What is required to legitimately revoke citizenship?
versus
What should be required to revoke citizenship?
To be clear, these are very different questions. One is a more practical inquiry into what the law, including constitutional law, requires; that would be an analytical inquiry. That inquiry should not be confused with an esoteric, largely academic exercise posturing opinions about what the law should be, which would be more or less an idealistic inquiry.
Unfortunately, language tends to tangle things. One commentator might pose a view about how a particular statute should be interpreted, doing so from the perspective of applying well-established principles of statutory interpretation, while another commentator's view may based on his or her idealistic world view about how things should be.
They would not be talking about the same thing.
I am not sure which approach is being applauded here, above, though it appears the latter, the idealistic rather than analytical one.
After all, for decades and in the course of several dozen extensively-litigated citizenship revocation cases, before the Ministerial procedure introduced by Bill C-24, it is clear that Canadian law has not required, for purposes of revoking citizenship, the same level of "due process and rigourous safeguards" employed in criminal prosecutions, not even close.
There is no presumption of innocence. There is no privilege against self-incrimination. No right to confront witnesses. The burden of proof was a mere balance of probabilities, a rather low bar considering under this standard it only requires a modicum of evidence to effectively shift the burden of proof onto the citizen, the accused. The evidence does NOT need to be clear and convincing, let alone rise to the level of being proof beyond a reasonable doubt.
The Senate's proposed amendment will mostly reinstate the process prior to the changes made under Bill C-24.
Which, by the way, brings up this:
Seems likely, however, that this decision will add considerable weight toward persuading the Liberal government to accept and adopt at least the Senate amendment to revise procedures employed in the revocation of citizenship. Neither of the other two amendments seem to warrant derailing or even delaying the adoption of Bill C-6, so this decision may make enough of a difference to tip the scales.
That is, this decision may help push the Liberals to adopt Bill C-6 with the Senate amendments included. To get this done.
However, a Federal Court ruling of this sort tends to demand, in effect, an appeal so that such an important issue can be at least clarified by a superior Court, a Court whose rulings have the authority of legal precedence . . . which the Federal Court rulings do not. And apparently there are some technical reasons (which I do not quite understand other than to understand they exist, which as best I can grasp are related to the scope of what should be included in legislation) why the Senate's amendment should not be included in the final version of the Bill.
My guess is that we will see how this goes within a few weeks at the most.
Sidebar note: my impression has been that the Liberals have been avoiding judicial and political showdowns regarding some of the more salient and sticky issues, like revocation of citizenship for misrepresentation, like cessation of protected person status blocking some PRs from becoming citizens, and like no hint from the Liberals of any intent to restore a right to appeal by those denied citizenship.
Obviously, if the amendment regarding procedure for revocation is adopted, that renders this decision, which rules that the current procedure is inoperative, irrelevant. Since the Federal Court's ruling does not establish a binding legal precedent (generally -- of course it is binding between the specific parties involved), perhaps there will be no appeal. That will allow subsequent parties to argue that the Bill of Rights Section 2(e) applies to decisions affecting citizenship (once acquired), and cite this decision as authority for that, but again this will not be binding precedent.
Some observations about "due process:"
There is NO general constitutional right to "due process" in Canada. Certain rights in criminal cases are due process in nature, but those explicitly apply to criminal proceedings and not generally (moreover, they are specifically enumerated, and there is no general "due process" requirement as such).
In addition to the right to life, liberty and security of the person, as prescribed by the Charter (and a person may not be deprived of these "except in accordance with the principles of fundamental justice"), the Canadian Bill of Rights adds "enjoyment of property," as that regarding which individuals have "the right not to be deprived thereof except by due process of law." (Referring to Section 7 in the Charter and Section 1(a) in the Canadian Bill of Rights, respectively) This "due process" requirement is statutory, not constitutional.
"Due process" is referenced in hundreds of Canadian judicial decisions, and I cannot say I have examined anywhere near a majority of those, but from what I have perused it is clear that what is meant by "due process" in Canadian law is NOT the same as what constitutes either procedural due process OR substantive due process, as those terms are used and applied in American jurisprudence, looming large throughout American law. (The American Constitution prescribes a "due process" requirement in multiple provisions, albeit it is the scope derived from its use in the 14th Amendment, in conjunction with "equal protection," which has had such a profoundly wide and in many respects chaotic impact.)
I am no expert in Canadian jurisprudence on this point, but my impression is that Canadian courts have generally distanced what constitutes procedural fairness from the American concept of "due process," and especially so that branch of American jurisprudence dealing with substantive due process, which Canadian courts tend to avoid like the plague. (For example, at least one Federal Court of Appeal has explicitly ruled that "substantive due process" is outside the ambit of Section 2(e) in the Bill of Rights.)
In contrast to the several hundred court decisions referencing "due process" (albeit a significant number of these are references to American due process or what constitutes due process in other jurisdictions), there are many thousands of official decisions referencing "procedural fairness." And it is the latter which dominates judicial review of the process, the procedure, pursuant to which all sorts of decisions are made which impact the lives and rights and obligations of individuals in Canada.
And this is where it gets really complicated.
And this is where we have Rocco Galati to thank.
I do mean thank. Galati has been due plenty of criticism and more than occasionally this gadfly can be godawful. But one of the most important decisions resulting from Galati's gadfly challenges is the oft referenced and profoundly important Baker case (this is the case that might be said to have established Galati's career and makes him relevant), which radically revised what is necessary to satisfy procedural fairness requirements in the government's making of administrative decisions, and established a widely adopted and still followed baseline for what constitutes procedural fairness in Canadian law and bureaucratic decision-making. Any substantial analysis of this subject demands at least taking Baker and subsequent jurisprudence, such as in the oft cited Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII) and Newfoundland and Labrador Nurses’ cases (all three should link), into account.
Once again I have wandered deep into the weeds, and without reaching much if any destination.
But for now, suffice it to separate, with emphasis, idealistic musings about what Canadian law should be in so far as what is the nature of citizenship, versus what would constitute a legitimate adjudication of revocation under Canadian law. It would be reasonable to do so accepting the premise that the Bill C-24 procedure does not afford procedural fairness, as Judge Gagné has concluded, thus ruling those provisions inoperative. To be clear, however, there is no hint that the American version of due process will be required; that is not on the agenda, not even on a distant horizon in terms of what will constitute a legitimate decision-making process for revoking citizenship in Canada.
My guess is that the procedure proposed in the Senate amendment will be adopted and implemented, and proceedings to revoke citizenship under those provisions are likely to be upheld as legitimate. In the meantime, that is likely to mean that this decision is held in abeyance pending the legislation, and it might never actually be implemented. (This decision could end up in limbo much like Galati's challenge of Bill C-24 which was denied by then FC Justice Rennie . . . which has been in limbo pending Bill C-6.)
versus
What should be required to revoke citizenship?
To be clear, these are very different questions. One is a more practical inquiry into what the law, including constitutional law, requires; that would be an analytical inquiry. That inquiry should not be confused with an esoteric, largely academic exercise posturing opinions about what the law should be, which would be more or less an idealistic inquiry.
Unfortunately, language tends to tangle things. One commentator might pose a view about how a particular statute should be interpreted, doing so from the perspective of applying well-established principles of statutory interpretation, while another commentator's view may based on his or her idealistic world view about how things should be.
They would not be talking about the same thing.
I am not sure which approach is being applauded here, above, though it appears the latter, the idealistic rather than analytical one.
After all, for decades and in the course of several dozen extensively-litigated citizenship revocation cases, before the Ministerial procedure introduced by Bill C-24, it is clear that Canadian law has not required, for purposes of revoking citizenship, the same level of "due process and rigourous safeguards" employed in criminal prosecutions, not even close.
There is no presumption of innocence. There is no privilege against self-incrimination. No right to confront witnesses. The burden of proof was a mere balance of probabilities, a rather low bar considering under this standard it only requires a modicum of evidence to effectively shift the burden of proof onto the citizen, the accused. The evidence does NOT need to be clear and convincing, let alone rise to the level of being proof beyond a reasonable doubt.
The Senate's proposed amendment will mostly reinstate the process prior to the changes made under Bill C-24.
Which, by the way, brings up this:
A reasonable response demands qualifying the scope of the question, since the only credible response must be, at most, about what is the likely effect. And even that, given rather cryptic signals from the Liberals, so far, is conjecture.
Seems likely, however, that this decision will add considerable weight toward persuading the Liberal government to accept and adopt at least the Senate amendment to revise procedures employed in the revocation of citizenship. Neither of the other two amendments seem to warrant derailing or even delaying the adoption of Bill C-6, so this decision may make enough of a difference to tip the scales.
That is, this decision may help push the Liberals to adopt Bill C-6 with the Senate amendments included. To get this done.
However, a Federal Court ruling of this sort tends to demand, in effect, an appeal so that such an important issue can be at least clarified by a superior Court, a Court whose rulings have the authority of legal precedence . . . which the Federal Court rulings do not. And apparently there are some technical reasons (which I do not quite understand other than to understand they exist, which as best I can grasp are related to the scope of what should be included in legislation) why the Senate's amendment should not be included in the final version of the Bill.
My guess is that we will see how this goes within a few weeks at the most.
Sidebar note: my impression has been that the Liberals have been avoiding judicial and political showdowns regarding some of the more salient and sticky issues, like revocation of citizenship for misrepresentation, like cessation of protected person status blocking some PRs from becoming citizens, and like no hint from the Liberals of any intent to restore a right to appeal by those denied citizenship.
Obviously, if the amendment regarding procedure for revocation is adopted, that renders this decision, which rules that the current procedure is inoperative, irrelevant. Since the Federal Court's ruling does not establish a binding legal precedent (generally -- of course it is binding between the specific parties involved), perhaps there will be no appeal. That will allow subsequent parties to argue that the Bill of Rights Section 2(e) applies to decisions affecting citizenship (once acquired), and cite this decision as authority for that, but again this will not be binding precedent.
Some observations about "due process:"
There is NO general constitutional right to "due process" in Canada. Certain rights in criminal cases are due process in nature, but those explicitly apply to criminal proceedings and not generally (moreover, they are specifically enumerated, and there is no general "due process" requirement as such).
In addition to the right to life, liberty and security of the person, as prescribed by the Charter (and a person may not be deprived of these "except in accordance with the principles of fundamental justice"), the Canadian Bill of Rights adds "enjoyment of property," as that regarding which individuals have "the right not to be deprived thereof except by due process of law." (Referring to Section 7 in the Charter and Section 1(a) in the Canadian Bill of Rights, respectively) This "due process" requirement is statutory, not constitutional.
"Due process" is referenced in hundreds of Canadian judicial decisions, and I cannot say I have examined anywhere near a majority of those, but from what I have perused it is clear that what is meant by "due process" in Canadian law is NOT the same as what constitutes either procedural due process OR substantive due process, as those terms are used and applied in American jurisprudence, looming large throughout American law. (The American Constitution prescribes a "due process" requirement in multiple provisions, albeit it is the scope derived from its use in the 14th Amendment, in conjunction with "equal protection," which has had such a profoundly wide and in many respects chaotic impact.)
I am no expert in Canadian jurisprudence on this point, but my impression is that Canadian courts have generally distanced what constitutes procedural fairness from the American concept of "due process," and especially so that branch of American jurisprudence dealing with substantive due process, which Canadian courts tend to avoid like the plague. (For example, at least one Federal Court of Appeal has explicitly ruled that "substantive due process" is outside the ambit of Section 2(e) in the Bill of Rights.)
In contrast to the several hundred court decisions referencing "due process" (albeit a significant number of these are references to American due process or what constitutes due process in other jurisdictions), there are many thousands of official decisions referencing "procedural fairness." And it is the latter which dominates judicial review of the process, the procedure, pursuant to which all sorts of decisions are made which impact the lives and rights and obligations of individuals in Canada.
And this is where it gets really complicated.
And this is where we have Rocco Galati to thank.
I do mean thank. Galati has been due plenty of criticism and more than occasionally this gadfly can be godawful. But one of the most important decisions resulting from Galati's gadfly challenges is the oft referenced and profoundly important Baker case (this is the case that might be said to have established Galati's career and makes him relevant), which radically revised what is necessary to satisfy procedural fairness requirements in the government's making of administrative decisions, and established a widely adopted and still followed baseline for what constitutes procedural fairness in Canadian law and bureaucratic decision-making. Any substantial analysis of this subject demands at least taking Baker and subsequent jurisprudence, such as in the oft cited Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII) and Newfoundland and Labrador Nurses’ cases (all three should link), into account.
Once again I have wandered deep into the weeds, and without reaching much if any destination.
But for now, suffice it to separate, with emphasis, idealistic musings about what Canadian law should be in so far as what is the nature of citizenship, versus what would constitute a legitimate adjudication of revocation under Canadian law. It would be reasonable to do so accepting the premise that the Bill C-24 procedure does not afford procedural fairness, as Judge Gagné has concluded, thus ruling those provisions inoperative. To be clear, however, there is no hint that the American version of due process will be required; that is not on the agenda, not even on a distant horizon in terms of what will constitute a legitimate decision-making process for revoking citizenship in Canada.
My guess is that the procedure proposed in the Senate amendment will be adopted and implemented, and proceedings to revoke citizenship under those provisions are likely to be upheld as legitimate. In the meantime, that is likely to mean that this decision is held in abeyance pending the legislation, and it might never actually be implemented. (This decision could end up in limbo much like Galati's challenge of Bill C-24 which was denied by then FC Justice Rennie . . . which has been in limbo pending Bill C-6.)
right now would be an understatement.