Lawyers lose battle for moratorium on contentious part of citizenship law

Hundreds of Canadians could lose their citizenship without a hearing after a Federal Court rejected a bid to suspend a contentious law being challenged as unconstitutional, a Toronto-based lawyer says.

Judge says individual stays are available to people seeking to keep citizenship

A federal court judge has rejected a request for a blanket stay on a controversial part of C-24, which allows for citizenship to be revoked without a hearing. (Sean Kilpatrick/Canadian Press)

Hundreds of Canadians could lose their citizenship without a hearing after a Federal Court rejected a bid to suspend a contentious law being challenged as unconstitutional, a Toronto-based lawyer says.

Under C-24, brought in by the previous Conservative government, a person who receives a notice of citizenship revocation has no right to a hearing or an appeal, and has no chance to argue that he or she ought to retain citizenship on humanitarian grounds.

The process can include people who had incorrect information on their applications and claims, which has prompted some to suggest Democratic Institutions Minister Maryam Monsef could be ensnared by the law. Monsef recently revealed she was born in Iran, not in Afghanistan as she had always believed.

The law is being challenged as unconstitutional but until that case is settled, the Federal Court has since January been
systematically granting stays to individuals who apply for them.

Immigration lawyer Lorne Waldman, who had argued for a moratorium on all cases pending the outcome of the Charter challenge, called today's decision "very disappointing." 

"There are going to be a number of people who will likely lose their citizenship as a result of this," he said. 

Waldman said hundreds of people could fall through the cracks because they don't know their rights, or don't have the financial resources to pursue legal action.

Individual stay vs. moratorium

Earlier this year, the Federal Court issued a temporary stay of proceedings in a number of revocation cases — but Waldman and other lawyers had sought a blanket stay, or moratorium, for all Canadians facing the loss of their citizenship.

Today's ruling said because each individual can seek a stay, it is therefore an "avoidable harm."

"The failure of a person, for whatever reasons, to take advantage of the de facto stay available, does not change the fact that it is available to them and that it will avoid the harm," reads the decision by Judge Russel Zinn

Minister of Democratic Institutions Maryam Monsef has revealed she was born in Iran, not Afghanistan as she had previously believed. (Adrian Wyld/Canadian Press)

Today's decision comes just one week before the constitutional hearings over the law begin in Toronto on Nov. 15.

Waldman said he will now focus his efforts on striking it down on grounds it is procedurally unfair and a violation of the Charter of Rights and Freedoms. He called it "puzzling" the Liberal government has acknowledged it's unfair, yet persisted in enforcement.

Immigration Minister John McCallum could "order a stop to it tomorrow. The reason why he won't is something I don't understand," he said.

Ruling 'a disappointment'

Laura Track, counsel with the British Columbia Civil Liberties Association, is also puzzled the government is enforcing the process "with gusto." No matter what the circumstances of the case, every person should have the right to a fair process, she said.

Now, until the federal court rules on the constitutional case, each individual will have to hire a lawyer, spend money and use the court's time to obtain a stay. 

"That's a disappointment because we know not everyone has the resources, the capacity, the knowledge to take those steps and seek that remedy through the court process," she said. "So people will continue, we fear, to lose their citizenship under a process that is unfair, and we believe, unconstitutional."

Meantime, Independent Senator Ratna Omidvar, who is sponsoring another citizenship-related bill in the Senate, is planning an amendment that would allow those deemed to have misrepresented themselves to appeal a decision to revoke their citizenship.

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