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The B'nai Brith Canada Institute for International Affairs has a mandate to protest the abuse of human rights throughout the world and advocate on behalf of worldwide Jewish communities in distress. The Institute has a special focus on pro-Israel advocacy and education. |
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Rochelle Wilner |
Frank Dimant |
Amos Sochaczevski |
Ruth Klein |
Canada needs an integrated approach to the fight against terrorism. Bill C-36 amends many different pieces of legislation, but leaves the Citizenship Act, the Immigration Act and the State Immunity Act virtually untouched.
i. Immigration Act
The Immigration Act has been amended through Bill C-11, a bill drafted long before the events of September 11th. The present Immigration Act provides:
“50. (1) A removal order shall not be executed where
(a) the execution of the order would directly result in a contravention of any other order made by any judicial body or officer in Canada; or
(b) the presence in Canada of the person against whom the order was made is required in any criminal proceedings and the Minister stays the execution of the order pending the completion of those proceedings.
(2) A removal order that has been made against a person who was, at the time it was made, an inmate of a penitentiary, jail, reformatory or prison or becomes an inmate of such an institution before the order is executed shall not be executed until the person has completed the sentence or term of imprisonment imposed, in whole or as reduced by a statute or other law or by an act of clemency.”
That provision is fine as far as it goes. It remains essentially unchanged in Bill C-11. However, the provision does not go far enough.
The Immigration Act also provides [section 48]:
“48. Subject to sections 49 and 50, a removal order shall be executed as soon as reasonably practicable.”
That provision is also carried forward in the new law.
Currently, because of the need for execution of a removal order “as soon as reasonably practicable”, the Minister cannot stay removal for an investigation into possible prosecution even if she wanted to. The statute requires removal in advance of such an investigation.
Bill C-11 is marginally better because it contains a regulatory stay power. That power could be used to enact a regulation requiring stays for criminal investigations. However, given what is at stake, the fight against terrorism and our own international treaty obligations, a statutory stay would be more appropriate.
The Immigration Act should provide for referral to the Attorney General by the Minister of Citizenship and Immigration of every person subject to removal as a terrorist for possible prosecution for the offences set out in Bill C-36. The Minister of Citizenship and Immigration should have the power to stay removal until that investigation is complete and a decision is made whether or not to lay a charge for one of the offences set out in Bill C-36.
The problem the present law poses is highlighted by the various anti-terrorism conventions. The most recent one, for instance, the International Convention for the Suppression of the Financing of Terrorism, provides in Article 9:
“2. Upon being satisfied that the circumstances so warrant, the state Party in whose territory the offender or alleged offender is present shall take the appropriate measures under its domestic law so as to ensure that person's presence for the purpose of prosecution or extradition.”
If a person is deported without criminal investigation, and without a stay of removal, compliance with that provision becomes impossible.
The Immigration Act should be amended to say:
“A removal order shall not be executed where the presence in Canada of the person against whom the order was made is required for the purpose of an investigation by the Attorney General into charges of participating in, facilitating, instructing or harbouring terrorist activity under Criminal Code provisions 83.18 to 83.23 and the Minister stays the execution of the order pending the completion of that investigation.”
Bill C-11 is too far along the legislative pipeline to be amended to react to the events of September 11th. Immigration legislation deserves reconsideration because of these events, and the timing of Bill C-11 should not prevent that. The appropriate vehicle is thus Bill C-36, the proposed anti-terrorist legislation.
Deportation is not punishment, but merely a relocation of the terrorist. In many cases, that relocation may be no more than an inconvenience. It will rarely be a deterrent to entry. To discourage attempts at entry, our laws and practices must warn terrorists that they will be subject to prosecution should they enter and not just subject to a request to “move on”.
As a final point, the definition of terrorism in Bill C-36 should be incorporated into the Immigration Act. Neither the present Immigration Act nor Bill C-11 has a definition of terrorism. The absence of a definition makes the application of the law arbitrary. Some front line officers have a wide definition of terrorism while others have a narrow one. Without a definition, the system is anarchic, depending on the whim of whoever looks at the file first. The argument the government used to make, that terrorism is difficult to define, obviously becomes untenable now that the government has proposed a definition.
ii. Citizenship Act
The Citizenship Act should be amended to allow for revocation of citizenship for participating in, facilitating, instructing or harbouring terrorist activity under Criminal Code provisions 83.18 to 83.23. The Citizenship Act now provides, in section 10(1), that
“where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances, the person ceases to be a citizen, or the renunciation of citizenship by the person shall be deemed to have had no effect, as of such date as may be fixed by order of the Governor in Council with respect thereto.
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.”
False representation, fraud and knowingly concealing material circumstances are, therefore, the only grounds for loss of citizenship. Presumably, any person who is involved in terrorism before becoming a permanent resident or citizen will have committed false representation, fraud and knowing concealment of material circumstances to obtain Canadian status. However, in some cases, it may be easier to prove involvement in terrorism than false representation, fraud and knowing concealment of material circumstances. In those cases, revocation of citizenship for involvement in terrorism should be open to the Governor in Council.
As well, where citizenship is revoked because a person concealed his/her terrorist past, then deportation has to re-litigate what may have been already proved. Even where revocation has proved participation in terrorism, the nominal decision was fraud, false representation or knowingly concealing material circumstances. So, the proof of participation in terrorism has to be done all over again in immigration proceedings. This double process consumes time and resources unnecessarily.
iii. State Immunity Act
The State Immunity Act provides as a general principle that “Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.” [Section 3(1)]. There are some exceptions that could arguably be read as permitting a suit against a foreign state in a Canadian court for sponsoring terrorism. However, there is no express exception for state sponsorship of terrorism and this should be remedied.
The United States has such a provision in its law [28 USCA s. 1605 (a)(7)]. Under the US law, the foreign state has to be designated as a state sponsor of terrorism. Either the claimant or the victim must be a national of the United States.
An end to financial immunity for terrorists should mean an end to the financial immunity of states that sponsor terrorism. Otherwise, the attempt to end the financing of terrorism will end at the doors of state coffers.
Table of Contents § Preface § Sunset Clause § Non-discrimination Clause § Retrospectivity Clause § Additional Hate Crime Provisions
Definition of Terrorist Activity § Financing Terrorist Activity § Amendments to Other Acts § Summary of Recommendations
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