"Justice Minister and Harper Conservative Government Put Themselves Above the Law"

Justice Minister Rob Nicholson and the Harper Conservative Government are knowingly violating a unanimous Federal Court of Appeals ruling, thus putting themselves above the law,” says Liberal MP Andrew Telegdi (Kitchener-Waterloo).

“In announcing yesterday (May 24) that the Government of Canada has revoked the citizenship of Jacob Fast and Helmut Oberlander, Justice Minister Nicholson and the Harper Conservative Government completely ignored the fact that the Federal Court of Appeals in a unanimous ruling on May 31, 2004, told the government it cannot do so unless it provides evidence of war crimes having been perpetrated by the gentlemen,” said Telegdi.

“No such evidence has been provided, therefore the government has willingly chosen to ignore the rule of law,” he added.

“The Governor in Council cannot apply the war criminals policy to a person unless it first satisfies itself, to use the very words of the policy, that 'there is evidence of direct involvement in or complicity of war crimes or crimes against humanity'," reads the unanimous ruling issued by Justice Robert Décary of the Federal Court of Appeal with the concurrence of Justices J. Edgar Sexton and B. Malone in response to an appeal by Oberlander’s lawyer Eric Hafemann of the whole citizenship revocation process which is decided by cabinet and not a court of law.

“The (Immigration) Minister’s Report does refer to the 'no safe haven' policy but does not analyze why it is that Mr. Oberlander fits within the policy which, the Report fails to mention, applies only to suspected war criminals,” adds the ruling, which was never appealed to the Supreme Court of Canada.

“This ruling, which overturned a previous cabinet’s decision to revoke Mr. Oberlander’s citizenship, very specifically and very explicitly tells the government it cannot revoke anybody’s citizenship, especially Mr. Oberlander’s, without providing evidence of war crimes,” said Telegdi.

“For the government to proceed with such a blatant violation of the Charter Rights of Messrs. Oberlander and Fast, in violation of a federal court ruling, clearly indicates that the government has put itself above the rule of law. When the government puts itself above the law in such a case this is unconstitutional and becomes a serious threat to our democratic society in Canada,” Telegdi added.

“Furthermore, the government has reneged on a campaign pledge made to Canadians to reform the current citizenship revocation process,” said Telegdi.

The Standing Committee on Citizenship and Immigration in 2005 recommended changes to the Citizenship Act that would have made the revocation process a judicial one instead of the political one that allows the justice minister to act in such an arbitrary manner. These changes were supported by all four Conservative members of the committee.

The report on revocation was unanimously adopted by the House of Commons in the spring of 2005. The Liberal government, before it was defeated in 2005, was on the verge of tabling legislation to change the Citizenship Act in order to make revocation a totally judicial process free of political interference.

Once he became Prime Minister, Stephen Harper no longer considered citizenship and immigration an important issue. Instead of appointing as minister the most able and experienced member of Parliament in the Conservative Caucus, Diane Ablonczy, he kept her off the committee. He appointed two inexperienced ministers to this critical portfolio in less than one year. Out of the five Conservative members on this committee, only one had served any time on the Citizenship and Immigration Committee. Clearly Harper did not want any experienced Conservative members and their previous quotes embarrassing him while he broke yet another election promise to make citizenship revocation a totally judicial process free of political interference.

Backgrounder and Previous Quotes from Conservative Members

• While they were in opposition Conservative members rightfully railed against a draconian citizenship revocation process that allowed politicians the power to strip citizenship behind closed doors.
• The first Citizenship Act was enacted in 1947, parts of which are still operational. Both the 1947 and 1977 Citizenship Act preceded the Charter of Rights and Freedoms that was enacted in 1982 and courts have ruled that the Citizenship Acts are not Charter compliant. The previous Liberal Government allocated $20 million for a new Citizenship Act. The Conservative government declared that updating the Citizenship Act was not a priority and eliminated the funding.
• We have a deeply flawed Citizenship Act that, besides the revocation mess, denies citizenship to hundreds of thousands of Canadians: war brides; children of war brides; border babies; people born out of wedlock; and lost Canadians. Similarly affected are people whose Canadian forefathers had a church wedding off-shore but failed to have a civil ceremony and this resulted in their off-springs being considered to be born out of wedlock and therefore not eligible for Canadian citizenship. Which begs the question, why are Conservatives discriminating against religious weddings? Instead of updating an archaic Citizenship Act, the Conservatives are wasting millions of taxpayers’ dollars to fight court decisions that state the government must comply with the Charter.

Mrs. Diane Ablonczy (Calgary—NoseHill, CPC)

Then Conservative CIC Critic, currently Parliamentary Secretary to the Minister of Finance)

February 8, 2005, Citizenship Committee:

• “Thank you, Mr. Chairman, and thank you to all the witnesses. The presentations were outstanding, and if anyone watching these proceedings doesn’t get it yet, they haven’t been paying attention, because it’s very clear that there is something very wrong with an act that purports to strip citizens of their citizenship behind closed doors by a few people who also have political considerations guiding their decisions.”
• “I have taken the position, as a spokesperson for our part--and I think other parties the same--that if we’re going to strip someone of citizenship, it must be by the highest standard of due process and the highest burden of proof behind reasonable doubt.”
• “I would suggest that stripping someone of citizenship can reasonable be made analogous to capital punishment. Capital punishment separates a person from their liberty, and Bill mentioned that stripping someone of their citizenship is akin to social and identity punishment, because you’re separated from all that had given you liberty up until that period of time. That’s a very serious matter.”
• “I have a question for you, because most of you mentioned the charter. The question I have is, why hasn’t the charter been applied when you’re arguing with the government about this matter of revocation? For example--and someone mentioned this—in the current legislation on marriage, the government says we have to change the definition of marriage because we don’t want two classes of citizens and because we want to have equality under the law, and yet, as many of you have pointed out, this legislation and the procedure that’s being followed by cabinet right now creates two classes of citizens: some who are safe from having their citizenship revoked and others who are not.”

C-18 Second Reading 2004-10-07/han004:

• “Since the government has yet to introduce its changes to the Citizenship Act, I cannot comment except to say the Conservative Party of Canada will absolutely oppose the revocation of citizenship by politicians behind closed doors and will oppose citizenship being denied on any vague and unidentified grounds. We will uphold Canadian values of due process and certainty in the law.”
• “ …the Charter of Right and Freedoms should apply to all citizens of Canada, regardless of whether those citizens were born in Canada or they came to Canada later on in life.”

Mr. Inky Mark (Dauphin—Swan River, PC)

C-18 Second Reading 2002-11-07/han024:

“Last week the member from Kitchener-Waterloo introduced his own private member’s bill (on citizenship revocation), which I seconded. This hon. member would remedy these two classes of citizenship by placing citizenship revocation process under the judiciary, with appeal right, where it would be administered according to the principles of fundamental justice. That is why Canadians believe we have equality in this country. Until that happens we will never have equality in this country.”

Citizenship Committee, April 11, 2005:

“I think the message is very clear that you can’t have two classes of Canadian citizens. As a country that believes in the rule of law, I think we have to take it out of the political arena; if we trust and have faith in our judicial system and procedures, then that’s where we should go. I don’t think you’ll have any arguments with any of us sitting here, or with most of the people in the Hose of Commons.”

Mr. Leon Benoit (Lakehead, Canadian Alliance)

Then Alliance CIC Critic and currently Chair, International Trade Committee

C-16 report Stage 2000-05-10/han094:

“This is an issue which was pointed out by many witnesses. It was pointed out by myself and my colleagues in the official opposition. It was pointed out by members of other opposition parties. It was pointed out, as I said, by the member for Kitchener-Waterloo, the parliamentary secretary to the minister. This is wrong. The power should be left to the courts. And political connection should be taken out of revocation of citizenship. There are too many potential problems as a result of the remaining.”

Mr. Rob Anders (Canadian Alliance)

Currently Chair, Veteran’s Affairs Committee

C-16 Third Reading 2000-05-29/han102:

“Madame Speaker, the former parliamentary secretary is right. Every group that appeared before the committee cited problems with citizenship revocation and recognized that allowing this to be a decision by the cabinet would put it in political hands. They did not feel it was fair that people who had been here for 20, 30, or 40 years could have their citizenship stripped without what they considered to be a fair process.”

Mr. Art Hanger (Calgary Northeast, Canadian Alliance)

Currently Chair of the Justice and Human Rights Committee

C-16 Report Stage 2000-05-10/han

• “The proposed legislation does not allow individuals equal access to the legal system in spite of the fact that they may be granted citizenship. Even if there were fraud I think there is entitlement. I find it passing strange that this provision is in the bill when a judgment was made in the Supreme Court of Canada in 1985 which declared that refugees have complete and total access to our legal system. That was under the Singh decision.”
• “That is acceptable, but on other hand someone who may have committed some act is still entitled to legal representation by the mere fact that he or she has been granted Canadian citizenship. Is that not somewhat of a paradox or a contradiction? I think it is a contradiction.”

Rahim Jaffer (Edmonton-Strathcona, CPC)

C-16 Report Stage Debate May 10, 2000/Edited Hansard:

>“The Alliance agrees that once citizenship is granted, it must be assumed to be genuine because hopefully the person who has obtained the citizenship has gone through the proper channels to obtain that citizenship. The revocation of citizenship is not something to be taken lightly and must be done under complete and through scrutiny by the Canadian legal system.”

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