Reprinted from lawiscool.com
Mohamud will see a doctor today in Nairobi to treat stress arising from,
among other things, being jailed with killers at Langata Women’s Prison.
Coming back home to her son would be a great and much desired victory for Ms. Mohamud.
But an even greater victory for all of Canadian citizens would be getting the Federal Court to clarify the law.
The Court should order the government to respect the Canadian passport as proof of Canadian citizenship. The government should be allowed to reject the passport only in obvious cases: photos clearly not matching the bearer’s face in gender or race, or when the difference is beyond any reasonable doubt. This will protect the public interest in three crucial areas: citizens should not bear inordinate unnecessary risks of foreign travel, foreign states should give proper respect to the Canadian passport, and no Canadian should be barred from coming back home.
The right to return home to Canada is one of the most valuable rights of a Canadian citizen. There is a simple word for a breach of this right. It is exile. It robs the citizen of her home and her job, cuts her off from her family and from the Canadian society, and puts the citizen in peril in a foreign country. In some ways, it’s worse than a criminal charge and a prison term in Canada. You don’t get a hearing, you don’t know when you’re coming back, and it’s a lot more expensive to get help.
Exile is almost always illegal and unconstitutional. It’s hard to think of a case when it would be fair to block a citizen from coming back to Canada. Only a catastrophic risk to public health comes to mind. The state can properly send a citizen to face justice in another country, but that’s not exile. It’s extradition. And unlike extradition, exile is one the most vile acts the state can do to its own citizen. Mixed with risks to the citizen’s life outside of Canada, exile is an abject assault on our most basic human rights.
No doubt passport fraud happens. No doubt look-a-likes can try to take advantage of genuine Canadian passports. Of course, when they succeed they harm public interest. But the harm from exiling just one Canadian citizen whose passport the government mistakenly rejects is far greater. We protect the criminally accused with the beyond-reasonable-doubt standard of proof. A bearer of the Canadian passport who doesn’t "look like their picture" according to a petty consular bureaucrat should enjoy at least the same level of protection.
The government is free to investigate people suspected of passport fraud. But if the passport is genuine and not obviously misused, consider the bearer a Canadian citizen and let him come back to Canada. Then investigate him under Canadian law. The cost of prosecuting, convicting, and deporting a fraudster from Canada is always less then the risk of mistakenly exiling a Canadian citizen. And with the move to biometric passports, it will be next to impossible to misuse a genuine Canadian passport. More importantly, low-level bureaucrats will not be making life-and-death decisions touching on our most basic rights anymore.