crimesinister said:
From Canadian Association of Refugee Lawyers (CARL):
1. Revocation for Misrepresentation of ‘Intent to Reside'
Section 6 of the Charter guarantees to all citizens the right to leave, enter and remain in Canada. Section 15 of the Charter guarantees equality before and under the law, and equal benefit of the law. Naturalized citizens of Canada face a risk of citizenship revocation for leaving Canada, if the Minister forms the opinion that the departure proves that the individual, when applying for citizenship, misrepresented his or her intent to reside in Canada post-citizenship. The chilling effect this will exert on the citizen's mobility violates s. 6 of the Charter. Because it applies only to naturalized citizens whose country of origin is not Canada, and does not to birthright citizens, it also discriminates on the basis of national origin, contrary to s. 15 of the Charter
Are you saying CARL is made up of lawyer of disrepute?
As well, Audrey Macklin, Professor of Law and Chair in Human Rights, University of Toronto, states:
While the 1946 Citizenship Act explicitly made non-residence a ground for denaturalization, Bill C-24 does so indirectly: Where the Minister identifies a naturalized citizen who appears to reside outside Canada, the Minister can allege that the citizen's post-citizenship departure evinces a pre-citizenship lack of intention to continue residing in Canada once citizenship was granted.
I am not familiar with this particular, purported comment by Audrey Macklin. But it is an example of the criticism about how a government might attempt to interpret and apply the provision. This has been addressed at length and in-depth, adequately
refuted (see posts above and in other topics), but again, even for those who cling to the alleged
possibility that a Minister might attempt to interpret and apply section 5(1)(c.1) this way (despite there being no reasonable interpretation of the provision to support this), that would be about how the Minister attempts to interpret and apply the provision, which would not be justiciable unless and until a Minister actually attempted to to do this . . . so this in no way suggests there will be any judicial ruling about this any time soon, especially since this is such an outrageous and unsupportable interpretation, let alone outrageous application contrary to the Charter, that there is virtually no chance any Minister will ever attempt to interpret and apply it this way.
I wonder about the date of this comment. There was a rush to judgment by many in early 2014 which tended to overlook the actual substance of the proposed legislation (the Canadian Bar Association's premature and in many respects unfounded comments, in early 2014, being a prime example . . . much of which has, naturally, for good reason, been more or less left behind).
The purported quote from CARL I am well familiar with. It is a quote
NOT from CARL per se, and in particular is
NOT a quote from anything said by a CARL lawyer (that I am aware of). It is a quote from CLE material prepared by a law
student, published by CARL in its publication of some CLE materials in September 2014, the content of which is not purported to be the opinion of CARL. I have specifically discussed this specific quote on multiple occasions (probably above in this topic even) and more than amply illuminated the extent to which the
student who authored this was wrong in many respects. At the least, however, the student's observations are overly broad general opinion lacking supporting analysis or citation, and moreover is largely a quotation (potentially plagarism I suspect, since it seems to be almost verbatim) from criticisms raised prior to Bill C-24 going to a Third Reading, at which those criticisms were refuted and dismissed. Moreover, those criticisms had little or no connection to the actual language of the then-proposed provision, and this law student likewise offers no analysis of the actual language of the provision itself.
So no, I am not saying that CARL is made up of lawyers of dissrepute. I am saying that particular quote is unfounded and its conclusions blatantly erroneous . . . and that there is now no disagreement about this among reasoned and informed observers.
I will say this: any lawyer still advocating that section 5(1)(c.1) constitutes an unconstitutional restraint on the mobility rights of citizens is wrong, and either being disingenuous or lacks basic skills in analyzing the law or is spouting off without considering the actual provision itself.
I know of one who as recently as March did indeed take such a position. Let me just say I would not recommend her for anyone with a legitimate case. I would note, though, that the article in which she took that position was co-authored by a
student and similarly contains the same old criticism almost verbatim, suggesing the possibility of plagarism again or at the least repetition without analysis or reference to authority.
I am
NOT referring to Audrey Macklin. I realize that Professor Macklin contributed to the Star article that was published within days after Bill C-24 was tabled, along with Lorne Waldman (who is often seen as the face of CARL), and perhaps that article was the genesis of much of the
red herring criticisms. Some of the language in that article was, at best, unfortunate. (Particularly since extensive parts were actually quite informative.)
While I posted my own observations at the time in a different forum from this one, I was immediately disappointed and dismayed by the
red herring about the purported "implicit threat that if a naturalized Canadian citizen takes up a job somewhere else . . . the government may move to strip the person of citizenship because they misrepresented their intention to reide in Canada when they were granted citizenship."
This language (including the rest of the paragraph in the Star article which Waldman and Macklin authored, February 2014), was repeated almost verbatim in numerous criticisms of Bill C-24 over then next several months. It became the chant of those challenging the proposed intent requirement . . . with virtually no discussion about or real analysis of that requirement itself.
In contrast, there was virtually no discussion, let alone debate, about the actual import and impact of then proposed section 5(1)(c.1), which is huge, obviously huge, of great import, but not because of the farfetched, nonsensical argument it might be used to revoke the citizenship of anyone who legitimately obtained their citizenship and later decided to move abroad.
In any event, I discussed the above in much depth, with real analysis, including as to the actual language in the revised statutory provisions, in the forum at immigration.ca back in March and April of 2014. And, again, other than one article co-authored by a lawyer and student and published earlier this year, I have seen no reputable source reiterate those criticisms originally raised in February and March 2014, refuted and dismissed in debate, and which quite frankly never had any real foundation at all. (As I have oft said, I was much disappointed by the extent to which, back in early 2014, the Canadian Bar Association and others allowed themselves to contribute to what really was a
red herring distraction when there was so much about this legislation deserving a serious public and parliamentary debate.)
Otherwise, overall, no, there is no Charter issue evoked by the section 5(1)(c.1) required intent element. No naturalized citizen has any reason to fear losing citizenship because later in life he or she decides to live or work abroad. This is not going to be an issue addressed any time in the near future by the courts.
