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.

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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."


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.

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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?"

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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.


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 [...]"


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."


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.

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Private Member's Bill

Bill to Strip Citizenship of Canadians Raises
Civil Rights Concerns

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."

(Originally published on homesnotbombs.blogspot.ca. A version of this article will appear in the May MuslimLink)

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