Citizenship Act

Bill to Amend—Third Reading—Motion in Amendment—Debate Continued

May 2, 2017

The Honourable Senator Yuen Pau Woo :

Honourable colleagues, I would like to respond to Senator Lang's proposed amendment to Bill C-6. Let me first of all thank him and previous speakers for a debate that I believe is very useful for the advancement of our understanding of citizenship. Senator Lang's amendment is as consequential as it gets, not just because it has severe consequences for those affected by it, but because it gets at the very heart of how we understand Canadian sovereignty, as well as the rights and privileges of Canadian citizenship.

I listened very attentively to Senator Lang's speech two weeks ago. As he made his case for the revocation of citizenship for convicted terrorists, I could sense that it was an argument that resonated in this chamber. It certainly resonated with me. After all, who can disagree with these words from Senator Lang's speech?

. . . I ask you to join with me in rejecting terrorism and in sending the strongest message to those who are seeking to destabilize our country and murder our fellow citizens.

And yet, honourable senators, I felt uneasy about the underlying sentiment behind those words and spent much of my break thinking about why I had this ambivalence. If I don't want terrorists living in my community, why do I feel uneasy about expelling them?

Well, two weeks of reflection on this question have led me to this conclusion: Expulsion is a reflection of weakness; it is not a reflection of strength. It is a characteristic of societies that lack confidence in their institutions, including the criminal justice system. It is also a primal instinct that stems from fear, spite and denial rather than awareness, agency and realism.

Think back on your days in high school. What was the cruelest punishment that could be meted out to kids who transgressed whatever code ruled the schoolyard? Ostracism, of course. Kicking someone out from a clique, gang or group of former friends was and continues to be the preferred punishment among juveniles. It is an impulse that often comes with a massive dose of personal spite, with little or no consideration of the consequences for the ostracized person or for the group. A modern-day variant of this punishment, by the way, is "unfriending" on social media.

Now, I'm of course not saying that ostracism of teenagers is the same thing as the revocation of citizenship of convicted terrorists. The instincts, however, are similar, and they are wrong. We teach our kids that they should face up to their problems and deal with them rather than shunt them to a place where it becomes someone else's responsibility. We also teach our children about the equality of individuals and how everyone should be treated and punished equally regardless of status.

There is no denying that the act of ostracism can feel good. That's precisely why humanity gravitates to it over and over again — that's exactly Rex Murphy's point — and I can assure you that the revocation of citizenship of a convicted terrorist will give many Canadians that same feeling of satisfaction at having gotten rid of a problem from this country. But have we? Not by a long shot.

Honourable colleagues, you have heard from others the legal arguments against Senator Lang's amendment, that it is unconstitutional because of unequal treatment of naturalized and Canadian-born citizens; that it does not make a lawful connection between declaring a person as a terrorist and revoking that person's citizenship; that the definition of terrorism cannot be left to individual judges; that there is an unfair burden on the accused individual to demonstrate that he or she is not a dual citizen, if that can be demonstrated in the first place; and so on. These are very powerful —and, for many, decisive — arguments to vote against the amendment.

I want to focus instead on the national security implications of this amendment, in part because I believe Senator Lang, as Chair of the Senate Defence Committee, has a special interest in this aspect of Bill C-6, as do many of you. I greatly respect Senator Lang's commitment to making Canada safe from external and internal threats and I know his amendment was proposed in that spirit.

The idea of stripping a convicted dual national terrorist of Canadian citizenship is fundamentally about sending that person to another country as soon as possible. If that were not a primary objective, there would be no need to revoke his or her Canadian citizenship. Now, it may well be that deportation of that individual is delayed, perhaps indefinitely, because of considerations under what they call the PRRA process, the pre-removal risk assessment process, but this amendment will create a strong impetus for deportation, in part to satisfy the primal desire for rough justice. And that will result in sending a convicted terrorist to a jurisdiction over which we have no control, from where he or she can mount another terrorist attack, including on Canadians abroad. This person will have the added satisfaction of arguing the injustice of his treatment, being stripped of Canadian citizenship simply because he was a dual national when, as our colleague Senator Dupuis has mentioned, he may have been part of a group of other terrorists, including non-dual citizens who cannot be stripped of their citizenship.

Senator Lang and now this afternoon Senator Runciman, Senator Stewart Olsen and Senator Smith have countered that this type of person would never be allowed to leave the country unless he or she was totally reformed and therefore "safe" to be deported. But that only begs the question as to why a safe person has to be deported, other than the desire to ostracize that person.

I would now point out a contradiction in Senator Smith's rebuttal to the argument where instead of a Canadian being a Canadian being a Canadian, he says a terrorist is a terrorist is a terrorist. If that is in fact the case, why would we deport a terrorist, who is still a terrorist, to a country we have no control over and run the risk of that person committing more terrorist acts in that country or in the region or back on Canadian soil and against Canadians abroad? It does not add up.

If anything, having a reformed terrorist in the community is an asset for counter-radicalization efforts in Canada, as we have heard from expert witnesses at committee hearings. On the contrary, the deportation of reformed terrorists provides fodder for terrorist organizations to recruit disaffected immigrants in Canada precisely on the grounds that they are second-class citizens.

Let me digress from my prepared notes for a minute to address the very provocative quote that Senator Runciman gave us in his speech earlier where he posed a question to those of us who support Bill C-6: Do you then believe that fraud is a more serious offence than plotting to cut off the Prime Minister's head? No. Fraud is not a more serious offence than plotting to cut off the Prime Minister's head, and that is precisely reflected in our criminal justice system. That is why terrorists are treated more harshly in our system than people who commit fraud, and that is in fact what Senator Smith has reaffirmed by quoting R. v. Khawaja, where the judge very wisely described terrorism as a heinous crime and one which belongs in a very special category. And that is precisely why we would prefer for convicted terrorists to remain in our criminal justice system, where we can keep an eye on them, than sending them overseas to countries with dodgy institutions. It goes without saying that our ability to monitor terrorists who have served their time in prison is much better if they are within our borders than if they are overseas.

Now, it's one thing to argue that our national intelligence services are not up to the job and need to be strengthened or they need more money. That's a legitimate argument. It is quite another argument to throw up our hands and send the terrorist to another jurisdiction and hope for the best. What's more, the deportation of terrorists runs counter to the purpose of recent powers designated to strengthen the effectiveness of our security and intelligence services.

As Senator Eggleton has reminded us, in 2013, Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act, added new offences for leaving or attempting to leave Canada for the purposes of committing an act of terrorism. The Lang amendment, on the other hand, would forcibly send convicted terrorists overseas.

Now, some of you may think that stripping a terrorist of citizenship is an expression of sovereign power; on the contrary, it is an abdication of our sovereignty over criminal acts against Canadians and against Canadian society, and it is a statement of how weak and incapable we consider our institutions to be. It is also irresponsible to take a criminal convicted under our system and to dump that person on another country. How would we feel if we were on the receiving end of such an action?

Oh, we do know how it feels, because in 2006, a New York State court sent a convicted sex offender to serve three years' probation in Windsor, Ontario, in lieu of a one-year sentence in a New York jail. Prime Minister Stephen Harper said at the time, "We are frustrated. Like all Canadians, we are not happy about this problem being sent to us." Why then, honourable colleagues, would we send our problems to others, especially to those nations without the institutional capacity or the will to imprison such terrorists?

Much has been made of the fact that other countries allow for revocation of citizenship of dual nationals. Not as many, by the way, as Senator Lang or Senator Runciman or Senator Smith would have us believe. And, as Senator Omidvar has pointed out, the list does not include the United States.

It is true that since President Trump came to power, the U.S. government has taken a much more aggressive stance towards revocation of the citizenship of naturalized Americans, but is that a model that we want to follow? Only last week, at a Supreme Court hearing on a citizenship revocation case, the U.S. Chief Justice John Roberts, a conservative, commented disapprovingly that if the administration had its way, "the government will have the opportunity to denaturalize anyone they want."

Other countries may lack confidence in their institutions, or they may hold the view that punting a terrorist to another jurisdiction is a wise national security move, but we should not follow suit. Let us instead be the example of a better way so that their chambers of sober second thought can cite the Canadian Senate as a place where reason and self-esteem prevailed, rather than blind instinct.

Senates, after all, have a long history when it comes to acts of banishment. The most famous case of forcing exile on a criminal was in the 1st century BC, when Roman senators banished a certain fellow called Julius Caesar from the city-state because he conspired with Marius to overthrow the rule of Sulla. J.C., as many of you know from your history lessons, went on to an illustrious military career, recording conquests across the continent. But in 51 BC, jealous and fearful of his growing power, the Roman senate revoked — I stress "revoked" — Julius Caesar's status as the governor of Gaul, which precipitated his conquering return to Rome in 49 BC. He famously "crossed the Rubicon" as part of his advance on Rome, a term which has now come to refer to an act of no turning back.

Colleagues, we are at the Rubicon in the way we understand citizenship and how we can cherish and protect it in the context of equality rights and in the interest of national security. I, for one, am not crossing the Rubicon of Senator Lang's amendment on Bill C-6. I hope you will join me by staying on this side of the river.