Is the Harper government expecting the courts to quash its ‘exile’ law?

by Claire Wählen (feat. Kyle Matthews and Steve Saideman)

iPolitics
October 2, 2015

The 2015 election campaign started off being mostly about the economy and pocketbook issues. But thanks to the Syrian refugee crisis and a handy wedge issue — the niqab — the campaign seems to have turned into a national debate on foreign policy, citizenship and what it means to be Canadian.

Stephen Harper’s government set the stage for this battle last year with Bill C-24, the Strengthening Canadian Citizenship Act — which expands the federal government’s powers to revoke citizenship for certain crimes.

Since then, one Canadian has lost his citizenship and several others are challenging the decisions to strip them of their Canadian citizenship, all for their involvement in the 2006 Toronto 18 plot.

Saad Gaya, a 27 year old Canadian who was born and raised in Canada, may be sent to his parent’s native Pakistan despite never having once gone there himself. Canada is barred by international law from making any person ‘stateless’, so Canadians who were born here, and who lack the option of obtaining a second citizenship, face absolutely no threat of losing their citizenship — no matter what crime they commit.

New Canadians, those with dual citizenship and those who could obtain citizenship elsewhere could face the loss of their citizenship under C-24 — setting up the prospect of criminals facing different punishments until the law, depending on where they’re from.

“This actually bakes discrimination right into our law, turning upside down the idea that we’re all equal. It draws clear distinctions between kinds of Canadians and says that some of us are worth less,” said BC Civil Liberties Association executive director Josh Paterson.

“It is saying that some of us are less likely to be loyal, more likely to be dangerous and therefore need special laws and to have their citizenship rights be revocable, whereas other Canadians citizenship rights are not. That’s purely based on where they were born or their ancestors, and has nothing to do with being born in Canada and that’s why we say it’s unconstitutional.”

Paterson’s organization and the Canadian Association of Refugee Lawyers are challenging the constitutionality of the bill in court. Errol Mendes, a constitutional law professor with the University of Ottawa, says they’ll likely win — and that could be part of the Harper government’s strategy.

“I’m sure they don’t care. They know that it will probably die and they don’t care. In fact, it will become part of the wedge issue —now they can take on the courts too,” said Mendes.

The other ‘identity’ issue making waves in this election campaign is, of course, the Harper government’s ban on citizenship applicants wearing a niqab or other facial covering during the citizenship ceremony itself.

The ban was stuck down in court back in February; the government is challenging the court’s ruling on the ban, arguing that banning the niqab during public citizenship ceremonies“enhances the integrity” of becoming a Canadian. Critics call it a shameless attempt to single out Muslim women in order to win votes.

“I fail to see any other reason to target one per cent of one per cent of Canadians in a major political campaign,” said Stephen Saideman, the Paterson Chair at Carleton University’s Norman Paterson School of International Affairs.

“It seems to be a very cynical effort to use fear and use hate – which means that Harper is not whipping this up out of nowhere but that these are part of an existing distrust and animosity towards Muslims – by Harper, who is put this issue centre stage.”

Cynical or not, it appears to be working. Two polls — one conducted in March by Forum and another more recent poll by Ipsos — said 67 and 88 per cent of Canadians respectively oppose the idea of wearing niqabs at citizenship ceremonies.

Another poll by Leger, commissioned by the Privy Council’s Office, put support for the ban at 82 per cent.

The prime minister recently gave a rare interview on the subject to Metro News.

“This is kind of elite political correctness on steroids,” said Harper, referring to critics who accuse him of creating a legal subclass of Canadians.

“‘We can’t have two classes of citizens’. What do you mean? We can’t have a class of people who are war criminals and convicted terrorists, as opposed to everyone else? Of course we have classes.”

Both Liberal Leader Justin Trudeau and NDP Leader Tom Mulcair have vowed to repeal the citizenship bill and drop the niqab ban if they win the election. Mendes says that if they don’t manage to do that, the damage to Canada’s social fabric could be deep and long-lasting.

“Unfortunately when a party decides to use these racial wedge issues, it has profound long-term impacts on society. It has the potential to demonize an entire group of people, even though the actual fact of the situation is entirely ludicrous.”

Kyle Matthews, senior deputy director of the Montreal Institute for Genocide and Human Rights Studies at Concordia University and a fellow at the Canadian Global Affairs Institute, said he entirely agrees with Harper and that neither NDP leader Thomas Mulcair nor Liberal leader Justin Trudeau “hold the majority of public opinion on this.”

“I think Canadians are really concerned about this. Canadians watched as the Via Rail bombers were sentenced last week and they see stuff like this more. They don’t want their leader to be fearful but more so they don’t want their leader to be blind and say everything is super happy sunshine in the world.”

Saideman however, called the Conservatives’ approach to identity politics “pandering to Canadians’ worst instincts … good old classic page one populism.”

“Harper doesn’t need all Canadians to buy into this but when you have three or four or five parties vying for seats in swing ridings, you only need to get the majority. You don’t need to fool or lie to or distract 100 per cent of the people, just maybe five per cent,” he said.