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April 20, 2013 - No. 15
In the Parliament
Harper Government Seeks to Change How
Regulations Are Made and Who Can Make Them
Another
Dangerous
Law
Before Parliament
• Harper Government Seeks to Change
How Regulations Are Made
and Who Can Make Them
• Summary of Incorporation by Reference in
Regulations Act
• Opposition in the Senate
• Positions of the Parties in the
House of Commons
Private Member's Bill
• Bill to Strip Citizenship of
Canadians Raises Civil Rights Concerns
- Matthew Behrens
Another Dangerous Law Before Parliament
Harper Government Seeks to Change How Regulations Are
Made and
Who Can Make Them
On February 13, second reading for Bill S-12, An Act to Amend the
Statutory Instruments Act and to make consequential amendments to the
Statutory Instruments Regulations began in the House of Commons.
The
legislation's short title is the Incorporation
by
Reference
in
Regulations
Act.
Bill S-12 amends the Statutory Instruments Act.
The
Statutory
Instruments Act sets out the formalities of the process for
creating rules of law
through regulations.
According to the Bill's summary, S-12 amends the Statutory
Instruments
Act in the following ways: it provides for the express power
to incorporate by reference in regulations; it imposes an obligation on
regulation-making authorities to ensure that a document, index, rate or
number
that is incorporated by reference is accessible; and it provides that a
person is
not liable to be found guilty of an offence or subjected to an
administrative
sanction for a contravention relating to a document, index, rate or
number that
is incorporated by reference unless certain requirements in relation to
accessibility are met.
 Bill S-12 would permit the
delegation and "sub-delegation" of Parliament's
powers to create and review regulations to other institutions and even
other
countries. It also broadens who will be able to delegate and
sub-delegate these
powers on behalf of the Harper dictatorship.
How regulations are created, by whom and in whose
interest is bound up
with a country's sovereignty and rule of law, versus a state of anarchy
in
which the police powers of the prime minister and other members of his
cabinet are used to uphold monopoly right, not provide public right
with a
guarantee. How regulations are handled tells us whether a rule of law
actually
exists, or anarchy has been raised to authority as we see taking place
under the
auspices of neo-liberal governments such as we have in Canada under the
dictatorship of Stephen Harper.
The Harper government has already shown how it deems fit
to interpret
regulations when it unilaterally destroyed the Canadian Wheat Board
without
a plebiscite by members of the Board as they understood was required by
the Canadian Wheat Board Act.
The government declared that despite election
promises by the Conservatives not to make a change without a
plebiscite, the
regulations requiring a plebiscite merely applied to a change in
grains, not to
the elimination of the Wheat Board itself.
This government has been using its majority in the
Parliament to pass
omnibus Bills, and then impose limits on the time available for debate
on the
massive legislation that itself contains dozens of laws affecting
hundreds of clauses, as well as
changes to
how power is wielded. It has used this method in order to limit debate
and
discussion on the direction it is taking Canada.
In the case of the omnibus Crime Bill it rammed through
changes to
Canada's legal system which eliminated the discretionary powers of
judges to
take into consideration the circumstances of the accused or in which
the act
was committed, without which something may be legal, but justice is not
served. By imposing mandatory minimum sentences for many crimes, the
cause of justice is sacrificed. It expands the use and the
scope of the
arbitrary powers of the executive, while it eliminates or limits the
power of all
the professional strata to exercise discretionary powers as required by
their
jobs to make sure the cause of justice is served. This can only be
because the
executive does not want any other authority to interfere with its own
exercise
of powers on behalf of the monopolies. It is an exercise of dictatorial
powers
that not only undermine the rule of law, they eliminate it.
 Now the Harper government is using
its majority to try to pass a law
which will make it easier to keep hidden how laws are to be implemented
and
who is implementing them.
For a country to call itself democratic, one basic
criteria is that the citizens
must be aware of the system they live under and they must perceive that
they
have a real say in deciding that system. Regulations are the mechanism
by
which laws are implemented in real life. They are a central aspect of
any
society as they are the rules and standards that members of the society
are held
to by the state. Regulations establish the norm the state requires in
all aspects
of life based on parameters outlined in laws passed by a political
legislative
body. Sizes of soup cans, who gets employment insurance, how resource
extraction projects are approved, speed limits for different types of
roads,
criteria for immigration, refugee or citizenship status, how trade is
conducted
between countries -- all of this and much more is determined by
regulations
which are based on laws enacted by governments.
Violating regulations means violating the rule of law
and results in
penalties, fines or punishment. Obviously then it is crucial that
regulations be
established in a coherent, systematic and democratic manner in the
interest of
the people who must live under them to be considered legitimate. If
laws are
passed which do not limit the scope of the regulating power to make
that
regulating power accountable to the legislative authority, and if the
scope of
the regulations is not limited to upholding the public right, then a
rule of law
does not exist. Arbitrariness takes over -- anarchy is raised to
authority. This
opens the door for a reign of state terror where the state creates
pretexts to use
its powers of coercion in a manner that violates human rights, favours
private
interests and foreign states rather than the public interest, without
any form of
accountability to the people, let alone to the democratic institutions
of the
society.
 The entire field of
regulations and what is being done with them requires
the serious attention of the working class and its allies. It is the
domain which
has to do with discretionary powers formerly dealt with by the civil
servants
and government agencies with definite mandates to uphold public right.
When
it comes to the interpretation/implementation of laws, if the laws are
premised
on serving the public good, it is one thing. If they are premised on
favouring the monopolies and providing them with impunity, it is
another.
Who decides and who controls the decision-making process is crucial.
Decisions permitting torture such as those enacted by the Bush and
Obama
administrations, were all made by executive decree and have regulations
attached to them! When these regulations no longer defend the citizen
or
resident but violate her or his rights, a real problem is created for
society.
The debate in the House of Commons on this matter shows
that some MPs
are simply oblivious to what is at stake, such as the NDP critic's
attempt to
reduce the matter to whether or not regulations are translated into
French.
In this issue of TML
Weekly we are reproducing material pertinent to the Incorporation by Reference in Regulations
Act.
 
Summary of Incorporation by Reference
in Regulations Act
Bill S-12, An Act to amend the Statutory
Instruments Act and to
make consequential amendments to the Statutory Instruments Regulations
provides for the express power to incorporate by reference in
regulations.
Incorporation by reference "is a drafting technique for providing that
a
legislative text includes material (text, information or concepts)
expressed
elsewhere. The material is included without reproducing it within the
legislative text," states John Mark Keyes, Chief Legislative Counsel at
the
Department of Justice Canada and head of the Legislative Services
Branch.[1]
Different types of materials may be incorporated by
reference. For
example, a legislative text may incorporate another provision from the
same
text, provisions from another legislative text enacted in the same
jurisdiction,
legislative texts of another jurisdiction, or non-legislative texts
such as
technical standards or international agreements.
Incorporation by reference can be either "open" or
"closed." According to
the legislative summary, "closed" or "static" incorporation by
reference
incorporates the document as it exists at the time into the regulation.
According to Keyes, "[w]ith static references, changes made to the
material
(including repeal) after its incorporation by reference do not affect
the
operation of the incorporating legislation. It continues to incorporate
the
original version despite the subsequent changes." In other words, the
regulation would have to be amended to incorporate the amendments to
the
incorporated document.
This is to be distinguished from "open," "ambulatory,"
"dynamic," or
"rolling" incorporation by reference, which automatically incorporates
subsequent amendments to the incorporated document into the regulation.
Keyes notes that incorporation by reference may promote
harmonization:
"This is particularly important in terms of seeking interjurisdictional
harmonization, for example to facilitate transactions or activities
that cross
borders."
In 2007, the Standing Joint Committee on Scrutiny of
Regulations tabled
a report setting out its views on certain issues related to the concept
of
"incorporation by reference." The Joint Committee began with an
explanation
of the concept:
"When Parliament confers a power to make regulations,
the
regulation-maker usually exercises this power by drafting the text of
the
regulation to be enacted. The regulation-maker may also decide that the
contents of an existing document are what should be used in the
regulation it
intends to enact. One way to make the contents of such a document part
of the
text of the regulation would be to reproduce it word for word in the
regulation. Alternatively, the regulation-maker can simply refer to the
title of
the document in the regulation. The contents of the document will then
be said
to be 'incorporated by reference.' The legal effect of incorporation by
reference is to write the words of the incorporated document into the
regulation just as if it had actually been reproduced word for word.
The
incorporation by reference of an existing document is no more than a
drafting
technique, and a regulation-maker need not be granted any specific
power in
order to resort to this technique. This is referred to as "closed" or
"static"
incorporation by reference."
The Joint Committee's position on "open" or "ambulatory"
incorporation
by reference, however, was that for open incorporation by reference to
be
proper, there should be an express grant of that authority in the
enabling
provision, for example by providing that regulations may be made
incorporating material "as amended from time to time."
The Joint Committee went on to explain the principle
behind the
distinction in its approach to "open" and "closed" incorporation by
reference:
"It is rooted in the rule against subdelegation (often
stated by the
Latin maxim delegatus non potest
delegare -- 'a delegate cannot
delegate'),
which reflects the legal principle that a person to whom a power to
legislate
has been delegated may not redelegate that power to someone else unless
clearly authorized to do so by law. In relation to regulations, this
means that
a given authority, whether it be the Governor in Council or a minister,
board,
commission or some other authority, that is empowered by statute to
make
regulations must not, in the absence of a clear grant of power to do
so,
purport to authorize another person or body to act in its stead. This
is
intended to protect the legislator's choice as to who is to exercise
the
delegated power. It has always been the view of the [Joint] Committee
that the
incorporation by reference of external material into regulations 'as
amended
from time to time' amounts to a subdelegation of regulation-making
power, in
that it will be the body amending the incorporated material, and not
the
authority on whom the power to make the regulations has been conferred,
that
will determine the content of the regulations."
This authorization for open incorporation by reference
could arise from an
enabling Act that expressly granted the authority to incorporate
documents "as
amended from time to time," or through the use of other language that
has
been interpreted as being sufficiently broad to permit ambulatory
incorporation
by reference. In particular, the Joint Committee noted the difference
between
the power to make regulations "respecting" a matter, and the power to
make
regulations "fixing" or "prescribing" something:
"[I]f the regulation-making authority is given a power
to 'prescribe'
or 'fix' safety standards for the transportation of dangerous goods,
subsequent
amendments to the material originally incorporated will have to be
included
in the incorporating regulation by way of amendments to the regulation.
On
the other hand, a power to make regulations 'respecting' safety
standards for
the transportation of dangerous goods is broader, and a regulation
providing
that it includes future amendments to the incorporated document could
be
considered to be a regulation 'respecting' such standards."
The Joint Committee noted that a bill introduced in
1995, applicable to
regulations in general rather than to regulations under a particular
Act, would
have clearly stated that material "may be incorporated by reference as
the
material exists at a particular date or as amended from time to time,"
but that
bill did not proceed past first reading.
In considering the changes proposed in Bill S-12 it is
significant that in the
Harper government's first omnibus Bill C-38 it removed the requirement
to
distribute the Canada Gazette in printed form. The Canada
Gazette is the publication in which all regulations are supposed
to be
published so that the people are informed of the regulations they are
supposed
to follow. It is now only published in digital form. Bill S-12 goes
further by
eliminating the responsibility of the government to publish, even
digitally,
regulations incorporated by reference into legislation. Section 18.4 of
the
legislation states that a document, index, rate or number that is
incorporated
by reference into a regulation "is not required to be transmitted for
registration
or published in the Canada Gazette
by reason only that it is incorporated by
reference." This means that more and more aspects of the Harper
government's
regulations will be unknown by Canadians.
The new legislation affirms that any incorporation by
regulation must be
accessible to the public, however no definition of accessibility is
provided. If
this definition is to be established through regulation by the same
regulatory
making bodies which are being given more centralized authority over the
day
to day lives of Canadians with the legislation it is a serious problem
as
whatever definition they come up with will be consistent with the aim
of
centralizing decision-making authority in fewer and fewer hands.
Subsection 18.1(4) of the legislation expands the
meaning of the term
"regulation-making authority." If the regulation-making authority is
the
Governor in Council or the Treasury Board, then "regulation-making
authority"
includes:
- the minister who recommends the making of the
regulation,
- the minister who is accountable to Parliament for the
administration of the
regulation, and any person or body -- other than Statistics Canada and
standards development organizations accredited by the Standards Council
of
Canada -- for which either of those ministers is accountable to
Parliament.
If the regulation-making authority is a minister, then
"regulation-making
authority" includes "any person or body -- other than Statistics Canada
and
standards development organizations accredited by the Standards Council
of
Canada -- for which that minister is accountable to Parliament."
Section 18.2 states that the powers "conferred" by
section 18.1 "are in
addition to any power to incorporate by reference that is conferred by
the Act
under which a regulation is made and that section does not limit such a
power." In this regard, the legislative summary notes that the
legislation not
only formalizes how to use incorporation by reference across all laws,
but also,
where it is already expressly provided for in existing laws, it expands
how it
can be used: "It appears that, where there are narrower incorporation
by
reference powers under a specific enabling Act, section 18.1 enlarges
them,
while where there are broader incorporation by reference powers under a
specific enabling Act, section 18.1 does not narrow them."
Note
1. Keyes is an expert in what
is known as Executive Legislation and
testified to the Senate Committee that studied the legislation. He is
cited
extensively in the official summary of the legislation provided by the
Legislative Services Branch.
Opposition in the Senate
Published below are excerpts from remarks by Liberal
Senator Mac Harb
and the debate that followed on the Incorporation by
Reference Act from December 10 when the legislation was at third
reading in the Senate. The
Harper government tabled the legislation
first in the
Senate and it is now at second reading in the House of
Commons. The remarks reveal the way in which the authority of the
Parliament to review and approve regulations is being usurped with the
legislation.
* * *
Senator Terry Mercer
(Liberal): Honourable senators, traditionally, or
by practice, every bill that is drafted and that comes before the other
place or
this place is sent to an internal committee, I understand, at the
Department of
Justice to review whether or not the bill is constitutional. Does the
honourable
senator know whether that was done in this case?
Senator Mac Harb
(Liberal): That
is an interesting question. The truth of the
matter is whether they should be doing it at all. Whenever Parliament
gives
authority to the government to do something, the Parliament is supreme.
Parliament can take that authority away. As we know, in our system we
have
a situation where there is a minister who practically is in a conflict
of interest
by voting on a bill that impacts his Crown, his government. He is
voting on
a bill in order to give him more authority.
As honourable senators can see, if we really wanted to
talk about whether
Parliament is able, in a sense, to oversee what government does, the
answer
is yes and no. In the present form of the democratic system that we
have, there
is a minister who is both a minister but also a member of Parliament.
Instead
of the Parliament itself deciding on what takes place in the end, once
the
legislation is passed, now we will have Parliament deciding on the
bigger
picture; and when it comes to the tricky details, it is left to the
Crown, to the
minister, to his agent, to do whatever fits in terms of their overall
agenda.
As far as I am concerned, the answer to the honourable
senator's question
is that this is a very ill-advised move. Parliament on the other side
and this
side, since the 1970s, has consistently taken the same position,
namely, that the
government should never have unfettered access to making regulations
without
the express authority of Parliament. We have to keep that in mind.
Here the situation is that it used to be considered by
Parliament, in the
Senate and the House of Commons, as an illegal act on the part of the
government, over all those years, but finally the executive came to
Parliament
and said, "Excuse me. I am the boss here. I now want you to allow me to
make legal what you previously considered to be illegal." They said,
"Therefore, from here on in, you cannot tell me that what I am doing
here
with regulations is outside of my authority. It is now because you gave
it to
me."
Mind you, honourable senators, we can take it away at a
later date. That
is the argument of the government, but how could we? As long as
ministers
are voting on those laws, one cannot do it. One cannot really give
Parliament
its express authority as it was set out in the Constitution, and that
is the
problem.
Senator Mercer: It
would seem to me, honourable senators, that
we continue to hear about open, transparent and accountable government,
but
this is going entirely in the opposite direction. More and more power
is being
shifted from the two chambers that are in this building to the Langevin
Block
across the road, which houses the Prime Minister's Office and the Privy
Council Office. Am I correct?
Senator Harb: It is
a slippery trend, really. When one looks
historically at what happened, the government in the past used to use
this
technique on and off. We used to tell them to stop, but if we look at
the time
since this government came to power in 2006 up until now, it has been
used
more than ever before. In fact, the statistic that we looked at is 170
times. That
is a lot of times. We have to ask ourselves: If we really want to
delegate
something, why do we not set guidelines, as my colleague Senator Fraser
has
said? Why do we not set under what terms these kinds of amendments can
be
done and how I, as a Canadian who is governed by these rules, will be
able
to have access to them? They will not be put in the Canada Gazette, so I will
not know what is in the regulations. What happens if those documents
that are
put in the regulations change from time to time? Which version will I
go and
look at? Worse, what happens if one makes reference to a document that
deals
with a trade arrangement with another country? Those arrangements
change
from time to time. Am I to jump on a plane and go to London or Brussels
or
China or elsewhere in order to dig and find out which document I am
dealing
with? How will one ensure that they are up to date? This is all very
serious.
In fairness to the Justice Department, the chief
legislative counsel, John
Mark Keyes, was very honest. He told the committee, "Listen, it is up
to you.
You decide. You tell me what you want to do. One thing is for sure: The
committee and Parliament have told us that they wanted clarity. They do
not
want us to do it." However, now the government has somehow decided that
they want to do it.
I remind honourable senators on the other side that
there will be a time
when the government will change. The very same senators who are really
pushing for this bill might turn around and say, "Sorry, that was a bad
move
that we made." When we talk about the halls of democracy and about
parliamentary oversight, we have to keep that in mind. We have to
exercise the
oversight that the Constitution has allowed us to exercise. Do not give
it away.
It can be delegated. Yes, we can delegate anything we want to within
the rules
of the law. This is being delegated to the executive, but should it be?
The
answer is no, so why are we doing it?"
Positions of the Parties in the House of Commons
For your information we are providing excerpts from the
positions of the
Conservatives, NDP, Liberals and Greens given on the legislation during
debate on February 13 at second reading in the House of
Commons. They further clarify the danger of the legislation to
the functioning of
Canada's democratic institutions.
Conservatives
Presenting the position of the government,
Conservative MP Robert Goguen spoke on behalf of the Minister of
Justice,
stating: [...] "Bill S-12 is intended to solidify the government's
access to a
regulatory drafting technique that is essential to modern and
responsive
regulation. It also recognizes the corresponding obligations that
regulators must
meet when using this tool. The bill strikes an important balance that
reflects
the reality of modern regulation while ensuring that appropriate
protections are
enshrined in law. No person can suffer a penalty or sanction if the
relevant
material was not accessible to them.
"The proposal would provide express legislative
authority for the use of
this technique in the future and confirm the validity of existing
regulations
incorporating documents in a manner that is consistent with that
authority.
There is every indication that the use of this technique will be
essential to
implementing regulatory modernization initiatives here in Canada in
conjunction with our regulatory partners in the United States and
around the
world.
"To conclude, enactment of the legislation is the
logical and necessary next
step to securing access in a responsible manner through incorporation
by
reference in regulations [...]"
NDP
Chris Charlton, NDP MP Hamilton Mountain is the
co-chair of the scrutiny of regulations committee which studies all new
regulations of Parliament to ensure they are consistent with the law.
According
to Charlton, the committee has been very concerned about the issue of
incorporation by reference for some time. She presented some of the
concerns
of that committee as well as the NDP.
[...] "There is also a sub-theme to much of the recent
media coverage,
which focuses on this Prime Minister's repeated thwarting of the
democratic
process and the threat this represents to the institution of
Parliament. Bill S-12
adds fuel to that fire. As dry as the title might seem, this bill will
legitimize
the ability of governments to do things by regulation without the
express
authorization of Parliament. Without being overly dramatic, this bill
will
undermine democratic values and risk turning law-abiding citizens into
criminals.
"Canadians must be able to have confidence that the
regulations that
govern them have been duly authorized by Parliament. For that reason,
the
Standing Joint Committee for the Scrutiny of Regulations adopted a
unanimous
report in 2007 that called on the government to stop using unauthorized
open
incorporation by reference without the permission of Parliament.
"The position of the joint committee was, and is, that
absent an express
grant of authority or a clear indication to the contrary in the
enabling statute,
the incorporation by reference of external material is proper only
where a fixed
text is incorporated, as opposed to a text that is amended from time to
time.
In fact, the use of incorporation by reference as amended from time to
time
has been deemed improper and illegal because it is a regulation without
the
express authorization of Parliament. The government knows that.
"In the other place, Conservative Linda Frum noted in
her speech on this
bill that 'Incorporation by reference is a widely used drafting
technique
currently, but this bill would legitimize it...'. Those are important
words: 'this
bill would legitimize it'. With those five words she is confirming that
the
government knows it has been acting illegally every time it used the
technique
without explicit parliamentary authorization. Let us not kid ourselves;
it did
not just happen once or twice.
"The Conservatives have used ambulatory incorporation by
reference 170
times since 2006. Bill S-12 is essentially designed to give the
government legal
cover after the fact for its prior and ongoing illegal activities. Put
differently
and more specifically, proposed section 18.7 would retroactively
validate a
large number of provisions that were made without lawful authority.
"This goes to the very heart of Parliament's authority
to delegate its power
and choose who can make rules on its behalf. It is mind-boggling that
any MP
would not be troubled by that prospect. However, party discipline, as
enforced
by the executive branch in this House, will almost certainly ensure the
bill will
pass unamended.
"Apart from the concerns of allocation of power posed by
the open
incorporation by reference, I will now turn to the question of
accessibility. If
ignorance of the law is no excuse, then the law must be available. The
problem with incorporations by reference is that the text of the
incorporated
material is not found in the regulation itself.
"Where do Canadians turn to find out about their rights
and obligations?
The material that is being referenced may be obscure or hard to find.
If it
involves standards developed by private organizations, there may even
be a
charge for accessing the material. Nowhere does the bill suggest that
departments have to make the material available, nor do they even have
to
provide information as to where that material might be. When the
incorporated
material can be amended from time to time, how can citizens know that a
change has come into effect? Will past versions of the text always be
available? Finally, what happens when the material being incorporated
is a
law, standard, or agreement from another jurisdiction that may not be
bilingual? Would this be a way for the government to circumvent our Official
Languages
Act?
"Proposed subsection 18.3(1) of the bill states, 'The
regulation-making
authority shall ensure that a document, index, rate or number that is
incorporated by reference is accessible'. However, what exactly does
'accessible' mean? Will it be equally accessible for aboriginal or
rural
Canadians? Will people have to travel in order to obtain the text, or
will the
text only be available on the Internet? Would that satisfy the
definition of 'accessibility'?
"Given all of these questions, it would seem likely that
it would be left to
the courts to define 'accessible' in terms of incorporated materials.
However,
should the onus not be on us as legislators to provide that clarity? I
simply do
not believe that citizens should have to go to the time and expense of
judicial
proceedings to determine their rights and obligations. Surely we can,
and must,
provide that clarity in this House.
"At this point, I do not think we need to throw out the
baby with the
bathwater. I do indeed have serious concerns about Bill S-12, and I
have
expressed many of them in the brief time afforded to me here today.
However,
as co-chair of the Standing Joint Committee for the Scrutiny of
Regulations,
I know that many of the issues I have raised today are concerns shared
by
members from all sides of the House and we could bring these
perspectives to
bear by studying the bill at greater length in committee."
Liberals
Speaking on behalf of the Liberals, MP Massimo
Pacetti echoed the concerns raised by Senator Harb during debate at the
Senate. He stated: "[...] In today's environment of globalization,
regulation is
becoming increasingly complex. For example, we must accept
international
standards for reasons of trade, safety and security. This reality is
reflected in
Canada's regulations. In order to simplify the writing of regulations,
the
regulatory authorities are relying more and more on incorporation by
reference."
[...]
"According to the analysts at the Standing Joint
Committee on Scrutiny of
Regulations, the Canadian Constitution does not allow sub-delegation of
the
regulation-making power. When Parliament delegates a regulation-making
power to a department, for example, the department should not delegate
that
power again to another entity using incorporation by open reference."
"We believe that Parliament, which represents all
Canadians, cannot agree
to sub-delegation of the regulation-making power such as is permitted
by Bill
S-12, unless it has expressly authorized it when the regulation-making
power
was delegated in enabling legislation."
Green Party
During the debate, Green Party leader Elizabeth
May stated:
"[...] I am pleased to rise to join the debate on Bill
S-12. I
thank the hon.
member for Toronto--Danforth [Craig Scott] and I say, in a non-partisan
way
because he does not belong to my party, that we are clearly fortunate
in the
House to have someone of his calibre, with experience teaching in law
schools,
who can bring to the House an assessment of something that may appear
dry
but which really cuts to the heart of dangerous changes to Westminster
parliamentary democracy. In this place there is increasing power in the
hands
of the Prime Minister's Office and decreasing respect for Parliament as
an
institution and for our regulation-making authorities. The bill
represents a
threat because it becomes increasingly difficult to know if regulations
are
being made.
"I also have this one concern. We accepted changes to
pharmaceutical drug
regulations in Bill C-38, which stated that pharmaceutical drugs were
no
longer added by regulation but could just be added by Health Canada
through
a list process, not through the Canada Gazette and not
through
routine regulations. We have to protect some of the more boring aspects
of
making laws in this place to protect the rights of Canadians."
Bloc Québécois
The Bloc Québécois did not speak to the
legislation at second reading.
Private Member's Bill
Bill to Strip Citizenship of Canadians Raises
Civil Rights Concerns
- Matthew Behrens -
Early April news reports about the alleged involvement
of Canadians in
an Algerian gas plant attack have added fuel to the Harper government's
ongoing efforts to control and restrict the number of individuals
entitled to the
full rights of citizenship.
Chief among what critics call two-tier citizenship is a
private member's
bill first introduced last year by Conservative Calgary MP Devinder
Shory that
would reduce by one year the residency requirements to obtain Canadian
citizenship for permanent residents serving in the armed forces. Few
have
objected to this portion of Bill C-425, largely because it affects
almost no one:
citizenship is a prerequisite to being a member of the Canadian
military except
in very rare circumstances. Of greater concern is the possible Trojan
Horse use
of C-425, through which a benign-sounding proposal is being used to
backdoor
far more insidious measures to strip certain classes of people of
Canadian
citizenship.
Bill C-425, An Act to amend the Citizenship Act
(honouring
the Canadian Armed Forces), declares, "A Canadian citizen who is also a
citizen or a legal resident of a country other than Canada is deemed to
have
made an application for renunciation of their Canadian citizenship if
they
engage in an act of war against the Canadian Armed Forces." A similar
provision applies to permanent residents. Unlike official government
legislation, private members' bills are not vetted by the Department of
Justice
to check their compliance with the Charter
of
Rights
and
Freedoms.
Because Bill C-425 fails to define terms like "legal
resident" and "act of
war," and does not include any indication of the process that would
produce
such a determination, critics fear it could become a dangerous tool
used to
target specific communities based on racial origin, religious
background, or
political belief, in much the same way that Muslim Canadians have faced
a
disproportionate amount of attention from Canadian security forces over
the
past two decades.
Indeed, as Liberal MP Irwin Cotler has pointed out in
the House of
Commons, C-425 "raises serious constitutional concerns given the
Charter's
guarantees in sections 6, 7 and 15, particularly where it engages
matters of
national or ethnic origin, or potentially the recognized analogous
ground of
citizenship."
 Currently under
consideration by the House Standing Committee on
Citizenship and Immigration, C-425 will likely include an amendment
from
Immigration Minister Jason Kenney that also references acts of
terrorism. But
it's the lack of precision in defining such terms that has opposition
MPs and
civil rights advocates expressing alarm, especially following the
numerous
cases of refugees, permanent residents, and Canadian citizens alike who
have
been targeted, questioned, harassed, detained, and sometimes tortured
because
of the government's broad and unrestricted interpretation of what it
means to
be a threat to national security.
As Ottawa's Abdullah Almalki told CBC's The Current
earlier this year,
he wonders whether he would have lost his citizenship had C-425 been
part
of the law while he was being held in Syria, tortured based on false
information emanating from Canadian security agencies. Stripping
Canadians
of their citizenship and preventing them from returning to Canada, he
said, "is
a very self-serving tool for the government, so it can not only deprive
a
Canadian of any due process, but also to avoid the scrutiny,
embarrassment,
scandals, nationally and internationally, due to the government
complicity in
falsely labeling Canadians as terrorists and having another state
torturing
us."
Lawyer Barbara Jackman, who has handled scores of
security cases, is also
concerned that the bill, if passed into law, could be used against
people like
her clients, many of whom have been deemed threats simply for standing
up
for human rights and against tyrannical overseas governments. Speaking
with
the CBC, she recently noted that a bill to strip citizenship in 2010
never
passed, but if the prior bill's same "reasonable grounds" standards are
applied
with C-425, "what we will have in the Citizenship
Act is what we have in the Immigration
Act,
and that is a very low standard. If you have a 20% chance
of believing that someone did something, you could take away their
permanent
resident status. Now you could take away citizenship. This is very
scary."
While MP Shory could not be reached for comment by Muslimlink, he did
testify before the standing committee that "Canadian citizenship is a
privilege.
No one who basically attacks Canadian values, no one who attacks those
who
actually protect Canadian values, should have the right to be called a
Canadian
citizen." He said part of the rationale for his bill was that when he
first came
to Canada in the 1980s, "there were a lot of times when we did not lock
our
doors when we went out. Nowadays, we actually put the alarm on while
sleeping in the house."
But the vagueness of Shory's statements have created
unease among some
Parliamentarians. As Winnipeg Liberal MP Kevin Lamoureux asked, how far
does one take the view of attacking or being disloyal to Canada? "If
you have
an aggressive citizen from Canada in Afghanistan yelling and screaming,
possibly even throwing rocks at Canadian Forces is that an act of
disloyalty?"
 Questioned by MPs about the
concept of two-tier
citizenship, Shory
refused to eliminate the renunciation portion of the bill, and
confirmed that
even if someone were born in Canada, dual citizenship -- often an
irreversible
consequence of birth, and not a conscious choice -- could leave them
open to
losing Canadian citizenship.
Jason Kenney appeared more
blunt, expressing his disappointment that he
would like the bill to apply to any Canadian national, "but I'm advised
we
don't have the capacity to do that legally." Indeed, as he
acknowledged, to do
so would violate the UN Convention on the Reduction of Statelessness.
Kenney also dismissed the issue of due process,
declaring, "We ought not
to be narrow and legalistic about the process of renunciation of
citizenship. If
individuals go out and voluntarily take up citizenship in a country
that is at
war with Canada we ought not to be so legalistic as to wait patiently
for them
to sign a form renouncing their citizenship. We ought to read in their
actions
the renunciation of their loyalty to Canada and indeed their
citizenship. That's
the premise here."
Given that Muslim Canadians with dual citizenship have
been falsely
described as imminent threats to national security and wrongly detained
overseas as terrorist suspects, critics point out that since Canada
generally
considers itself at war (against terrorism), those falsely labeled
could be
perceived to have engaged in such an act of renunciation.
Kenney says he cannot realistically see the bill
affecting "anything more
than single digits," but the fear factor of the law could be widespread
for the
almost 3 million Canadians, many with dual citizenship, who live abroad
for
significant periods each year. Many might second-guess expressing
potentially
controversial views or engaging in activities that could be perceived
as
"suspect."
NDP MP Don Davies points out that similar legislation
has not been
introduced to speed up applications of permanent residents such as
doctors and
nurses, and that, apart from the citizenship renunciation concerns, the
effort
going into a bill that might affect a dozen or fewer individuals on an
annual
basis diverts from the cuts being made to immigration services at home
and
abroad while over 300,000 individuals are waiting 3-5 years for their
citizenship to be finalized.
And while the issue has not been explicitly stated,
recent government
statements about the ability to stop so-called "radicalized" Canadians
from
travel abroad raise questions about how, exactly, that would be done.
(Will
measures include seizure of or failure to issue passports, for example,
a
standard U.S. practice during the Cold War for those suspected of
leftist
sympathies?)
What is clear, however, is that communities who've
already been targeted
likely face more of the same. Asked at a recent Parliamentary committee
meeting if there were a group unlikely to fit the alleged security
threat mold,
CSIS Assistant Director of Intelligence Michael Peirce replied, "We're
not
seeing a lot of CEOs being radicalized."
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