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David Matas: Barring and removing members of Hamas from Canada

by Daivd Matas, Dec 31, 2023

 

 

How do we keep members of Hamas out of Canada? How do we remove members of Hamas who are already in Canada?  Legally, there are the means to do this.  We have to ensure that the means are used.

 

There is now a program to bring into Canada extended relatives in Gaza of Palestinians in Canada.  Hamas has hid behind and among Palestinians both inside and outside Gaza.  Precautions have to be put in place to prevent this immigration movement becoming a disguised Hamas movement.

 

As well, there are all too many people in Canada supporting Hamas terrorism, through demonstrations, rallies, parades, social media, hate crimes and hate speech directed against the Jewish community. Some of these Hamas supporters and hate promoters are not Canadian citizens but are in Canada on temporary or permanent resident visas.   These people are potentially removable as violating Canadian immigration law.  Other Hamas supporters are Canadian citizens who hid their prior support for Hamas on immigrating to Canada or on obtaining Canadian citizenship. These people can potentially have their citizenship revoked and be deported for the prior involvement in Hamas they hid.  

 

For an alleged criminal act inside Canada, a person to be inadmissible has to be convicted for the act.  For an act outside Canada, a foreign national is inadmissible if the act is an offence in the place where it was committed and, if committed in Canada, would constitute an indictable offence under an Act of Parliament.

 

The standard of proof for an act outside Canada is low-- reasonable grounds to believe that the act occurred, is occurring or may occur.  Insofar as any of the hate speech or hate crimes offences in Canada are also offences in the territory governed by the Palestine Authority, a foreign national from that territory would be inadmissible to Canada as long as there are reasonable grounds to believe that the person seeking to come to Canada, whether as a permanent or temporary resident, has committed, is committing or may commit any of those offences.    

 

For those already in Canada, as well as for those outside Canada, there are some grounds of inadmissibility for which no criminal conviction is necessary. One is membership in a terrorist organization. Hamas is listed by the Government of Canada as a terrorist entity.    

 

Terrorist organizations do not have membership lists and do not sell membership cards. Canadian courts have stated that the concept of membership in a terrorist organization is broad. A person, to be a member of a terrorist organization, does not have to be complicit or knowingly participate in an act of terrorism.  Informal participation or support for the group may suffice depending on the nature of that participation or support. 

 

To determine membership in a terrorist organization, the Courts have ruled that three criteria need to be considered - the nature of the person's involvement in the organization, the length of time involved, and the degree of the person's commitment to the organization's goals and objectives. If the commitment to the organization's goals and objectives is strong enough, that commitment on its own can be sufficient to establish membership in the terrorist organization. 

 

Canada Border Services Agency officers need to apply the anti-terrorism component of the Immigration and Refugee Protection Act against those non-citizens in Canada with sufficient manifest commitment in Canada to the goals and objectives of Hamas. Such people, legally, are removable.  Yet, there is no recorded instance to date of any initiative to remove such people from Canada. All the reported immigration cases relating to Hamas refer to activity outside Canada and not to activity exclusively in Canada. The Canada Border Services Agency needs to take the initiative to commence removal proceedings against those functioning in Canada as members of Hamas.

 

One of the standard questions in all permanent and temporary visa applications for entry to Canada is

          "Are you, or have you ever been a member or associated with any political party, or other group or organization which has engaged in or advocated violence as a means to achieving a political or religious objective, or which has been associated with criminal activity at any time?"

 

Hamas has engaged in and advocated violence as a means to achieving a political objective, which Hamas also considers to be a religious objective - the destruction of Israel. Accordingly, anyone who has been a member of or associated with Hamas should answer yes to that question.

 

Being member of or associated with Hamas can be something as simple and straightforward as participating in demonstrations in support of Hamas, sending out social media messages in support of Hamas, pamphleteering for Hamas or donating to Hamas. Even for those activities, the answer to the question about membership or association should be yes.

 

Immigration application forms, both for permanent and temporary residents, contain this warning:

          "You must provide truthful and accurate information. The information provided may be verified. Enforcement action may be initiated if you give false or misleading information."

 

That statement is, of course, accurate.  But it is incomplete. Enforcement action can be taken at any time, even after the person becomes a Canadian citizen.  A person who hides their association with Hamas on entry and later becomes a citizen can have their citizenship revoked and be deported for false representation or fraud or knowingly concealing material circumstances.  

 

It is, of course, up to Canadian immigration and citizenship officers to enforce the relevant law and not the applicants for immigration and citizenship. Not every contact with Hamas or indication of support is going to lead to a conclusion of inadmissibility. Yet, all such contacts and indications of support need to be disclosed so that Canadian immigration and citizenship officers can draw their own conclusions.  

 

Revocation of immigration or citizenship status can occur even if the information withheld does not disclose a ground of removal. It is sufficient for revocation if the non-disclosure or misrepresentation forecloses inquiries, even if those inquiries, once made would not disclose a ground of removal. Applicants for immigration and citizenship not disclosing any contact with or support for Hamas, no matter how seemingly insignificant to the applicants, do so at their peril.  

 

Formally, we have the tools to keep Hamas out of Canada and to remove them once they have entered.  Yet, the tools are useless unless they are used.  There needs to be a strong commitment and visible action both to prevent Hamas entry to Canada and to remedy Hamas entry, through removal once entry has occurred. For removal, that commitment must relate not only to Hamas activity in Gaza, but also activity in support of Hamas in Canada.

 ..................................................................................................................................

David Matas is a Winnipeg lawyer and senior honorary counsel to B'nai Brith Canada.   

 

 

 

 

 
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