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Stripping people of Canadian citizenship without hearing is unfair: judge

A woman takes a photograph while holding a Canadian flag during a citizenship ceremony in Vancouver, B.C., on July 1, 2009.
A woman takes a photograph while holding a Canadian flag during a citizenship ceremony in Vancouver, B.C., on July 1, 2009. THE CANADIAN PRESS/Darryl Dyck

TORONTO – Stripping new Canadians of their citizenship without giving them a proper chance to explain themselves is a violation of their rights, a Federal Court judge declared Wednesday.

In a key decision, Judge Jocelyne Gagne struck down provisions of the Citizenship Act enacted by the former Conservative government under Stephen Harper, saying they conflict with principles of fundamental justice.

The decision comes in eight cases — considered as test cases — that challenged the constitutionality of the changes made in May 2015.

Those amendments barred people from going to court to fight the loss of their Canadian status, in some cases leaving them stateless, over alleged lies on their residency or citizenship applications.

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Under the Harper-era changes, the minister of citizenship and immigration could choose to to revoke someone’s citizenship if he or she felt it was obtained fraudulently, leaving them no recourse.

The changes also barred people from reapplying for Canadian citizenship for 10 years after revocation.

“Clearly, citizenship revocation is an important decision,” Gagne wrote in her ruling.

“Since there is no right of appeal from a revocation decision of the minister under the amended act, the need for procedural fairness is all the more acute.”

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The eight cases involved people already stripped of their citizenship or facing a similar fate for various reasons. Three were accused of lying about where they were living before they applied for citizenship. Two others were minors when their parents allegedly misrepresented their residency.

In other cases, their fathers had failed to declare criminal convictions when applying for permanent residency.

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The applicants attacked the rules on various grounds, among them the failure to guarantee a hearing before an independent and impartial adjudicator. They also complained the government could keep information leading to revocation secret, and that the rules didn’t allow consideration of the circumstances that led to the alleged application fraud.

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While the government insisted the rules were fair, Gagne disagreed.

The applicants, the judge said, should be entitled to a hearing in court or before an administrative tribunal in which they know the case against them and where they have a proper opportunity to defend themselves.

“None of these are guaranteed under the amended act,” Gagne noted.

“Given the importance of Canadian citizenship and the severe consequences that could result from its loss, the principles of fundamental justice require a discretionary review of all the circumstances of a case.”

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In one of the cases, Fiji-born Thomas Gucake became a permanent resident in 2001 when he was 15, and a citizen in 2005. He later became a decorated Canadian soldier, having served three tours in Afghanistan.

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In November 2015, the government said it was stripping Gucake of his citizenship because information from 2007 showed his father failed to disclose a minor criminal conviction from Australia.

“It seems highly unfair to me that under the amended act, there is no requirement that Mr. Gucake’s personal situation be considered,” Gagne said.

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The Senate has already passed changes to proposed government legislation that would conform to Wednesday’s court ruling, effectively handing the revocation issue back to Prime Minister Justin Trudeau’s Liberal government.

The Liberals denounced the provisions while in Opposition, but nonetheless enforced them after taking office in October 2015.

Lawyer Lorne Waldman, who represented one of the applicants, called it fortuitous the Senate has amended the bill.

“It gives the government the opportunity to quickly fix the problem,” Waldman said.

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Whether the Liberals appeal Gagne’s ruling, accept the Senate changes, or propose changes of their own remains to be seen. Bernie Derible, a spokesman for Immigration Minister Ahmed Hussen, said Wednesday the government was looking at the decision.

“Commenting as to next steps will need to await the review,” Derible said.

Although Gagne found the provisions violated guarantees to due process under the Bill of Rights, she rejected arguments that they constituted a violation of the Charter of Rights and Freedoms as cruel or unusual punishment.

*With a file from Monique Scotti

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