A dispute between a Canadian-born man convicted of terrorism and the federal government could end in a legal stalemate that keeps a member of the so-called Toronto 18 in jail on an immigration hold indefinitely.
Saad Gaya, 28, was born in Montreal to Pakistani-born parents. At 18, he was sentenced to 18 years in prison for his role in the unsuccessful Toronto 18 bomb plot. In an application to the Federal Court, Gaya is fighting a government notice that his Canadian citizenship will be revoked, arguing that it would leave him stateless.
Gaya, through his lawyers, asserts that he has only Canadian citizenship, and does not hold and has never sought Pakistani citizenship. But the government says that he retroactively became a Pakistani citizen when his parents — who originally lost their Pakistani citizenship when they became Canadian citizens restored their Pakistani citizenship in 2014.
It’s against Canadian law to leave a person stateless — which is what Gaya’s lawyers say would be the result of his denaturalization.
“The law is that we can remove citizenship from dual nationals,” Ottawa immigration lawyer Ronalee Carey, who doesn’t represent Gaya, tells Yahoo Canada News. “If he’s not a citizen, our laws that apply to non-citizens here in Canada who commit criminal offences mean he can be deported.”
But removing Gaya’s Canadian citizenship does not mean that Pakistan is compelled to give him citizenship, if he does not already hold it, or require that country to provide him with the documentation necessary to admit him.
“What if Pakistan says no?” Carey says. “Then we’ve got a stateless person here in Canada who can’t be removed, and he’s going to be in an indefinite detention.”
This case marks the first time the Canadian government is attempting to revoke the citizenship of someone born in Canada and convicted of terrorism, under laws enacted by the Conservative government. Under changes to the Citizenship Act that came in effect in May, Gaya has no automatic right to a court hearing to attempt to stop the revocation of his Canadian citizenship. Most of the denaturalization process in these circumstances is in the hands of the Department of Citizenship and Immigration.
But while there is no precedent for the removal of citizenship from Canadians convicted of terrorism, Carey points to a situation that gives some insight into how Gaya’s case could go. There are people who were born in Somalia who are sitting in indefinite detention in Canadian jails because they are no longer allowed to stay in Canada due to criminal convictions, she says, but lack the papers that would allow them to return to their country of birth. In some cases they don’t have these papers because the Somali government is unable to provide them, she says. In others it’s because of a refusal to co-operate in acquiring them.
“There have been Somalis who have chosen to sit in a Canadian jail rather than be deported to Somalia,” Carey says. “They do that because they think it’s safer than to go home.”
She isn’t aware of a way the Canadian government could compel Gaya to apply for Pakistani citizenship if he does not already have it, Carey says. This means he would be released from jail on criminal charges after completing his sentence, then held in jail on an immigration hold because he is criminally inadmissible to Canada but lacks the papers to be sent to another country — a situation that could go on for years and cost the Canadian government thousands of dollars.
“It is hypothetically possible that he could sit in an indefinite detention,” Carey says.
An election issue
The debate over citizenship have become a central part of the ongoing federal election campaign over the past week, after audio leaked by the Conservative Party showed Liberal Leader Justin Trudeau saying that he disagreed with stripping the citizenship of convicted terrorists.
“As soon as you make citizenship for some Canadians conditional on good behaviour, you devalue citizenship for everyone,” Trudeau said in the recording, taken at a Winnipeg town hall in July.
NDP Leader Tom Mulcair has made his opposition to the changes to citizenship law clear in previous statements.
“This is a dangerous game the Prime Minister of Canada is playing, coming up with this right in the middle of an election campaign,” the Globe and Mail reported Mulcair saying at a Toronto rally last week. “He’s dividing Canadians one against the other, creating two different categories of citizenship.”
But Conservative Leader Stephen Harper continues to strongly support the government’s ability to revoke the Canadian citizenship of convicted terrorists, including those born in this country like Gaya. In comments made during a radio interview with AM980 in London, Ont., Harper appeared to support an extension of the government’s ability to denaturalize citizens convicted of other crimes.
“We can look at options in the future,” he told host Andrew Lawton.
The court challenge
A constitutional challenge to the notice of citizenship revocation was filed with the Federal Court of Canada by lawyer Lorne Waldman, on behalf of Gaya. In the filing, Waldman says citizenship revocation is “the modern enactment of the 18th- and 19th-century criminal punishment of transportation, and constitutes de facto exile.”
Before the law changed last year, anyone whose citizenship was revoked — for example, for being a convicted war criminal — automatically received a hearing from the Federal Court. All relevant information on the government’s decision to revoke citizenship had to be disclosed to the relevant person and his or her lawyers. And if the government won that hearing, the federal cabinet still had to approve any citizenship revocation.
But there is now no legal guarantee that Gaya’s case or any similar case would be heard by a judge. His lawyer is not entitled to receive from the government the evidence used to make the decision to revoke citizenship, including information on whether or not Gaya is in fact a Pakistani citizen. And under the new citizenship laws, a Federal Court judge isn’t required to give a reason for rejecting a written request for review of revocation. Gaya and his lawyers are required to prove he is not actually a citizen of Pakistan. And cabinet approval of the immigration minister’s decision on citizenship revocation is no longer required.
The Federal Court has agreed to hear the case of citizenship revocation of Asad Ansari, another convicted Toronto 18 member who was born in Pakistan and also holds Canadian citizenship. Three other men involved in the plot have either had their citizenship stripped or received notice from the government that they will.