Standing Committee on Citizenship and Immigration hearings
on Bill C-18, the proposed Citizenship of Canada Act
The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Good morning, colleagues and guests. We're resuming our discussions on Bill C-18, an act respecting Canadian citizenship, and we'll have another presentation on our settlement programs, from the Maytree Foundation.
I want to thank you in advance, and for your input on previous matters of immigration and other things the committee has been studying. I know you've all submitted a brief to us, and so we would ask that you summarize what is in the brief, as opposed to just reading it. We're going to give each of you about five or seven minutes to make your presentation, because we find that asking questions and getting answers is very instructive and useful to us.
We have the Council of Agencies Serving South Asians, Soni Dasmohapatra. We have the Latvian National Federation in Canada, Harold Otto and Alide Forstmanis. From the Metro Toronto Chinese and Southeast Asian Legal Clinic we have Avvy. From the Ontario Council of Agencies Serving Immigrants we have Uzma Shakir. From the Toronto Refugee Affairs Council we have Norbert Piché, Fred Franklin, and Jesus Mejia. And from the Maytree Foundation we have Elizabeth McIsaac. Welcome, all.
Let's have Soni start us off.
Ms. Soni Dasmohapatra (Community Development Coordinator, Council of Agencies Serving South Asians): Hello.
Following the lead of organizations like the Canadian Council of Refugees and the Ontario Council of Agencies Serving Immigrants, CASSA would like to present its position on the proposed Bill C-18, an act respecting Canadian citizenship. The new bill rightly affirms that all citizens, no matter how they became citizens, should have the same status. However, the proposed changes to the law and the prevailing experience of some Canadians remains contrary to both the letter and the spirit of the law.
There appear to be several instances of inequity manifested in various provisions of the proposed bill, for example, the stipulations with regard to the right to pass on citizenship to one's children. According to the proposed changes, a child born outside Canada to a second-generation Canadian citizen, for example, a mother also born outside Canada, does not have the right to citizenship and may even become stateless. This will apply even when the mother in question has lived in Canada all her life, except at the time of her birth. However, a child born outside Canada to a first-generation Canadian citizen, to a mother born in Canada, who chooses to live most of her life outside Canada is faced with no such restrictions. This provision is unfair and inequitable and subjects second-generation Canadians to differential treatment purely because they were born outside Canada. This also contravenes the declaration within the bill that all citizens are equal, no matter how they became citizens. Furthermore, this stipulation can have a significant negative effect on the lives of naturalized Canadians, particularly on their ability to accept rewarding employment outside Canada.
We recommend that this provision be amended to recognize that a child born outside Canada to an individual whose application for citizenship has been accepted should be considered a Canadian citizen under all circumstances.
The proposed changes to the bill also set a cut-off age of 28 for acquiring Canadian citizenship, particularly for those Canadian kids who are born outside Canada to second-generation Canadians. This seems to be a totally arbitrary measure and allows no provision for appeals for those individuals who may have strong and valid reasons for not being able to apply for citizenship prior to the cut-off age.
CASSA recommends that this provision be amended by allowing for a process of appeal and by adding an exception to the clause 14 rule to the effect that citizenship would not be lost if a person would be stateless.
According to the provisions in Bill C-18, the Minister of Citizenship will now grant citizenship. This change moves the prerogative of granting citizenship away from the citizenship judge to the Minister of Citizenship. The citizenship judge is governed far more strictly by the rule of law than a politician, and therefore is a better judge of eligibility.
We recommend a restoration of the right to grant citizenship to a non-partisan independent body, like the citizenship judge, who should make the ruling based on law and not political vagaries.
This bill also grants disturbingly broad powers to the cabinet. For example, the cabinet of the day can refuse citizenship on the basis that a person has “demonstrated a flagrant and serious disregard for the principles and values underlying a free and democratic society”. These so-called democratic principles and values are not clearly defined by either law or public policy, and there seems to be no clear consensus among the public on this issue, other than the fact that every citizen has the right to be treated equally and fairly. So this provision allows the act to be interpreted and implemented differently by different cabinets, and thus creates the conditions for abuse of power.
We recommend reasserting the non-partisan nature of any determining body and the democratic application of the rule of law for any determination of citizenship.
The most consistent problem in Bill C-18 is an apparent disregard for due process, meaning that some citizens, but not others, face the prospect of being unjustly deprived of their rights, for example, in the case of revocation of citizenship. A citizen can be subjected to revocation of his or her rights as a citizen by merely receiving “a summary of the grounds for the proposed order”. Bill C-18 has a new provision, modelled on the Immigration and Refugee Protection Act, that would allow a Federal Court judge to revoke a former immigrant's citizenship without the citizen being permitted to see evidence against him or her. Furthermore, a decision to revoke by the judge cannot be appealed or judicially reviewed.
A second issue is that the bill allows using the criterion of violating “principles and values underlying a free and democratic society” to revoke citizenship. In the first instance evidence may not be disclosed to individuals whose citizenship is revoked. In the second instance citizenship can be denied to a person who supposedly violates the principles, instead of the provision of public interest, as it was in the previous bill. It is indeed ironic that this provision contravenes the very principles and values it claims to be using for revoking citizenship, in that every citizen has the right to be treated equally and fairly.(0815)
Bill C-18 also proposes to give the Minister of Citizenship new powers to annul citizenship. Since the law does not allow the disclosure of evidence leading to the annulment or a right to appeal, an individual who may have been accused falsely, according to the new law, will not even have the opportunity of providing an adequate defence. Placing such a critical decision outside the judicial process does not in any way ensure that justice will be served and the rights of the individual protected. Furthermore, the bill does not say the minister must be convinced beyond a reasonable doubt that the citizenship was illegitimately obtained. The minister need only be “satisfied”. This sets the lowest standard, which permits the annulment of citizenship even in cases where there may be legitimate differences of opinion. It undermines the possibility of effective recourse in the courts, since the courts will generally be forced to defer to the minister about whether he is “satisfied”.
We recommend restoration of the principles of fairness and transparency. We further recommend amending the bill to provide for decisions on annulment to be made by an independent decision-maker with the right to a hearing with full due process rights, including rights to notice, to disclosure, and to counsel.
Statelessness is a growing global program. While Canada is a signatory to the 1961 Convention on the Reduction of Statelessness, it has not signed the 1954 Convention relating to the Status of Stateless Persons. Along with other concerned groups, like the Canadian Council for Refugees and the Ontario Council of Agencies Serving Immigrants, we urge the Government of Canada to sign the 1954 convention and to make the necessary changes to the proposed Citizenship Act to ensure that it conforms to the spirit and intent of the conventions. We also recommend that in addition to limiting the provisions that will lead to the creation of stateless persons, a clause be added to the act stating that the act is to be interpreted in a manner consistent with the principle of reducing statelessness.
The Chair: Thank you, Soni.
We will go now to the Metro Toronto Chinese and Southeast Asian Legal Clinic. Welcome, Avvy.
Ms. Avvy Yao-Yao Go (Director, Metro Toronto Chinese and Southeast Asian Legal Clinic): Thank you.
Good morning, chairperson and members of the standing committee. I appreciate the opportunity to be here today to talk to you about our concerns. I'm a lawyer by training and I`m the director of the legal clinic. We have provided a written submission. I hope you have had a chance to review it.
I know the committee has already heard from a number of groups, like the African Canadian Clinic and the Chinese Canadian National Council, and you will hear again from CASSA today. We share many of the concerns raised by these other organizations with respect to the loss of citizenship, the revocation and annulment of citizenship, and the various new prohibitions to citizenship application.
Today I'll try to address, first, the ways in which some of the new provisions will, in my view, violate the rights of Canadian citizens and permanent residents under the Charter of Rights and Freedoms. Second, given these potential violations, I will talk about the importance of instituting the right of appeal. And if there's any time left, I will talk about some of the specific concerns we have with the residency requirements and adoption provisions.
When the Minister of Citizenship and Immigration announced the introduction of Bill C-18, he said the bill defines the essence and meaning of Canadian citizenship and the values it represents, and it's our submission that the values represented by Canadian citizenship include respect for the rule of law, the value of equality, and the principle of fairness. And yet, when we look at the bill, what it represents is just the opposite to such values.
Take clause 21 as an example. It is not consistent with Canadian values to give such broad power to the minister to deny citizenship to anyone he happens to think has demonstrated a flagrant disregard for our social values and principles. The minister's press release says he's targeting hate-mongers with this particular provision, but there's nothing in the act itself that limits the minister's power to only this type of activity. That leaves the question open of what really constitutes a flagrant disregard for Canadian values and principles. Would burning a Canadian flag suffice, or could it include an act of civil disobedience?
In our submission, there's a great potential that a broad application of clauses 21 and 22 in this bill would lead to the infringement of some of the fundamental freedoms we enjoy as Canadians, and that includes freedom of expression, freedom of conscience, freedom of thought, belief, opinion, freedom of association, as provided under section 2 of the charter. It will have a chilling effect on the immigrant communities, in that they should think twice before they say anything to criticize the government or the democratic system, because it may be construed as a flagrant disregard for that particular system.
The provisions under clauses 17 and 18 are a source of great concern to us as well. From a legal perspective, it's very troubling to see that the minister will have the power to take away citizenship status from a Canadian citizen without regard to due process. Under clause 17 the person subject to revocation application has no right to know the case against him or her, no right to appeal, and a judge reviewing such applications doesn't even have to abide by the usual rules of evidence. If you apply the charter analysis, it's our submission that these clauses will not pass the charter scrutiny, for two main reasons.
First, they violate the right to equality, because with these provisions, we are, in effect, setting up a two-tier citizenship system. The first tier contains people who are born in Canada, the second tier those who are born outside and acquire citizenship through the naturalization process. Only the latter group will face the risk of having their status revoked or annulled on some undeclared evidence that a government might hold against them. It is a direct violation of section 15 of the charter on the ground of national origin.
Second, these provisions also violate section 7 of the charter, which guarantees to Canadians the right to liberty, life, and security and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Canadian citizens who are stripped of their citizenship status are potentially subject to deportation, because once the citizen status is gone, you have no status in this country. Deportation, in our view, would constitute a violation of one's right to liberty in some cases and right to life and security in some others, and such deprivation will not be done in accordance with the principles of fundamental justice if the minister can do so without regard to due process and if the individual has no right to appeal.
So in our view, the only way to cure the proposed Citizenship Act of these charter ills is to delete these offending clauses, clauses 17, 18, 21, and 22. But if the committee is recommending the retention of these provisions, we urge it to put into the act the right of appeal for all cases of refusal, revocation, and annulment. It's only with the full right to appeal—and I'm not talking just about judicial review to Federal Court, it's the right of appeal with a de novohearing—that Canadian citizens or permanent residents would be able to challenge unreasonable and unlawful decisions made by the minister or his or her delegates, because it will be the bureaucrats who are making that decision, and we should be clear about that.(0820)
With respect to the issue of residency, we would like to point out the inconsistency in how the act treats the requirement of physical residence. On the one hand, the act is now saying we're not focusing on physical residence by requiring that the immigrant be specifically in Canada to meet 1,095 days requirement. On the other hand, the new paragraph 7(1)(b) in the act replaces the current paragraph 5(1)(c), which recognizes the physical presence of the applicant in calculating the days before he or she becomes a landed immigrant, and it's one day out of every two days. So as long as you're physically present here, your days will be counted. The new act basically says you also need to have protected person status or a temporary permit in order for those days to be counted. So that goes against the physical residency concept this bill actually proposes. So we think the right thing to do is replace the paragraph 7(1)(b) language with that in the current legislation.
Finally, we would like to speak to the issue of adopted children. Our comment in this regard is based on our experience dealing with cases of adoptions in the immigration context. We see a lot of Canadians going to China and Vietnam and adopting orphan children, and that's fine. When their adoption is approved, Immigration will approve their sponsorship regardless. But we also see, in my case, many Chinese families—I'm sure it applies to South Asian families as well—going to their home country to adopt children who are related to them. Even if the adoption is approved by the provincial adoption agencies, their sponsorship will still be denied by Immigration, because these adoptions will be viewed as suspect. They don't see them as creating a genuine parent-child relationship, and partly it's because there was a pre-existing relationship, they were related in some other way. So the language that the adoption creates a “genuine relationship of parent and child” is inconsistent with the pre-existing relationship. There are cases in the Federal Court that recognize this inconsistency. The Federal Court, in some cases, has proposed a future-looking test, so that you can look at whether or not this adoption will eventually create a genuine parent-child relationship. That, I think, is consistent with the way many of these adoptions within the family evolve.
The requirement now being put into the Citizenship Act says the applicant has to show that at the time of adoption it created a genuine parent-child relationship. We are going to see the same kind of rejection as we see in immigration cases. Of course, the problem is that there is no right to appeal under the proposed Citizenship Act. So ironically, the person who is going to adopt the child is better off going back to Immigration to sponsor the child, because if the application is rejected, that person has the right to appeal. But here the child may never get to come to Canada, because there is no right to appeal after the adoption is approved, but the Citizenship Act application is rejected. So what do they do with that child? He's left in that country. He's already adopted, but he can't come here. So if we want to make it easier for the adopted child to be reunited with the parent, let's make sure that provision does not defeat the purpose.
In conclusion, we submit that the Citizenship Act should define who we are as a nation. The debate about our new citizenship law is a debate about Canadian values and principles. There is the question of whether we want to build a country that is open, welcoming, and respectful of diversity and equality or to create a society with a two-tier citizenship that is determined largely by the accident of birth. This is the choice we have to make now, and we hope we're making the right one.
The Chair: Thank you, Avvy.
Now we go to the Latvian National Federation, Harold Otto and Alide Forstmanis.
Mr. Harold Otto (Historian, Latvian National Federation in Canada): Good morning, Mr. Chairman, honourable members, ladies and gentlemen.
I should point out perhaps that I am neither a Latvian nor a lawyer.
The Chair: I like the fact that you're not a lawyer. I like Latvians. I have a lot of them in London, Ontario.
Mr. Harold Otto: Indeed, you do.
I am, however, married to a Latvian, that is, a Canadian who was born stateless in a Latvian displaced persons camp in Germany after the Second World War. I'm also a pretty typical Canadian, in that I have a brother-in-law whose given name is Mohammed. Two of my children were educated in both English and French. I have worked in English and French, and I speak a couple of other languages. My daughter teaches in a Moslem private school in Vancouver. My mother, as well as teaching in public schools in Canada, taught in a Jewish school.(0830)
The Chair: That's very Canadian. You probably have Italian pasta too.
Mr. Harold Otto: That said, I am speaking on behalf of the Latvian National Federation in Canada, but I'm also speaking on my own behalf. I'm worried, and the Latvian National Federation in Canada is worried, that my wife's citizenship and my brother-in-law's citizenship are not worth as much as mine. This offends not only clause 12 of the proposed bill, which promises equality to all Canadians, no matter how they acquire their citizenship, or just the Charter of Rights and Freedoms, but a tradition of about 800 years in the common law of equality of treatment before the law.
Because time is limited, I commend to you the brief I have written, in which I have concentrated on clauses 16, 17, and 18, which deal with the revocation of Canadian citizenship. I submit that the previous speaker, who mentioned the two-tier system created by this bill, is wrong. In fact, the bill creates a three-tier system, one those born Canadians, who cannot be deprived of their citizenship, two a class of citizens who are naturalized and can only be deprived of citizenship by a judicial process, however flawed—and I intend to point out a good number of flaws—and three a class of citizens who have held citizenship for less than five years, who may be deprived of Canadian citizenship, essentially, by ministerial fiat. Contrary to Mr. Justice McKeown's opinion in Minister of Citizenship and Immigration v. Bogutin, which is the only case law I know on this subject, it's our submission that loss of Canadian citizenship involves a large loss of liberty.
Now let's deal with clauses. Clause 16 provides for a judicial process, and is, on the face of it, relatively innocent. Note, however, that no standard of proof is defined, nor are the circumstances in which a proceeding is to be made under clause 16 rather than clause 17. Clause 17 is absolutely contrary to any notion of due process. We have evidence given in secret, without the presence of the accused, which the accused will never see if the judge is of the opinion that it would be dangerous. No adequate defence would be possible. I was consulted by the defence in a denaturalization case four years ago. The trial lasted 29 days, but you can imagine the months of preparatory work. I can say, without question, the gentleman who was accused would not have been able to prove himself innocent had he not been able to confront the evidence.
As I say, it's not clear from the bill itself whether clause 16, which does not explicitly prohibit appeal, or clause 17, which does prohibit appeal, would apply, but we do get a clue from the legislative summary, LS-442E, prepared by the Library of Parliament, Parliamentary Research Branch, in which it says “Section 17 sets out in detail the process for those accused of terrorism, war crimes or organized crime.” It's our submission that such an accusation, particularly in light of former Minister of Justice Allan Rock's public statements that no such proceeding would be instituted in the absence of evidence of individual criminality, carries with it the stigma of a criminal conviction for a horrendous crime and that therefore, at the very least, the standard of proof should be higher than the balance of probabilities that is set out in clause 17.
In the United States loss of citizenship is regarded as such a loss of liberty as to be equivalent to a criminal conviction, and therefore the standard of proof is a criminal one, beyond a reasonable doubt. I am not of the opinion, nor is the Latvian National Federation in Canada, that Canadian citizenship is worth less than American citizenship.
Therefore, we recommend that the offending clauses be removed from this bill and replaced by an amendment to the Criminal Code making fraudulent immigration a crime, therefore allowing for not just appeal, but an appropriate standard of proof, and that one of the punishments provided for such a crime should be the revocation of citizenship. Thus the stigma that accompanies such an accusation, loss of reputation, and let's face it, the punishment of people who actually are criminals, could all be provided for.
I should reiterate that this creation of unequal classes of Canadian citizenship and the provision for secret trials sound more like Star Chamber than any Canadian court and go against the common law tradition, the Charter of Rights and Freedoms, everything I think we hold dear, and I'm afraid. So I'm going to close with the words of Pastor Martin Niemöller, who died in a concentration camp in Nazi Germany during the Second World War. He said something like this. First they came for the Communists, but I wasn't a Communist, so I didn't worry. Then they came for the Jews, but I wasn't a Jew, so that didn't worry me. Then they came for the homosexuals, but I wasn't a homosexual, so it didn't worry me. Finally, he found himself in a concentration camp with nobody to help him. There was nobody left. Similarly, I know that my citizenship can't be revoked under this bill, but I think this is something we have to nip in the bud. We have to stop it right now. It's just plain wrong to create different classes of Canadian citizens, to strip people of citizenship by ministerial fiat, to strip people of citizenship on the basis of accusations that may very well be fabricated by people or governments who are inimical to Canadian democratic values.
As an example and as my closing, I have to point out that almost no Latvians who immigrated to Canada in the 1940s or 1950s would have been allowed to enter Canada under this bill. After the Soviet annexation of Latvia by force, as a result of the Hitler-Stalin pact in 1939, it was illegal under Soviet law for anybody to leave the Soviet Union without permission. That constituted treason. Every Latvian who ended up in the West was ipso facto a traitor under Soviet law and, because of the politics of the tyranny that called itself the legal government of Latvia, was, by reason of the treason and by being an enemy of the state, also the subject of investigation and accused of many different crimes, murder, participation in the Holocaust, cooperation with the Nazis, you name it, it ran the gamut. They were all accused of things that would have been, had they been committed in Canada, indictable offences. That means none of them would have been admissible under this bill. That's another part you might want to look at, the accusation of potential immigrants by their own government of participation in crimes that would be indictable offences here, but may not be what they appear to be.
I must close. Sorry to have taken your time. I do stress the need for equality of all Canadians and due process in every case.
The Chair: Thank you very much, Harold.
From the Ontario Council of Agencies Serving Immigrants we've got Uzma Shakir.
Ms. Uzma Shakir (President, Ontario Council of Agencies Serving Immigrants): Thank you.
I would also like to point out that I am not a lawyer, so you should be happy about that.
The Chair: You know, every time I say that, I get nothing but calls from lawyers saying, why are you picking on us?
Ms. Uzma Shakir: This time you can blame it on me.
I would also like to point out that I'm also from the community sector, which means that I wear five different hats in the same day, so it would be really impossible for me to just make a presentation off the top of my head. I'll just have to read it, so bear with me.
However, I would like to pick up on something the other two speakers prior to me have said. I would submit that four sets of citizenship are being created—and we have never met each other before, right? The fourth comes in if you have not claimed your citizenship by the time you are 28. Essentially, an arbitrary number has been thrown in for an age. It basically says, you may have a birthright to be a citizen, but if you haven't claimed it by the age of 28, for whatever reason, you forfeit that right. So we are not creating one or two or three, but four sets of citizenship, and that in itself, to my mind, is problematic, because the preamble to the whole thing says all citizens are equal under all circumstances, and then it proceeds to create four different categories and violate every single right of every single human being that comes under those categories. That in itself is a major problem, as far as I can see, in the amendments to this act.
OCASI was formed in 1978 to act as a collective voice for immigrant-serving agencies and to coordinate responses to shared needs and concerns. OCASI is a registered charity governed by a volunteer board of directors whose membership is comprised of more than 150 community-based organizations in the province of Ontario.
OCASI has actively contributed to the discussion on the earlier versions of this bill, as well as Bill C-11, which is now the Immigration and Refugee Protection Act. We have consulted with a number of organizations regarding the potential impact of this particular citizenship bill on their constituents in the immigrant- and refugee-serving sector in Ontario. We are pleased to note that the current Bill C-18 incorporates some of the suggested improvements. However, we are deeply alarmed about the complete disregard for due process in the new provisions, as previous speakers have mentioned. We also continue to have serious concerns about some of the other provisions.
While we welcome the fact that there is a clear reaffirmation that all citizens, no matter how they become citizens, have the same status, it is our expectation that the Canadian government has the obligation to act on the language in the act by protecting the rights of all citizens, especially when they are subjected to discriminatory security screening practices at the Canada-U.S. and other borders and are treated differently based on their place of birth or faith.
OCASI is also concerned about the inequality evidenced in the description of the right to pass on citizenship to one's children. A child born outside Canada to a Canadian citizen who is second-generation also born outside, or foreign-born, does not have the same right of citizenship and may even become stateless. That is of particular concern to us, because on the one hand, we are signatories, or should be signatories, to international conventions to reduce the condition of statelessness for people, but then we are also going to laws, or suggested amendments, that would actually lead to an increase of statelessness among people. For instance, there are certain countries where, if you have a child in that country, you don't automatically get citizenship, and if that child is unfortunate enough to be born to a second-generation, foreign-born Canadian, tough luck. They have no state to refer to. This creates a real problem, as far as we are concerned, apart from the fact that it creates different categories of citizenship.
We recommend that this provision should be amended to recognize that a child born outside Canada to an individual whose application for citizenship has been accepted should be considered a Canadian citizen. Furthermore, as I said earlier, the cut-off age of 28 for losing the right to retain citizenship seems to be arbitrary and provides no provision for appeal for those individuals who may have strong and valid reasons for not being able to apply for citizenship before that age.
According to the provision in Bill C-18, as the other two speakers have pointed out, the Minister of Citizenship will grant citizenship. This again is really problematic, because essentially, you are moving the process away from the purview of the judicial process to the vagaries of politics. You are in the political arena, so you know it can be fairly problematic, to say the least.
OCASI is also concerned at the broad powers granted to the cabinet to refuse citizenship on the basis that the person has “demonstrated a flagrant and serious disregard for the principles and values underlying a free and democratic society”. We find this statement to be a contradiction in terms. If you look at the provisions of the amendment that have been pointed out by the previous two speakers, no full disclosure is allowed, there is no due process, there is no appeal, there is no judicial review. To us all of those sound like violating the fundamental principles and values that any free and democratic society should hold dear. So essentially, you have the possibility here of a political body like the cabinet deciding behind closed doors somebody's future, whether they can be citizens or not, by violating the very principles on which they are supposed to be denying this person their citizenship rights. That, to my mind, is an obvious contradiction. As I said, I'm not a lawyer, but simple deduction sometimes helps.(0845)
OCASI is also deeply concerned at the potential for violation of human rights with the proposed process for revoking citizenship. The Minister of Citizenship has been given new powers whereby an individual who obtains citizenship after immigrating to Canada may lose their citizenship without due process and without the right to a hearing, as I said previously. Again, placing such a critical decision outside the judicial process in no way ensures that justice will be served and that the rights of individuals will be protected.
Another area of concern is that there is a whole list of prohibitions in clause 28 for granting citizenship, and the previous speaker pointed out that if you have been charged and convicted in a foreign country, you may not have the right to get citizenship. That is obviously very problematic, because it contradicts our own Immigration and Refugee Protection Act, which would probably give refuge to precisely a person who has been convicted, charged, and even imprisoned for all kinds of trumped-up charges by some totally undemocratic, authoritarian regime that has politically prosecuted these people. So we are setting up an amendment to this particular bill that is going to contradict our own policy and law on refugee protection, and that should be of deep concern to all of us.
Having said all of that, I should add that we would, in the final analysis, like to support all the recommendations that were made by the Canadian Council of Refugees in their submission, last year I believe, on this particular act. And you know everything else my colleagues have said before me.
The Chair: Thank you.
From the Toronto Refugee Affairs Council we have Fred Franklin.(0850)
Mr. Fred Franklin (Member, Toronto Refugee Affairs Council): Thank you.
I'm speaking on behalf of TRAC, the Toronto Refugee Affairs Council. With me is Norbert Piché, who is with the Francophone Centre and a wonderful French translator, and Jesus Mejia, who works at one of the largest family refugee shelters. Our brief and summary is before you.
Our agency workers are in daily contact with refugees, and some of us are former refugees. I happen to be a refugee from Nazi oppression. I went to England as a schoolboy, when my parents had to flee Germany. So that sparked my interest way back, and I've been at it ever since for human rights and other matters. Jesus Mejia came to this country in 1985 roughly and has helped us ever since. Many refugees have experienced how seemingly legal processes can hide draconian and arbitrary decisions. We see this danger in the lack of due process in Bill C-18, especially in granting or refusing or revoking citizenship. Others have enlarged on this very capably. I can't talk as fast as some of my young colleagues, and I don't want to bore you, but should leave some time for discussion.
Because of my interest in the justice system, I've been involved with detention, people who being deported, some who have been subject to some of these measures already and have very few rights. I see that many of our comments here are coloured by our battles with the new Immigration Act. Some of these draconian measures have been influenced by events lately south of the border, this war against terrorism and the insecurity that results from this for people on this continent, including Canadians. We are afraid that some of this has spilled over into the attitudes that are displayed here. This act will stand up for the next 10, 15, 20 years and must work fairly and well for all Canadians for that time.
With my interest in the justice system, I went through this act more carefully than I normally would and looked at these powers to refuse citizenship, and I was appalled how it ignores due process of law. I looked at clause 16, as our friend here did. It looks quite innocent. There is a judge, and that is an improvement. But with clause 17, that judge can be influenced by the minister at any time during the process. When he becomes convinced that this might be a danger to the public in some way, he does not have to disclose any of the evidence to the person concerned, who has no chance to defend himself. We've all said that, but it's a real whopper. It deems a person guilty before he's convicted, and in Canada we've always upheld this right of people to be held innocent before being proven guilty. The person, for instance, who faces revocation of citizenship has been a Canadian citizen or, in other cases, has been a landed immigrant here. There would be plenty of legal ways to catch misdemeanours. Why treat this person, just because he's not born here, in this arbitrary fashion that would not stand up? No Canadian would be subjected to some of the procedures that are in Bill C-18.
So we recommend, along with our colleagues, that these clauses be either withdrawn or reworked with great care that there be due process and appeal. These clauses usually close with the fact that the decision is final and cannot be appealed for any reason, and that is, on that kind of evidence, absolutely against all our sense of fairness.(0855)
We all welcome the statement in clause 12: “All citizens have the same rights, powers, privileges, obligations, duties, responsibilities and status without regard to the manner in which their citizenship was acquired.” We note that there is no such reciprocal obligation spelled out for the state. We feel that if a citizen has his rights, he can expect from the state reciprocal obligations and statements to protect all citizens in a correspondingly even-handed manner.
Then the act goes on to contradict this even-handed manner in so many clauses. People who are second-generation Canadians we have not mentioned, but it seems ridiculous that someone who has lived all her life, for instance, in Canada, just because she is born of a second-generation Canadian outside, is not considered a Canadian and has to jump through hoops in order to obtain citizenship. It is quite ridiculous. This is a Canadian, obviously, who then becomes a landed immigrant and has to do this and that.
So we must really look at this as Canadians who value the good things in this country. This is a good country, a decent country that has decent laws, and we must not totally counteract that by our treatment of newcomers and people who have not been born here. I hope there will be many questions on these things.
The Chair: Thank you, Fred. Thank you, all, with regard to Bill C-18.
As I said before, I am going to allow Elizabeth McIsaac from the Maytree to talk about settlement and resettlement programs, because the committee also is looking at that. Since we passed our new Immigration Act, we wanted to do a follow-up on some of the provincial nominee agreements and settlement programs, and I know each and every one of you in some way helped deliver some of those settlement programs to refugees and immigrants. In some cases you have already spoken. Yesterday we had a fairly large delegation to talk about settlement. If you have any comments with regard to settlement, perhaps you can send them to us, because you didn't have the opportunity of presenting. We look forward to that, because we are also doing a complete review.
Elizabeth, we are going to give you five or seven minutes. The Maytree Foundation is well known to this committee, as well as some of your colleagues around the table.
Ms. Elizabeth McIsaac (Manager, Maytree Foundation): Thank you, Mr. Chair and honourable members.
I would like to begin by apologizing to the committee and to some of the witnesses. Somehow the bold X next to Citizenship Act eluded me on the confirmation sheet. I should have caught this earlier, and I hope my presentation does not detract from the very important comments that have been made on the Citizenship Act.
The Maytree Foundation is a private foundation based here in Toronto. One of the key objectives of our refugee and immigrant program is improving access to suitable employment for newcomers by promoting fair recognition of their skills, education, and experience. As a private foundation, Maytree is committed to finding practical solutions to its objectives. My comments today will focus on the issue of settlement programming at a macro level, the concerns we have about this, and the solutions we are putting forward.
I have distributed two publications to the committee that Maytree has put out through the Caledon Institute, Fulfilling the Promise by Naomi Alboim of the Maytree Foundation and a forthcoming publication called Nation Building through Cities.
The first part of my comments today will respond to Minister Coderre's proposal for a so-called dispersion strategy intended to share the benefits of immigration more broadly across Canada, and then I would like to present an alternative approach to this objective.
Minister Coderre's proposal is intended to address concerns about the capacity of Montreal, Toronto, and Vancouver to absorb more immigrants. Certainly, the recent statistics from the 2001 census bear out the fact that this is overwhelmingly where immigrants choose to settle. As well, it is hoped to redress the urbanization trend, also demonstrated by the census. But we at Maytree believe cities can be better equipped to handle the current numbers and, in fact, will continue to thrive as the result of receiving immigrants and refugees.
We have three main concerns with the proposals. First, we believe the way it is framed is coercive. An immigrant would be directed to settle in a particular town or city, and if he or she does not stay there, they would become subject to deportation. We think an incentive-based approach is more sustainable and more likely to succeed.
Second, immigration is positioned as a silver bullet for regional economic development, rather than as an element in a broader strategy. Simply bringing in more people to depopulated areas of the country will not bring about economic renewal and growth. There is a need for an integrated, broadly based strategy that includes human resources as a factor, but not as the only one. The department's own research on this issue bears this out.
And third, the effects of such a strategy would be to further exclude and marginalize, rather than include and integrate, new immigrants. If the policy is implemented as an expanded temporary worker program, as is likely in order to avoid applicability of mobility rights under the charter, the extent of inclusion for immigrants under this program will be very limited. Temporary workers do not have access to educational opportunities, language and skills upgrading, student loans, or domestic student fees for college and university. Creating a class of immigrants that has limited rights within society is actually social exclusion, and social exclusion as a policy implication can be a very serious threat to social cohesion and economic prosperity more broadly.
The second part of my comments today is focused on what we think should be done. We think it makes more sense to approach the goal of sharing the benefits of immigration through incentives that contribute to a more broadly based strategy for strengthening the economic engines of Canada, its cities. That is, we should be enabling communities to develop a marketable case for why immigrants should settle there. But still, we don't see this as being practical or pragmatic for all cities and towns across Canada. Realistically, we are talking about second-tier cities in metropolitan areas, those that have the infrastructure and capacity to effectively settle and employ a significant number of immigrants.
The settlement side of immigration is very much a local experience. It is in the cities and communities where settlement happens that we find the real experience and knowledge of what works. We think there is a critical need to find a meaningful role for that local knowledge in the design and delivery of policy and programs.
Part of the problem in settlement in Canada today is the lack of vertical and horizontal coordination and collaboration. We are recommending a tripartite settlement agreement between municipal, federal, and provincial governments as a first step towards fostering greater vertical collaboration and coordination. These agreements need to be structured so that the municipality is positioned as the designer and driver of settlement planning, while the federal and provincial governments assume the role of respondents and facilitators.
But there is also a need for greater horizontal coordination. In fact, we are suggesting a five-cornered agreement with Citizenship and Immigration and HRDC from the federal government, ministries responsible for immigrant settlement and training and education in the provincial government, and of course, the municipality.
At a local level it is critical that there is a capacity to convene all the relevant stakeholders, governments, employers, education institutions, immigrant groups, settlement service providers, non-governmental organizations, occupational regulatory bodies, professional associations, and so on. There's a need to develop a multi-stakeholder mechanism that will envision and effect a new system for integrating immigrants into the labour market in local communities. We recommend creating a local settlement board that would bring to the table the five partners and other stakeholders. This body would be empowered to create policy and programs to meet local needs. In fact, this is one of the recommendations that is expected to come out of the Toronto City Summit Alliance, which is just wrapping up its process at this point.
In closing, immigration for both Canada and the immigrant is about choice and opportunity. Immigration provides a benefit to Canada, and there is value in sharing this benefit as broadly as possible. However, it is critical at the same time that immigrants have the choices and opportunities that are available to all Canadians. This means settlement in the city or community that has the capacity to effectively integrate them economically, socially, and politically.
The Chair: Thank you, Elizabeth, for your paper and submissions. This is an area where the committee is spending some time trying to make sure we deliver the programs, especially in light of the fact that we want more immigrants to come to this country and we're going to be taking more refugees, and obviously you need to put in the resources, both human and financial. I like the idea of working in partnership, not only with ourselves and the provinces, but I think the community groups and municipalities have to be involved, because this is a local problem.
During our deliberations on the immigration bill, wanting to attract skilled workers and others to our country, we were troubled by the fact that most people would choose Toronto, Montreal, and Vancouver, not places like London, Ontario, or Kitchener or Saskatchewan. I think it needs to be an incentive-based system. We need to encourage some of our new Canadians to help Canada. There is depopulation in certain parts of the country. Small town Canada needs skilled workers and professionals, and I think we need to develop an incentive-based model for how we can encourage people to help us too. I'm not suggesting that it be a contract. I know sometimes language gets in the way of a good idea, in this case being able to talk about how that partnership can work between newcomers to Canada and the Government of Canada. It's happened in the past in a very constructive way, I think, but I think we need to do that, because there are provinces and small towns and other cities in our country that need people. And while everybody wants to come to Toronto, Montreal, and Vancouver, there are some other good places where I think they would be most welcome.
We heard that where communities and municipalities come together to attract and retain people and build those settlement programs to make people feel at home, it's worked. I think it's that kind of proactive involvement we, as a committee, want to encourage, and I'm sure, with your good minds and good ideas, we can come up with a program that will help us achieve increased immigration to this country, with the ability to locate them where it's going to be fulfilling for them and good for the country.
I think you've raised a lot of good questions, so let's start with Lynne.(0910)
Mrs. Lynne Yelich (Blackstrap, Canadian Alliance): Yes, thank you Mr. Chairman, and thank you for all the presentations.
Elizabeth, I particularly think we have a lot to offer in some of the more remote areas, and they're not that remote. I think we're quite classy small communities, and we have given immigrants in their first year in Canada some real bonds and some really good starts. They do go on, because they don't have the jobs in our small towns, but I certainly think we have lots to offer. We have beautiful little apartments and homes, and many of them now are extended families. I come from a village of 300, and we brought 15 immigrants in, and they now live in the cities where there are jobs. I don't think you'd see doctors washing walls, as we heard yesterday, if they came to Saskatchewan, because we're short of doctors.
I would like to see, as Joe said, the incentives. You're right on, we have to get that tripartite thing going. That's great. I wish you'd been in the other presentations, because I think we shouldn't deny the people who want to speak on citizenship.
I really am interested in seeing why people are so afraid of the cabinet. The fear is so strong throughout, not just in your presentations. It's more than just the lack of judicial process, there must be something really fearful about that. Who do you think should annul these citizenships?
Also, I wondered if you didn't find some comfort in knowing that after five years you can apply again in an annulment.
Avvy, I wanted you to talk again about the mother born outside Canada not being a Canadian citizen. I want you to say what clause that refers to and how you would change it.
On the adoptees, you mentioned that a lot of your people are family. Do they have no parents? There is some fear that people might send their children here to have better lives by having them adopted. I don't know about your country, but it has been brought to my attention that this is done, that people here will adopt them just so they will have a better life, not because they're parentless or because the people here are childless. So I wanted you to expand a little bit on that.
I guess those are enough questions.
Ms. Avvy Yao-Yao Go: I will address the adoption issue, and probably try to answer the first question as well. I'll give you an example of the types of cases we see. Maybe that will assist you in understanding the situation.
I had a client who was a divorcee in Canada and had no children. She had a brother in Vietnam who was married and had a child. The brother passed away, and his wife became unable to care for the child. My client, before she came to Canada, was the one who was taking care of the child for a number of years. She then came to Canada with her husband. While the sister-in-law was there, she was not really taking care of the child. So she decided to adopt the child she had taken care of for a number of years, because she herself has no children. She applied to sponsor the child, and one of the questions when the child went to the visa office for an interview was, what are you going to do when you come to Canada? Bear in mind that this child was only 10 years old. He said to the visa officer, I'm going to Canada to study. On that basis, the visa application was refused, because obviously the child was coming here to study, not to be with his parents. I don't know what they expect a 10-year-old kid to do when they come to Canada, but it was on that kind of basis that they denied the application, saying that it does not create a genuine parent-child relationship, because the child is making use of this opportunity to come to Canada to study.
That case went to appeal, and we won. Then you had an opportunity to present evidence about the circumstances in which the child was taken care of by his aunt and all that kind of stuff. The question was whether the adoption created a parent-child relationship at the time when the child was adopted, because at the time he was the nephew of the adoptive parent. So there was a relationship that existed before. It's often that kind of situation where there is a conflict, because the child also regards the adoptive parent as his aunt; for years he knows her as his aunt, and then you suddenly say to the child, now I'm your mother. So it's that kind of situation.(0915)
Mrs. Lynne Yelich: Should it stay with Immigration and the provinces, which are responsible for adoptions? Immigration, of course, does the sponsorship. Should it stay there and not come to Citizenship, because you have no way of appealing it?
Ms. Avvy Yao-Yao Go: I think the better way would be to equalize the situation. You do recognize natural children under the Citizenship Act, so I think it makes sense to recognize adopted children. A better approach is to give the parents the right to appeal, rather than taking adopted children out of the Citizenship Act equation.
The Chair: I have a supplementary, because I would like to deal with this. Then we'll move on to the judicial-based system as opposed to the other.
I'm looking for a solution here. During the Immigration Act discussions we wanted to make it easier for people to either adopt or be guardians of children and bring them to Canada as quickly as possible, with the assistance of the provinces. The motivation behind citizenship is to make an adopted child a citizen as quickly as possible. I don't know how in the heck the department screwed up the wording so that all of a sudden, if there is a problem, with no appeal mechanism, not only does the child perhaps not become a citizen, but they may even lose their immigrant status.
Ms. Avvy Yao-Yao Go: Well, there is no immigration status, right?
The Chair: I know.
We were trying to eliminate one step, and sometimes when you are trying to do something good, you screw up something else. So I want a solution. Is the solution the appeal mechanism you are talking about, or is it that we make sure, when we want to bring a child over, we make them immediately a Canadian citizen? Because I think that's the intent. The motivation behind this particular section is to make a child a citizen as quickly as possible without having them go through the hurdles. So give me the solution. Is the solution an appeal mechanism in this clause, or is it drafting something that says, this is what we want for the child?
Ms. Avvy Yao-Yao Go: Appeal is one solution, but we submitted that maybe you should change the wording. Right now the wording refers to the creation of a parent-child relationship. We are suggesting that maybe you can change that to “a created parent-child relationship” or “will result in a parent-child relationship”.
The Chair: Well, you're a good lawyer, I can tell, so why don't you spend the next little while, because we will be at this for the next three or four weeks—
Mrs. Lynne Yelich: With the interests of the child in mind.
The Chair: Yes.
Ms. Avvy Yao-Yao Go: Exactly.
Mrs. Lynne Yelich: Because we do know what it could develop into.
The Chair: I think that would be a very positive thing.
Now for comments on the broader question of a political-based, administrative-based system, as opposed to a judicial-based system.
Ms. Uzma Shakir: As I said, I don't know the legal implications, but as a Canadian citizen whose passport says “born in Pakistan”, I feel insecure in Canada right now. I feel extremely scared for my kids.
The Chair: Well, wait a minute. The Americans may have made you feel that way. I hope Canadians don't make you feel that way.
Ms. Uzma Shakir: What I'm saying is that the situation has been created even in Canada, racial profiling; it is not something that is peculiar to the United States. What I'm trying to say to you is, if you put something as significant as whether someone should have citizenship or not in the hands of a body like the cabinet, it will be their interpretation of the provisions of the bill that leads to their decision-making. If tomorrow, for instance, there was a political party in power that had a very conservative and stringent view of what those principles and values of free democratic society are, a lot of people who actually get citizenship granted today would not have the same rights then. That, I think, is the concern we have.
Ms. Avvy Yao-Yao Go: To add to that, one of the fundamental principles of this particular type of western democracy is checks and balances, separation of power. There is a reason we do that. It's kind of ironic that on almost every other front you don't give government unchecked power with no right of appeal. It's the combination of both: the cabinet is now making the decision, but we're not giving the individual the right to appeal. You have a right to appeal if you're given a traffic ticket. You have a right to appeal if you are denied welfare. You have a right to appeal with almost everything else, but not when you apply for citizenship. It just doesn't make sense.
The Chair: Thank you.
Mr. Harold Otto: I think all of us trust Canadian courts more than we do Canadian politicians—forgive me. I would like to address Mrs. Yelich's question as to why we are so afraid of the cabinet. I'll give you a concrete example or two that arise from the federal government's perceived failure to prosecute accused war criminals in this country and their decision to use revocation of citizenship as a way of getting around this seeming inability to prosecute criminal cases.
In the case with which I am most familiar, because I worked on it, the lead investigator for the RCMP, on cross-examination, said very clearly there was no evidence of individual criminality on the part of the accused at all. The cabinet minister responsible for putting this case forward—and it was clearly a decision made at the cabinet level—was the Minister of Justice, at that time the Honourable Allan Rock, who said no case would proceed in the absence of evidence of individual criminality. If the lead RCMP investigator was willing to say in court there was no evidence of such criminality and if eventually, after a 29-day trial, a justice of the Federal Court trial division was prepared in his decision to say there was no evidence of such individual criminality, you can begin to see why we distrust the cabinet.
There are other cases where people have been accused of war crimes publicly, but proceeded against on narrow legal grounds under the old Citizenship Act and been found by justices of the Federal Court of Canada not to have committed any war crimes, not to have collaborated with the Nazis, not to have done anything that would be illegal. But on a mere balance of probabilities, it's more likely than not that they misrepresented some things when coming to Canada, and therefore an adverse judgment on that narrow legal question would mean they'd lose their citizenship and be branded as war criminals, even though the court found that there was no evidence of war criminality. That's the result of this politicization of the judicial process in an attempt to make an end run around the real issue. That's why we're scared to death of the cabinet and of political decisions.(0925)
The Chair: But the existing law is the political thing. We've got to change it, I would agree. The existing legislation tried to change it in some areas, just to be clear. The law today in the land is a very political process. I think the committee knows Bill C-18 tries to change it. It obviously doesn't go far enough. There are some very deep concerns you've all talked about.
Mr. Fred Franklin: I echo the sentiment that cabinet is influenced by the political leanings of the day, and the Immigration Act has to stand up for the next 20 years. We have more trust in a decent judicial process, where any evidence proferred can be refuted. All this doesn't happen in this cabinet procedure. It's plain and simple. Natural justice must be prevail, and anyone party to a legal process in Canada must be treated according to the same standards. It's not that members of the cabinet are evil, but they are influenced by the political leanings of the day. It may be different tomorrow.
Ms. Avvy Yao-Yao Go: Can I respond to something you said earlier about the existing law? The difference between the existing law and the new act is that the new act politicizes the process even further with all those new provisions.
The Chair: Yes, I understand, but I'm talking about revocation being based still on a political system, and we're trying to change that. That was my point. There are other problems with this bill, but I'm saying the law in the country now has a very politicized system.
Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Thank you, Mr. Chairman.
Let me make mud by suggesting that all of you were lawyers who spoke, because you're great advocates and you obviously have a sense of social justice, and that's one thing we need in the law profession, more people with a sense of social justice.
The process of revocation goes back to 1919, the dark period of our immigration history. The dangers inherent in it we all know about. We have the Charter of Rights and Freedoms, and that happened because of all the injustices that have occurred in this country, the Asian Exclusion Act, the Chinese head tax, the turning away of the Kamagatamaru, internment of tens of thousands, forceful repatriation to Japan of Canadian-born of Japanese ancestry after a war, exclusion of Jews—the list goes on and on and on. It wasn't till 1975 that we dropped the colour barrier from immigration. So on June 17, 1982, we enacted the charter. It was a recognition that what we had done before was not proper and we didn't want to go there again. This was a consensus across the country. Unfortunately, this Citizenship Act never has been put through the charter prism. Instead, it's being put through the prism of 9/11 to make it even more draconian.
You come from Pakistan. If this act were in force, there would be nothing to stop somebody saying, you never told us you knew this person who subsequently turned out to be a terrorist. And if you take this into a Star Chamber, where you don't know what the evidence against you is, you don't know what you're defending yourself against, and you have no possibility of appeal, your citizenship is at huge risk. In Canada we're a collection of people from around the world. Many of us have come from troubled parts of the world. I got here as a refugee from Hungary. Back in 1956 Hungarians were freedom fighters, today the Chechens are terrorists. If you reversed it, I'm sure the Chechens would be freedom fighters and the Hungarians terrorists. This is the inherent danger of what we're talking about.
I really loved listening to you, because the more I study the bill, the more outraged I get. I've got human rights as a citizen like every other one of us here. We shouldn't be lecturing the rest of the world on human rights and civil liberties when we're instituting this kind of oppression at home.
Lynne asked how you revoke citizenship, and none of us is saying, don't revoke. The Liberal Parties of British Columbia, Ontario, Quebec, and Alberta last weekend passed a resolution where they said, “whereas it is due process before the courts that makes all Canadians equal”. You can't change the fact that someone was born elsewhere and someone was born locally. No, we don't want any war criminals, and if a war criminal got here, they should be prosecuted. If somebody is a terrorist, they should be prosecuted. Taking away their citizenship doesn't make me feel very secure. You boot them out of the country, and if they are terrorists, they'll be back. Anyway, they did resolve “that the Government of Canada ensure that in cases of citizenship revocation questions of fact in law, guilt or innocence must be determined by the normal judicial process, free of political interference.” This was passed by four provinces that represent 85% of the population of this country.
So you are in tune with the feelings out there, and what I get outraged at is that we dealt with Bill C-63, we dealt with Bill C-16, and one group supported the previous bill, yet the bureaucrats keep giving back to Canadians the same damn thing. We have to make sure there is an awareness in this country that you folks aren't going to take it any more, none of us is going to take it any more, and we want the kind of society that's enshrined in the Charter of Rights and Freedoms, because that's the social contract we have.
And I'll say, Lynne, I was proud of your party. When I stood alone, virtually, in the House of Commons and resigned as parliamentary secretary, somehow the members of your party unanimously saw the need to have the charter applied, as did the Bloc. The NDP, the Tories, and the Liberals did not see the importance of this. This should be beyond politics. This is basic human rights, civil liberties, and I think it's something we all fight for.(0930)
The Chair: Andrew, obviously, that was a great speech. Have you got a question for anybody?
Mr. Andrew Telegdi: When these hearings are over, don't let go of this issue, because you know about it and just appearing in front of this committee is not going to necessarily do it. You must go and see your members of Parliament in your ridings and let them know this is an important issue. My question to you is, will you go and do that and take many people with you?(0935)
The Chair: Harold, I'll give you an opportunity to comment.
Mr. Harold Otto: It looks to me as if it's a government bill. My MP votes with the government every time, seemingly as a matter of party discipline.
The Chair: Harold, I don't want to get into this democratic deficit argument and everything else. Some of us are trying to improve it. We are here as a committee. I am not the servant of the minister, I am the servant of the people, and this is an all-party committee. We're trying to improve an act. If we can through the advice and consultation we're getting from citizens, that's fine. At the end of the day, we will vote as a committee on what to do with it. So I don't want to start to get into this stuff. I will tell you, we are going to try our best. At the end of the day, we may throw it out, shred it, we may amend it and make it better, because there are certain provisions in this bill that I think make an awful lot of sense. That's what we're here as a committee to do, and I don't want to get into this whole game of members' voting and all that sort of stuff.
Mr. Norbert Piché (Chair, Francophone Centre of Toronto, Toronto Refugee Affairs Council):
I represent the African communities, among other things. I work with the African communities here in Toronto. From what I have heard so far, I see that many people talk about security reasons. I have observed that people coming from Central Africa, that is to say from Congo, Rwanda and Burundi, do not have much difficulty in obtaining permanent residency. However, refugees from Algeria face many more problems when they want to get permanent residency and may sometimes have to wait several years without ever being given any reasons. They're always told it's security reasons but that's the extent of it.
Therefore, I am scared when I see the same type of language being used here. I hope that people will be able to use the legal process and that the government will not always use the security excuse to hide everything. It is important to set up a more open system.
The Chair: Thank you very much. I thank you for your comments in French.
Mr. Brian Masse (Windsor West, NDP): Thank you, Mr. Chair.
As a preface to my comments, prior to election I spent three years working for a local agency assisting new people coming to Canada, finding employment, going to school, working on different social issues, getting into the mainstream so as to be successful. So I am really interested in this particular bill and how it applies to the creation of more positive support for them to prosper, because if that doesn't happen, it really takes away the intent of creating the opportunities we need in the nation.
The discussions have been excellent, and I really liked the presentations. Now we actually have a two-tier system with our Canadian citizenship. I represent Windsor on the border, and I have Canadian citizens being fingerprinted and photographed at the border. We are talking about not only people who have had their citizenship for the last couple of months, but those who've had it for decades. They're professionals, people who have high integrity, and it's been unbelievable the processing that's happened, and it's unacceptable. Also, we have Canadian citizens who have been deported abroad. I can understand the concerns about the actual process through cabinet and what not, because there hasn't been, in my opinion, a strong enough position from this government to deal with that situation. I literally have constituents coming into my office with family members sleeping on the floors, and then coming back, waiting for hours to be processed, for no apparent reason, at the border. You should know that. I'm really concerned. I appreciate the presentations about that.
I have one general question on specifics in the bill. With the new bill coming forward, I'm concerned about family reunification. I've identified some, but are there specific clauses that you can reaffirm will make it more difficult for families to unify?
Second to that, I would maybe ask Elizabeth a question with regard to the three-tier or tripartite agreement with the municipalities. I was also a municipal councillor, so I'm interested in that. How important is it that municipalities drive the process of programs and services to their local communities?
I'll throw the first one out in general, specifically on family reunification.(0940)
Ms. Avvy Yao-Yao Go: The bill doesn't actually address the issue of family reunifications per se, but a number of provisions may have an impact on the separation of families or the reunification of families to begin with. One example would be the adoption issue. It may be difficult for someone who is here to bring their adopted kids to Canada as citizens. Another possibility would be a situation Uzma was talking about, that being the potential stateless persons. You may end up with parents with kids who are not Canadian citizens.
And then there's just the overall power of the state to revoke or annul citizenship. You're talking about individuals who have family in Canada. That they have family in Canada will have no impact on the minister's decision to take away their citizenship. Someone who has been here for sixty years can have their citizenship revoked. That person may already have grandchildren and whatever in Canada. In and of itself, that fact is not an issue, because he can still be booted out of Canada.
So how it becomes more difficult to become a citizen will have an impact as well, given the number of prohibitions, because you are not talking just about individuals. These are individuals who potentially have families in Canada as well. So I think that will have an impact.
Ms. Uzma Shakir: I just want to follow up on that.
In this day and age of globalization in everything, it is not so unusual to think people could be living and working outside of Canada. A lot of Canadians end up going abroad. Basically, we are now creating a condition in which we are saying it's all very well to go abroad, but just don't have any babies while you're there. Essentially, you are creating a situation in which, if I happen to be foreign-born and second-generation, and if I just happen to be stupid enough to have a child somewhere outside of Canada, that child does not have an automatic right to citizenship. That creates a bit of a problem.
The Chair: Unless you're a government worker. Then you're entitled to have kids anywhere in the world.
Ms. Uzma Shakir: That's precisely my point. It is an unrealistic expectation in this day and age, when people roam around, work in all kinds of places, and still are Canadian citizens. I think that can be slightly problematic.
The Chair: Could you just address Brian's question on—
Ms. Elizabeth McIsaac: Just briefly, the key part of having municipalities as the drivers of the agreements and so forth is to localize the priorities so that they get determined locally. There are a couple of levels to this.
One is a potential for efficiencies of service. Greater efficiencies can be drawn when things are coordinated locally—for example, language service delivery.
Another piece is creating coherence among the different stakeholders. For example, one of the recommendations that is coming out of the Toronto City Summit Alliance is a collaborative effort of the local community colleges and their ability to articulate their programming with the local employers' needs.
Employers are another point. Employers are the stakeholders who have probably been the most difficult to bring to the table in finding solutions to the economic integration of immigrants. That has to happen locally. Efforts to engage organizations like the Canadian Manufacturers & Exporters, the Canadian Federation of Independent Business, and these more national organizations, are just not effective. These are umbrella organizations that cannot mobilize their membership effectively, so these are things that have to happen locally. In a constituency like your own in Windsor, it would obviously be driven by the automotive industry and that type of thing, so it then becomes very particular to the local area.
The Chair: Thank you.(0945)
Ms. Uzma Shakir: Can I just make a comment about that? I'm a social activist. I have a comment on everything.
It seems to me that in this whole debate over immigration and settlement, we have the wrong end of the stick. Sometimes I think they're looking for that perfect immigrant to solve all our problems. I'm still waiting for that perfect specimen to show up.
To my mind, we are confusing some things. Rather than looking into urban development as an issue or focusing on strategies for urban development, we are looking at immigration as a catch-all for everything. Demographic trends are only one aspect of urban development, but not the only aspect of urban development.
Other than immigration and diversity, what we should be focusing on are, for instance, new and novel sorts of fiscal arrangements between different levels of government, in order to boost urban development. We should be looking at social and physical infrastructure that can accommodate that growth and diversity of population. We should be looking at innovative ways of governance that are much more participatory and grassroots, so that the diversity of the population finds itself reflected in the structures of governance and power. But what ends up happening is that we end up totally and almost pathologically focused on that perfect Martian that we're going to find, that one who is going to be that perfect engine for the development of the urban centre and urban renewal policy. To my mind, that is a critical problem that we need to address at all levels of government.
The Chair: I agree totally with you. That's exactly what the committee wants to do: listen to those kinds of models and things that all of us want to create for our own communities. I know we've gone a little bit over our time, but it has been worth it. Your input has been absolutely fantastic.
I'll tell you a couple of things. One, the committee is determined to make sure we only have one type of citizen in this country, not two or four, either inside of Canada or outside of Canada. I'll be darned if I'm going to accept, as Brian indicated, that our best friend and ally should question whether or not I was born in Italy and someone else was born in Canada, and that they should be able to subject us to fingerprinting. We've tried to tell the Americans that's unacceptable, but we have to do a lot more. That's why this committee has been trying to get to the United States to talk a lot about our immigration policy, our refugee policy, and our citizenship policy.
I understand where they're coming from. They're a little antsy these days. There's no doubt about it. But I'll be darned if, all of a sudden, we have to subject our own citizens to a passport that says the person is a Canadian citizen. It should not matter whether or not you were born inside this country or outside this country and you've become a citizen. We're committed to making sure we fix this bill so that it becomes one citizen regardless, and your input on that has been very good.
The other thing we talked about is the fact that citizenship is about national identity. One of the other things we're studying is the national identity card, and we had panellists talking about it yesterday. Could I just quickly ask you to tell me whether or not you like the idea of a national identity card, and whether or not it will be helpful? Maybe you can write to me or the clerk, but if I can go quickly around the table, I might as well take this opportunity to do it. Forget about the smart card. I just need some comments, and then you can write me.
Ms. Avvy Yao-Yao Go: I think most of us are against the national identity card. There are a lot of privacy issues involved. I was doing interviews yesterday, and I think it's a sovereignty issue.
The Chair: I saw you Avvy. We're making you either famous or infamous, one of the two.(0950)
Ms. Avvy Yao-Yao Go: Mr. Farrell pointed out that I was bad-mouthing you before I came.
The Chair: Yes, I know.
Ms. Avvy Yao-Yao Go: Anyway, I think it's also a sovereignty issue. We're only doing this because the Americans are telling us to do this. I want to point out, however, that we already have a national identity card for some people, and those are the immigrants. I think that is also very unfair, and I think the committee should perhaps start looking at the permanent resident card as well, because it has the biometric information.
Every day, I'm going through hundreds of applications from people who already have landed status. To go through the whole process of applying for a permanent resident card, which has more information in it that shouldn't be in there....
So apart from the national identity card, I think we also have to address that particular issue.
The Chair: Does anybody else want to make comments on that?
Go ahead, Fred.
Mr. Fred Franklin: Just briefly, I popped in yesterday and heard some of Morris Manning's explanation, and it scared me to death. I've been against it previously, because I know the information-gathering doesn't end once you start. When I heard that this increased racial profiling could be part of it—I had not thought of the idea that you may not look like whatever, but your origin is described on there—I asked why, if there are all kinds of ramifications that are negative. If it could remain a simple piece of identity, like a driver's licence and nothing more, one might agree. Maybe we can draw the line there, but the rest of it scares us to death.
The Chair: We have some great nighttime reading by Morris Manning. If you'd like to look at it, be my guest, Fred. It's good stuff. It's guaranteed to keep you up all night.
Mr. Harold Otto: The idea of a national identity card terrifies me. It sounds exactly like a personalausweis in Nazi Germany, particularly if you combine it with a system of registration of where people live. Lord know that with a computer and their social insurance number, something can happen at the snap of one's fingers. It's terrifying.
The Chair: I thank all of you again for your great input.
Colleagues, we're going to take a short break before we go to our next panel.(0951) (1007)
The Chair: Colleagues, we want to welcome the second panel on Bill C-18. We have with us the German-Canadian Congress, Ontario, represented by Ernst Friedel and Anton Bergmeier; Kairos, represented by Marnie Hayes; the Kitchener–Waterloo Portuguese community, represented by Orlando Da Silva; and individuals Olya Odynsky and Leslie Torok.
Let's start with Kairos, and Marnie Hayes. Welcome.(1010)
Mrs. Marnie Hayes (Educator/Policy Advocate, Refugees and Migration Program, Kairos): Thank you very much for inviting the public's participation for discussion about this bill. We really appreciate having our views heard by you, and we hope you can then take the views of all of us back to the powers that be. That's a whole other issue in terms of where the information will go, but we appreciate it in any case.
Just for your information, I work with an organization called Kairos, Canadian Ecumenical Justice Initiatives. Kairos is an ecumenical partnership of eleven national churches, church agencies, and religious organizations. It was formed in July 2001, and we carry forward the social justice work of ten former ecumenical coalitions. Some of you may remember the work of the Inter-Church Committee for Refugees. The refugee and migration program of Kairos is carrying forward that work.
Many people ask what Kairos stands for. Just for your information, I'll let you know it's not an acronym. It's a Greek work that means “time”. In the Christian tradition, we interpret it to mean a time to act for justice.
Mrs. Marnie Hayes: Mrs. Marnie Hayes Oh, good. Glad to hear it.
I've worked with Kairos for the past year, and I'm bringing forward the concerns of Kairos today. Just for your information, for the past eight years, before working with Kairos, I worked on the front lines in a legal clinic in Toronto, representing immigrants and refugees as a community legal representative. I have first-hand knowledge of the concerns of many people this bill will affect.
I had the opportunity to hear a little bit of the conversation you had with the previous speakers, the previous witnesses, with regard to their concerns about the bill. I must say that we share many of the concerns that were spoken of previously. I won't have to speak for long or go into great depth, because I know you have heard many of these concerns. Chiefly, our concerns are about the lack of due process that is not present in the bill. Very clearly, we're very concerned about the lack of transparency and the lack of rights in the bill for the people who would be affected by it.
I'll go through some of the clauses and highlight some of our concerns, starting with clause 17, the revocation of citizenship through a security certificate process. As you know, it allows a Federal Court judge to take away an individual's citizenship without the person being permitted to see the evidence against them. This is very concerning to us, as I said, because of the lack of due process.
That a person is not allowed to see the evidence against them is extremely concerning. It brings to mind the case of the Syrian gentleman from Ottawa who is a Canadian citizen but who was recently deported from the United States and sent back to Syria without him or anybody knowing why. That's an example of someone not knowing the case against him and not being able to defend himself. It's very clearly an unfair situation, and we don't want this to happen in Canada. However, this kind of process, with its revocation and annulment of citizenship without due process, could lead to that if people are not going to be able to know the case against them and defend themselves. This is very problematic, so we're echoing the voice of many groups and individuals that you've already heard from about this problem.
I also heard someone asking where a person is going to go if that person loses their citizenship. Where are they going to go from Canada? Having your citizenship taken away is a very serious thing. If you came to Canada as a refugee, for example, and you were deported back to the country where you fear persecution, this could be very problematic. It's therefore very important to be able to have your case heard before the decision-maker, and it's also very important to be able to appeal a negative decision, because the stakes are extremely high.
And just to stay with clause 17, recognizing that if somebody does get their citizenship by false representation, by fraud, or by knowingly concealing material circumstances, then just like you, we don't want them to...if they are a threat to the security of Canada, then let's get to that, but not through this process.
Clause 18 allows the minister to annul a person's citizenship if the minister is satisfied that the person acquired it by prohibited grounds or by using a false identity. Again, there's a lack of procedural safeguards in this clause: no due process, no right to a hearing, no appeal, and no opportunity for the person to see the evidence against them. Also, for the minister to be satisfied, the test of evidence here has a very low threshold. For the minister to be satisfied versus the minister being convinced beyond a reasonable doubt, there are two different thresholds. We would submit that it's too low of a threshold.
We would recommend that, in the case of annulling a person's citizenship, independent decision-makers should be appointed to oversee this process. It should not be the minister. Also, the rights to due process, to a hearing, to notice, to disclosure, and to counsel, should be given to the person who could potentially lose their citizenship.
Clauses 21 and 22—which I heard the witnesses speaking about previously—under which someone could be refused citizenship by the cabinet, are also very problematic. We understand that these clauses are likely trying to get at human rights abusers. However, they're too undefined, too subjective, and too broad, in terms of the discretionary powers given to cabinet. As was pointed out, with a new government, there could be a problem with that and someone could be treated unfairly. Secret decisions being made behind closed doors are something that make me think about a police state, not Canada, where we know due process is always a very high and important value.
Clause 28 lists some new prohibitions against somebody who can be granted citizenship. We are concerned with paragraphs 28(c) and 28(d), which deal with charges and convictions against somebody outside of Canada. We want to point out that these paragraphs are of concern because people can sometimes come to Canada with charges against them or convictions against them that are wrongful or trumped up. Somebody could be falsely accused of a serious crime and could be framed by a corrupt government. We therefore ask you to consider thinking of a way to draft those paragraphs in a way that would ensure that somebody who did come to Canada as a result of a wrongful conviction isn't prohibited from applying for citizenship because of that.(1015)
Finally, I want to point you to clause 14 of the bill, which talks about an automatic loss of citizenship for people born outside of Canada to foreign-born parents. This clause appears to discriminate against second-generation, born-abroad Canadians. Even though the bill itself talks about all Canadian citizens having the same rights, obligations, etc., this part of the bill appears to create two classes of Canadian citizens.
I guess the goal of this clause of the bill is to ensure that Canadian citizens born outside Canada to foreign-born Canadians demonstrate ties to Canada. That appears to be the reason why this clause exists. But we would argue that in these days of a globalizing economy...for example, I was born and raised in Canada. I could leave Canada, have a child outside of Canada, and live the rest of my life outside of Canada. My child could have a child, and my grandchild would still be entitled to Canadian citizenship even though we spent our life outside of Canada and have no ties to Canada. However, what if I happen to be an immigrant, a non-Canadian-born citizen who does the same or who leaves Canada and has a child? If my child has a child outside of Canada and we then come back to Canada and spend our whole lives here, my grandchild would then have their citizenship automatically taken away at age of 28 if they don't jump through the proper hoops.
Again, the question of lack of due process arises, because automatic is forever and always. There's no appeal and there is no opportunity to put forward arguments on humanitarian grounds. There's nothing like that. It's just an automatic loss of citizenship, so that's extremely concerning.
I did say that was finally it, but I do have one more point, and it's about clause 11 of the bill, which appears to get at the potential problem of statelessness or reducing statelessness. It gives power to the minister to grant citizenship to a person who has always been stateless and has a birth parent who was a citizen at the time of their birth. In looking at and studying that clause in the bill, we know Canada is committed to reducing statelessness, being a signatory to the Convention on the Reduction of Statelessness. We recognize that it's a serious problem for somebody to be stateless, but I don't think this clause of the bill gets at what is trying to be gotten at here, that being to reduce statelessness.
This clause talks about somebody who has always been stateless. Of course, it is possible for somebody to become stateless. In political upheavals in places like Ethiopia, Eritrea, the U.S.S.R., or Palestine, somebody can become stateless but not always be stateless. We would therefore suggest that this clause of the bill be amended to say the applicant must have become stateless due to circumstances beyond their control, as opposed to “has always been stateless”, because that may get more at what the bill is trying to achieve.
Also, in that clause, there is a deadline to apply by the age of 28, while having spent three previous years in Canada. It appears that this age limit is arbitrary and borrows from clause 14. We submit that there should be no age limit, so that it would better meet the goal of reducing statelessness.
Those are my comments. In very brief conclusion, I want to say we appreciate the government's position of wanting to advocate for the collective rights of Canadian citizens to live in a secure environment. However, it appears that the bill is taking away the rights of some citizens who are not born in Canada, and we don't think that is acceptable.(1020)
The Chair: Thank you, Marnie.
We'll go to the German-Canadian Congress, Ontario. Ernst and Tony, welcome.
Mr. Anton (Tony) Bergmeier (President, German Canadian Congress National, German Canadian Congress-Ontario): Thank you, Mr. Chairman, for giving us the possibility to speak on Bill C-18. My name is Tony Bergmeier, and I am the national president. My friend Ernst Friedel is the president for Ontario.
The German-Canadian Congress is an umbrella organization for German-Canadian clubs and associations in Canada. Across Canada, over ninety organizations are members of the German-Canadian Congress. This morning, we're here to present to you the views and concerns of those members in regard to Bill C-18.
We all know we are living in a changing world, and that existing laws and regulations require review from time to time. We applaud the federal government for doing that with respect to citizenship and immigration. The existing laws have served our country for many years, but they also have some flaws when it comes to the rights of individual Canadian citizens, especially those who acquire their citizenship by choice. We hope the new, proposed act will address those shortcomings.
I want to draw your attention to clause 12 of the
act, found at the end of part 1, where 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.|
What clause 12 says is very important and we fully agree with it. It is the cornerstone, the foundation on which the new act should be based.
However, if we go forward to clause 16, which is in part 2 of the act, we find wording that is of great concern to our members. In subclauses 16(1) and 16(2), there is no clear explanation of what is considered fraud, false presentation, or concealing material circumstances. Subclauses 16(3) and 16(4) are very vague and contain elements that do not require full judicial disclosure of evidence. They allow for a presumption of guilt of fraud regarding the acquisition of Canadian citizenship. A citizen can now be stripped of their citizenship and be deported from Canada. That means a Canadian citizen can be treated the same way as someone who has just arrived in Canada a couple of weeks ago.
And in subclause 16(6), the last subparagraph,
subparagraph 16(6)(b)(ii), is especially worrisome. It states that the
|is not bound by any legal or technical rules of evidence...adduced in the proceedings that it considers credible or trustworthy in the circumstances.|
There is no clear definition to guide the judge in his or her deliberations, so the result can be just a personal opinion.
Clause 17 essentially permits the government to engage in the same exercise as provided for in clause 16. It is a simplified procedure for the minister and the Solicitor General. By making a referral to the Federal Court by way of certificate, the entire procedure is expedited. It refers to inadmissibility on security grounds, on grounds of violating human or international rights, or on grounds of organized criminality. What is meant by human or international rights, or indeed security grounds, is left up to the imagination of the minister and/or the Federal Court.
This procedure has nothing to do with natural justice, and it abrogates the relevant provisions of the Canadian Bill of Rights and the charter. A judge decides what is relevant or what is not, without the citizen even appreciating the case against him. Again, anything and everything is admissible. The judge is not bound by Canadian rules of evidence or by case law.
If not eliminated, several clauses of the bill would make this act even more draconian than Bill C-16, the citizenship act that passed in the last Parliament but died on the Order Paper with the 2000 election.
Clause 56 is also troublesome, but the new system in clause 16 will only apply to future cases and to current cases, with no substantive evidence yet taken when the bill becomes law. This is like abolishing capital punishment for future cases, but hanging the few persons already on death row, or providing that the Crown can appeal a case that it loses tomorrow but not one it lost yesterday. Clause 56 should be amended by the committee or the House, with proper wording so as to secure the advantages of the new system in clause 16 for past and current cases, as well as for future cases, and so that the minister will accept such amended wording for clause 56.
We feel the bill has some very good elements. However, there's still much work to be done to make the proposed citizenship act fair and to allow all Canadians the legal rights of protection defined in the Canadian Charter of Rights and Freedoms. If we have two kinds of citizenship, we have two kinds of people with different rights. That, of course, is not acceptable.
In closing, I urge the federal government to be more strict before allowing people to come to Canada, and to go through a thorough background check before extending the privilege of Canadian citizenship to landed immigrants. However, once they're Canadian citizens, all people should be afforded the same rights no matter whether they are born in Canada or became citizens by choice.(1025)
On behalf of the German-Canadian Congress, I'm asking the committee to take note of our concerns, and I ask the federal government to make the appropriate changes to protect the rights and citizenship of all Canadians.
I thank you for this opportunity.(1030)
The Chair: Thank you very much, Tony.
We'll go to Orlando Da Silva, from the Kitchener–Waterloo Portuguese community.
Mr. Orlando Da Silva (Lawyer, Portuguese Club of Kitchener; Waterloo Region Portuguese Business and Professionals Association, Kitchener Waterloo Portuguese Community): Thank you. I'm from the city of Kitchener, and I'm representing the Portuguese Club of Kitchener and the Waterloo Region Portuguese Business and Professionals Association. I'm a lawyer who works in Toronto; I commute daily from Kitchener. I'm the son of an immigrant who was born in Portugal.
The size of the Portuguese community in the K–W and Cambridge area is about 10,000 people. The association and the club have voted unanimously to weigh in against clauses 17, 18, and 56 of the bill. I know you've heard a lot of the arguments both in other sessions and this morning, but for the sake of the club and the association, I need to advance our position today.
Briefly, we weigh in against clause 17 because, in our view, it dispenses with procedural fairness and fundamental justice; against clause 18 because it creates a probationary citizen; and against clause 56 because it prevents the retroactive application of, in our view, better laws and fairer procedures.
Of these, the most significant concern to us is clause 17. As you know, under clause 17, the minister, a politician, can issue a certificate to a judge of the Federal Court, stating that, based on information—which is defined as criminal intelligence, and which, in my view, can include rumour, innuendo, suspicion, and gossip—a person—whom we will call “the accused”—has acquired or resumed citizenship by misrepresentation, fraud, or knowing concealment, and that person, if they were not a citizen, would not be admitted on security grounds because of the violation of human or international rights or on grounds of organized criminality. Under this process, a judge would conduct a hearing that would involve an entirely fallible human being acting as the sole, unappealable arbiter of what is a fair process and determining what the outcome of that process will be.
Under Bill C-18's clause 17, the judge could or would keep all of the information confidential; would examine that information in private; would, in the words of the bill, determine the accused's rights as informally and as efficiently as possible; would hear the evidence in secret and without regard to the rules of evidence, without the accused being present, without his lawyer being present, without disclosing the identity of the informant, without permitting an opportunity to cross-examine, and without testing the evidence; and could make his decision to revoke and deport without a right of appeal or without even a judicial review.
I read that clause and I wonder how the government could look a man or woman in the eye and say that, as a Canadian citizen who has lived here for five, ten, or fifteen years, they are suspect, and based on information they cannot know, evidence they cannot hear, and a hearing they and their lawyer cannot attend, it will make a decision they cannot appeal, and deport them and their family to a country that they may never have known and that speaks a language they don't understand. What system of justice do we know that would permit that result?
You don't need to look far to see the potential for an abuse of rights. I think of that case that occurred over the holidays, the one involving Michael John Hamdani. I have reprinted an article that appeared under the headline “Unwelcome fame now dogs informant in terrorism hoax”, in the Globe and Mail, on Wednesday, January 8, 2003. Mr. Hamdani was the person who identified five potential terrorists who apparently entered the United States from the Akwesasne reserve and were up to no good, generating a manhunt over the entire continent. It turned out that Mr. Hamdani was trying to secure a better deal with his prosecutors, so he ratted out guilty and innocent people alike—a classic jailhouse informant.
The story turned out to be a hoax, but imagine the consequences for these five men under Bill C-18 if Hamdani's name had not been leaked to the press or if he had never admitted to the hoax. They would never have known Mr. Hamdani's name, and a judge would hear Hamdani's evidence in a secret hearing to protect Hamdani from potential consequences—not necessarily from the five men, but from retribution from criminal elements in Pakistan. The fate of these men would be determined at a hearing in which the rules of evidence don't apply. The five men would have lawyers, but those lawyers wouldn't be able to attend to hear Hamdani's evidence. Based on Mr. Hamdani's claims, a judge would decide if their citizenship should be revoked and if residency should be revoked, and he could order their deportation to their Middle Eastern countries of birth even if they hadn't been there since birth, even if their wives and children or other dependents still lived in Canada, even if they can't speak the language, and even if they didn't know a soul in that country.
All of this would occur based on Mr. Hamdani, a liar, forger, and classic jailhouse informant, looking to improve his luck with his prosecutors by ratting out the innocent. That decision to revoke and deport would be forever imprinted, with the injustice itself irreversible because of the fact that there is no right of appeal and no judicial review. Even after deportation, if Hamdani were to say it was all a hoax, sorry, five gentlemen, it's too late.
In the view of the Portuguese Business and Professionals Association and the Portuguese Club of Kitchener, if you pass this bill, you are telling Canadians two things. The first thing is that you cannot rely on the procedural checks and balances imposed by our criminal justice system and enshrined in our Charter of Rights and Freedoms, to protect society from terrorism even though that same justice system serves us to visit justice upon the most hated criminals in our society if they're born here or if they're not. To be safe, we must strip away those checks and balances and let the accused's fate be determined not by the strength of the evidence against them, but by the suspicions we harbour for them.(1035)
Secondly, you're telling Canadians that the Charter of Rights and Freedoms, and particularly section 7, “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”, apply only to those Canadians fortunate enough to be born on this soil. All other Canadians have an asterisk by their status, a status that is as fragile as suspicion against them is credible.
Those are our submissions.(1040)
The Chair: Thank you, Orlando. And congratulations on your Kitchener-Waterloo Record exposé. I think it's very well said there also.
Mr. Orlando Da Silva: Thank you.
The Chair: We're going to go to Olya Odynsky, and then to Leslie Torok.
Mrs. Olya Odynsky ( As Individual): Thank you very much, dear members of the committee. My name is Olya Odynsky, and I have been actively involved with the citizenship process for the past five years. My comments today will be specific to clause 16, the clause dealing with revocation of citizenship.
Revocation of citizenship is one of the most severe punishments a state may impose on its citizens. It is particularly harsh when invoked against an individual who has been a naturalized citizen of Canada for over fifty years and who has contributed to our society.
When does an immigrant finally become a permanent resident? Are we creating two classes of citizens, those born here, like me, and those who immigrated here, like my parents? Are all immigrants, even those who think they are citizens by virtue of naturalization and their desire to become Canadians, actually not 100% Canadian?
I recommend that there be a statutory limitation of five years. The government has an opportunity to screen individuals upon their application and during the immigration and naturalization process. Once a person is granted citizenship, it should be irrevocable after a period of five years. Surely that period of time gives the government ample opportunity to investigate an individual.
Subclause 16(1) is basically the same as the former legislation with respect to obtaining citizenship by fraud and misrepresentation. I believe this subclause needs greater clarification. We have a situation in Canada in which many of our immigrants came to Canada in the post-World War II era, 1945 to 1955. The immigration documents of this era were destroyed by the government and no longer exist. We also have a modern-day situation in which we must protect our borders from terrorists and other undesirables. But we must not confuse these two situations.
As you may know, it is this section of the Citizenship Act that is currently used by the government in their quest to rid Canada of alleged war criminals. I might add that I support ridding Canada of war criminals, no matter when or where the crimes were committed, and irrespective of the ethnicity, race, or creed of the alleged war criminal. However, I believe this should be done through the criminal courts, where the burden of proof is the “beyond a reasonable doubt” standard and not the “balance of probabilities” standard.
To illustrate this point, please note that the Government of Canada announced in 1995 that it would not proceed with the revocation of citizenship of any person unless there was evidence of some personal criminality. However, cases commenced in which the government admitted there was no evidence of personal participation in war crimes or crimes against humanity. The government proceeded to initiate hearings aimed at the revocation of the citizenship of many persons whom I call “Canadians by choice”. These are men who came to Canada to build a better life for themselves and their families, and who have done just that for over half a century. In fact, today, Wasyl Odynsky, who was never charged with war crimes but on a balance of probabilities was nevertheless found to have misrepresented himself over half a century ago, might still have his citizenship revoked without a shred of documentary evidence today, and then be deported from Canada.
Odynsky has been totally exonerated of collaborating with Germans and of committing any persecution of anybody, anywhere, at any time; yet after five years of litigation, his case remains unresolved. The financial cost to him—the loss of his life savings and home—and the loss to his family and, I might add, to his community, have been overwhelming.
During the Commission of Inquiry on Nazi War Criminals in Canada, the Deschênes commission, the late John Sopinka argued:
|It is, in my submission, cruel and inhuman to uproot an individual from his family and whatever life he has built in 35 or more years as a productive Canadian on the suspicion that he might have been a war criminal. It is precisely because of the “evidentiary advantage” in deportation and denaturalization proceedings that I would submit that the Commission should reject such proceedings as a means of bringing war criminals to justice. No punishment should be inflicted upon a suspected war criminal unless his or her guilt is fairly established by Canadian standards of justice.|
We must be vigilant to ensure that we do not live in a society in which we allow one individual or group to point a finger at someone else, and suddenly that becomes enough evidence for revocation proceedings. If we do not impose a statute of limitations, I wonder whether, five years from now, there will be investigations of the Polish people who left Poland during the Solidarnist movement. What about members of the Tamil Sri Lankan community who fled Sri Lanka's political upheaval? What if someone points a finger at some of those refugees and claims that they are actually war criminals? What about the hundreds of refugee claimants coming to Canada each year who have either no identity documents or false ones?
Issues of war criminality belong in the Canadian criminal courts. Using the Citizenship Act to win a case by lowering the standard to an administrative tribunal versus a fair trial at a higher standard in a criminal court, is a perversion of Canadian justice.
Subclause 16(2) appears to speed up the revocation process, such that a finding of misrepresentation immediately revokes the citizenship of an individual. I must say that I was very pleased initially to hear that there would be an opportunity for an appeal in the bill. Upon review, it occurs to me that one must have leave for appeal and that the appeal is limited only to factual and legal findings of misrepresentation. There is no consideration for any humanitarian or compassionate grounds. It seems sensible to me to allow the presiding judge discretion in his final ruling.
I am pleased to see that the current process of revocation of citizenship has been taken out of the hands of the politicians, since it appears likely that the investigations into the supposed presence of Nazi war criminals in Canada and the investigation and hearings that have resulted have been motivated less by a concern for bringing the guilty to justice—assuming any such persons ever were in Canada—than by a desire to appear to be doing something about a problem that I humbly submit is minor and perhaps non-existent. I repeat that no one has yet been able to demonstrate in a Canadian criminal court of law that any Canadian said to have been a Nazi war criminal or collaborator was anything of the kind. Yet that has not prevented these cases from going forward and perverting our judicial system by, in effect, making the accused prove his innocence instead of being considered innocent until found guilty in a court of law, and pitting the citizen alone against all the resources of the state.
For people like Odynsky, whom a Canadian Federal Court judge, Justice Andrew MacKay, found has been a solid, contributing citizen of Canada for over fifty years, there must be the option of judicial discretion. I strongly recommend that this be included in the new act.(1045)
It has been my intention today to put a human face on the results of the revocation of someone's citizenship. Let me place into evidence an opinion article that I wrote in the January 5, 1998, edition of the Globe and Mail, entitled “Canada plans to deport my father without a fair trial”, and an editorial published in the same newspaper the following week. Both, I trust, will further inform you about the undermining of the very principles of our judicial system that has been taking place over the past decade; of the destructive impact that this has had on individual Canadians, their families, and communities; about the divisiveness that this unfair process has engendered; and about how a simple remedy is available: no revocation of any Canadian citizenship after the expiry of a five-year statute of limitations unless compelling and credible evidence is brought forward of criminality, sufficient to warrant criminal court proceedings.
Canada should not become a haven for war criminals, we all agree. But Canada's citizens-by-choice should also not become forever hostage to the prejudices of the places and past they left to come here, or to the disinformation spread by others, whether out of ignorance or malice. Once anyone becomes a Canadian following their application, screening, and naturalization, they should have the same privileges and responsibilities of Canadian citizenship as those born here. As well, they should have the right to face anyone who might accuse them of past wrongdoings, in a Canadian criminal court of law and nowhere else. Canadian citizenship should not be easily undone without just cause.
The Chair: Thank you, Olya. You are absolutely right. Sometimes we need to put a personal experience or a personal face to some of the laws that may or may not exist in this country, in order to really give us a sense of what Orlando and all of you have talked about: What are the consequences of these kinds of things? So I thank you for sharing your personal experience. Sometimes that's more compelling than other evidence. Thank you so much.
Mr. Leslie Torok ( As Individual): Mr. Chairman, members of the committee, in addition to the written comments that I have submitted on Bill C-18—I gave twenty copies to William Farrell—I would like to address an issue that is as important as the act itself, yet one that tends to evade scrutiny. While we debate the legal technicalities of the act in great abstraction, I would like to look at a case without names to demonstrate how the Immigration Act is administered at the street level, at the delivery level, and how it impacts on the individual.
I note that in a letter dated June 2002, the Hon. Denis Coderre requested that, under your chairmanship, this committee undertake a comprehensive review of the draft immigration regulations, in keeping with the intent of the act. I think this is terrific. He noted that this committee has contributed greatly to the process of designing effective regulatory procedures in order to give effect to the framework legislation by Parliament last fall.
Recommendation 65, as made by this committee, was that “Clauses 108, 110 and 112 dealing with humanitarian and compassionate considerations should be redrafted to clarify their intent.” I read in the Canada Gazette that the government accepted that it ought to re-examine the clauses in question.
I want to read to you from what I assume to be a form
letter that Immigration Canada sent to a particular applicant who applied to be
a permanent resident on humanitarian grounds in early May 2002:
|Your application for permanent residence has been received from the Case Processing Centre Vegreville, Alberta.|
|It is anticipated that your case will be assigned to an Immigration Counsellor within the next 18-24 months.|
|At that time you will be contacted if any further information is required.|
|Please call (416) 973-4444 if there is any change in your address.|
The address at the bottom of the letter is:
|Citizenship and Immigration Canada|
|200 Town Centre Court, Suite 380|
The letter is unsigned, and there are no coordinates for contact other than
the phone number of this message centre. But then there is a notice at the
bottom that is quite remarkable:
|The Scarborough Canada Immigration Centre is closed to the public effective April 1, 1994. You will be NOTIFIED if an interview is required. Please call (416) 973-4444 for all other Immigration Services.|
Those services include a change of address or some such trivial administrative detail, but nothing of substance.
The applicant in this case doesn't know the reason for the delay. There is a disconcerting aspect to this lack of point of contact where one could enquire, but it is not possible to determine if this is a standard line of treatment by CIC or if there is some sinister reason behind it because of an anonymous denouncer bearing ill will toward this applicant for reasons of personal revenge.
Does the committee know that CIC set up a hotline—we'll call it a snitch line—for informants to report suspicious cases of immigration abuse? I think this is disgraceful to our system. Is this action by CIC frameworked and encouraged by the act?
Fortuitously, I came upon an article by Allan
Thompson, of the Toronto Star's Ottawa Bureau. It's entitled “Immigration
rule change poses threat to couples; Switch revokes ‘humanitarian grounds’
policy; Guideline applies to refugees, those without status”. In this one, the
|A sudden rule change at the federal immigration department is going to make it more difficult for thousands of people married to Canadians to stay in this country on humanitarian grounds.|
|Critics say the change buried in the text of an obscure new policy manual revokes an exemption that has been in place for more than 20 years.|
|...But applicants who are in Canada without status now face more stringent rules when they apply to stay on humanitarian grounds.|
|...But the new manual rejects that notion and states that being married to a Canadian, in and of itself, is not enough to be allowed to stay in this country on humanitarian grounds.|
|...Critics say the rule change will result in many couples being torn apart for months or years at a time while applications work their way through the system. And that contradicts the policy of keeping families together, they say.|
|“This is a major change, being done through a policy manual, not by legislation or regulations,” said Toronto immigration lawyer Lorne Waldman. “It shows a real hardening of attitudes at the immigration department.”|
|“This affects thousands of people and has not been properly debated,” said lawyer Robin Seligman. “The bureaucrats are imposing what they want, not what MPs voted on in the legislation.”|
If this allegation by Mr. Seligman is true, I must ask the committee about the value and the relevance of its efforts. Is this action by CIC a response by the bureaucrats to the committee's request for clarification of clauses 108, 110, and 112? If not, then how can the bureaucrats get away with this?(1055)
Thank you very much.
The Chair: Thank you, Leslie.
This committee did something rather unique in parliamentary history when we decided to look at the regulations for the new bill. Sometimes the words in a bill or in an act are great words, and the spirit is what we all want. Unfortunately, the regulations sometimes don't reflect that spirit. I'm happy we did that exercise and made some positive changes—I hope—but not as many as we wanted to. We intend to review the act at some point in time to see whether or not it's actually fulfilling the promise and the hope that we have for all immigrants.
I can't comment on the individual letter. I can tell you, though, that it's taking us far too long to process paperwork in this country, including citizenship paperwork, which is now backlogged eight to ten to twelve months.
We're going to hopefully respond to your enquiry when we in fact do the review of some of those regulations and some of the administrative actions and what you were talking about. Even parts of the Immigration Act are very relevant in terms of citizenship, and I'm sure some of the questions we'll ask have everything to do with the administrative actions that are required and the consequences that can come about by virtue of action or inaction and perhaps administrative stuff, as opposed to political, as opposed to judicial. Maybe we can use your context in that respect, also.
Now, I'm sure we have all kinds of questions, so we'll start with Lynne.
Mrs. Lynne Yelich: The presentations were all very good, and I'm glad you've brought that forward and that it's on record, Mr. Torok, because I think that's very important for us to know when we go through more regulations, as Joe said. We're making legislation right now, too, and we don't know what kind of impact it has on people.
I like what Tony said. Let's get strict in immigration before extending citizenship, and then have just citizenship. I think that's excellent. I'd like to hear if all of you agree on that.
On the other part that Olya referred to, that being a statute of limitations of five years on revocation, I'd like to know if you people all agree. If this doesn't get deleted like many of you want, what do you think of a statutory limitation of five years?
Those are my two questions.(1100)
Mr. Anton (Tony) Bergmeier: Mr. Anton (Tony) Bergmeier We are in favour of it, absolutely. If we cannot find a problem with a citizen living here for five years, and if he has been a model citizen, then we should forget about whatever happened before, except in criminal cases, of course.
I'd also like to comment on Olya Odynsky's situation with the balance of probabilities. I have a great big problem with that one when we take people who have been living here for fifty years and we kick them out on the possibility that they may have not mentioned something or maybe told a lie to get in. I do know, for example, that we have a similar situation in Kitchener. A man there has gone through the same procedure and also is now on the waiting list to be deported on the grounds of a balance of probabilities.
I personally know that, in our office, we have a number of names of people who have gone through the very same system at the same time, and they have never been asked any questions on their wartime activities. My brother-in-law also went through the same office as the person in Kitchener who went through the thing, and he never was asked about his affiliation. It's not like he was associated with, let's say, the Waffen-SS; nevertheless, he was never asked about anything like that. In fact, he wondered why would they even have to ask. Each man had to undress, and if he had been a member of the SS, they would have seen the number tattooed on his arm.
So this is really a very questionable way to treat people who have lived here for fifty years and to say they may not have said they were an interpreter for a group you don't like, or whatever the case may be. To me, that is the kind of law that maybe Idi Amin would have instituted, but it shouldn't happen in Canada.
The Chair: Just so I'm clear on the question, I want to clarify something. I think the question from Lynne was whether we should do a lot more in terms of the time before you become a citizen. But then I heard Olya talk about probationary citizenship—because I've never heard it before—and then Lynne talked about it.
The only place in this bill in which we find probationary citizenship is on the basis of misrepresentation. I want to make sure I understand what some of you are saying. Are you now saying we ought to have probationary citizenship for everybody, and a statute of limitation after five years? That's a little disconcerting to me, and that's going to create a whole different class of this stuff. What is it exactly that you're saying with regard to the five years? Do you like the provision of five years? Do you want to get rid of it? I just want to be clear on what we're really talking about here.
Mr. Anton (Tony) Bergmeier: Once you have your citizenship, then after five years, that should be it.
The Chair: So you're agreeing with them on this.
Mr. Anton (Tony) Bergmeier: Absolutely.
Mrs. Lynne Yelich: But you would prefer that it be deleted.
Mr. Anton (Tony) Bergmeier: Yes.
Mrs. Lynne Yelich: It was on revocation specifically that you wanted that statutory limitation of five years, wasn't it?
Mrs. Olya Odynsky: I was suggesting either deleting it completely or putting it into the criminal court. The criminal court is the proper venue to deal with it. I think we have the opportunity to deal with these issues in criminal court, and we also have the new Anti-terrorism Act. We have two opportunities to deal with war criminality or issues of severe citizenship problems. Using an administrative tribunal to deal with them is not the way to go.
If we have a system in which we are doing proper screening—and we've done that; we have the technology to do that today where we didn't have it 50 years ago—then after 5 years, a citizen should be a citizen with comfort, not with the fear that after 23 years of being a citizen, someone will point a finger at them and then see them coming into all of the things the lady at the table mentioned about things occurring behind closed doors, about not knowing, and all the rest of it.
That was my submission for some form of a statute of limitations, unless, even at 20 years, someone brings forward compelling evidence that is of a criminal nature and that can be upheld in a criminal court. That's a different situation. But unless it is a criminal proceeding, there should be a statute of limitations on using an administrative tribunal.
The Chair: Does anybody else want to comment on that?(1105)
Mr. Orlando Da Silva: I'm not willing to accept that clause 18 is necessary for any purpose whatsoever. There is no need for a probationary citizenship. Clause 16 deals with citizenship acquired by false representation. What clause 18 does is create a period in which, over five years, there is no procedural fairness for the person who comes up against the system. Clause 16 provides some fairness. Clause 17 does not, as you have heard in my remarks, but clause 16 does.
If the question is whether or not there is any period of time in which a probationary period will be acceptable, I think it's the length of time it takes for the ink to dry. You do your work in advance. If government does its due diligence but it gets it wrong, then the person who acquired citizenship has the rights under clause 16, as anyone does, and nothing else would be satisfactory.
The Chair: And then the result is that if the government wants to take citizenship away or revoke it or annul it, it should do so on the basis of a judicially based system, as opposed to with evidence and so forth, right?
Mr. Orlando Da Silva: Absolutely. There is no justification for—
The Chair: But I want to make sure I understand what happens when we get into the slippery slope of five years and everything else. If you're lucky enough to have someone not catch something after ten years, what happens? I want to try to clarify whether or not you get the five years on the annulment side—because of misrepresentation only, supposedly—or what Olya has been talking about, a five-year statute of limitations that essentially means.... What if you find out after 10, 15, or 20 years? I believe everybody is saying that, yes, you can revoke citizenship, but it has to be under probably a severe thing, and due process must be afforded.
Mrs. Olya Odynsky: I'm only making the suggestion for a statute of limitations as a second choice. As my first choice, I would be in agreement with Mr. Orlando Da Silva, in that once you are a citizen, you are a citizen. The government should do its homework. Once a citizen becomes a citizen, that person should live life without fear.
The Chair: It was clear and understood that way.
Mr. Andrew Telegdi: The real, inherent danger of the present act is that it tries to reinvent a consensus that we have established. Under the present act, of the cases I have seen, I think Olya very much puts a human face on it. She is a baby boomer like many baby boomers. Our parents are in their declining years and go through a rough time. My parents died just in the last number of years. When parents die, the kids inherit whatever. Her case demonstrates the reverse. The parents are bankrupted because the state has unlimited funds, and the kids are nearly bankrupted themselves.
This is an incredibly unfair process. The department has spent upwards of $100 million in going after very few cases, and there is absolutely no fairness in it at all. What is central to the whole thing is that it comes down to the balance of probabilities. This is important. On the balance of probabilities, the question is whether you told the truth to a question that might or might not have been asked fifty years ago. The bar is so low that it devalues citizenship. That's incredible.
We heard from the German-Canadian Congress. There are 2.7 million people in this country who, according to the last census, are of that background. We heard from the Ukrainians. There are 1.1 million people in this country who are of that background. Now we're at 3.8 million. Now throw in the Hungarians, throw in the Baltic states, and throw in the people from behind the Iron Curtain.
The Chair: Or the Portuguese, for that matter.
Mr. Andrew Telegdi: Yes, them too.
It's just staggering when you think about it. Hopefully something good will come out of this, because a new group of people is under attack right now, and they are the Muslims and the people from Arab countries. God knows who else it's going to be in the future. If one good thing has to come out of it, we have to revert to a system in which citizenship is valuable enough that you go beyond a reasonable doubt.
We have a perfectly good system in this country for finding people like Clifford Olson, Paul Bernardo, and all sorts of heinous criminals. But even with this higher standard, it's important to remember that we have people like Guy-Paul Morin and Donald Marshall. Steven Truscott is fighting for justice right now, for the benefit of going to the Supreme Court. So if you can value citizenship, or if citizenship is going to have meaning for those of us who came from someplace else....
We have a way of proving fraud. We do it in our courts each and every day. Thousands and thousands of fraud cases are determined each year. What the minister is saying in clause 18 is that we believe the person committed fraud. I say to the minister that we should put it through a judicial process. The minister just says they're guilty. Well, the day that you have a minister or bureaucrat deciding that somebody is guilty, you're losing a huge amount of your civil liberties.
The standard has to be that of “beyond a reasonable doubt”. I think you would all agree with that, because the present system is very unsatisfactory, very unjust. It brings the state of our justice system into disrepute in this country. That's essentially what we're fighting against. It offends the Charter of Rights and Freedoms, and we all agree that the charter is a good thing. Canadians overwhelmingly support the charter, and they overwhelmingly support judicial decisions versus political ones. But judicial decisions without the ability to appeal are the wrong way to go. They're the wrong process.
So just to be very clear, do you all agree that the standard of “beyond a reasonable doubt”, the criminal standard, should be the standard that applies to citizenship, in order to give meaning and value to having citizenship?(1110)
The Chair: Can I just ask a follow-up?
Two new things are in this bill that are not in the present law. Revocation obviously is a politically based system now. We obviously all agree that it should be changed to a judicially based system, with all the inherent rights and appeals—and we'll work that out.
In terms of the two new provisions, one is on the annulment provision, which obviously can and should be through a court case, again as has been suggested. I think everyone has talked about the threshold essentially being a judicially based system, but it should be on the idea of “beyond a reasonable doubt”.
There is also a new provision on the denial of citizenship. It essentially says that is only for the minister to decide. Do you believe the denial of citizenship should also be subject to a judicially based system. I don't know if you looked at that particular point. That means a permanent resident could have been in this country for ten to fifteen to twenty years and could have fulfilled all the obligations, but when that permanent resident fills in an application, the minister can simply say they can't be a citizen.
Do you have any comment on that and on what kind of a system we ought to design for that? The present legislation says it should be essentially the minister who decides, so I would be interested in your views on that.
Mrs. Marnie Hayes: Could you give us some examples of whom the government would want to refuse citizenship to? That's one of the problems. It's completely open-ended where there is a section that lists all the prohibitions, and that has been expanded in the new law. Could you not foresee all the kinds of reasons why you would want to deny citizenship and put those reasons in that section?
The Chair: I think the motivation behind that denial is to get to some people we know we don't want to have as citizens, and so we can essentially move them quickly out, i.e., an Ernst Zundel, for example. I'm just suggesting. I don't know the true motivation. That's why I asked the question. Sometimes we're using citizenship as a way of doing things that should be done in other ways through the justice system. That's why I'm asking if there should be a provision for denial or an appeal mechanism.
Mrs. Marnie Hayes: And there's another question. If the person is being denied citizenship, what's happening to their landed immigrant status? Are they going to be deported?
The Chair: They'd still be under the Immigration Act, therefore—
Mrs. Marnie Hayes: They'd be landed immigrants, obviously, and they will have gone through the process.(1115)
Mr. Andrew Telegdi: Mr. Chair, I have two comments here. Alan Borovoy said that while it might be reasonable to make acquisition of citizenship difficult, you cannot make it easy to revoke.
The other thing is that when you look at the act
itself, it doesn't spell anything out. That's a danger. It says:
|If the Minister is satisfied that...person has demonstrated a flagrant and serious disregard for the principles and values underlying a free and democratic society....|
The premise of the whole thing is wrong, because one of the principles underlying our society in Canada is the Charter of Rights and Freedoms. To deny somebody the right to a judicial review or a judicial hearing based on the denial contradicts or is the very antithesis of Canadian values.
There has to be something spelled out, and there has to be some judicial review based upon that. This is trying to be a catch-all. We can get you at any time or deny you at any time, for whatever reason we deem appropriate at the time. You can't do legislation this way and still respect human rights and civil liberties. I think that's where we get into trouble.
Mrs. Marnie Hayes: I just want to quickly add to that. I personally have had a lot of dealings with people who have come from Ukraine and are landed immigrants. I know how painful it is for them to give up their Ukrainian citizenship, but they're becoming and want to be Canadian citizens—obviously, because they're doing it. I can understand that.
There was a time when I couldn't understand how you could come to Canada and not immediately go in to apply for your citizenship. Surely you come to Canada so that you can have that. But sometimes there are very emotional ties, sometimes it's painful, and sometimes some people maybe just don't get around to doing it and twenty years might go by. Like I said, that's something I hadn't considered until I met so many immigrants recently.
So now it's twenty years later and you want to apply for your citizenship. In the meantime, somebody has come to harbour a grudge against you. You don't know what could be led forward to the minister. If you do not have a judicial process or proper process and opportunity to clear your name, just to have a minister not allowing you to gain that citizenship would seem to be against the charter, in my opinion.
Mr. Orlando Da Silva: I have a couple of points. First, Andrew Telegdi started off by asking us about the standard of proof. I think he's correct that it ought to be beyond a reasonable doubt. The implication of not having that is that the act would say the decision would be based on a balance of probabilities. That would mean the judge would determine the person's status based on whether it was more likely than not that they were involved in organized criminality, for example. This could mean a person is deported when there is a reasonable doubt. I think that cannot happen under a regime in which our rights are protected in the charter.
In terms of the question of the denial of citizenship, I think it's a different kettle of fish entirely to deport someone versus denying them citizenship, but that does not mean there should be no protection in terms of that decision. I'd feel very uncomfortable in any regime that lets a politician—with due respect—decide the status of a person's citizenship application. When that politician makes that decision, that decision ought to be reviewed at the very least to determine that the reasons for denial are valid reasons that are consistent with the scheme of the act and with the application of the charter.
The Chair: Ernst.
Mr. Ernst Friedel (President, German-Canadian Congress, Ontario): I just want to underline what Orlando said just now. We should not extend the right or privilege to a minister to deny citizenship, for the simple reason that this could become a political reason for denying citizenship. If there is one person who is very actively involved in the opposition party very effectively, then if they want him out of the country or they want to deny him citizenship, they can do so. I don't think that's a good thing. It should be done through the courts. If there is a reason for denial, yes, he can appeal it possibly, but it should not be done by the minister, because it becomes a political thing. We all know politics plays funny games from time to time.
The Chair: Leslie, do you have any comments?
Mr. Leslie Torok: My comments are basically not as erudite as those of my colleagues, who had more time to review the act. I just got the act on Friday when I downloaded it from an Internet site. With respect to the statutory case, as you said, Mr. Chairman, if there is cause to believe that a person has committed fraud or misrepresentation in obtaining citizenship, then there should be a limitation of x number of years to deny him or to review his citizenship. Otherwise, I don't think it would be fair to do it.(1120)
The Chair: I was just thinking about the power of annulment, the power to annul a marriage. I know that in the Catholic Church, you practically have to go through hell in order to get it done, so due, fair process....
Mr. Brian Masse: Thank you, Mr. Chair. I'd like to thank all the presenters for good information. We've heard a lot of common themes.
To pick up the situation that Mr. Da Silva outlined in regard to Mr. Hamdani and what happened there, I was saying earlier that I represent Windsor. We have the border crossing, and we have racial profiling going on there now. That has caused a considerable amount of grief to Canadian citizens who are basically having their citizenship stripped from them because they happened to be born in another country, came here, started a new life, and have been here for decades. You've provided another example of how our citizenship is important not only in relative terms in terms of being in Canada, but also in terms of what it means to the world and how it protects us on an individual basis.
Another example is Maher Arar, who is in Syria right now. He was deported from the U.S. but is a Canadian citizen. More needs to be done to prevent that, because if we don't value citizenship outside of our borders, it doesn't serve much purpose here.
With regard to the actual legislation, I want to put this out. A suggestion was made by a previous panel about its relationship to the principles of common law and how the legislation almost is a violation of those principles. That specifically identifies the points that were raised with regard to clause 17, with due process not being available, with not being able to see your evidence, and with not being able to know who the accused are. Is that something this panel also believes? Does it violate the essence of our legislative system and common law?
As well, does this open up the opportunity for or the possibility of what we've seen in very extreme situations that have developed even in North American culture, like McCarthyism and stuff like that, where you have fear and you have a number of things that create a whole social process that puts people at risk? Is that a possibility if we don't have a system that has checks and balances, through our legal system, to put the burden of proof back on the accusers, as opposed to the innocent having to prove their innocence?
The Chair: Are there any comments?
Mr. Leslie Torok: Perhaps this is not directly related to this note, but I was very impressed by the committee's work. For the first time, as far as I can see, somebody has closed the loophole in terms of reviewing the lower-level regulations, policy manuals, etc., in light of the act. I just cannot overemphasize the significance of this step, and whether other committees do it or not, I would recommend—
The Chair: [Editor's Note: Inaudible]...do that. Are you recommending that we do the same thing on this one?
Mr. Leslie Torok: No, not at this point, because I hope this act is not going to be passed.
The Chair: That's the ultimate answer, of course.
Mr. Leslie Torok: Yes, for some of it, but in my comments on Bill C-18, I've used unfettered words to describe the lawmanship of this act. I recommend that the particular approach that you have taken be followed by other standing committees in relation to other acts that come under review. It's extremely important to close the loop.
Mrs. Olya Odynsky: I completely agree with your commentary. I think the citizens of Canada are fearful of closed doors, of things happening like someone accusing you with you not having the knowledge of who that someone is. In fact, if you take a case like Odynsky, the entire case was done on photocopied paper. All evidence from 1948 was on photocopied paper. You would get fronts and backs, but you would have two different pages. How would you know it was the front and the back of the right page?
That has already happened here. During the Deschênes commission, of course, we had situations in which allegations were made. If you remember the headlines, someone said we have 6,000 Nazi war criminals in Canada, we had Josef Mengele here, and we had all kinds of things going on. Had we not been able to look at the evidence, I think the commission would have come out with different types of recommendations in the end.
So I think your position is one that I would personally support, and I'm very certain many Canadians—if not all Canadians—would support that.
The Chair: Go ahead, Ernst.
Mr. Ernst Friedel: Parts of clause 17 are very much of concern to our members. You have to have transparency. That's one thing. Also, the minister and/or the courts have to prove that the allegations against the person are correct and can be proven in court. It should not be that we just make allegations and base our decisions on those. So I fully agree with what the previous fellow said. We have to have protections for the individual.
If you think about it, it's also a problem for an individual with limited means to go against the state, which has all kinds of taxpayers' money that can be used to build a case against that person. There are some inequalities there, in my opinion.
Anyway, we are concerned about parts of clause 17, and it has to be changed, in our opinion.(1125)
The Chair: Orlando.
Mr. Orlando Da Silva: I want to respond briefly to a point Mr. Masse mentioned. The government has to say to the world that a citizen is a citizen, and that we stand behind those citizens who are born outside the country as much as we do those who were born inside it.
I remember reading about that poor gentleman who was deported to Syria, and I was outraged that the Americans deported him without even consulting the federal government. To the Americans at least, we know Canadian citizenship means very little if it was acquired by someone born outside of the country. Any message that we give or that the government gives must be that this just is not acceptable.
The Chair: Let me make just one point, if I could.
Olya, you have gone through the process. It was the old process that we are trying to change. Hopefully there are certain things in this bill that will make it easier and not put families like yours through the hell that you've gone through. I think Andrew has essentially talked a little bit about that.
Having gone through the system that was on a balance of probabilities, that was a politically based system—it was judicial, but it was a politically based system without any kind of appeal mechanism or anything else—what is it that we need to do in this bill, so that we are not going to put other people like you through the system?
I know everyone has mentioned that, instead of “balance of probabilities”, it must be “beyond a reasonable doubt”. It must be a full judicial system. But you've gone through it. Everybody else can talk about it, but you have actually experienced either the horror or what it in fact should be in order to get the perfect law that says citizenship should be held in the highest possible esteem or at the highest possible level.(1130)
Mrs. Olya Odynsky: First of all, there would have been no case had the government honoured its own statements. In 1995, Alan Rock said no cases would proceed unless there was evidence of some personal criminality. That's the first key.
If there is no evidence of criminality, there is no case. Odynsky should never have happened. In fact, when we applied for a stay motion because there was no evidence of criminality, the judge said we were sort of right, but that the minister had made an allegation and deserved an answer. Well, the answer was that there was no case. However, he decided to make a case.
I think that is the crucial step. No evidence of criminality, as I said in my presentation, means no case. Therefore, all of the clauses that have been discussed here today on the revocation issues, clauses 16, 17, and 18, don't assist to change what happens under the old system. They're really a repetition of what was already there before. I don't believe what we have in this new bill is going to assist in preventing another Odynsky case.
The Chair: Then I need you to tell us, although perhaps not now. Maybe you can give it some thought and write me and the committee a personal letter, in order to give us that kind of information and insight that we need in order to do things at the fundamental levels. I know you might have mentioned it, but for the record and everything else, I would like that.
Mrs. Olya Odynsky: I think everyone here seems to be basically very aligned. I personally was quite surprised that the lady from Kairos had very much the same opinions and that everyone on this panel is of the same thought.
In terms of technical wording, I can't do that, but I certainly will give you a recap. I am fearful that with what is in this—and this is what you have heard from all of us—clauses 16, 17, and 18 don't really give us anything that is going to prevent these situations. The only thing that will prevent them and that will be helpful is the use of the standard of “beyond a reasonable doubt”. Criminal court is the answer for these types of allegations.
Mr. Andrew Telegdi: The inherent problem with clause 16 or clause 17 is that the government can proceed either under clause 16 or clause 17. In the courts, it's known as a hybrid offence. You can either go indictment or you can go summary.
It's totally unfair. The way you solve it is very simple. You say everyone has the right to appeal on the standard of “beyond a reasonable doubt”. The “beyond a reasonable doubt” standard will solve your problem.
The Chair: I want to thank you all again for your personal insight, for your experiences, and for speaking on behalf of your communities. That's very important to us. I know this country was built by good immigrants becoming good citizens, and we want to make sure we create those.
I know you didn't come here for this matter, but I'm going to take the opportunity to very quickly canvass you on whether or not you believe we should have a national identity card. I'll give you the opportunity to say so now, but if you have some personal insights or some other stuff, perhaps you could write to the committee. That's something else we're doing during this travel period, but if you have some comments, I'd very much like to have them now if I could.
Tony or Ernst.
Mr. Ernst Friedel: I'm not in favour of one. We have passports, we have drivers' licences, and we have all kinds of other identification. As far as I know, the national identity card is a smart card that has all the information pertaining to that person, and possibly false information if it was inputted wrongly into the computer. We have to be very careful before we say yes to something like that.
The Chair: Orlando.
Mr. Orlando Da Silva: I don't have enough information to have a definitive view, but I would say I do have a concern about a personal identity card. Although it might initially be started up for innocent reasons, it creates an infrastructure in which, with different governments over five, ten, and twenty years, it can be used to abuse rights. I think we ought to be very careful before we go down that road.
The Chair: Marnie, do you have any comments?
Mrs. Marnie Hayes: I don't have any comments at this time.
The Chair: Leslie, do you have anything at this point?
Mr. Leslie Torok: I remember when the SIN was introduced. It was promised by Prime Minister Trudeau that it would not be used for anything else other than administering the benefits system. Now, however, the SIN is used left and right, all over the place. I'm very much concerned that a national identity card would come to the same fate.(1135)
Mrs. Olya Odynsky: I would be opposed to that type of a card.
The Chair: Thank you all for your insight.
Mrs. Lynne Yelich: How many have been for the card?
The Chair: I'm not keeping tabs yet. We have two or three months to go.
Mrs. Marnie Hayes: We're opposed, too. I just didn't want to get into the details.
The Chair: I'm looking forward to your input, so if you have some time and can put something down for us, that would be great.
I just remind members that we're heading for the airport at 12:30, and the bus is going to leave at 12:45. We're going to Winnipeg, where I'm sure we'll talk to some more of our Ukrainian friends and good Canadians.
Thank you very much. We're adjourned.