Standing Committee on Citizenship and Immigration hearings
on Bill C-18,the proposed Citizenship of Canada Act
Ms. Carole Brosseau (Lawyer, Research and Legislation Service, Barreau du Québec):
Mr. St-Pierre will talk to you about what we feel is the most important aspect of this bill, namely, the loss of citizenship, and during the question period, we will tie all of our comments to those aspects of the bill which we deem important.
Mr. Noël St-Pierre (Lawyer, Barreau du Québec): Good morning. I will try to be brief. Let me first greet Ms. Folco, whom I recently met in another role.
Now let me deal with three clauses of the bill, clauses 16, 17 and 18. As a corollary, clause 21 should also be of special interest to the committee.
Clause 16 deals with loss of citizenship for persons who may have acquired it by false representation or by knowingly concealing material circumstances or even by fraud, and this, of course, includes permanent residency preceding citizenship. I have a few comments about this, and a very large number of examples could be given.
My first comment is that citizens who could lose their citizenship under clause 16 would have fewer rights than permanent residents have today, and I would recommend to my clients to never acquire citizenship, if I had cases like this. A permanent resident, for instance, who may have obtained permanent residency through fraud, through false representation - I will come back to this very briefly in a moment - through concealing material circumstances can currently invoke humanitarian grounds, such as settling in Canada, marriage, children, integration into Canadian society, and the tribunal in charge of his file can then decide that there are enough humanitarian grounds to allow the person to remain in Canada. But now, under this bill, citizens do not have this remedy, which is really brilliant when you think about it.
There are all kinds of examples. Let me just mention one; there are others in our brief. Some years ago, the private servants program excluded women with children, even if they were heads of single-parent families. Of course, many women, especially Jamaicans, hid the fact that they had children abroad. Nowadays, the fact of excluding a woman from such a program because she has children would be considered as an abomination. But that was the practice in those days. If a woman, 10, 15, 20 or 30 years ago, had forgotten or hidden the fact that she had children, can we open such a file today, take away her citizenship and expel her automatically? But this is provided for under clause 16. Thus, there is, to say the least, a major omission. At least we should be able to look at all the factors and humanitarian grounds as a whole.
Clause 17 provides for loss of citizenship - you have no doubt already heard other witnesses talk about this - for security reasons. Subversive activities, organized crime or violation of human rights. Here we have a dual procedure. There are many things that we have problems with. We raised eight points. The first issue is somewhat covered in our comments about clause 16: the bill makes no difference between citizenship obtained through outright fraud and citizenship that may have been obtained when information was omitted in good faith. Here is a brief example of what I mean by omissions made in good faith.
My parents are Canadians, and I was born in the United States of Canadian parents. At birth, I was not registered as a Canadian; but my brother was. My parents later became American citizens and their children, under the law that existed before 1977, were supposed to lose their citizenship if they were registered. When we arrived in Canada, Immigration admitted everyone as Canadian citizens: and this was not our mistake because my parents were not aware of the law. Thus, many years later, a file like this could be reopened for some technical reason that has absolutely nothing to do with fraud.
The same applies for instance to refugee cases. Often they contain some false elements, although most of the information is correct, and there is a tendency to cut corners. If, for security reasons, and especially for reasons having to do with expressing political opinions or freedom of association, we allow, many years after the immigrant has acquired permanent residency status followed by Canadian citizenship, an old Immigration file to be reopened, we leave the door open to a witch hunt in Canada aimed at anyone who was not born in Canada. Let me explain this.
The bill draws no distinction between acts committed before settlement in Canada and after . But it does refer to the Immigration Act with regard to various categories of people. A citizen born outside of Canada who might support a movement aimed at forcefully overthrowing a government, even if it were Saddam Hussein, would be unacceptable under the Immigration Act and should be expelled from Canada. If a citizen were to express such opinions, even after he has obtained citizenship, someone could look into his Immigration file and say, for instance, that at the time he applied for refugee status, that he was a citizen of Russia and not of Ukraine, and he could be told that, according to Ukrainian citizenship laws - and you know as well as I do that citizenship laws in East bloc countries were extremely complicated at the time - he could have claimed that citizenship. This is an essential material fact which could have changed the decision, and he could be expelled today, without any kind of constitutional protection.
The tribunal provided for this - let me refer to the case law - has so little power that the judges are not even empowered to hear arguments under the Canadian Charter.
There is another problem with clause 17 due to the fact that the sources of information are concealed and protected to such a degree - in our brief we quote a very recent Supreme Court decision in the Clayton Ruby case - that there is no way at all to identify the sources, which could invite foreign powers to strike out at former dissidents who now live in Canada and who speak out against the regime in power in their former homeland.
Clause 18 provides for loss of citizenship by decree. We believe that loss of citizenship must come through a legal process. The process that Parliament would have to follow under a recommendation on clause 16, could also apply to clause 18, namely in cases where the person has acquired citizenship under a false identity or through some other unacceptable omission of facts.
The Chair: Thank you very much, Carole and Noël. I'm sure we'll have some questions for you. That was a very good presentation.
We'll now go to David Matas, from B'nai Brith Canada. Welcome, David.
Mr. David Matas (Senior Legal Counsel, B'nai Brith Canada): Thank you very much.
The submission of B'nai Brith focuses only on the revocation provisions in the citizenship bill, and only in relation to war crimes and crimes against humanity. As an organization, we've followed this issue for quite some time, and we are concerned with the inordinate delays that the current process has generated.
Six people have died during the course of proceedings, after proceedings were launched and before they were completed. In the prior criminal proceedings, there have been two people whose cases were affected by mortality. For the people who are living, there are also inexplicable delays. The citizenship revocation of three people is pending before cabinet. They've lost in Federal Court, but the pending revocation before cabinet has taken an inordinate amount of time. One case, a pending deportation, has been going on for eight years now. Three cases are also now before the Federal Court, two of which have been there for a very long time.
Historically, we have a very poor record, partly due simply to the fragmentation of proceedings, and then due to the delays resulting from everybody involved in making the proceedings - the government, the courts, and the prosecution. We need a change in proceedings that will be more efficient, particularly when you're dealing with elderly people who are attempting to string out the proceedings as long as possible. We need a system that doesn't in effect allow them to string out the proceedings for the rest of their natural lives, which is what's happening now.
We had proposed a number of changes to earlier versions of the bill, and we're pleased to see two of them have been at least partially accepted. One of them was the need for an appeal, which is in the bill now. The second is the need for some form of consolidation, which is in the bill now as well. We feel this bill is an improvement over previous versions, but we still have a number of proposed amendments to make. In fact, we have eight of them.
The first is that the appeal to the Federal Court be by way of leave rather than by right. This means you would need the permission of the court in writing before you could actually appeal. For cases in which there is no serious appeal, doing it by way of leave would certainly speed up proceedings.
The present bill also creates an anomaly, meaning you get to the court by way of the certification process - a form of leave - if the minister goes one way in the consolidated proceedings, but you get an appeal by way of right if the minister goes another way in the consolidated proceedings. That doesn't integrate very well with the present immigration law.
The second proposal is that we consolidate more completely the grounds for removal before the Federal Court. What's consolidated now is the ground for removal if there are reasonable grounds to believe the person is a war criminal or a criminal against humanity. What is not consolidated is a finding that a person has lost their citizenship by reason of misrepresentation, and that would be the most obvious form of consolidation. You have a mismatch between the ground for revocation, which is misrepresentation, and the consolidated ground for removal, which is war criminality. There needs to be a more complete consolidation, within the Federal Court, of grounds for removal.
From our position, we also have to expand the grounds of revocation to include war crimes and crimes against humanity. It seems indeed strange that you have a consolidation but the grounds for revocation are completely different from the grounds for removal in the consolidated proceedings. In our view, they should be consolidated in both directions, so that the grounds for removal in the consolidated proceedings should be grounds for revocation and the grounds for revocation in the consolidated proceedings should be grounds for removal.
The fourth proposal - and this again relates to consolidation - is using the same rules of evidence and standard of proof for both revocation and removal. What you have now in the consolidated proceedings is the Federal Court using two different rules about standard of proof and rules of evidence, depending on the stage of proceedings, and potentially when the same issue is being discussed. Although legally the issues are different right now, factually they often overlap, and that creates a strange dichotomy. We're proposing that the most appropriate rules in the war criminal cases are the rules that apply in removal proceedings, not in revocation proceedings.
Our fifth proposal is that there be a limited retrospective application of the bill. One can divide the pending cases into three groups: ones before the Federal Court; ones that have been lost in Federal Court and are before the cabinet; and ones that have been lost in cabinet and are in removal proceedings.
For the first group, the ones before the Federal Court, it's our position that the present bill should apply. In reality, that's not going to change those proceedings. All it will do is change subsequent steps. The way the bill works now, the current proceedings or the proceedings currently deemed undertaken would not be changed by the bill. If this bill really would accelerate removal - and we believe it would - it would make sense to allow for limited retrospective application for these cases in which there has been no decision in the Federal Court.
We don't like the annulment proposition in the bill. It gives the minister power to annul grants of citizenship within a limited period. We propose that everything should go to the Federal Court no matter what the time, and this is a position we share with other people before you.
Our final proposal has to do with clarifying the provision to deny citizenship to people who have demonstrated a flagrant and serious disregard for the principles underlying a free and democratic society. We're sympathetic to the purpose of that provision. As we understand it, it was generated by the problem caused by the pending application of Ernst Zundel, but we feel the provision is overly broad and can create constitutional and litigation problems. We certainly have been involved in these cases enough to be sensitive to the nature of the problem and to be anxious to try to avoid it.
What we're proposing is a much more narrowly tailored provision that would catch someone like Zundel, but it would not be so broad in its scope that it might be struck down as constitutionally vague. We're proposing something that specifically says a person can be refused citizenship if they have communicated or caused to be communicated hatred or contempt. We've basically taken the wording from the Canadian Human Rights Act, which has already survived constitutional scrutiny by the Supreme Court of Canada.
Those are our seven suggestions.
Mr. Gordon H. Maynard (Vice-Chair, National Citizenship and Immigration Law Section, Canadian Bar Association): Thank you.
I'm going to address six issues in particular, the first two pertaining to the right to citizenship and the latter issues pertaining to the loss of citizenship.
I wish now to address some concerns with the loss-of-status provisions, or losing your citizenship. First of all, clause 16 has already been discussed here. It's the revocation provision, whereby the Federal Court can bring about loss of citizenship because of misrepresentation by the individual in their citizenship application or in their underlying permanent resident application. The Barreau du Québec raised the point that there is an inconsistency - and an important one - and we underscore this point as well.
If you lose your citizenship in the Federal Court clause 16 proceeding because of misrepresentation in how you got your permanent resident status, then that's a final decision on all your status. You lose your citizenship and you lose your permanent resident status. But the Federal Court has no jurisdiction to look at humanitarian considerations. But if that same individual, with the same misrepresentation, had not gotten citizenship but had simply been a permanent resident through misrepresentation, their loss of status would have been under the Immigration Act and there would have been an appeal against loss of status, in which equitable circumstances would be considered. And justly so. They should be considered. This inequality of process, this inability of the Federal Court or any independent body to review the equitable circumstances, is not right. There must be consistency here. There must be a review of equitable circumstances.
The minister recognizes that there is an inconsistency, because in the minister's press release it says the minister can review humanitarian grounds at any stage in the process. This is entirely inadequate. These are just words on paper. The fact is that it should not be the minister who reviews the humanitarian circumstances, it should be an independent body. The same person who is revoking your citizenship should not be considering whether or not there are equitable circumstances. And neither is that obligation reflected in the law. It's an empty assurance.
We recommend that there must be a provision whereby an independent body revoking both citizenship and permanent resident status is obliged to look at the equitable circumstances, meaning all the circumstances of the case. This could again be done in the appeal division, which already has an existing jurisdiction with respect to permanent residents. It could be expanded to include persons who have lost their permanent resident status in the clause 16 proceedings. It could also be done by a Federal Court judge, but that would require giving judges expanded authority under the Federal Court Act.
I wish to address clause 17, which again deals with revocation of citizenship in Federal Court. The difference between clause 17 and clause 16 is that clause 17 is initiated by a certificate from the minister or the Solicitor General that alleges that the individual is also inadmissible on security grounds, human rights violations, or organized criminality. The effect of proceeding with this certificate is that it brings into the proceedings the secret evidence rules that were introduced under the IRPA in proceedings against permanent residents.
It's a significant concern that these secret evidence proceedings, as short as one year ago, were only applicable to foreigners in Canada, to persons who had no permanent status. Under the IRPA, they were then brought in and applied against permanent residents. We now see them being brought in and applied against citizens. That should give you pause and be cause for concern.
It used to be that the Security Intelligence Review Committee had a role to play when the minister wished to bring a certificate against a permanent resident. The Security Intelligence Review Committee would review the evidence underlying the certificate and determine whether the evidence reasonably supported the certificate. That role is gone. In fact, in these proceedings, as described under IRPA or as described in the proposed Citizenship of Canada Act, nobody has that responsibility. Judges in the Federal Court are not mandated to investigate the grounds underlying the certificate. They're only mandated to look at which evidence should not be shown to individuals and which should, and whether or not the evidence shows inadmissibility.
Secret evidence proceedings are very troublesome and very problematic. We have serious concerns about the fairness of these proceedings. And when they are being used against a citizen in this country, somebody should be taking on the responsibility to assess the reasonableness of the evidence underlying the certificate. Individuals can't do it because they're not allowed to see the evidence. Somebody must do it for them. That was the role of SIRC. We would like to see that role brought back.
We also have a concern that the secret evidence proceedings under clause 17 apply at both stages of the proceedings. They apply both in showing misrepresentation and in showing inadmissibility. We suggest that there shouldn't be secret evidence proceedings to show misrepresentation. If you can't show misrepresentation by an individual without allowing that individual to see the evidence, then that process simply isn't fair. Once you've shown misrepresentation, if you need to show inadmissibility on security grounds and need to protect information, that's another matter.
My last two comments are with respect to clause 18, the annulment proceedings - which are new - and the expanded grounds for prohibition. The two are linked. Clause 18 is the minister's annulment authority - and it's not just the minister's, it belongs to the minister and to whomever he or she delegates to carry out this authority. This is a new proceeding. It's administrative loss of citizenship. If the minister or his or her delegate believes you have your citizenship through false identity or have obtained it in breach of a clause 28 prohibition, then the minister can administratively cause loss of your citizenship, and has five years in which to do that. Once you've had your citizenship for five years, the minister cannot use this provision.
Our concerns with this are twofold. First of all, it's an administrative process. All the minister needs to do is give the individual notice and a summary of the grounds for proceeding. The individual has thirty days from the sending of that notice in which to respond, and the minister can then annul citizenship. We do not believe this is an adequate, fair process. We believe annulment of citizenship deserves a fuller process, one in which the minister must prove the case in front of an independent decision-maker, be it an independent tribunal or the Federal Court. The minister must be prepared to put the evidence on the table and let the person answer fully.
Our second concern has to do with clause 28, under "Other Prohibitions". Prohibitions under the current law are those things that keep you from being a citizen, and that mainly means criminality. If you have a recent criminal conviction, you can't become a citizen. You have to wait until you have three clear years. Under the current law, this means convictions in Canada. Under this bill, the prohibitions have been expanded and now include convictions abroad. But they also include charges abroad, and that is a concern for us. If you have a conviction abroad, fine. If it's an old conviction, it's not a prohibition. You're going to be outside the three-year window. But if you have a charge abroad, it forever bars you from being a citizen, because it's a prohibited ground.
A charge abroad encompasses a wide range of possible charges in a wide range of jurisdictions. The way the law is written, a person would have to resolve that outstanding charge. If that outstanding charge is from a country that has a very poor judicial system that is known to be unfair, why are we compelling the person to deal with that judicial system? And I can only give as an example the individual Canadian citizen in Saudi Arabia who is facing charges abroad related to dynamite possession, and the processes that he has had to undergo there with secret hearings. If that person was a permanent resident, we would compel him to proceed in those proceedings before he could become a citizen. That's not appropriate. There needs to be a mechanism to review that outstanding charge and get rid of it without requiring it necessarily to be resolved.
Those are my comments. Thank you for your patience.
Ms. Kemi Jacobs (President, Canadian Council for Refugees):
The current bill states that all citizens have the same rights, duties, and responsibilities, without regard to the manner in which citizenship was obtained. We welcome this, particularly in the present context in which many Canadian citizens have been treated differentially as a result of country of birth. This is particularly welcome at this point; however, while the statement is very positive, it's not borne out in the text of the bill.
Canada needs to look at the whole question of statelessness. Our members tell us that more people are becoming stateless. Canada therefore needs to be a leader, as it has been, in areas of refugee and immigrant protection. Canada is a signatory of the 1961 UN Convention on the Reduction of Statelessness, but is not a signatory to the 1954 Convention relating to the Status of Stateless Persons. Before we even go into the bill, we need to make sure Canada does sign on to the 1954 convention, because this is a great lack, in our perception.
We also feel this bill should be framed in the context of reducing statelessness. We feel this is the frame in which the whole bill should be seen. Again, that's something we think should be added, with a commitment to reducing statelessness included as one of the provisions of the bill.
Ms. Janet Dench (Executive Director, Canadian Council for Refugees): Thank you.
As Kemi mentioned, I'm going to talk about some of the problems that we see in the areas of loss of citizenship and bars to citizenship. The concerns that we have are similar to comments that have been made by our colleagues at the table, so I'll just focus on some of the particular aspects of it from a refugee perspective.
Clause 17, which deals with the revocation of citizenship through the certificate process, is a big concern to us. It is a big concern to us as a process in the immigration legislation, and to see it extended further to apply to citizens is deeply worrying. It's worrying for people who come to Canada as refugees, because they know the world is a nasty place. It has been nasty to them, in that they have suffered the consequences of persecution. They can be particularly worried about what evidence might be submitted about them in secret. Of course, in this process, it's evidence that they never get to hear. We would like to see clause 17 deleted completely.
The issue of annulment, which allows citizenship to be taken away without there being any kind of hearing or independent decision-maker, seems to us to be very unfair. The premise on which it is based is that we're dealing with simple, factual situations in which the person got citizenship when they shouldn't have - because of a false identity or because they were actually ineligible according to one of the clause 28 prohibitions. There may well be very clear-cut cases that wouldn't cause problems if they were dealt with in this process, but the fact is that things are often more complicated.
Again, refugees know they may, in certain circumstances, face false evidence given by somebody who has a vendetta that they're working out, whereby they would give false information and set somebody up to look as if they were under a false identity, for example. In this process that is presented here, they don't get a chance to fully hear the evidence or have the evidence heard by an independent decision-maker, and there is not an effective right of judicial review, because the standard that is set is that the minister must be satisfied. That is a very low standard, and it means it will effectively be almost impossible to get the Federal Court to overturn a minister's decision.
We are also concerned about the powers, under clauses 21 and 22, to deny citizenship on the basis that the candidate has demonstrated a flagrant and serious disregard for the principles and values underlying a free and democratic society. While we appreciate what the government is perhaps trying to get at in this process, it seems to us that it is throwing a very broad net that could be used against people in many different ways, and which in itself seems to be contrary to the principles of a free and democratic society because it does not allow a person to hear the case and to know the case against them.
Finally, on the clause 28 expanded prohibitions, we want to emphasize our particular concern about the convictions and charges outside Canada. Refugees who come to Canada quite often may be fleeing judicial action that is part of the persecution against them in their home country. They may be facing trumped up charges in their home country. In fact, they may be recognized as refugees in Canada because of those trumped up charges. It seems completely contradictory, then, for us to say we've recognized that they need our protection because they've been falsely charged with serious offences in their home country, but because of those charges we're not going to allow them to become citizens. We are therefore seeking amendments to the bill so that there would be exemptions for people who are fleeing criminal charges that are abusive or a conviction that was reached in an unfair process.
Finally, we'd like to suggest to the committee that it would be good to see in the bill a clause that parallels the section in the Immigration and Refugee Protection Act that calls for there to be annual reporting on the gender impacts of this legislation. That provision in the Immigration and Refugee Protection Act was a model. As we understand it, it was the first such requirement in Canadian legislation.
We think it would be useful to also monitor the impacts in the citizenship area - for example, to look at whether or not women and men have access to citizenship in the same way. There's a lot in the bill about misrepresentation. We have a lot of concerns about how women in particular may be forced into situations by husbands or by families to make misrepresentations where they were not free. So, to begin with, we see various aspects in which a gender analysis would be helpful. Therefore, we think it would be useful to include that in the bill. Thank you very much.…
Mr. Andrew Telegdi (Kitchener-Waterloo, Lib.): Thank you, Mr. Chairman. In some ways, this is like déjà vu. You know: been there, done that. We had Bill C-63, we had Bill C-16, and now we have Bill C-18. I'm sure that once we hear all the concerns and all the witnesses, it will very much be a repeat, with some small changes because we have clause 17, which wasn't there before. Under Bill C-63, we had a proposal about not only revoking citizenship in the way it can be done at present, but we extended it to kids who came into this country with that person, meaning that citizenship could be revoked from me, Mr. Mark, or Mr. Fontana - you, Mr. Chair - fifty years later.(1010)
The Chair: Don't give anybody any ideas.
Some hon. members: Oh, oh!
An hon. member: I like what I'm hearing.
Mr. Andrew Telegdi: Thankfully, that bill died and that clause was withdrawn. Many of the comments on the right to appeal and citizenship are very much the same as they were in all those cases. It's also bad for your parliamentary career. As parliamentary secretary, I totally disagreed with the process because it offended me as a former refugee who came into this country. It offended my security of the person, which is covered in section 7 of the charter, under the heading "Legal Rights". It says:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.To a refugee or to someone who has no other citizenship, security of the person certainly comes into play.
Mr. David Matas: Section 7 applies to everyone. It's not limited to citizens or permanent residents. In the Singh case, the Supreme Court of Canada said that "everyone" applies at least to everyone who is in Canada. It may apply to people abroad or it may not, but it certainly applies to everyone who is in Canada, so the answer to that question has already been decided by the Supreme Court of Canada. Section 7 of the charter applies to people whether they're citizens or not.
The Chair: Without directing the question, though, it was whether or not this bill meets the charter standard.
Mr. David Matas: He asked about clause 17. We've made a number of suggestions for improvements to clause 17 in terms of speeding up the process, consolidation, and so on. But the question that Mr. Telegdi put is whether or not somebody would be able to launch a charter challenge if that person went through clause 17 as it's designed right now. Well, nothing jumps out at me on that issue.
If you listen to the various comments about clause 17 here, the bar has suggested one thing about humanitarian appeals that we haven't suggested. The bar points out, of course, that it wouldn't apply to war criminals or criminals who commit crimes against humanity, which are our concern. The only caveat I would put on that is that sometimes when somebody is revoked for misrepresentation, the misrepresentation would be as a result of foreclosure of inquiries. The question is one of what inquiries are being foreclosed. If the foreclosure of inquiries is one of inquiries about war criminality, then it would be our view that there should also not be a humanitarian appeal in that context.
One has to look not just at whether there's foreclosure of inquiries, but at what inquiries are being foreclosed. If somebody is able to lie about their war criminal past and can prevent inquiries at the time, but then insists fifty years later that the crime be proved after they have, through their own lies, allowed the trail of evidence to go cold, then that doesn't strike us as appropriate. They shouldn't get a legal benefit in that context. But in the other context of the example that Noël St-Pierre put out - one of a domestic who has lied - what they're really foreclosing inquiries about there is the medical examination of the non-disclosed dependant. In that situation, there should be a humanitarian appeal. At least, I don't see any problem with it. If there isn't, then there might be some sort of charter challenge there.
The Chair: Noël, and then Gordon.
Mr. Noël St-Pierre: It is important to recognize that the proposed tribunal in clause 17 is not the Federal Court per se. It is run by a Federal Court judge whose jurisdiction is extremely limited. Since 1994, we have been systematically quoting a Federal Court ruling. Of course it pertains to immigration; at the time it was not yet a citizenship matter. The judges with similar jurisdiction decided they did not have the power to hear constitutional arguments.
That is very important with regard to clause 7 and the notion of the rule of law. According to the procedure proposed in clause 17, you could not say there are problems with the evidence and claim you have not received enough information to prepare an adequate defence.
You will see that very often it is not the Federal Court judge who studies the evidence; the information branch does. So it often happens that we get a summary with the following comments "The person is known as a leader of a given political party". Based on what? How can you defend yourself against that? It also happens that claims are made that the person is identified as having attended meetings without specifying the location or the dates. Let me give you an example of an extreme case. Let's assume someone says the person is identifies as having killed someone. It is physically impossible, for all of us here, to prove that at no point in our life did we kill anyone. That is the type of burden of proof counsel will have to assume to defend someone.
Mr. Gordon Maynard: First of all, the charter is not magic. You don't have an index in the charter that says, "For application of Charter to section 17 of Citizenship of Canada Act, look here". It's written in broad strokes. The court swings back and forth over the years.
Right now, I would say the charter does not offer much protection against bad laws - not for permanent residents and not for citizens facing this law. It depends on which court hears the case and what the facts are, but right now I would say the charter does not provide adequate protection. What really provides protection is the use of good sense by the parliamentarians enacting the laws. You can't rely on the charter to protect against mistakes.
The Chair: That's why we're going to try to make it better.
Mr. Gordon Maynard: If I may, Mr. Chair, something Mr. Telegdi said triggered a comment that should be made, and that's on the annulment provisions of clause 18.
Keep in mind that this provision allows the minister to annul an acquisition of citizenship, for instance, to make it void as though it never happened. If this can happen over a five-year window, what happens to people who theoretically might have obtained their citizenship through that individual? Does that mean their citizenship is void as well? I can think of situations in which this could come up. If the citizenship never existed, how many people does this really affect?
The Chair: Inky.
Mr. Inky Mark (Dauphin-Swan River, PC): Thank you, Mr. Chairman. I want to thank the witnesses for being here.
I concur with the chair's earlier comment that you have been of immense help to this committee, certainly through the C-11 legislation, as well as through the regulations and the recent safe third country proposal of this government.
It's rather ironic. I follow the same line of thinking as Andrew. We have a Prime Minister who touts himself to be seen as pro-immigration and he basically identifies himself with Pierre Trudeau and Sir Wilfrid Laurier, yet we have to struggle through the legislation. We certainly have over this last year and a half to almost two years. I find it just unbelievable.
The question I want clarified is whether we have two standards of citizenship, given the way this bill is written. The other thing is whether or not the due process of law is jeopardized through clause 17.
Maybe just answer the first one first. Do we have two kinds of citizenship?
Ms. Janet Dench: If I can answer that question, this was one of the points we wanted to make in saying that while we appreciate the articulation of the equality of all citizens in the bill, the bill itself doesn't really live that out. It allows some citizens to have their citizenship taken away without due process. It also allows some citizens to lose their citizenship and potentially become stateless because they have inherited it through birth outside Canada. From our point of view, we should actually leave out this equality of all citizens and make sure people cannot lose their citizenship in a process in which they never get to hear the evidence against them, they never get to appear before an independent decision-maker, and they don't have adequate rights of appeal.(1020)
Mr. Inky Mark: How important are those principles of equality, of only having one citizenship for all of us, and of having the same process that we have a right to?
Ms. Janet Dench: I would say that, in recent weeks, we have become more aware of the importance of that equality. We find that Canadian citizens are being treated unequally in other countries, particularly in the United States, where they are distinguishing between categories of Canadian citizens. From the point of view of our organization, we believe in the importance of treating people without discrimination. That includes discrimination by virtue of whether they acquired their citizenship outside Canada or by birth in Canada.
The Chair: Mr. St-Pierre.
Mr. Noël St-Pierre: I'll do it in English so that it's very clear for Mr. Mark.
If this legislation goes through, anyone who was born outside Canada will not have the full right of expression or association in this country. One of the gentlemen here, for example, has been very involved in international peace processes. Upholding the rights of certain peoples in the world has been seen by certain persons in this country as being supportive of armed movements, for example. Now, if that gentleman had been born outside this country, someone in Canada might want to got through his immigration file or his parents' immigration file, to see if they could find a loophole there to get rid of him - in other words, to silence him.
The Chair: Mr. Maynard, do you have any comments on the question that Inky posed?
Mr. Gordon Maynard: There are two kinds of citizenships - the kind you get when you're born in Canada and the kind you get when you obtain it through grant. The one you obtain through grant of citizenship can be taken away. The one you get through birth will not be taken away. That's reality.
And is due process affected by clause 17? Absolutely.
The Chair: Unless you were born outside of Canada, perhaps, and depending on who your parents were.
Mr. Gordon Maynard: I don't know if that's an exception.
The Chair: Inky.
Mr. Inky Mark: My next question refers to the brief from the Canadian Bar Association.
On page 26, you state, "The Minister's authority to annul should be limited to two years following obtaining of citizenship." Do you really support that? Would you rather have it just done away with?
Mr. Gordon Maynard: I'd rather have it turfed altogether, just to be clear.
Mr. Inky Mark: Okay, thank you.
The Chair: Steve, do you have a question?
Mr. Steve Mahoney (Mississauga West, Lib.): Mr. Matas, I noticed in your brief that you're suggesting two necessities, if I'm reading this correctly:
1. the need for consolidating the three steps (Federal Court decision, revocation of citizenship, and deportation) into one step; andAre you saying there should be a Federal Court decision and then an appeal, or would you go through the revocation process and the deportation order and then appeal? Where would the appeal be?
2. the need for an appeal.
Mr. David Matas: In the second, after both the revocation and the deportation. Everything would be done by the trial division - the finding on war criminality or misrepresentation, the revocation, the deportation - in one continuous proceeding. In our proposal, there could then be an appeal, by way of leave, to the Federal Court of Appeal.
The bill right now is close to that. It does allow for a finding on misrepresentation for revocation, a finding on war criminality for removal, and then an appeal. We're proposing a change in that process in the sense that, for revocation, it could be war criminality as well as misrepresentation; and for removal, it could be misrepresentation as well as war criminality. The appeal would be by way of leave, rather than by way of right. But the structure that's in the bill would remain the same.
Mr. Steve Mahoney: But the appeal after deportation is not by leave? That would be an automatic appeal?
Mr. David Matas: That's an anomaly, because one can be deported in different ways. Under this bill, you can be deported through a consolidated proceeding, and that's by way of right under this bill. But if the government chooses to go for removal proceedings outside of the structure of this bill - which it has the right to do - then you do not get to the Federal Court of Appeal by way of right, only by way of leave.
The Chair: That's the existing law.
Mr. David Matas: It's the existing law, so we're proposing that this be consistent with the existing law and that you get to the Federal Court of Appeal by way of leave whether you use this system or the existing system.
The Chair: Anita.
Ms. Anita Neville (Winnipeg South Centre, Lib.): That was actually my question. It was on the consolidation.
David, will what you're proposing speed up the process as well?
Mr. David Matas: Our view is that if our recommendations are accepted, this will speed up the process, because everything can then be done in one proceeding. The finding on misrepresentation or war criminality, the revocation, and the removal, which are now three very long steps, would be one step. An application for leave would be a second step, but it would be disposed of very quickly if it's a frivolous application. We would therefore end up with a much quicker proceeding.…
Mr. Yvon Charbonneau (Anjou-Rivière-des-Prairies, Lib.): I would like to ask our witnesses whether their organizations were approached by department officials at any stage in the drafting of this bill. Did you have a chance to express your views on the right to appeal being discussed this morning and the question of two types of citizenship? Did you point out those problems if there was indeed a consultation? If you weren't consulted, I would like to know because we will be meeting with them soon.
Ms. Carole Brosseau: We did not have any discussions on that with the people from the department. However, out of courtesy, we sent our remarks to the minister every time we intervened in an immigration or citizenship matter throughout the various stages of reform over the past few years. So they can't pretend they don't know because we sent them our comments, but there was never any discussion on those topics.
Mr. Noël St-Pierre: I would like to add that the experience of those working in the field is significant, in my view. Let me just give you one little example. Clause 16 mentions task forces that work in various regions to try to prove before a court that someone lied to acquire Canadian citizenship. Clause 18 refers to a different level of bureaucracy in Ottawa that does the same work, which means an overlap with those working in the regions who will collect information that will then be sent to Ottawa. One has to wonder why and we think it is money being wasted. Under clause 18, there is a loss of rights which is totally unnecessary from a practical view point.
The Chair: Janet or Kemi, on the same question.
Ms. Janet Dench: The Canadian Council for Refugees has not been consulted or involved in the preparation of this bill. Of course, we gave our input on the previous versions, but they didn't consult us in between versions.
The Chair: David.
Mr. David Matas: There haven't been specific consultations, but as I said at the beginning, this bill, in some measure but not completely, reflects the sum of positions we've had in the past. So I feel that even though we haven't been consulted, we've been heard in this bill, although we have not been heard clearly and completely.
Mr. Gordon Maynard: The CBA was not specifically consulted with respect to the drafting of this legislation, although, as David says, this is the third bill to go through in four years. In response to criticism from previous bills, you do see some changes. You see where they have taken account of what we've said, but it's not the practice of the government to get together with every NGO to draft legislation.
The Chair: Just before I go to the next round, you've raised a few questions. I'll start with the premise that I think the greatest thing a country can do is confer citizenship on someone, and obviously the most serious thing a country can do is either revoke or annul citizenship, because that is obviously the ultimate right. So with regard to revocations and annulment provisions, I think most of my colleagues would agree that we have to be awfully careful in what we do here, especially...and I'll refer to clause 18, which is relatively new and has been raised by a number of people.
I don't understand what this magic five-year period is. In fact, it makes me nervous that one could annul. I suppose it can be done on some very serious grounds, but in terms of this five-year provision, obviously we need to ask some questions. Because there are no appeal mechanisms and annulment essentially can come from any kind of information, it becomes an administrative political action as opposed to judicial action.
In some cases, like clauses 16 or 17, this is judicial. In some, it's administrative. It's all over the map. I think we're going to need a better understanding of that, and I've asked the administration to come to us on December 15. We want to deal with these very serious questions of revocation and annulment, because we want to make sure there is a judicially fair and equitable system and that we understand how it's going to work.
I agree that some parts of it have been improved. It is convoluted and it is problematic, but we have to make sure it works. So I don't know about this five-year provision.
Do you agree that there should be an annulment provision in the bill to allow a minister or their designate to essentially annul a citizenship that has been granted? Maybe it should just be on the basis of revocation and not annulment? That's my first question.
Secondly, with regard to when you can apply for citizenship, I would agree that the residency requirement makes me rather nervous again. Again, what happens after this three in six? In some cases, maybe we should just say that once you've achieved a minimum standard of 1,095 days, whether it takes you half days, you've been away, or whatever the standard is.... What difference does it make whether it takes you five years, six years, or ten years, especially if I read that, all of a sudden, you could have some problems with summary convictions? Technically speaking, you could be in a state of not being able to apply for a long time, based on the fact that, by way of summary convictions, you better not apply because you're going to have to wait until you're essentially clear for three years.
I'm wondering whether or not you have any concerns with regard to the types of.... I would agree totally that charges outside the country make me nervous. What happened to the principle of being innocent until proven guilty? If there's a charge out there that somebody has brought upon you, that makes me rather nervous, too.
We're moving to an administrative system even with regard to our commissioners, versus the judges we used to have, or a quasi-judicial system in which a lot of these humanitarian, subjective things were in fact.... I heard a lot of criticism that perhaps we had the judges there at one time because there was inconsistency in some of the decisions that were made. But we're now making it so objective that we're not going to take human conditions....
Andrew once used a term that I liked. In a lot of laws, we seem to be dehumanizing the system as opposed to re-humanizing it by essentially making sure someone is there to be able to take care of the exceptional circumstances that may exist.
I know I've rambled on and that I've touched on two or three areas, but I wonder if I could ask you to respond with regard to, one, the annulment provisions; two, the role of the citizenship commissioner and/or judges that we have; and, three, with regard to the residency and the summary conviction aspects of it.
Mr. Gordon Maynard: I have to answer this question personally. I can see a need or a use for an annulment provision that doesn't involve the full mechanism of the Federal Court. But I certainly can't agree - and neither can the association - with it being a purely administrative process without an independent decision-maker, and I don't agree with the window of five years. So, yes, this mechanism could be useful and appropriate, but this particular process for it needs to be trimmed up quite heavily.
On the question of charges, overseas charges are very problematic. One of the suggestions that we make in the brief is that if there is going to be prohibition for criminal charges in Canada or outside of Canada, perhaps it should be limited to those kinds of charges that are of such a level that they would have affected your permanent resident status. If they don't come to that qualification, why are we worried about them?
The Chair: Yes, that's true.
Mr. Gordon Maynard: You had a third point.
The Chair: It was on the quasi-judicial system that we have now. It takes into account some sort of latitude on behalf of the citizenship judge who allows this kind of subjectivity, as opposed to it just being strictly administrative.
Mr. Gordon Maynard: Between citizenship bills and the Immigration Act, we've seen a very strong move toward objective criteria with a lack of flexibility or discretion. I think the department is attracted to those criteria because they're easier to use. They mean less manpower and are less time-consuming. The price you pay for doing that is that it is dehumanizing, but at the end of the day, this is a very human business. We are involving human beings, so there should be discretion. It costs money, but it's necessary.
The Chair: David.
Mr. David Matas: I'll comment on the first one about the annulment. We have said it shouldn't be there, but if you look at the history and scheme of the Citizenship Act and the Immigration Act, you could say there has been an escalation of due process protection, depending on the length of time people are in the country. That seems to be an underlying philosophy of the department in designing these various pieces of legislation.
I'd question whether that's appropriate, because what you're very often dealing with is the determination of fundamental rights and fairness of procedures. The requirements of due process, of fairness, are international human rights standards, not just local Canadian standards. It doesn't necessarily make sense to say that the longer you're here, the more fairly you're going to be treated. People should be fairly treated from the moment they enter. This annulment provision has echoes of the old domicile proceedings, in which you got certain rights after you were here five years. We've repealed those, and they should stay repealed.
To a certain extent, there's a linkage between clause 18 and clause 16. It's obviously up to the government to indicate why they put clause 18 in there, but my guess is that part of the reason is that if people weren't here for very long and they lied on entry, they should be out more quickly. The idea behind cutting down on due process is to get a quicker procedure. But if clause 16 is amended in the way we propose in order to make it quicker, then the need for clause 18 would be weakened or would perhaps disappear altogether. If you could get both revocation and removal for misrepresentation in a consolidated proceeding, as we suggested in clause 16, the justification for clause 18 would be undercut.
The Chair: Janet, do you have any comments? No? Noël or Carole? [Translation]
Mr. Noël St-Pierre: I do not really see why there would be two separate procedures. If the facts are clear enough for the minister to make a ruling under clause 18, I think a judge could do so just as quickly and perhaps even quicker. From a pragmatic point of view, you have twice as many bureaucrats working on the file, irrespective of the human rights issues stemming from the procedure under clause 18 and the comments that have already been made.
The Chair: Kemi.
Ms. Kemi Jacobs: The timelines seem quite arbitrary - for example, the five years, the three years within the last six, and the 28 years - so we have concerns with those.
We also echo the comments made by other people about charges overseas, particularly for refugees, given the particular....
The Chair: Andrew had a question, and then we'll go to Inky.
Mr. Andrew Telegdi: Thank you, Mr. Chair.
Actually, you raised a point that I would like to examine. Forget clause 17, war criminals, terrorists, and human rights abusers. Basically, clause 16, for revocation purposes, refers to gaining citizenship "by false representation or fraud or by knowingly concealing material circumstances." Well, we have people who got into this country, say, fifty years ago, because they claimed they had a relative here, like maybe an uncle. Instead of a friend, it could have been an uncle. All of a sudden, we want to get rid of that person, so we comb through the files and come up with this.
My problem is that for such an individual, the charge is essentially fraud. If I'm charged with fraud under the Criminal Code, I get the presumption of innocence that you were talking about. That is under the Criminal Code because you deal with the concept of "beyond a reasonable doubt." When you say "beyond a reasonable doubt", it is important to note that there are appeals to the Supreme Court even under that standard. We have cases like Donald Marshall, Guy Paul Morin, David Milgaard, and Steven Truscott, for which we are trying to get redress.
Section 11 of the charter says:
Any person charged with an offence has the right...It seems to me that, given the seriousness of the outcome if you revoke somebody's citizenship, conceivably you could be sentencing that person to death if they're returned to the wrong country. Surely to God that outcome is much more serious than a charge for fraud under the Criminal Code, so it would seem to me that similar standards should apply in terms of the trial: "beyond a reasonable doubt" versus a mere "balance of probabilities".
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
Mr. David Matas: There's no doubt that there is a balance of probabilities now, but there is a difference between onus and standard. The onus is on the state in a criminal proceeding, and the onus is on the state in a revocation proceeding. The onus doesn't shift simply because it's a revocation proceeding, but the standard of proof is different: "beyond a reasonable doubt" as opposed to "balance of probabilities". The reason is that one is a civil proceeding and the other is a criminal proceeding. In a criminal proceeding, you're putting someone behind bars.
You hypothesize the situation of somebody being sent to death and you say to forget about the war criminal, about somebody lying about their uncle. In that case, a person can make a refugee claim. In refugee claims, people have to prove their case, but they don't even have to prove it on the balance of probabilities. They have to prove it as a reasonable possibility. It's a much lower test than the balance of probabilities in terms of showing that they're in danger or at risk. So I don't really see the problem in the situation that you hypothesize. In fact, the standard for proving the risk abroad is much lower than the balance of probabilities you are worried about.
The Chair: Would anyone like to add any comments on that?
Mr. Gordon Maynard: I think many people would not disagree with you that perhaps there should be a higher standard involved when looking at revocation of citizenship and cases of revocation of all status, leading to removal from Canada. But the charter doesn't require it. The charter speaks of charges and criminal proceedings. These are not regarded by the courts as criminal proceedings. They're not even regarded as civil proceedings. They're an animal unto themselves, so the standard of proof thus far has been seen by the courts to be the balance of probabilities.(1045)
The Chair: Andrew might be asking where that bar should be. Is it the balance of probabilities? Where should the burden of proof really lie? What is the bar?
Mr. Noël St-Pierre: It is not necessarily a question of presenting more evidence to determine whether there is a balance of probabilities or proof beyond the shadow of a doubt. The real problem is getting the opportunity to present a good defence. I fully agree with the comments that were made, namely that for political reasons, someone can go through a 50-year-old immigration file with a fine tooth comb. Let me make one thing very clear: I am not referring to a war criminal who could have hidden his actions in order to be admitted here. I am talking about someone who may have done certain things in Canada and of someone else who, for purely political reasons, could dissect the first person's old immigration file to try to find some little flaw in it.
Under clause 17, we do not even have access to the evidence. That is why we quoted the ruling in the Ruby case. Obviously foreign sources are being so protected that the mere fact of giving a summary of the information obtained by the Canadian government in the Clayton Ruby case was seen as something that could put the sources in jeopardy. So we will not even know the source of the information that could lead to the revocation.
The Chair: Inky, followed by John Bryden.
Mr. Inky Mark: Thank you, Mr. Chair. I actually want to read a couple of parts from the bill. In paragraph 3(d), under "Purpose", it says, "to reaffirm that all citizens, no matter how they became citizens, have the same status". Under clause 12, under "Rights and Obligations of Citizens", it says:
All citizens have the same rights, powers, privileges, obligations, duties, responsibilities and status without regard to the manner in which their citizenship was acquired.Do these two pieces have any weight at all in relation to clauses 16, 17, and 18? Are they absolutely nothing? Are they just nice words?
Mr. Gordon Maynard: They're nice words.…
Mr. John Bryden: I won't take up too much time, but there is one other point I wanted to make that has nothing to do with the oath, and that is this misrepresentation. I was very interested in clause 17, because I don't have a single interest in the proposed Citizenship of Canada Act, I have a lot of interest in it.
With respect to wanting secrecy with respect to making misrepresentations about oneself in applying for citizenship, I though one of the concerns was the whole issue of falsification of documents. Mr. Maynard, don't you think there might be some justification for that when you consider that, in the world of terrorism, falsification of documents is probably an enormous industry? It leads not just to organized crime that is in the business of producing documents, it is also the trail back to terrorist organizations. Isn't there some justification for wanting to keep that type of information secret when you're doing the proceedings, then?
Mr. Gordon Maynard: The question always is which evidence, in the higher interest of national security or protection of others' lives, you must not disclose to the individual yet still rely upon as a basis for taking action against them. This can be a very difficult balance. The risk is that sometimes the pendulum swings in directions that take us too far away from protection of individual rights and liberties in the interest of the state. I believe we are in that pendulum swing right now. For an individual, I'm hard pressed to believe it may be impossible to bring a misrepresentation case against them without hiding evidence from them. I'm hard-pressed to believe that would ever be necessary.