Much attention has been focused on the plight of Suaad Hagi Mohamud, the ethnic Somali Canadian citizen who was stranded in Kenya for three months.
Her problems began when a Kenyan airline employee examined her Canadian passport and concluded that she was “an imposter.” Canadian authorities in Nairobi concurred, cancelled the document, and advised the Kenyan authorities who then charged Mohamud with fraud-related offences.
Mohamud subsequently presented the Canadian High Commission with other identification documents, all of which were rejected as proper identification.
Only when a DNA test confirmed that the woman in Kenya was the mother of Mohamud’s son in Canada were the criminal charges dropped and her return to Canada facilitated.
The politics of Mohamud’s situation was big news. This came as no surprise in light of the fact that the Harper government has, to put it kindly, a less-than-stellar reputation when it comes to assisting Canadians who find themselves in legal difficulties abroad.
Mohamud was lumped in with Omar Khadr; Brenda Martin, the woman who was jailed in Mexico; and Ronald Smith, who is currently on death row in Montana.
Radio talk shows, columns, and letters to the editor were quick to make the point that she was being treated the way she was because she was black or a woman or a Muslim or some combination of the three.
Statements were made like those of Ontario Premier Dalton McGuinty who was quoted as accusing the federal government of not standing up for “one of its citizens.”
While the facts of Mohamud’s situation made for good politics and a great human interest story, the legal aspects of a Canadian citizen attempting to return home were simply ignored.
Mohamud was not in the same position as Khadr, Martin, Smith, and the others; their Canadian citizenship was never in any doubt. In Mohamud’s case, her citizenship was not only an issue, it was the only issue.
Under s. 6 of the Charter, every Canadian citizen has the right to enter Canada.
And under s. 19(1) of the Immigration and Refugee Protection Act, every Canadian citizen and registered Indian has the right to enter the country and “an officer shall allow the person to enter Canada if satisfied following an examination on their entry that the person is a citizen or a registered Indian [emphasis added].
When Mohamud attempted to board the aircraft in May, it is clear the onus was on her to satisfy Canadian officials that she did have a right to enter Canada.
Legally speaking she was no more a Canadian citizen before meeting that onus than a criminal accused is guilty prior to a judge or a jury saying “guilty.”
It has to be this way if Canada is to protect its sovereignty and its borders.
Allowing people to be admitted to the country because they say they are Canadian and/or have a passport that may not be genuine and wait until the government investigates would defeat the purpose of controlling Canada’s borders.
It is also not unusual that having not been satisfied with her passport, her other identity documents would not be accepted as genuine; these other documents are easier to forge or alter than a passport.
Thousands of people do what Mohamud was alleged to have done - enter Canada with an altered passport. According to Tracie LeBlanc, a spokeswoman with the Canada Border Services Agency, during the past two years, 70 per cent of improperly documented passengers seeking to travel directly to Canada were intercepted abroad.
We are all familiar with the state of utter chaos that Somalia is in. In order to escape the violence and persecution many Somalis travel to Nairobi in the hopes of seeking sanctuary in Canada and other Western countries.
The fact these people are black, Muslim, and often female does not mean that the way Mohamud was treated was tantamount to racism, Islamophobia, and sexism.
And statements such as the one McGuinty made are clearly wrong; she was not a Canadian citizen who was treated badly; her citizenship had yet to be legally determined. The onus was on her to prove that she was a Canadian citizen and this she was ultimately able to do.
None of this is to suggest that Mohamud was not wronged by the Canadian government. The fact that she bore the onus of establishing her right to come into Canada does not mean that the Canadian government did not owe her a duty to be fair.
But because Mohamud’s experiences made great political fodder does not mean that the legal realities that are placed upon people attempting to enter Canada should be ignored.
Arthur Weinreb is an Ontario lawyer and co-author of The Criminal Lawyers' Guide to Immigration and Citizenship Law.
