Justice Jocelyne Gagné found that notices of intent to revoke the citizenship of eight representative applicants violated s. 2(e) of the Bill of Rights. That section states that “no law of Canada shall be construed or applied so as to [ . . . ] deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations . . .”
The Bill of Rights was enacted as an ordinary statute of the Parliament of Canada applying only to federal laws. With the adoption of the Canadian Charter of Rights and Freedoms in 1982, the Bill of Rights lost most of its importance, as the majority of the rights and freedoms guaranteed by it are now embedded in the Charter, Justice Gagné noted. However, she wrote, two provisions of the Bill of Rights are not duplicated by the Charter, one of which is the guarantee of a fair hearing for the determination of a person’s rights and obligations, as found in s. 2(e).
The representative applicants, who were alleged to have obtained their citizenship by their own or their parents’ fraud or misrepresentation, had their citizenship revocations quashed and were granted $5,000 each in costs.
“I am of the view that the nature of the decision being made, and the importance of the decision to the affected individuals clearly augur in favour of a high degree of procedural fairness being owed to the Applicants,” Justice Gagné wrote. “The fundamental importance of the nature of the decision, specifically a determination of the Applicants’ right to remain Canadian citizens, weighs in favour of a high degree of procedural fairness. The revocation of citizenship ‘has exceptional importance to the lives of those with an interest in its result’ . . . ”
In at least one case, the applicant would have been rendered stateless by the revocation of his Canadian citizenship.
Gagné also rejected the argument of the respondent, the minister of Citizenship and Immigration Canada, that citizenship is a privilege and not a right.
“In my opinion, citizenship is a privilege only when it has not yet been obtained,” the judge wrote. “Once acquired, the rights flowing from citizenship have vested. Therefore, once acquired, citizenship is a right . . .”
“The importance of the decision is that citizenship, once obtained, has been recognized as a right, and that right cannot be taken away without fair process,” says Noa Mendelsohn, director of the Equality Program for the Canadian Civil Liberties Association.
“This decision, coupled with amendments that were made in the Senate [and] the right to a fair hearing enshrined in the Bill of Rights, all tell the same story,” says Mendelsohn. “The right to a fair hearing is one of the principles of fundamental justice, and our legislatures can’t . . . deprive individuals of these rights.”
The Senate has already recommended amendments to Bill C-6, An Act to amend the Citizenship Act, and to make consequential amendments to another act, which reflect the Federal Court’s findings. The government may choose to accept those amendments or it may introduce a new process.
The Senate amendments have not yet been incorporated into the bill, but they would require that if an individual has received notice that they have obtained their citizenship through fraud or misrepresentation, they will be able to request an oral hearing from an impartial, independent adjudicator, says Mendelsohn, and “not just from the minister. And they’re entitled to see the evidence against them. . . . In addition, they are entitled to make their case for passionate, humanitarian circumstances . . .”
Immigration lawyer Lorne Waldman, of Waldman & Associates in Toronto, represented one of the applicants in the case and calls the decision “good news for the rule of law in Canada.”
“It's an extremely important case, because the government was attempting to create an adversarial process in which the prosecutor and the decision-maker were the same person,” Waldman told Legal Feeds. A ministry official would review a file, send a letter announcing intent to revoke citizenship, give an individual 60 days to respond and then make a decision on whether to revoke citizenship. The process was efficient but unfair to the individuals, he says, in that individuals were often denied a fair hearing by an independent decision-maker.
The Federal Court decision means the Canadian Bill of Rights “can be used to protect a person’s rights when the Charter is not engaged,” as it was not in this case, says Waldman.
“There are lots of circumstances where decisions are made by government officials . . . but . . . the Bill of Rights applies to any time a decision is made that relates to an act of Parliament,” he says. “In that sense, it’s broader than the Charter.”
Several hundred cases are currently pending before the Federal Court, he adds. The government has 30 days to decide whether to appeal the Federal Court ruling, and the effect of the decision is stayed for 60 days.
Regardless, Waldman says, “I think that [this] case teaches us that the Bill of Rights is alive and well, and people should remember that when they try to assert their . . . right to due process.”