Last week, Minister of Citizenship and Immigration Kenney mused ominously, as Ministers do, about stripping Canadians of their citizenship. From the Toronto Star:

After revealing a terror suspect wanted for a deadly Bulgarian bus-bombing acquired Canadian citizenship as an 8-year-old child, but left Canada at age 12 to live in Lebanon, Citizenship and Immigration Minister Jason Kenney said a private member’s bill should be broadened to target terrorists like him as well as those who commit acts of war against Canada…

As both Professors @cmathen and @emmmacfarlane suggested last week on twitter, it’s quite possible that this would run afoul of section 15 of the Charter.  In short, Canadian governments are forbidden from discriminating on the basis of any of the enumerated grounds (i.e. those expressly stated in section 15 like race, gender, etc.), or grounds analogous thereto, without a good reason. Section 15 states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Use of the phrase ‘in particular’ denotes that the list is not exhaustive, and hence courts have looked for other characteristics that are similarly ”immutable, difficult to change, or changeable only at unacceptable personal cost” (Corbiere, para 60) which should be protected within the ambit of s.15. While citizenship is not an enumerated ground of discrimination, it was the first ever ground to be found ‘analogous’ by the Supreme Court in Andrews , so that hurdle’s leaped. (For another example of how analogous grounds work, see this recent Tessa Crosby piece at @thecourtdotca).

Would the proposed measure amount to ‘discrimination’?

What actually amounts to “discrimination” has been subject to much dispute over the Charter‘s history, including on the Supreme Court itself. Everyone agrees it is more than a mere distinction on a prohibited ground (e.g. laws prohibiting toddlers from operating combine harvesters are normally considered constitutionally acceptable despite drawing a distinction based on age), but how much more is an open question. After an ill-fated venture into using ‘human dignity’ factors as the indicia of discrimination (Law), the Court has returned to Andrews in Kapp (see this helpful post at @ABlawg). It has recently described the test as:

1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? (Withler, para 30)

This may involve both direct discrimination (eg where the rule is based explicitly on a prohibited ground, such as mandatory retirement  – McKinney) or indirect or ‘adverse effects’ discrimination (where a neutral rule applies equally to everyone but has a differential impact linked to a prohibited ground – see the human rights code case of Meiorin). In this case, the rule is premised on citizenship status: only dual citizens are effected. Is it ‘discriminatory’ for the purposes of section 15? We’ll assume probably, insofar as it creates a distinction based on a prohibited ground (citizenship) and seems based on prejudice or stereotypes of disloyalty (i.e. unhyphenated mono-Canadian terrorists would not be so deprived).

Can the discrimination be justified under section 1?

In order to justify a violation under section 1, the government must show a law is 1) sufficiently pressing and important to justify abridging Charter rights or freedoms, 2) rationally connected to the purpose of the abridging measure; 3) minimally impairs the Charter right or freedom; and 4) the deleterious effects do not outweigh the beneficial effects (Oakes, paras 69-71).

I won’t speculate on how the entire analysis might play out, but will point to one potentially analogous case. Sauvé involved a challenge to a law denying prisoners the right to vote. After finding a breach of section 3, the Court turned to the Oakes test, finding that the government had not even established a rational connection between the rule and the objective(s) of the law (normally a law fails, if ever, at the minimal impairment stage).  Each of the purported justifications for not allowing prisoners to vote - that it sends an ‘educative message’ (‘breaking the  law is not cool, you guys’), that allowing prisoners to vote demeans the political system, and that it was permissible form of punishment – were rejected by the Court, thus failing the rational connection stage of the analysis.

I am having difficulty seeing what purpose the citizenship stripping can serve other than a vague and symbolic one (‘terrorism is not cool, you guys’). On that point, this extract from Sauvé seems particularly apposite:

Vague and symbolic objectives such as these almost guarantee a positive answer to this question. Who can argue that respect for the law is not pressing?  Who can argue that proper sentences are not important?  Who can argue that either of these goals, taken at face value, contradicts democratic principles?  However, precisely because they leave so little room for argument, vague and symbolic objectives make the justification analysis more difficult.  Their terms carry many meanings, yet tell us little about why the limitation on the right is necessary, and what it is expected to achieve in concrete terms.…

At the end of the day, people should not be left guessing about why their Charter rights have been infringed.  Demonstrable justification requires that the objective clearly reveal the harm that the government hopes to remedy, and that this objective remain constant throughout the justification process. .. A court faced with vague objectives may well conclude, as did Arbour J.A. (as she then was) in Sauvé No. 1, supra, at p. 487, that “the highly symbolic and abstract nature of th[e] objective . . . detracts from its importance as a justification for the violation of a constitutionally protected right”.  If Parliament can infringe a crucial right such as the right to vote simply by offering symbolic and abstract reasons, judicial review either becomes vacuously constrained or reduces to a contest of “our symbols are better than your symbols”.  Neither outcome is compatible with the vigorous justification analysis required by the Charter.

One can imagine a court giving short shrift to the argument that ‘terrorism is bad so we can do whatever we want to terrorists’.  A public safety rationale would be more compelling, but it too might be vulnerable at the rational connection stage – if public safety were the objective, it would seem arbitrary to not apply it to mono-citizens, and it would be more compelling if it applied to individuals who committed crimes, particularly terrorism, on Canadian soil.  That said, the government needn’t apply a provision to all who might fit the criteria of its own objective in order to survive a rationality analysis (in the section 7 context, see Malmo-Levine, paras 138-140), so their lawyers may be able to conjure up a more compelling argument than I’ve imagined.

Does international law or practice matter?

Finally, a brief note on Kenney’s claim that ‘most countries do this’, as a necessary and subtle segue to a shameless plug. According to Minister Kenney:

Kenney said almost every other western democracy allows citizenship to be stripped of dual nationals who commit acts of terror. “Canadian citizenship is predicated on loyalty to this country and I cannot think of a more obvious act of renouncing one’s sense of loyalty than going and committing acts of terror,” Kenney told reporters.

Unlike in the US, the use of international law and practice in Canada as an interpretive aid is not terribly controversial. The presence of international norms is sometimes found to be an important factor in Charter analyses (see e.g. Burns), and sometimes not (see e.g. Zundel).  It is very hard to discern a clear line as to where international practice may or may not be relevant or found to be persuasive. If only there was someone who would write a…  oh hey, look, turns out I co-authored a paper on the topic. What a fortuitous and completely unexpected coincidence.  Funny how life works, sometimes.

It might be noted that ‘citizenship’ may indeed be one of those areas where international practice matters:

In this case, Parliament’s view is supported by common sense and widespread international practice, both of which are relevant indicators of a rational connection… (Lavoie, para 59)

Or, according to the dissenters, does not matter:

Finally, we would add this.  The fact that citizenship requirements for civil service are a “widespread international practice” is neither relevant nor indicative of a rational connection in this case…  While we take no position on why other countries impose citizenship-based restrictions, we do not believe the practice of these countries can form the basis of our decision without at least some evidence that they share similar objectives as Parliament.  In arriving at this conclusion, we place no restrictions on Parliament’s ability to impose citizenship-based restrictions on certain Public Service jobs (such as positions that relate to a political function or national security) as legitimate qualifications of employment. (Lavoie, para 19).

Conclusion

Overall, this case strikes me as particularly complicated, even leaving aside the possibility that stripping Canadianess from a dual citizen - particularly one from a dangerous country in which they are not especially welcome – could potentially implicate any number of other Charter rights (mobility rights and section 7 come to mind).  Andrew Coyne (@acoyne) has suggested a better response would be for Canada just declare an end to dual citizenship altogether. I actually think this might be less problematic, at least from a section 15 standpoint.

Coyne also notes, in response to the slippery slope argument, that we’ve already started tobogganing.  However, the Citizenship Act currently has only one reason why you can be divested of your citizenship: fraud or false representation in obtaining it in the first place. A declaration under section 10 suggests to me that the citizenship was, in a sense, void ab initio. I do not know of any precedent for retroactively dispossessing a Canadian of validly obtained citizenship for any reason, such as the commission of heinous acts, that subsequently presents itself. Citizenship-stripping is not - pardon the legal jargon - small beer, and one would think a rather compelling justification would be in the offing.

Finally, and even granting all of the government’s premises (which I do not), I’m having difficulty imagining how bombing a bus in Bulgaria or raiding a gas plant in Algeria expresses disloyalty to Canada sufficient to make revocation of citizenship an important and viable option.  To the extent the government is serious about this plan, one expects they’ll try to come up with a better justification in the meantime.

Benjamin Oliphant is a recent graduate of the University of Toronto Faculty of Law, with a particular interest in labour, administrative and constitutional law. He is currently an articling student, and will be clerking for the 2013-2014 term. You can visit his SSRN page here.