada — I could quote at least three cases where before deciding on extradition, they looked into what the obligations of Canada are in relation to that third country. You may know some of the details of those cases.

That's why I feel that it is much more proper to live within that legal court system than the administrative court system when you're imposing, as I said, the ultimate sanction, which is in fact equivalent to the medieval sanction of exile. What we would be doing is, in fact, exiling somebody. As I mentioned, this is a penalty that disappeared from the books a long time ago.

I am concerned about this, and you are right to say that the court system is the best wall against administrative discretion when you implement the toughest penalty on someone, which is, as I say, equivalent to exile.

[Translation]