Immigration and Citizenship
The events of September 11 and the “War on Terror” have led to significant changes to legislation and policy in Canada. While the Canadian Arab Federation (CAF) recognizes that security and the prevention of terrorist acts are matters that warrant serious concern by lawmakers and law enforcers, it finds worrisome the trend that allows sweeping measures to be put in place that gravely diminish civil rights and disparately affect minorities and newcomers to Canada.
The last two years have seen large-scale changes to the Immigration Act of Canada (currently the Immigration and Refugee Protection Act) and the Citizenship of Canada Act (C-18), the inception of the Safe Third Country Agreement between Canada and the United States, as well as the proposal of a National Identity Card, and of a social contract that would restrict settlement locations for new immigrants.
On these issues, CAF emphasizes that Canada’s legal system is based on principles of freedom, equality and diversity. The processes embodied in the newest changes, many of which bypass the requirements of due process, threaten these principles and allow for the targeting of individuals on the basis of their ethnicity, religion and citizenship status. As with all preventative measures, it is essential that the anti-terrorist legislation and policies be fully and properly assessed, against the costs they will incur, in this case to the rights and freedoms of Canadians and other individuals residing within Canada’s borders.
It is in this spirit of discussion and evaluation that the Canadian Arab Federation explains below the various areas of concern with respect to the recent amendments to legislation, and proposed policy changes. CAF has made presentations on these topics in other fora and looks forward to continuing the discourse on these important matters.
Immigration and Refugee Protection Act
The area of most concern in this revised legislation is that addressing security “certificates.” This practice continues from the earlier Immigration Act of Canada. The Minister of Citizenship and Immigration can issue a certificate against an individual on the basis of secret evidence which she is not required to reveal at any point. Although the certificate is subject to review by a Federal Court judge, the process is lacking in the basic legal and evidentiary protections. Evidence which would not normally be entered into court is allowed to be entered into the Federal Court in these cases.
The person against whom the certificate is issued may not know the case against her, nor may her counsel, as “secret” evidence may not be showed to them. The judge herself may also be barred from knowing the evidence, as the evidence is merely summarized in a security intelligence report.
As a result, the individual against whom the certificate is issued cannot make full answer and defense, cannot cross-examine the sources and cannot present a case. Furthermore, there is no appeal of the Federal Court’s decision. If a security certificate is upheld, the individual is deported, with no recourse to the courts or to the Constitution.
The process of security “certificates” lacks all the basic protections found in other legal processes. It is CAF’s position that the government of Canada could address potential security threats, while still allowing for fair and open hearings, and providing individuals with basic legal protections provided other individuals in the justice system.
The outcome of a security certificate can be extremely serious. The individual can be detained for the duration of the process, and at its end could be deported to a country where she will be subjected to persecution. The gravity of these measures warrants protections so that justice will not be miscarried, and the wrong people will not be targeted.
CAF notes that members of the Arab and Muslim communities are disproportionately subjected to CSIS interviews and interrogation. They are thereby more likely to be named in security certificates. It is on behalf of the members of these communities and in the interest of justice that CAF calls on the government of Canada to review and overhaul its security certificate system, which leave excess room for error.
Citizenship of Canada Act (C-18)
Most troubling about Bill C-18 is the proposed process that would allow for the annulment and revocation of individuals’ Canadian citizenship. One of the main concerns with these provisions is the lack of transparency in the process. Bill C-18 allows the Minister of Citizenship and Immigration to apply to the Federal Court for a declaration that a citizen has obtained citizenship through false representation, fraud, or knowingly concealing material circumstances. The Minister can also request that the citizen be declared inadmissible on the grounds of security, violation of human or international rights, or organized criminality. No hearing is required on the matter, and if the Federal Court issues a declaration, a citizen can have her citizenship revoked and be deported without having her case heard.
The seriousness of revocation and deportation require that sufficient checks and balances be put in place to ensure that there is no miscarriage of justice. This means, that should the government choose to proceed with these proposals, they must be coupled with the protections of due process.
Individuals must be protected from arbitrary allegations by the Minister; they must be provided with the right to know the case against them, the right to know all the evidence against them, the right to make full answer and defense, the right to cross-examination, the right to a fair and open trial, the right to a hearing by an impartial and independent adjudicator and the right to appeal and/or judicial review.
These concerns mirror those of security certificates under the Immigration and Refugee Protection Act, as the legislation allows for detention and deportation, which are serious deprivations of freedom, but lacks any substantive protections found in other areas of the law. As stated above, it is members of the Muslim and Arab communities in Canada who are most likely to be targeted by this legislation, as they are disproportionately subjected to security and intelligence scrutiny.
CAF rejects the position that citizenship is a right that can be revoked at the whim of a government official. Furthermore, CAF notes that these proposals apply only to naturalized citizens, and thereby create a hierarchy of citizenship.
Finally, C-18’s process for the revocation of citizenship is unconstitutional in that it deprives individuals of the right to a fair trial and to due process. The Charter of Rights and Freedoms applies to all citizens, and the substantive rights as provided therein can only be restricted if such limitations are reasonable and demonstrably justified in a free and democratic society. It is CAF’s position that the revocation of citizenship, and deportation without an open hearing and with no right of appeal does not meet the test of “reasonableness” nor can it be demonstrably justified in a free and democratic society.
Safe Third Country Agreement between Canada and the United States
The “Safe Third Country Agreement” deprives asylum seekers of the fundamental right to seek protection from the country from which they are most likely to receive it.
The Agreement does not take into account the fact that many asylum seekers travel to Canada through the United States as it is more affordable and accessible. In 2001, it was estimated that 35% of refugee claims in Canada were made at the Canada-US border. The Safe Third Country Agreement requires that all these individuals be directed to the United States to process their claims.
However, the laws on refugee protection in the United States fall short of international standards, and lack the procedural safeguards found in Canadian law. Refugee claimants who do not have proper identification are automatically detained by US authorities, often in the same facilities as convicted criminals. They are not provided with interpreters, nor do they have access to state funded legal representation. This Safe Third Country Agreement does not reflect the spirit of refugee protection.
The 1951 Refugee Convention, on which all domestic refugee legislation is based, does not require that individuals seek asylum in the first country in which they arrive. CAF is concerned that individuals who had intended to come to Canada to claim refugee status will end up languishing in difficult conditions in prisons in the United States. Furthermore sweeping American anti-terror legislation, which incorporates racial profiling, means that Arab and Muslim refugee claimants are more likely to be subjected to detention and mistreatment if they are sent back from the Canadian border.
National Identity Card
CAF’s main concern with respect to the proposed National Identity Card is the invasion of privacy this identification system would impose. The National Identity Card could be used in the future as a means to monitor citizens in a manner that is unacceptable in a free society. Furthermore, as members of the Arab and Muslim communities have been excessively affected by anti-terrorism legislation, there is a justifiable fear that such a comprehensive and traceable identification system will become another tool by which individuals in those communities will be harassed.
Social Contract to Settle Immigrants in Under-Populated Areas
This proposal, to direct immigrants to settle in particular parts of Canada, would clearly violate mobility rights under the Charter of Rights and Freedoms. Furthermore, it threatens to create different and hierarchical classes of immigrants and citizens. Citizenship must be based on a notion of equality among citizens. Anything less allows for the creation of an underclass. It is CAF’s position that an incentive program to encourage immigrants to move to less population parts of the country would be more effective, and more equitable, than a system of coercion.
CAF acknowledges the substantive contribution of Ms. Ameena Sultan to this paper