Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 20 - Evidence, September 20, 2000
OTTAWA, Wednesday, September 20, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, respecting Canadian Citizenship, met this day at 3:50 p.m. to give consideration to the bill.
Senator Gérald-A. Beaudoin (Deputy Chairman) in the Chair.
The Deputy Chairman: Honourable senators, since Senator Milne, the Chair of the committee, is absent, I have been invited to chair this meeting in her place.
We will sit this week and next week. She will be returning the week after.
Honourable Senators, we are here today to begin our consideration of Bill C-16, an Act respecting Canadian citizenship.
We have with us today the Honourable Elinor Caplan, Minister of Citizenship and Immigration. Before the minister begins, I should like to advise members that Bill C-16 will be our major focus both this week and next week, at the very least. To help members of the committee and other interested senators plan their schedules, I would like to advise you that the committee will definitely be meeting next week on this bill. Details as to the meeting dates, times and witnesses will follow in light of the Senate schedule.
Second, I should note that there has been a great deal of interest in this bill. As such, we have had a large number of requests from organizations, which we shall make reasonable attempts to accommodate.
To help us in this task, I propose that this committee formally agree to postpone any motions and votes dealing with the disposition of the bill until after we have heard from all witnesses. We have used this practice with great success in the past to ensure that senators know that while witnesses are scheduled we will not suddenly make a decision to amend the bill or to report it back to the Senate.
Therefore, is some honourable senator willing to move such a motion?
Senator Pearson: I move:
That any consideration or votes on any motions dealing with the disposition in committee of Bill C-16 be held no earlier than the completion of hearing all witnesses.
Senator Cools: Why is the reason for doing this? The vote can only take place at the end.
The Deputy Chairman: No. We will --
Senator Cools: My question is this: When is the end? How do we make that decision?
The Deputy Chairman: The end is when all the witnesses have been heard, after which there will be clause-by-clause study of the bill. We will then deal with the question of possible amendments.
Senator Cools: The important decision is how long we will be hearing witnesses. How many witnesses are we prepared to hear? The other important question, then, is how long we will spend on the bill.
The Deputy Chairman: We already have the schedule of all witnesses. We will be hearing them over the course of the next two weeks.
Senator Grafstein: The words in the motion are "all witnesses." What does "all" mean? I assume it means "all scheduled witnesses." Therefore, if the honourable senator would allow us to amend her motion to say "all scheduled witnesses," I think there would be some finality to it.
The Deputy Chairman: Is that agreed, Senator Pearson?
Senator Pearson: That is fine.
The Deputy Chairman: I will then repeat it in French. However, now I am looking for the amendment to your motion.
Senator Pearson: I move that the motion be amended to include the words "all scheduled witnesses."
In French, it is indicated:
That any consideration or votes on any motions dealing with the disposition of Bill C-16 be held as earlier than the completion of hearing all witnesses.
The Deputy Chairman: Senators have a list of all the witnesses who are to appear.
Senator Cools: Suppose that some wish to hear from other witnesses. Why are we doing this? It seems very odd. It seems to me that the better way to proceed is, perhaps, to hear the minister, after which the committee could decide how long it wants to study the bill and consider the names of any additional witnesses the committee wants to call.
The Deputy Chairman: In answer to your inquiry, senator, we used such a measure when we were dealing with the gun control bill. We have also used the measure often since then. This is something that has been adopted by the steering committee.
Senator Cools: Perhaps we should think about why we have been doing it and hold off for a while. As I said before, we have very precious time with the minister. We are all eager to hear her. I think we should proceed and hear the minister.
The Deputy Chairman: If time is precious, then it is time to pass this motion.
Senator Cools: No. We should debate it, then. There is absolutely no reason in the world for us to be rushing this. I would like to speak to it. I am sure colleagues would like to speak to it. I do not understand it at all.
The Deputy Chairman: In my opinion, it is purely procedural.
Senator Cools: I do not think it is procedural.
The Deputy Chairman: I think we should hear the minister. If you want to come back on this question after, then we will come back to it.
Senator Cools: I think we should come back to it.
The Deputy Chairman: Is it adopted?
Senator Cools: No. It is not adopted.
Senator Kinsella: I move that we table the motion.
The Deputy Chairman: Madam minister, welcome. Please proceed.
The Honourable Elinor Caplan, P.C., Member of Parliament, Minister of Citizenship and Immigration: Honourable senators, I am very happy to appear before the Senate committee as it considers the bill regarding Canadian citizenship.
I know that you are clear on the purpose of the bill and that you are aware of the improvements that it will make to our citizenship process. Thus I will not take too much time in my opening remarks. However, I will probably be longer than you would like me to be. Having said that, I would like to get to your questions as quickly as possible.
At one level this bill is like most that come before you. It is framework legislation that sets out the principles and the procedures relevant to the subject matter, which here, of course, means that it establishes the ground rules according to which people may become citizens of Canada.
At its essence, however, this bill is about far more than these simple mechanics. Bill C-16 is more fundamentally about value. It is about the value that Canadians attach to their citizenship. It is about the value that Canadians expect their fellow citizens to honour and uphold. It is about our commitments to tolerance, to diversity and to taking responsibility for self and for others.
Bill C-16 is about the values we want to see conveyed in our citizenship processes. These values can be seen firsthand at a citizenship ceremony. I have been to many such Canadian ceremonies over the course of the past year, and I can tell you that there is no part of my job that I find more rewarding. At such ceremonies, one sees dozens, often hundreds, of people from all parts of the world, people of all ages and backgrounds, people who have come to Canada at different times, for different reasons, all in pursuit of so many old dreams and so many new opportunities. That is what they all share. Indeed, what unites them in that ceremony and from that day forward is that they are joining our Canadian family. That is true of all of them regardless of their differences.
The ceremony is truly a moment of pride, not just for our new citizens and their families and friends, but for all Canada. It is a momentous occasion, often a magical moment, of great significance to the lives of individuals and their families but also to the future of our country.
Bill C-16 reflects that sense of pride and celebration. It will serve to strengthen both the value and the integrity of Canadian citizenship.
Many basic principles have not changed from the old act to the bill that is before this committee. For example, birth in Canada will still mean Canadian citizenship, as will birth to a Canadian parent in another country. We will still expect prospective citizens to know about their new home and to know at least one of our two official languages.
The current law has been on the books unchanged since 1977, almost 25 years now. Much has happened here since 1977. We have learned a lot through our experience with the existing legislation, and much has changed in today's legal and judicial environment. Bill C-16 will bring us up to speed with these changes. Consider, for example, one aspect of our experience with the existing law. Along the way, many people have pointed out that the current residency requirement has been variably interpreted and has given rise to inconsistent treatment. Some people have actually acquired their citizenship with just a few days of residence here. Others have been rejected with anything less than a full three years. This is not consistent or fair. It is not in keeping with Canadian values.
Bill C-16 will establish clearly and firmly that 1,095 days of physical presence in Canada will be required to obtain citizenship. Another important aspect of our experience with the current law has been the impact of the Canadian Charter of Rights and Freedoms. Our courts and our Human Rights Commission have made a series of rulings in recent years that provide us with a guide for certain changes. Bill C-16 contains these changes. A good example concerns our treatment of children adopted in other countries by Canadians.
Presently, if you adopt a child in another country, that child must come to Canada as a permanent resident under the Immigration Act. The courts have encouraged us to enable such children to come here as citizens. I agree they should, and Bill C-16 will help to see that they do. Of course, adoption is a matter of provincial jurisdiction, and we are working very closely with the provinces to see that this change is implemented smoothly and in compliance with the laws of all the relevant provincial jurisdictions.
Beyond these changes, Bill C-16 commits us to more efficient and effective public administration of our citizenship processes. This government has taken a long, hard look at its operations across the board in an effort to eliminate needless paperwork and unnecessary procedures. We have discovered that roughly 80 per cent of citizenship cases are clear-cut. This means that for well over 100,000 cases in a typical year, residence in Canada is not a problem and knowledge of Canada and of one of our official languages is not a problem. Approximately 80 per cent of our applicants are people who have worked hard, respected our laws and prepared themselves to be Canadian citizens. For this reason, Bill C-16 replaces the current evaluation procedure with one that is both streamlined and based upon an objective assessment.
Of course, not all cases are straightforward. It is to be expected that people will often disagree with decisions that are rendered, and clearly not all decisions are perfect. This makes it important to have a clear and simple appeal process. Bill C-16 both responds to concerns that have been expressed with the current process and respects the rights of all applicants to due process.
I would like to proceed in a moment to respond to your questions, Mr. Chairman, but before I do please let me point out once again that there are many elements of the current law that Bill C-16 rightly leaves unchanged.
One such element is the process that applies to revocation of citizenship. Here, Bill C-16 maintains the same legal process that has been in place for over 20 years. This is a fair process. It guarantees due process to those facing potential revocation of citizenship while ensuring that such a serious measure will not turn solely on a point of law. In the final instance, the decision remains with the cabinet, which will maintain the authority to weigh humanitarian and compassionate considerations as well as all points of law.
This procedure remains, appropriately, in accordance with the principle of responsible government, which in itself is the basis of our parliamentary tradition, as cabinet remains responsible to the people of Canada through Parliament.
Clearly, the decision to take away citizenship must never be taken lightly. However, if we are to continue welcoming newcomers to Canada in even greater numbers we must be able to deal with those who obtain their citizenship fraudulently, those who would never have been granted citizenship in the first place if they had been honest about who they really are.
Revocation procedures must apply to those who were never, in fact, eligible or entitled to Canadian citizenship in the first place. Above all, this means criminals, terrorists and those implicated in war crimes or crimes against humanity.
Let me conclude my remarks by underlining that Bill C-16 is fundamentally about values. I am often struck, particularly when I am travelling internationally, to see that many people are quite surprised to learn that Canadian citizenship dates back to just 1947. They are often surprised to know that in the vast majority of cases, citizenship follows quickly upon immigration to Canada and successful integration into Canadian society. In pursuing these issues, most gradually come to understand that such access to Canadian citizenship has been a vital part of the building of this country. They understand that our traditional openness to newcomers and our desire to welcome those who share our values is a fundamental importance to who we are as Canadians.
This is nowhere more evident than in our citizenship ceremonies. There we see that citizenship is about so much more than documents and procedures. It is where people are welcomed into Canada, their new home. It is where Canada embraces our new citizens and a vision for our common future.
Colleagues, I believe that Canadian citizenship is one of the main reasons our country is so admired around the world, and I believe that Bill C-16 will only strengthen its value and the sense of pride and belonging that it represents. I urge you to grant this bill swift passage and I now welcome your questions.
The Deputy Chairman: Thank you, Madam Minister. Could you tell us who is accompanying you today?
Ms Caplan: Certainly. My deputy minister is Janice Cochrane. My assistant deputy minister with responsibility for policy is Joan Atkinson. Rosalind Frith is the director general of integration. Normand Sabourin is the registrar of citizenship. I am pleased with the team that is here with me, and we are prepared to answer any questions you have.
Senator Kinsella: Madam Minister, if I am correct, I believe this is the third time in our history that Parliament has before it a comprehensive bill dealing with Canadian citizenship.
Ms Caplan: I believe it was 1947 and 1977, and this bill has been under consideration in different iterations and form for quite some time.
Senator Kinsella: I am interested in the government's policy principles. In 1947, as I understand the history of Canadian citizenship, the government of the day was responding to Canada's need to have its own Citizenship Act, and that was the thrust. At that time, the need was to respond to issues of naturalization. In 1977, in that first major revision of the Canadian Citizenship Act, if I recall it correctly, there was a recognition that citizenship really speaks to everyone in Canada, but unfortunately the 1977 act, which is the law of the land today, is more about citizenship acquisition or naturalization. I think honourable senators would be interested in finding out why this bill has not got out of that mould and why the government has brought forward a bill that deals with naturalization needs.
The content of the bill we need; there is no question about that. My concern is that we here we are in a new century, the country 133 years of age, and we still do not have a Canadian Citizenship Act that speaks to Canada's 31 million citizens. I wonder, in terms of government policy, what your thinking was. Why has the government not gone down the road of a bill that speaks to everyone in Canada? Instead, the proposed legislation continues with the naturalization element.
Ms Caplan: In fact, I think the bill does speak to all Canadians.
The difficulty that we have had until now, frankly, has been with the mechanism for how we do that. The commissioners will not need to perform the administrative function, which is quasi-judicial now. The role envisioned for the new commissioners will free them up so that they are available to be ambassadors to the community and to the schools, to talk about the rights and the responsibilities of Canadian citizenship and to promote citizenship in a way that I agree we have not done to a great degree. I believe that the new role of the citizenship commissioners as envisioned in this proposed legislation will give us the opportunity to see the promotion of Canadian citizenship begin.
The reasons for the changes to the legislation are apparent. Those reasons include inconsistent rulings from the courts, the decisions of human rights commissions, the fact that the 1977 legislation was pre-Canadian Charter, and the knowledge that the high volume of applications requires modernizing of systems and procedures. A number of specific issues that are dealt with in this bill significantly update the legislation for the new millennium, if you will.
Senator Kinsella: Focusing then on what you have said in terms of rights of citizenship and the rights that flow from citizenship, were you surprised when you became minister to discover that only three of the rights found in our Canadian Charter of Rights and Freedoms are predicated on and tied to Canadian citizenship?
Ms Caplan: The right to vote, the right to consular services, the right to not be removed from Canada.
Senator Kinsella: Yes. In terms of government policy, is it or is it not your concern to have the Canadian Citizenship Act provide a little more concrete richness expressed in law as to the rights and responsibilities of Canadian citizens?
Ms Caplan: It is important for us to do it anyway. I do not think codifying things in law make them happen. In the role of the citizenship commissioner, the opportunity to discuss and promote citizenship is what is important. We celebrate Citizenship Week once a year, in October, and we are preparing all kinds of celebrations to raise awareness and consciousness. Your objectives will be enhanced if this bill passes and we can use the talents of the new commissioners. We are also using new technology. If you care to check our new Citzine Web site, you will discover a number of things we are trying to do to promote citizenship.
Senator Kinsella: It is a good site, one that I can recommend to others.
Ms Caplan: I agree.
Senator Kinsella: On page 23 of the bill, clause 44, dealing with the delegation of the minister's powers, there is a limitation placed upon those who could act as registrar of Canadian citizenship. You say that only a citizen may act as registrar of Canadian citizenship. Do you believe that that provision is Charter-proof when section 15 says that all are equal and all have the equality of the benefit of the law without discrimination?
Ms Caplan: The question that I asked my officials was whether this bill had been reviewed by the Department of Justice and whether in their view it meets the obligations of the Charter. The answer that they gave me was "yes."
Senator Kinsella: Did you ask them specifically about clause 44(3)?
Ms Caplan: I did not inquire clause by clause. I asked them if the bill had been reviewed by the Department of Justice and if in the opinion of the Department of Justice this bill met the Charter obligations. The answer was affirmative.
Senator Kinsella: My final comment, Mr. Chairman, is a general one and concerns the public policy objective. What was the public policy objective in terms of this bill, as we now read it, effectively limiting the right of appeal of a decision of the minister where one loses one's citizenship -- in other words, limiting that appeal to an administrative appeal as opposed to an appeal on a substantive issue?
Ms Caplan: As I understand it, all decisions in this bill are subject to judicial review and the judicial review provisions can be taken all the way to the Supreme Court.
Senator Kinsella: There is a question of policy to which only a minister can respond. It is the policy objective that you are seeking to make available to Canadians, or those who would have proceedings under this act, that they would have full access to the judicial review in both matters of substance and matters of form.
Ms Caplan: Judicial review is the norm. It is the means of review of all ministerial decisions.
The Deputy Chairman: For the purposes of the record, at least three sections of the Charter refer directly to citizenship: section 3 is the right to vote; section 6 relates to mobility rights; and section 23 relates to minority language educational rights. There are at least three in the Charter directly.
Senator Andreychuk: Thank you for attending here today to try to explain some of these clauses, because many of them have been fundamentally troubling to me from a policy point of view. I should like to start with the point wherein you say that the proposed new Citizenship Act is about the values of citizenship. I am wondering what values the bill conveys. What values of Canadian citizenship do you see being conveyed? How can these commissioners reflect what are the Canadian values? How do you address the criticism that the commissioners will be appointees of the government and not subject to a selection process that is more at arm's length that would be more desirable? Some appointments will go through a public service kind of process and some will be, I think, more of a political appointment. How do you ensure that all of our values, when we struggle with what we mean to be a Canadian, will be put forward?
Ms Caplan: I will start with the last point on the qualifications for appointment. That is dealt with on page 16, which is clause 31(6), which says:
To be eligible for appointment as, and to serve as, a Citizenship Commissioner, a person must be a citizen, have demonstrated an understanding of the values of good citizenship and be recognized for their valuable civic contribution.
We are in the process now of developing a mechanism to ensure that those obligations are fulfilled in a way that the new ambassadors, the citizenship commissioners, will begin their duties with the same kind of sense of pride and accomplishment in the community as the existing citizenship court judges.
Senator Andreychuk: Will that be by regulation or by policy guideline?
Ms Caplan: By policy, but it will be clear and transparent as to what the process is and how people can apply.
On the second part of your question, there are a number of values that I think are both reflected and inherent in the bill. Again, I would refer you to clause 33 on page 17, where it talks about the purpose and procedures for the ceremony. It is to promote a strong sense of civic pride, including respect for the law, for the exercise of the right to vote, for the participation of citizens in public affairs, for a sense of mutual respect and understanding between Canadians. As well, there is the requirement of a physical presence in Canada three years out of six, or 1,095 days. We are saying that we want people to have an attachment to Canada.
By requiring a knowledge test, we are saying we want them to know about their country. Similarly, with the oath of citizenship, it is both an oath to Canada and acknowledgement of our place in the British Commonwealth.
Senator Andreychuk: The part that gives me concern is that until we see what this policy may be --
Ms Caplan: To which policy do you refer, senator?
Senator Andreychuk: I mean what these values will be translated into in concrete terms. Perhaps the way that I would talk about these values would be very different from other people in this room. Our values very much respect our part of history, experience, et cetera. Will we find out that these values will be translated somewhat differently in one part of the country as opposed to another, or from one group of Canadians to another?
Ms Caplan: That is why the clause I read in the bill is an important one. It gives guidance to the commissioners about what should be included in these citizenship ceremonies. That clause also gives guidance to the commissioners for when they go to into the communities or into the schools to talk about citizenship.
We have concerns about people having an attachment to Canada, which is why physical presence replaces the old residency rule, which has been interpreted so widely by the courts. We are continuing a knowledge test and permitting people to take the test with the aid of interpreters. This recognizes that it is often difficult to answer certain questions in a second language. Even though one can speak the language well enough to pass a language test, one can have the assistance of an interpreter to help with an understanding of the country.
We have a guide for children. Perhaps Ms Frith could tell us about how and where we actually promote the values.
Ms Rosaline Frith, Director General, Integration, Department of Citizenship and Immigration: All senators will be receiving shortly a letter from the minister on Citizenship Week. To that letter, we have attached a guide that was prepared for school children across Canada. We have already had almost 12,000 requests for the guide. It talks about how we all belong. It talks about the values that are intrinsic to being Canadian and to be welcoming to new Canadians. Those are examples of the kinds of messages that we are trying to put across through the commissioners and directly in the schools.
Ms Caplan: One of the things that impresses me -- and I say it at most of the citizenship ceremonies that I attend -- is the slogan for this year's Citizenship Week. I hope it will permanently remain in the lexicon and language around citizenship. The slogan is "Bienvenue chez vous." The message to these people is "Canada is your home. We are welcoming you to your home."
The messages are about social cohesion and about living together in a diverse and tolerant society. That is the history of Canada. We know there are some who would fan the flames of intolerance; however, our messages about citizenship are about respect, living together, celebrating diversity, respecting our differences and being able to have a heated debate in an appropriate way in a civil society. For me, that is what this bill embodies.
Senator Andreychuk: I wondered why the values were not more appropriately put into a preamble, for example, or in some other way that would help me to understand what values are being talked about. I have no difficulty with the values you are talking about, minister. Attachment to the country and the rule of law are obvious ones. The definition of "values" is judgment-laden. That is what troubles me about this bill. I have really no idea who will be disseminating what, where. I would be more comfortable if that were in the bill.
Ms Caplan: The answer to that is that the department, through Ms Frith's branch, which has responsibility for integration, is responsible for developing all of the tools that will be made available to the commissioners. They are publicly available. They are on the Web site. They are circulated to members of Parliament, senators and the public. They are open to scrutiny and criticism. I am proud to say that I think that they are excellent and well-received. However, I will not suggest for a minute that there are not ideas that we would welcome, which that is why they are broadly circulated.
We are always searching for those common values. I do not think anyone would attempt to codify them. This legislation contains all of the right messages about what those values are.
Senator Andreychuk: There is a clause in the bill that says that cabinet will have the right to strip someone of his or her citizenship in the public interest.
Ms Caplan: No, that is not right. It says that the cabinet can deny citizenship, in the public interest. There is a difference.
Senator Andreychuk: Why was that clause deemed necessary? There are certainly the traditional clauses, covering anyone who has committed extreme criminal offences, treasonous activity, terrorism, crimes against humanity, or any similar crimes that may have been perpetrated. Why was it deemed necessary to have this clause? Who are we trying to target?
Ms Caplan: This was an exceptional provision put in to deal with those exceptional cases where we would not want to be required to grant citizenship to someone such as, for example, a hate monger, someone who we would not be proud to call Canadian. In such a case, cabinet would stand accountable for deciding that even though the person had met the residency requirements, spoke both official languages fluently and passed every knowledge test about Canada it would nevertheless be in the public interest to say about this person that he or she would not bring pride to Canada. It would be in the public interest for cabinet to deny citizenship to the person. The government would then stand accountable for that decision.
Senator Andreychuk: In terms of such a decision, then, none of the other tests would apply. It would be a decision made in cabinet, in most cases with cabinet secrecy. How would a person defend himself or herself against such comments? I understand that there will be a report by the department. However, the actual decisions will not be transparent. In today's society, should accusations of that type not go through some objective test like a hearing process where there would be some scrutiny and accountability? Why was it necessary to add this provision? To what case can you point where this would apply?
Ms Caplan: I would not want to point to any specific, individual case. That would not be appropriate. What I can tell you is that these decisions would not be taken lightly. In my view, they would not be taken without the kind of scrutiny to which you refer, senator. There are provisions in this legislation for an individual to be informed, to have the opportunity to make written presentations to the minister, and to appeal to the cabinet, in writing of course, since it would be a cabinet decision. The cabinet would then stand accountable for the decision not to grant citizenship in the public interest to someone who would bring dishonour to Canada. If it were judged that cabinet had inappropriately done that, then I am sure it would be an issue in the House of Commons. That is why decisions made by the executive council are subject to that kind of scrutiny daily in Question Period.
Senator Maheu: Welcome, Madam Minister. I should like to just touch on the Quebec issue, specifically clause 8 of the bill. Has Quebec raised any specific issues in connection with international adoptions vis-à-vis Bill C-16? If so, what measures have you taken to resolve them?
Ms Caplan: I mentioned this in my opening statement. As you know, adoption falls under provincial jurisdiction. Therefore, the policy intent of bringing children to Canada as citizens or having them become citizens as quickly as possible relies on provincial participation. The rules for adoption procedures in Quebec are different because they have a different civil code from other provinces in Canada. We are working with the Province of Quebec to facilitate the entry of these children on a special ministerial permit in order that their adoptions can be finalized and their citizenships can be granted as quickly as possible. For the children to come into Canada as citizens when the adoption is being completed in Quebec would require a change to the civil code in Quebec, which is an option open to the Government of Quebec.
Senator Maheu: I gather that a number of concerns have been raised in connection with the requirement that the minister be satisfied that an adoption is in the best interests of the child, and those six words are being repeated. What steps would be taken to guarantee that the best interests of the child are always paramount?
Ms Caplan: We believed that it was very important to put that into the legislation since we are signatories of The Hague convention. We wanted to be very clear that decisions about entry into Canada as citizens were based on the best interests of the child. However, we recognize that adoption is a provincial jurisdiction and that the procedures of the provinces will prevail.
Senator Maheu: How would the commissioners determine the best interests of the child? Who would make that decision and how would it be justified?
Ms Caplan: Provinces make decisions every day about whether an adoption is bona fide and whether it will be approved. They do home studies. There are concerns about conformity with international laws and there are some challenges there. Currently the child comes in as a landed immigrant and there is a requirement for a medical examination. Under this legislation, the requirement for the medical will remain but it will be for information purposes only in order that the adoptive parents will have all the information they need about the health status of the child.
Those are the sorts of steps that we have taken to ensure that we live up to our international obligations under the Convention for the Rights of the Child while at the same time working with the provinces to facilitate entry once they have approved the adoption or, in the case of Quebec, finalized the adoption so that the children can be Canadian citizens when they enter or as soon thereafter as possible.
Senator Maheu: So the final citizenship decision would remain with you?
Ms Caplan: Of course.
Senator Grafstein: This is a fascinating and important definition of Canadianism. I am not sure how far we can take this.
I want to deal with two small issues now. I intend to deal with the question of appeals and revocation after we have heard from the other witnesses, so I will not take your time with that; however, it is of interest to me to examine that issue carefully. Perhaps after we hear the witnesses on that we can come back to you in response. I want to reserve my examination on that.
There are two small principles here that bedevil me. I am not sure I understand the rationale for them. First, the definition of citizenship is rather circular. It says that a citizen is entitled to all the rights, duties and obligations of a citizen. I will not deal with that.
Ms Caplan: That is where the senator's clarification is very helpful because there are certain rights of citizenship guaranteed in the Charter.
Senator Grafstein: I will come to those in a moment, but the definition seems to be somewhat circular. I do not quarrel with that for the moment, provided that we can cross-reference that with other acts for some assistance.
Clause 6(1)(c) reads:
(c) has an adequate knowledge of one of the official languages...
I understand that the minister can, on compassionate grounds, waive that requirement. I personally know of many families that came to this country, the parents in which did not have adequate knowledge of either of the two official languages but spoke as many as five other languages. One parent or the other may have gained some knowledge of an official language, although I would not say "adequate knowledge."
Why are we, at this stage, having established this as a high architectonic of Canadian citizenship, raising the bar?
Ms Caplan: I do not think we are raising the bar. Currently the policy is that there is no requirement for a language test for anyone over the age of 60, and that will remain the policy.
Senator Grafstein: Is that here?
Ms Caplan: That is at the minister's discretion.
Senator Grafstein: We are talking about the statute.
Ms Caplan: The statute is unchanged from the existing statute on language. There is currently a language test administered by the judges. It is up to the Citizenship Court judge to determine whether there is adequacy of language.
Senator Grafstein: Where is that in the bill? I see clause 6(1)(c). Where is the legal description of the exercise of that discretion, other than waiving it on compassionate grounds?
Ms Caplan: Clause 6(2) reads as follows:
If the Minister believes that there are compassionate grounds for doing so, the Minister may waive
(a) in the case of any person, the requirements of paragraph (1)(c) or (d);
(b) in the case of a minor the requirement --
Senator Grafstein: I have that. That is not my point. My point is this: Why is that a discretionary issue as opposed to a question of law? In other words, why are we establishing first a question of law and then an exemption based on the minister's compassionate grounds? The minister could be flooded with these applications. Why are we doing this? Is there some policy behind this that we want to make this a principle with an exception as opposed to a principle?
I can think of many dozens of families from the Russian community, the Ukrainian community, the Jewish community, the Chinese community, and particularly the Italian community, that do not have an adequate knowledge of either official language but are great Canadian citizens. Madam Minister, you know them too.
Ms Caplan: The reason I distinguished between the ability to use an interpreter for the knowledge test and the language test is exactly that. The requirement for the language test is a very basic knowledge of one of the two official languages. In fact, under the official languages criteria, it says "demonstrates competence in basic communications in a language such that a person can take part in a short, informal conversation." As I say, it is very basic. The requirement is to ensure that they can vote and participate in those activities in which a citizen is entitled to participate.
As for the knowledge test, I think it is important that, as we do today, we permit people to have an interpreter because that is not a basic discussion about the knowledge of Canada. So there is a differentiation and a different expectation, and therefore I think the numbers of requests will be relatively few.
The other thing I would point out is that today those decisions are made by Citizenship Court judges, and the negative decisions of Citizenship Court judges are appealable to the Federal Court. By having a basic requirement that is administrative, where there is an ability to appeal to the minister, which discretion could be given to someone to be able to do that review fairly quickly, I think we will see very few problems with that clause.
Senator Grafstein: It would be helpful if there is any statistical data to support the need for subclause (c). It would be helpful if there is any statistical data to indicate that this is a substantive problem. It would help us to have a database upon which to examine that particular bar and the consequences. It might be helpful for us to have that.
Ms Caplan: I think it is important that we recognize that we do want an incentive to encourage newcomers to be able to participate in society, and that if they are going to be a citizen, we want them to be able to vote and to be able to learn one of our two official languages so that they can participate in those things that citizens have a right to participate in, but, again, at a very basic level. When it comes to that ability, the intention is that it will be basic, informal communication skills.
Senator Grafstein: Madam Minister, the statistics would be helpful but I do not want to prolong this debate. You know that in Toronto there is a serious problem with respect to funding for second-language or first-language education for those who are immigrants. We know those budgets are under tremendous pressure and that, while we may be able to afford an opportunity in principle, if there is no economic support for people to exercise their right to get that language training it might be in effect a nullity.
Ms Caplan: Maybe I could clarify that, because I think there is some misunderstanding.
Senator Grafstein: Please help us.
Ms Caplan: At the present time, the budget in my department for settlement services is about $273 million. Of that, 80 per cent is for language training, and the majority of those language classes are made available to those who come as other-than-economic immigrants. Those who come as economic immigrants usually already have a working knowledge of the country. Within the family class, those who would come as sponsored parents and grandparents would likely fairly quickly reach the 60-year elimination of any language test anyway.
You are asking for statistics. I am trying to give you the information that says that we do provide language classes across the country and that they are made available to those who come as members of a family class and others. What we find today is that less than 5 per cent currently fail the language test.
Senator Grafstein: How many is that, 7,000 or 8,000 a year?
Ms Caplan: There were 200,000 applications last year. Less than 5 per cent failed the test initially.
Senator Grafstein: So less than 10,000. We will perhaps come back to that with other witnesses.
Let me deal with another issue. This is an old chestnut for me, and if other senators fall asleep I will understand. They have heard me on this issue before but I want to raise it again. I am curious about the inconsistency between clause 33(2)(d) as it applies to citizens generally, the principle of the exercise of the right to vote, and the Nisga'a agreement that was passed by Parliament last spring. I agree that the architectonic of participation in the country is the right to vote. It is the Charter right. It is the architectonic, and I agree with that, and I am delighted it is here as a positive element in the promotion -- not only the right to vote but the exercise of the right to vote, which I think is even better.
Having said that, the Senate discovered in our examination of the Nisga'a treaty that there is paramountcy in the Nisga'a treaty so that the Nisga'a band can determine who shall become a citizen on federal territory now allocated to the Nisga'a under the treaty, and there is no guarantee at all that a resident that could be there for over six years has a right to become a Nisga'a citizen and therefore be entitled to a vote. To argue against myself, there was preliminary support for the government by a recent decision by Mr. Justice Williamson of the British Columbia lower court that sort of disregarded the whole element of citizenship and the right to vote. He said that it is not really that important or relevant, and in a lot of municipalities it is not the case, and so on.
Is there an inconsistency between the federal right of citizenship ensuring the right to vote and another piece of federal legislation dealing with federal lands now transferred to aboriginals where the right to vote is not guaranteed, or where the right to obtain citizenship, a lower-class citizenship, is not guaranteed, which would incorporate the right to vote? Is that of concern to your department?
Ms Caplan: I mean this with all due respect, senator: I am prepared today to discuss anything in Bill C-16.
Senator Grafstein: I raise that as an issue. I expect some of your officials are fully familiar with what I am talking about. I just wondered why, in cabinet, we look at citizenship as an architectonic here but we do not necessarily defend the same right over there. It does not relate to your department. It relates to an adjacent department.
Ms Caplan: Again, with all due respect, is there anyone here who wants to answer the senator's question?
Senator Grafstein: I would not think so. I would ask you to consider that and perhaps come back to me. Madam Minister, you represent the government. I asked your colleague Mr. Nault the same question. He did not think it was that important. He said the right to vote was not that important. I am curious about it.
Ms Caplan: I can only say that today I am prepared to answer any question about Bill C-16.
Senator Grafstein: Perhaps your officials can come back. You can come back in your summary and give us an explanation of that inconsistency, if there is one.
Ms Caplan: Duly noted.
The Deputy Chairman: Obviously, we will come back on this question because every statute must be in compliance with the Charter of Rights and the three relevant sections.
Ms Caplan: That is a good answer. Thank you, senator. I like that answer. Can I give you that answer?
Senator Grafstein: Since he is not giving evidence, I will not respond.
Ms Caplan: I yield to the senator.
The Deputy Chairman: We will come back to that principle later on, of course.
Senator Nolin: My first question simply wants to ensure that we will have the opportunity to question officials when consideration of this bill is complete, and that these people will remain available to us in order to answer our questions.
Do officials of the Department of Justice help you throughout the process?
Mrs. Caplan: Yes.
Senator Nolin: And these people will be available during the course of our deliberations?
Mrs. Caplan: Yes.
Senator Nolin: You answered Senator Andreychuk as to clause 21. Without specifying who you are referring to, could you please give us an example where clause 21 would apply?
Mrs. Caplan: To both those questions, the answer is yes.
My officials will be here and I hope to return to the committee as well at the end. With regard to the other question, I mentioned when Senator Andreychuk asked her question that the decision of cabinet to refuse, in the public interest, to grant citizenship would be to someone who would bring dishonour, someone we would not be proud to say "This is a Canadian." This person could be a hate monger, someone who develops and promotes hate. That is a Canadian example, without naming any particular names, where the individual had technically met the residency requirements, had been physically present in Canada for three out of six years, had complete knowledge of the country, and spoke both official languages perfectly. I would say this would be in the most extreme cases, where social cohesion and harmony in Canada would be threatened. It would be the kind of decision for which the executive council would stand accountable.
We felt this was important if we were going to have value and integrity in the Canadian context of granting citizenship. We felt it was important as there is no constitutional right to citizenship. Citizenship is something that is and should be conferred by the people of Canada. Where there is a concern that the individual receiving that citizenship would bring dishonour to the country, the cabinet would have an obligation on behalf of Canadians to say that it was not in the public interest to grant citizenship.
Senator Nolin: What you are asking for here are extraordinary powers. And that is the issue I would like to deal with next week. I have read a large number of publications from your department. In the bill, there is a mention of Canadian values. This term is found throughout the text and I entirely agree with you, but at this point in time, you are asking us to grant you an extraordinary power which goes over and above. You are saying to newcomers to Canada who want Canadian citizenship: "Here is a series of values we believe in. There are so very important that you will have to pass an exam to make sure that you will remember them". And even if the right to vote is not compulsory in Canada, you are telling them that it is important to vote.
Ms Caplan: Let me be clear. I think it is important. The knowledge test of Canada is one where there is a series of questions. Again, the questions are open. Everyone knows the test is from a list of 200 questions that are publicly available. The types of questions that are asked tend to be general knowledge and historical questions of Canada.
Senator Nolin: I am not disagreeing with you, on the contrary, I am in agreement with the questions you ask. What concerns me is the importance that you attach to Canadian values. I recognize this importance in that Canadians recognize one another as a people. But, at the same time, you are asking us, in this bill, to set aside other values which are just as important to us as the rule of law.
I am willing to grant the executive this discretion, but you are going to have to convince me that it is something that is a black mark on Canada's record. If an applicant for citizenship commits an illegal act, there is a clause in the bill which gives you the authority to refuse citizenship. If you are dealing with an applicant who lied, the legislation also gives you the authority to revoke his or her citizenship.
I am trying to understand the reason for this authority you are requesting today, while bearing in mind that the Charter of Rights and Freedoms applies to everyone in Canada, whether they are citizens or not.
Ms Caplan: Senator, this provision in the legislation is one that would be used in very limited and exceptional circumstances. An example of an instance is an individual whom we felt was promoting ethnic hatred.
Senator Nolin: But those actions are already illegal.
Ms Caplan: I understand. That is the reason for accountability on a decision made in those kinds of exceptional circumstances. From past experience, without getting into any particular cases, I would say that this provision is a safety valve. Most cases are caught in the legal provisions, but from past experience we have determined that there is a need for a safety valve in those very exceptional cases where we would want to be able to refuse citizenship to someone engaged in an activity that was abhorrent to most Canadians.
Senator Nolin: Are you telling us that there are people currently in Canada who, having been granted citizenship, have committed an act or taken a position that is dishonourable towards Canada, and that you have no power to prevent it?
Senator Maheu: Yes.
Ms Caplan: I think that is what we are saying.
Senator Nolin: Without naming any names, could you explain what they did?
Ms Caplan: I have been very clear when I have talked about those who would promote ethnic hatred. I used the word "hate monger." As I say, I do not want to get into naming individual names. It is rare, but there have been situations in the past where we felt that we did not have the ability to deny citizenship. This safety valve is an important feature of this bill. I believe it is in the interests of all Canadians. What is important is that you do have accountability for the rare occasion when that provision would be used.
Senator Nolin: The best safety valve we have in Canada is the court.
Ms Caplan: I believe, in the parliamentary tradition, the very best accountability we have is the debates in the House of Commons.
Senator Moore: And in the Senate.
Ms Caplan: And in the Senate; parliamentary debates in both Houses. It is important to know as well that the provision to deny citizenship in the public interest is limited. It is a five-year ban that would then have to be reviewed. It is not a lifetime provision, but even that, as I say, is an exceptional circumstance. It has been the history and tradition in the British parliamentary Commonwealth traditions that it is the government, on behalf of the people of Canada, that set the rules for the granting of citizenship. It is the government that stands accountable and should stand accountable both for when there is a decision not to grant citizenship and when there is a decision to revoke citizenship.
The Deputy Chairman: We referred a moment ago to the lawyer from the Department of Justice. Obviously, we will ask the question of public interest in clause 21, but it was in the Morales case before the Supreme Court of Canada. We will come back to that debate because the Supreme Court has said that the expression is very vague. What is public interest? If it is that vague, it will be what the court says it is.
Ms Caplan: I could answer that if you wish, senator.
The Deputy Chairman: Please do.
Ms Caplan: In 1996, the Supreme Court of Canada deliberated on this issue. They found that best interests of the child has been characterized as indeterminate and "more useful in legal aspiration than in legal analysis." The multitude of factors that may impinge on the child's best interests must make a measure of indeterminacy inevitable.
Sometimes, there are vacuums in the law. There is sometimes a need for that indeterminacy.
The Deputy Chairman: My question was related to the public interest.
Ms Caplan: I misunderstood your question, then. I am sorry.
The Deputy Chairman: The "public interest" in clause 21 has already been referred to in the Morales case, and the court came to the conclusion that it is somewhat vague. We cannot debate everything at the same time. We will consider that later, when the lawyer from the Department of Justice appears before us.
Ms Caplan: While there was a finding that constitutionally it was vague, in that same decision the court found there was no constitutional right to citizenship.
The Deputy Chairman: I agree with that, but that is another point.
Senator Cools: I would like to welcome the minister to this committee. Is this your first visit?
Ms Caplan: Yes, and I am very pleased to be here.
Senator Cools: May I just share with honourable senators that the minister is from my fine city, Toronto. Long live Toronto!
My question is about the oath of citizenship. Clause 34 reads as follows: "The form of the oath of citizenship is set out in the schedule." Traditionally, the oath of Canadian citizenship was in essence the oath of allegiance. If I look at this particular proposed oath, I quickly see that the oath is being dramatically changed.
I have two questions for the minister. First, what are the government's legislative objectives and social policy in altering this oath, particularly to delete the section of the oath of allegiance -- in particular, Queen Elizabeth II, Queen of Canada and, particularly, her heirs and successors.
Second, the question of allegiance is an ancient question. The question of allegiance is one that is made to the sovereign because allegiance and loyalty are personal characteristics and/or were a function of the fact that the sovereign had the right to demand allegiance from citizens -- for example, to send them to war. The sovereign had the right to conscript citizens. What are the policy and legislative objectives in altering the oath to now say that new citizens will pledge their loyalty to Canada? What does that mean?
Ms Caplan: Many consultations took place on the oath. It is also fair to say that there was no unanimity and rare consensus. The oath has not changed for over 50 years. The new oath is concise and uses simplified language. The allegiance to the Queen remains a part of the oath because the Queen is the head of state of Canada. Citizens still owe allegiance to Her Majesty's heirs and successors although the words have been excluded from the text for conciseness. The proposed citizenship oath can be made either before God or as a solemn affirmation, depending upon the individual's choice. It was the intent of the oath to ensure that there were references to Canada and that the oath would be meaningful to those participating in the ceremony.
Senator Cools: You said something that I am having difficulty grasping.
Ms Caplan: That is possible.
Senator Cools: You said the oath has not changed, suggesting, perhaps, that it should be changed. My understanding is that allegiance should be unswerving and unchanging. My question to you is this: Why does the government feel the need to change the oath? I liked the fact that the oath of Canada could remain unchanged for decades. That is the first thing you said that.
Ms Caplan: During the consultations, Canadians indicated to us that they wanted a new oath that would reflect contemporary values and loyalty to Canada. The new oath has been developed to better reflect the modern reality of Canada. Canadians expressed to us a clear desire to have an oath that focuses on this country and on shared values rather than on governing institutions. The government listened to those wishes and the new oath will allow Canadians of all backgrounds and faiths to celebrate what we share in this country.
While there is probably no unanimity, I think it is a reasonable consensus in response to what we heard during the consultations.
Senator Cools: I shall come back to that in a moment. I belong to that group of people who would be shocked if an immigrant or a person who moved to a country like Israel said, "I do not like the Star of David as a symbol. It is too old. You should modernize. It offends." That oath is a part of Canadian existence and a part of Canadian integrity. Canada is a constitutional monarchy, which should be preserved and lauded and promoted.
Ms Caplan: As reference to the Queen is contained in the oath, your concern has been recognized. Many people agreed with you. It might be interesting, for information sake, to know that there are other Commonwealth countries that are also modernizing and updating their oaths. Australia is one example. They just brought in a new oath of citizenship as well.
Senator Cools: You just said that you have taken out the words "heirs and successors," yet allegiance is still owed to Her Majesty's heirs and successors. If what you say is the case -- and I am not expressing an opinion on it -- and allegiance is still owed to Her Majesty's heirs and successors, then what is your policy objective in deleting those words?
Ms Caplan: Conciseness was the first objective. Removing the reference makes the oath lighter. It does not affect any of the allegiance as far as successors is concerned. It is a well-established principle of common law that the obligation is to be loyal to the sovereign, regardless of who wears the Crown. There was no need to be more specific in the oath than the way we have done it. I think it is covered.
Senator Moore: If it is not in, it is out. It is not covered.
Ms Caplan: It is covered by the principle of common law.
Senator Moore: A citizen should not be expected to investigate the common law and the Interpretation Act to find out what it means.
Ms Caplan: I believe that the new oath is easier to understand and it is easier to read.
The Deputy Chairman: We have many precedents to that effect. In terms of being a Commonwealth country, when we are talking about the Queen it is the Queen in Right of Canada. We must remember that. There is the Queen as the head of the Commonwealth, but there is also the Queen in Right of Canada, the Queen in Right of Australia, and each country adapts the oath of allegiance to some special values in the country. It is a fascinating debate but I do not think we should go in that direction. The bill is on citizenship.
Senator Cools: There are some of us who feel very devoted to Canada's constitutional monarchy, and the oath of allegiance is an excellent symbol of Canada.
The Deputy Chairman: We all agree with that.
Ms Caplan: For the record, senator, during the consultations it was discovered that not everyone did agree with that. In fact, there were some that felt that the Queen should be left out of the oath entirely, and there was much debate and discussion. There was no unanimity on that issue. I believe that the oath that was brought forward was reasonable in the form that it is in right now; therefore, any debate about the role of the monarchy in Canada would be left to another time, another place and another debate. When it comes to our citizenship oath, we wanted to reflect the reality, which is that the Queen has a role as the constitutional monarch of Canada and that we reinforce allegiance and loyalty to Canada. There was no consensus or unanimity on the question.
Senator Cools: I am having difficulty in accepting what is being said because it seems to me we are speaking to a social cohesion. I feel that an item of social cohesion and of national unity would certainly be the fact that the average immigrant, on becoming a citizen, takes the same oath of allegiance that we as members of the Senate, Members of Parliament, judges and all officeholders will take. It would seem to me that traditionally the oath of allegiance has been an enormous unifying force across this country. If we are speaking to the issues of simplifying life for future citizens, it seems to me the simplest solution would be to ensure that all of us sang from the same hymn book and that the oath of allegiance be the same for everyone across this nation. I should like to appeal to the minister to give some consideration to accepting an amendment from us in respect of restoring the old oath. It worked quite well for many years -- and you know the old expression, "If it is not broken, there is no need to fix it."
Ms Caplan: As I say, senator, the act has been under consideration for 12 years. There has been broad discussion and it has been difficult to find consensus on this, but through extensive consultation there was a desire to see the oath updated to reflect allegiance to Canada. This oath does that as best it can. When you cannot find unanimity, it is as close to consensus as I feel we will get.
Senator Cools: Mr. Chairman, we should revisit the question and perhaps, if I may make a proposal, we could have some witnesses on the particular issue of the law of allegiance and the law of sovereignty, and to whom is allegiance owed and to whom it is due. I believe the old term used was the "law of allegiance." Perhaps we should hear some witnesses on this question.
Senator Taylor: Madam Minister, my concerns are in three areas but they are actually all tied together. One is the public interest in whether to deny citizenship, the other is annulment, and the third is revocation. Presuming that each person who applies for citizenship is already a landed immigrant and granted entry into the country, if a person has his or her citizenship revoked that person is still here as a landed immigrant. If the person's citizenship is annulled, that person is still here as a landed immigrant. When you say it is not in the public interest to have someone as a citizen, and you give some examples, in my scenario that person would still be floating around out there as a landed immigrant. Am I right in presuming that none of these things involve deportation, that they just involve leaving the individual as a landed immigrant?
Ms Caplan: It depends case by case as to whether that individual would be subject to an inquiry that would lead to deportation proceedings.
In regard to your first item, the public interest in withholding of citizenship, the intention there is to have a safety valve. In other words, where it is clearly in the view of the cabinet in the public interest not to grant citizenship to an individual, citizenship could be withheld. That is, as I said, in response to a Supreme Court decision that said that citizenship is not a constitutional right and so we need to be able to deny citizenship.
On the issue of annulment, those are for the most clear-cut of cases, where, within five years of the granting of citizenship, it can be clearly proven that an individual lied, misrepresented or falsely obtained citizenship. The individual is notified, given an opportunity to make a case, and the decision of the minister is judicially reviewable to ensure due process and fairness. The person then reverts to landed immigrant permanent resident status. There may or may not be an action to inquiry, depending on the case, and a determination of whether there will be an attempt to revoke permanent resident status.
Cases of revocation are cases of longer standing and a much higher bar because they are not clear-cut. Therefore a requirement exists to make the case first to a judge of the Federal Court. After the Department of Justice and the minister have succeeded in making a case before the Federal Court, there is then an opportunity for review, and judicial review every step of the way, until ultimately the cabinet makes a decision on whether or not citizenship will be revoked.
I would point out that the revocation proceedings in Bill C-16 are identical to the revocation proceedings that have been in place since 1977. There is no change proposed in Bill C-16 for the methods of revocation. There is nothing new in this legislation when it comes to the revocation of citizenship.
Senator Taylor: I agree with you on revocation. Revocation is probably better. There are a few refinements. I think that the standard of proof could be a balance of probabilities.
Ms Caplan: That has always been. That is the test the court uses in civil cases. In criminal cases, there is a different test but, again, there is no change in the due process provisions, nor is there any change in the process of revocation from what has existed in this country since 1977.
I would point out that since 1977 there have been fewer than 40 cases of revocation in this country.
Senator Taylor: That leads me into my supplemental question, which has to do with annulment. I think that might become the back door for ministers to use. I know you would not use it, minister. However, it could be a case of using the back door as opposed to the revocation provision. In the annulment provision the appeal is to the Federal Court. However, since the Federal Court only determines the facts and the minister in turn will say that a fact occurred, such as the person having lied or something, then the appeal to the Federal Court is hollow. I say that because the Federal Court covers procedure but not fact. Therefore, annulment might be encouraged. There is nothing in that provision about reasonable doubt; it just states "reasonable grounds." I am a little concerned that this is a back-door approach to get around revocation. Another minister not as efficient or as scrupulous as you, minister, could use it.
Ms Caplan: First, it is the courts that have ruled that the appropriate standard is the balance of probability, since revocation is not a criminal proceeding but a civil proceeding, and it deals with the issues of burden of proof. There are very significant differences between annulment and revocation proceedings. The decision to annul is based on objective facts. For example, the Department of Citizenship and Immigration will look at court or police records to determine if a person was criminally prohibited. Citizenship would be annulled only in straightforward cases where the facts are clear. There is a requirement to send the person notice. After the citizenship is annulled, the person returns to permanent resident status and is able to stay in Canada and reapply for citizenship in five years. That is because the annulment lasts for only five years.
On the revocation side, the decision to revoke involves more subjective criteria. A person must knowingly commit fraud in order to enter Canada and obtain citizenship. Annulment is very subjective. There have to be documents that show, for example, that a person checked off the box that says he or she has no criminal record when, in fact, there is a criminal record and the court records prove it. The test for revocation is knowingly to commit fraud.
Citizenship cases will be revoked on more factually complex grounds. These are then taken to the Federal Court Trial Division so that the judge can make a determination as to whether the department and the minister have made the case for revocation. It is taken very seriously. However, the person remains a permanent resident and can reapply for citizenship in five years unless there has been a decision that that person can be taken to inquiry for a process to remove permanent resident status.
In both cases one reverts to permanent resident status, and then the case has to be made that the person should never have been given permanent resident status in the first place. Again, that is the bar.
For both annulment and revocation it is important to know that we are dealing with people who were not entitled to Canadian citizenship in the first place. We are dealing with individuals who, had we had the facts, would not have been granted citizenship. They received citizenship through fraud, misrepresentation or, in the case of revocation, knowingly concealed a material fact that would have made them ineligible to receive Canadian citizenship.
On the issue of annulment, if a person was ineligible in the first place it is important to be able to make that case. It is reviewable judicially. In the case of judicial review, as is the case with all ministerial decisions, the proceedings cannot go forward if the court says that the individual did not live up to the obligations. In that case, then, the decision must be reconsidered. That is the protections of due process through judicial review of ministerial decisions.
Senator Taylor: Annulment still seems to leave the minister with major discretion as to whether the person had reasonably committed such an offence.
Ms Caplan: I want to be clear, senator. There is no subjectivity whatsoever when you come to annulment. What you are dealing with are objective facts and documentation of proof. Annulment proceedings require objective facts and proof. If that is not there, then the judicial review would fail.
Senator Taylor: I have also read in the bill that an annulment can take place five years after application for citizenship. That means that if the person is a landed immigrant and applies five years later the individual has been in Canada for eight years.
Ms Caplan: Cases subject to annulment are dealt with objectively. Canada is generous in granting citizenship within 1,095 days of legal status within Canada. If someone conceals information or lies on their application and it is discovered within five years of the granting of citizenship, then the annulment provision goes forth, subject to judicial review. That is part of the integrity of Canadian citizenship.
Your point is well taken. We certainly anticipate that the exception would be five years and that the majority would come to our attention within one to two years.
Senator Pearson: My question is really more one of information than anything else. I am struggling with the problem of children, although not in terms of the question of adoption. That is not the issue I am looking at. I am looking at the right of a child under the Convention on the Rights of the Child to a name and a nationality. I have been made aware of cases in which children, in infancy, have come into Canada with their parents as stateless persons. I find it hard to see how the measures of the bill apply to children, apart from the adoption issue. There is a clause that states that if a child under the age of 7 is found deserted then that child will be deemed to have been born here. In the case of unaccompanied minors and those who come in under a permit because they are stateless, is there anything in this legislation that even applies? The right to a name and a nationality really does mean the right to citizenship of something.
Ms Caplan: You have asked a technical question, senator, and I will ask my officials to address it. First, I attend citizenship ceremonies at which there are children receiving their citizenship, and it is a joy. If you have not had the opportunity to attend such a ceremony, I would recommend it to everyone. It is particularly wonderful to see the kids who receive their citizenship at the same time as their parents. It is often described as one of the milestones in the life of a family. I have heard of families who choose to do it together and then celebrate on an annual basis the day they received their citizenship. It is wonderful. That is the first point I wanted to make about children.
Second, Canada is a signatory to the international convention on statelessness. We do everything we can to ensure that we do not cause statelessness, and if we find someone in a stateless situation we attempt to respond to that situation.
Having said that, I give you the expert.
Mr. Normand Sabourin, Registrar of Citizenship, Department of Citizenship and Immigration: To answer your question, one should look at what the general authority is in the legislation regarding granting citizenship to children. Anyone who is born here will be a citizen of Canada. Anyone who is born to a Canadian parent will be a citizen of Canada. You have referred to the provision covering foundlings. If we find a child here and we do not know where he or she was born, that child will be a citizen. Finally, if a child is stateless and has no parents or affiliation that can be demonstrated, the minister has the discretion to let that child apply as an adult. In other words, it is not necessary to have a parent who is a Canadian citizen in order to be granted citizenship.
Finally on the issue of statelessness, if a child is born abroad to a Canadian parent, in 2020 or later, as a second-generation child of a Canadian, there would be no eligibility of nationality for that child. Clause 11 of the bill would allow the child citizenship if he or she would otherwise be stateless.
Senator Joyal: My first question deals with clause 24(1), which provides for the Governor in Council to appoint a retired judge to act as a review committee. That clause limits consultations to the House of Commons only. In my opinion, that does not reflect the composition of our Parliament because it has happened in the past that a party with less than 12 members in the House of Commons was the opposition party in the Senate. This clause should reflect the true nature of our Parliament. Under the political party system of Canada, we currently have more parties than ever sitting in the House of Commons. It could happen that the main opposition party in the Senate would not be consulted because it succeeded in electing only 11 members to the House of Commons.
If we are to maintain the principle of consulting the parties, which I think is a sound principle, we should reflect the representation of the parties in the Senate.
Ms Caplan: Thank you, senator. I should like to explain the intent of the clause and why it was written in the way it is.
From previous experience, our department has learned that when, in dealing with issues with national security implications, the Federal Court in a judicial review application was found to be biased, or where the Federal Court found that the Security Intelligence Review Committee was biased, there was a need to appoint a judge to take the place of SIRC. This provision allows for an appointment using the exact same criteria as for the appointment of members of the Security Intelligence Review Committee.
The legislation that established SIRC requires us, because of national security implications, to use the identical nomination procedure to appoint a judge -- likely a retired judge -- in place of SIRC. It is the opinion of the department that to change that would require a change to the legislation establishing the Security Intelligence Review Committee.
Did I explain that clearly?
Senator Joyal: Oh, yes. Do not worry. I understand that very clearly. I have been in Parliament for many years.
We had a committee in the Senate chaired by Senator Kelly, who retired this summer. The members of that committee were all sworn in for the performance of their very sensitive function because of their access to sensitive material. I believe that the Leader of Her Majesty's Loyal Opposition in the Senate has exactly the same trust and confidence as the leader of any party in the House of Commons, especially when taking into consideration that on matters of security the Senate has revised rules and procedures. That was done very recently. I believe that consulting the leader of that party in the Senate would offer the same guarantees of fairness.We do not ask that the leader who is consulted have direct access to sensitive material. We are not offering the leader to determine whether a person should receive citizenship if he or she has been involved in, for example, an international spy network or other such criminal offences. We are essentially consulting the leader on the basis of his or her experience in leading a group of legislators. That is essentially the qualification. We would not be giving him or her access to sensitive material.
Although I understand the point you are making, this issue will probably be revisited by the members of this committee on the basis of the status of the Senate. If the status of the Senate is defined in the legislation on the basis of parties represented, I believe that, as both houses work on the basis of the party system, both should have the same privilege to be consulted. It is established here that it is a privilege for the leader of parties represented in the House of Commons.
Ms Caplan: I understand you point, senator. This provision deals with occasions when the Security Intelligence Review Committee is unable to fulfil its duties and a retired judge is appointed in its place. Because we are dealing with issues of national security, it is important that there be administrative consistency, that the individual appointed to replace SIRC be appointed in the same manner as the members of SIRC.
If there are changes to the CSIS act in the future, I understand that there would be consequential amendments to the Citizenship Act to ensure that the two are consistent. That consistency is important in order to ensure that whoever assumes the responsibilities of SIRC is entitled to all information to which SIRC would be entitled. Therefore, this provision mirrors exactly the provisions in the CSIS act.
Senator Joyal: I know that.
My next question deals with clause 4. Clause 4(1)(a) provides that citizenship is acquired by birth. A person born in Canada is granted citizenship at birth. There are two avenues to acquire citizenship: either by birth or by granting citizenship to a person who applies under specific conditions that the bill offers. When we say that there is no constitutional right to citizenship, I would contend that there is no constitutional right for citizenship to be acquired through petition but there is a constitutional right to citizenship when you are born in Canada. Can a citizen born in Canada have his or her citizenship revoked or annulled or suspended or changed or altered or whatever? Is there any provision in this bill whereby a Canadian who was granted citizenship by birth would find himself or herself at the point of being denied citizenship?
Ms Caplan: That is an important point. Within the Charter of Rights and Freedoms, certain rights have been accrued. The right that Senator Joyal pointed out is a statutory right, not a constitutional right.
The Deputy Chairman: It is constitutional in the Charter.
Ms Caplan: Yes, but not in the statute.
Thank you for that clarification. It is quite correct that anyone who is born in Canada is automatically a Canadian citizen. Furthermore, anyone who is entitled under the law and under this new proposed law to Canadian citizenship cannot have it annulled or revoked unless that citizenship was given to someone who was ineligible -- that is, if it were given to someone who had lied or had gained citizenship by fraudulent means or by misrepresentation or, in the case of revocation, to someone who had knowingly concealed a material fact. Citizenship cannot be taken away from anyone who rightly received that citizenship in accordance with the law or by birth. It cannot be taken away from anyone who received citizenship by birth or by anyone who received citizenship in accordance with this legislation. However, clause 15.1 allows for renunciation of citizenship of those who are born in the country.
Senator Joyal: That is another issue.
Ms Caplan: It is important that we make the point that those who are born here and those who legally and lawfully receive citizenship under the law cannot have their citizenship taken away from them.
Senator Buchanan: Is not that subject to paragraph 4(2)? That is the only way a person born in Canada does not automatically become a Canadian citizen.
Ms Caplan: Children of foreign diplomats who are technically not in Canada.
Senator Prud'homme: Yes, or people at their service.
Ms Caplan: That is correct. Thank you for that clarification.
Senator Joyal: I want to continue on this because it is important. There are constitutional elements there that are not reflected at first site in the statute. I will explain my appreciation of the bill at this point in time.
When citizenship is recognized, it is the result in Canada of a long evolution. Before, we were British subjects. The first passport I had in 1967 had the following sentence on the bottom of it: "A Canadian citizen is a British subject." The notion of "citizenship" and the notion of "subject of" are two different notions. They are important and there are fundamental differences between them. "Citizenship" is essentially the belonging of an individual to a recognized nation that has an identity and a sovereignty in the world of democracies and countries around the world. When we pledge allegiance to Canada, we pledge allegiance to a territory that has a sovereignty and that guarantees to its nationals -- not its Canadian family because that does not exist in political terms. It exists in private law terms and we use it in political terms, but it confuses me. We belong to a nation and because we belong to that nation we are entitled to rights and freedoms. The values you are talking about are essentially the rights and freedoms. What I want to be guaranteed and to share with other Canadians are the rights and freedoms that are entrenched in the Canadian Charter of Rights and Freedoms. These are the fundamentals of the Canadian identity of the citizenship of Canada. If we open the door to values, my definition of values might not be the definition of values of the present Leader of the Opposition in the other place. I respect the law in Canada but my values are not the same. What is the same among Canadians is rights and freedoms. We entrenched a Charter over and above Parliament, governments and values of individuals because we wanted to define what makes the country.
I read the third statute that entrenches citizenship on our books and also I read the oath. I know about the debate concerning the oath. We all know it. The major point is this: Should we refer to Her Majesty or not? This is an extremely sensitive and emotional issue. We know that Canadians are divided on this. We are legislators and it is our responsibility to recognize that. Over and above that, there is what unites Canadian and what Canadians share. What Canadians share are the rights and freedoms as interpreted by the court. This is what we have as values. The rest is personal. The rest is my family. The rest is private. The rest is the values I share with my own church, with my own profession, with my own neighbours, with my own community, and so on. The fact that I am a Canadian citizen, the result of a long evolution that created this sovereign country, means that it should be reflected somewhere in this statute. I have the perception that what is reflected there does not touch upon the essential elements of our nationhood at this point as Canadian citizens. It is as if we are afraid of something. We want to make an oath that is so much the result of a compromise that it is ambiguous. I will read it in English and I will read it in French. It states: "I promise to respect our country's rights and freedoms." Is it the rights of the country or the rights to territorial integrity or the rights to sovereignty, or is the rights of the Charter of Rights and Freedoms as entrenched in the Constitution? It is not clear. In French, it says the following:
Senator Joyal: "I undertake to respect the rights and freedoms of our country."
Which ones are they: the right to vote in a municipal election? Any municipality or province can make legislation that will change from one province to the other. This is not what our country is. Our country is essentially the Canadian Charter of Rights and Freedoms. Why not say:
"I pledge to respect the rights and freedoms entrenched us the Canadian Charter of Rights and Freedoms."
That is clear. Everyone will know what it is. Rights and freedoms in general do not exist as a precise, legal constitutional concept. The perception I have in reading the bill is that it does not reflect the level of maturity that we have reached as a nation.
That is not a criticism I address to you personally, Madam Minister -- I have too much respect for your job -- but in the general definition, as Senator Andreychuk has said, I was expecting a preamble that said, "We share something in common. This is what we share in common and this is what it means to be Canadian."
Senator Prud'homme: We will never agree.
Senator Joyal: Yes, we can.
Senator Grafstein: Respecting the rule of law.
The Deputy Chairman: In other words, the definitions are very general.
Senator Joyal: To me, there should be at least a preamble stating what it means to be a Canadian citizen. Are we so insecure in ourselves, in our nationhood, that we are not able to define what citizenship means? Are we so nervous about the discussion of those terms that we do not want to recognize that Canada is a sovereign nation and anyone belonging to it enjoys the rights and freedoms entrenched in the Canadian Charter of Rights and Freedoms?
It seems rather simple to me. I am not trying to find a little flea in the bill. I am just trying to understand the constitutional concept that this bill is supposed to reflect, because it is a very fundamental bill. It deals with the essence of what it means to be Canadian. All the rest, the family values, the Canadian family and that sort of discourse is good, it makes you feel good, but that is not what citizenship is. We are discussing here rights and freedoms of citizens. As a citizen, one is entitled to a health care system because one has to be a Canadian citizen to be covered by the health care system and so on. There are many consequences of being a citizen.
The Deputy Chairman: I understand, Madam Minister, you have to leave for Toronto.
Ms Caplan: I am happy to stay, senator, and answer your questions.
I hear what you say, senator, and I mean this with the deepest of respect. It took 12 years of debate and discussion to arrive at the non-unanimity of the oath as we have put it in the bill. My fear is that it would take another dozen years before we are able to achieve that kind of consensus.
Maybe that reflects an even greater maturity. I would point out that, while I think I am a mature person, I was born before the first Citizenship Act in 1947.
Some Hon. Senators: No!
Ms Caplan: When you refer to the Charter of Rights and Freedoms, I think most Canadians recognize that that is a glorious achievement. But there are many others: our bill of rights, our human rights legislation, our multicultural act. I can think of many of the statutes that we have that help define who we are. There would be many international conventions as well that we could include in a statement or an oath. I do not say it is impossible in the future, but I believe that the bill that is before us today is a good representation of the consensus that has been achieved at this point, and that it is important. The provisions in this bill are important for today. It is important that we move forward with them.
As you know, no statute is forever. I would assume that in a few years there will be another discussion about proposed changes to citizenship that might take place in another 25 years, maybe before.
Senator Joyal: You say no statute is forever, except the Charter of Rights and Freedoms. This is the only one that will not be changed.
Senator Cools: No, that one needs some change too.
Ms Caplan: I hope you are right. I agree it is a glorious achievement. I hope it is never tampered with.
The Deputy Chairman: This is the first citizenship act, if I am not mistaken, since the first Charter of Rights and Freedoms.
Ms Caplan: That is right.
The Deputy Chairman: I repeat that in at least three sections of the Charter of Rights, which is in the heart of the Constitution, we refer to citizenship. That is not an ordinary statute. That is an organic statute. We use the term "organique" in French; it is the same thing in English. In that sense, it should refer more clearly to our parameters of the constitution; but that is another thing.
Senator Cools: I have an information question, if I may. I am just curious. Senator Joyal has given us a fair amount of food for thought. Earlier, Senator Kinsella repeated the idea of somehow in the bill addressing the concept of Canadian citizenship itself. I am just wondering whether the minister or her staff know, but it seems to me that the earlier versions of the Citizenship Act were not simply called the Citizenship Act. I believe they used to incorporate terms like "naturalization" and "alien." I am not sure, but it seems to me the acts used to refer to the fact in their titles that they were addressing the issue of naturalization. For example, what was the long title of the 1946 act?
The Deputy Chairman: Citizenship.
Senator Cools: I believe it was called Naturalization and Aliens Act. What was it called?
Mr. Sabourin: The legislation that came into force on January 1, 1947, was called the Canadian Citizenship Act, and that was the first ever citizenship act.
Senator Cools: Somewhere there is something called naturalization and aliens.
Ms Caplan: Are you referring to the British North America Act?
Senator Cools: No. One of the previous acts had a long title. Is that it? That is right: passed in 1946, an act respecting citizenship, nationality, naturalization and status of aliens. My memory is not so bad for an old senator. With regard to the short title, it says that this act may be cited by its short title, The Canadian Citizenship Act, 1946.
I am asking the minister to give some thought to this, because even there in this terminology the act is showing very clearly the differences between naturalization and a natural-born citizenship. At this point in time, and perhaps with the minister's cooperation, the committee should look at having the bill somehow or other reflect the modern richness of Canadian citizenship. It is just a thought, but I think we should bear it in mind.
The Deputy Chairman: For the purposes of the record, when they drafted the Constitution in 1867, they used "naturalization" and "aliens." They have been in the Constitution for more than a century, but the word "citizenship" is not there. The word "citizenship" is broader than that, because Canada in 1867 was not an independent country in the concert of nations. We have to remember that.
Then we were legislating in 1947; now it is 2000. It is a very different country today. In that sense, it is evolving. That is another debate.
Ms Caplan: It is an important point, senator, because it was not until 1947 that citizenship became a reality for people in Canada. Before that, quite correctly, we were British subjects.
Senator Cools: We were always Canadians.
Ms Caplan: I certainly would not argue with you, senator, but there was no mechanism for anyone to become a Canadian in law. It was in 1947 that the first Canadian Citizenship Act gave people the legal authority to become a Canadian citizen.
The Deputy Chairman: At the time of Confederation, it was naturalization and aliens. After the Statute of Westminster, it was possible to legislate in respect to citizenship. That is very clear. There is no problem there.
Ms Caplan: Senator, while I admit to being born before 1947, 1867 was a little before my time. I think that is one thing we all have in common here.
The Deputy Chairman: The Constitution is there whether you were born in the 20th century or not.
Senator Buchanan: Senator Joyal's mention of the Charter of Rights is very important. Citizenship, as I recall, was in the Charter many times. You must remember that the Charter of Rights was passed by a Prime Minister and ten premiers, all of whom were very efficient, intelligent and handsome -- and I was there.
Senator Prud'homme: Madam, I have many questions. My interest in citizenship goes back 40 years. It shows my age, too, because I was privileged to be the one responsible for reducing the period from five years to three years. At least that is one of the things I can claim I did in 30 years in the House of Commons. There was a lot of reluctance at that time in the debate. People wanted eight years, nine years. They did not want to give in easily. After many years, I introduced a private member's bill and we got three years. People are now under the impression that they can only apply after three years and then it takes a long time in certain places, where we are almost going back not to five years but close to it. It takes many more months. I do not mean to say people should be given the privilege to apply at two and-a-half years so that the process is completed after three years. I do not necessarily want a debate on that, but could you look into it?
I see that the oath has been changed. It does create some difficulty for me when you say in the new one "dorénavant." In the old oath there was no such a thing. You immediately swore allegiance or affirmed, according to your belief or religion. In this proposed oath, we do not go to either swearing or affirming. You just say, "I pledge."
It seems that we want to split the apple in two. There is a growing number of people, including some on your staff, who would have liked to take the pledge to Queen Elizabeth and make it entirely Canadian. My sister has been a citizenship judge. She loves the job, and she would still do it seven days a week, freely. She says the ceremonies are very emotional.I suggest every member should go at least once in their life. We used to say, "Her Majesty Queen Elizabeth the Second, Queen of Canada, her heirs and successors." Now "her heirs and successors" are no longer in there, so we are only pledging allegiance to Queen Elizabeth the Second, Queen of Canada. I do not want to pledge too much allegiance. I have done so 15 times so far in my life, in the army, in the House of Commons, in the Senate, so I say long live the Queen. However, if she were to die, we have her heirs to deal with. Why has the expression "her heirs and successors" disappeared? Some may find it funny. Now it is only Queen Elizabeth. If she is not there, what happens?
Ms Caplan: I did address this, but I am happy to mention it again. The intention with respect to the new oath is for conciseness and clarity. There is still an obligation to the heirs and successors. Common law requires that, and it is understood that it is the Queen as the head of state of Canada and whoever should follow her. It is understood as a common-law principle. I suggest you raise that again when the Department of Justice people are here next week and they will clarify that again for you further.
The first point that you raise, senator, is an important one and one that has not been raised today. In the bill, it says three years out of six, or 1,095 days. However, there is a provision for those who have legal status in Canada before attaining permanent resident status. That time counts for half-time up to one full year, so there is an acknowledgment of that time, which I think is important.
The other point you raise is that it does take time to process applications, especially where we have large numbers of applications. I think all applications are sent to Sydney for processing, no matter where they are from in the country. I will let Ms Frith give you the full answer, but I want to tell you what the goal is for processing time by the end of the year.
Ms Frith: Right now, Sydney is producing faster than we can actually handle the grants that are coming out of the service there. Essentially, when someone sends in an application, it is dealt with within days of arriving in Sydney. We have put processes in place to try to ensure that if something is missing from the application we let people know immediately so that we can keep on pushing it through the system. We have very small inventories, very small backlogs.
Where we run into some problems is in conducting the ceremonies as quickly as we can in some parts of Canada. That is simply a matter of having our resources working as quickly as they can right now to try to meet that need. However, within about an eight-month period, we are able to process most applications that come in. Some are done in less time. It depends on whether any complications come up.
Senator Buchanan: On a point of clarification, I know but maybe some others do not know here, you are not talking about Sidney, B.C. You are talking about Sydney, Cape Breton, Nova Scotia.
Ms Caplan: Indeed.
Senator Buchanan: That is why the process is going very quickly.
Ms Caplan: Sydney, Cape Breton, Nova Scotia, is the processing plant for citizenship applications, but, senator, to be fair, there have been times when the processing time at Sydney has been slower than anyone would like. That is why I asked Ms Frith to let you know that we are actually doing quite well. The goal is to try to do the processing within six months of receipt of the application so that the person can have his or her citizenship within that time frame. That is a goal. From time to time, given the volume, the department has not always been able to achieve that, but we are doing extremely well right now, and I wanted you to know that that is something we are very pleased with.
The Deputy Chairman: With respect to this debate on the Queen and her successors, just read the Interpretation Act. It includes the successors. There is no debate about this.
Senator Prud'homme: With all due respect, you know that if Her Majesty were to die the Privy Council would decide if the title of the King or the Queen was to be King of Canada or Queen of Canada. It could have happened when George VI died. There was a debate as to whether Queen Elizabeth would be known as Queen Elizabeth I or Queen Elizabeth II as far as Canada was concerned. I raise the issue to ensure that there would be no confusion.
The Deputy Chairman: I have the text here.
...upon the death of the Queen, any mention of Her Majesty Queen Elizabeth would be interpreted as designating her successor.
It is very clear in the act.
The king is dead, long live the king! That is as old as the monarchy itself. We do not have to state "and successors." If we refer to Her Majesty in a legal text, according to the Interpretation Act, this implies her successors. There are two people who want to ask questions during a second round.
I have no objection to extending the meeting for another few minutes because we have Senator Grafstein and Senator Andreychuk on the second round of questions. I think, though, that we must stop somewhere. We have discussed this issue enough.
Senator Andreychuk: Mr. Chairman, there have been many liberties on the questions and I restricted myself. There are some fundamental policies we need to talk about. There is a fundamental issue of public policy that I left for the second round, but you have been rather liberal in going off into other areas that could have been dealt with by other witnesses, so I ask for your indulgence.
The Deputy Chairman: I have accepted a second round, and you are the first questioner on the second round and Senator Grafstein is the second.
Senator Andreychuk: I promise to keep it to one question, if I can have a preamble.
My concern is that Canada, although certainly not the only country, has been built on pluralism and those of us who come from neither the English nor the French stock have found our place into Canada. I was born here so I have no difficulty. What concerns me most about the public policy issue here is that you read the section that says if you are born here you are a citizen very quickly. Therefore, I breathe easily, my citizenship cannot be taken away from me. That is a very simple reading of that section.
Those who came here read this act very differently. First of all, there is the question of values. The rule of law was very important. In so many countries where immigrants came from there was no rule of law. It was always subjected by the executive arm. Dictators and communist leaders used to strip people of their citizenship, so the value judgment around the executive is a very troublesome one.
My concern is that we have weighted this bill, in calling it citizenship, on de-naturalization or the perfection of citizenship. Some of the flaws in the people we have in Canada who perhaps should not have been here and should not have received citizenship are not flaws of the Citizenship Act but rather flaws of the immigration processes. I am eagerly waiting to read what the Immigration Act will say about that so we do not compound our problems into the future.
Why would we, in good public policy, put this in the hands of the executive to instruct the administration, the bureaucracy in this value system, when we are trying to respect the multicultural nature of our country, the diversity of our country, and the pluralistic nature of our country? Values will be defined somewhere down the line. We have taken away what I would call a full judicial due process. I fully understand that we are not talking about criminal law, but the courts have often said that the balance of probabilities, because of citizenship being so important, should be a test higher than the balance of probabilities. We have that stream.
You put in public interest. I do not have time to go through the clauses because the chairman wants to end the meeting sections. Cumulatively, the discretion lies in the executive arm, and that is a subjective test of the people inside the executive. Would it not have been better to have strengthened the due process, which is an objective test? If we are to take citizenship away from someone, should it not be a full court process and judicial review?
I hope we will have a chance to question some of the Department of Justice people and others. Judicial review is not the same thing as the due process, as I would like to see. This is all against the background that we will put this power in the hands of the executive, based on reports coming from the departments or elsewhere. We will then have citizens trying to defend themselves, and you say that those who legally and lawfully came into the country should not worry. What about those who did not?
How do you define whether I lied on a form? Perhaps I lied because I did not understand it, because I came from a country where if I told the truth it would even be more punishing in ruling? Therefore, it seems to me that you leave a feeling of uncertainty on anyone who has come to this country that maybe by a quirk or some momentary lapse in the executive -- who knows who will be in the executive in the future -- there will be an uncertainty about their citizenship that I think is destructive of building the country together.
I am not saying that the executive will act wilfully and wrongly, but I know from experience that citizens are already saying they are not sure if they will be in the lawful or legal category, or will two or three other people be able to get some information to the government that will be difficult to rebut because of time or circumstance? How would someone defend themselves and prove documents out of Rwanda? Therefore, I have this unease that we have unnecessarily given this discretion to the executive when they would have been better placed in reinforcing the rule of law. That, I believe, was the mark of Canada being different from England or Rwanda or Russia or the former Soviet Union, or wherever else. That is the policy issue that troubles me.
Ms Caplan: I would like to address that because I believe you are starting from a misconception. This bill does not change anything that has existed since 1977. It does not give any additional executive powers when it comes to revocation, nor does it make any change to the due process provisions. In fact, I think you make a good argument for executive council decision making and the ability to balance. If you did have a case that was taken by the department where an individual, for whatever reason, lied on their immigration application and the department went forward and made their case and it went all the way to the cabinet, they would not be bound simply by the rule of law and a citizenship act that said that under this provision the individual has been proven to have lied, even if it were understandable or for good reason. The courts would have no choice but to revoke the citizenship, whereas with the executive council, as has been the case since 1977, there is the ability to hear from the individual and consider humanitarian and compassionate reasons, which is exactly as you have just pointed out.
I think you have made a good case why it is important that that provision remain one that the government stands accountable for. The provision has been used in only 37 cases since 1977. It has been used in a very limited way and it has ensured due process. This bill does nothing to change the due process provisions. It may be judicially reviewed all the way to the Supreme Court of Canada. You will have people before you who will argue that this process takes too long, and you will have people before you who will argue that this process should take longer.
What I am telling you is that this has been in place since 1977. It has been tested in the courts. There are Federal Court of Appeal decisions that say that this process is in compliance with the Charter of Rights and Freedoms and that it meets the tests of fairness and due process set out in the Charter. The safeguard, if you will, for capriciousness on the part of any minister, any department or any individual who would begin an action before the courts is that the cabinet stands ultimately accountable for a decision to revoke the citizenship of any individual. If you leave it to the judges, as some will suggest to you, they would have no choice but to enact the law. If a law says, as it should, that if you obtained your citizenship or immigration to Canada through fraud, misrepresentation or by knowingly concealing a material fact, and if that can be proven, then there would be no choice but to move to revoke citizenship. The executive council has the opportunity to weigh all of the considerations and to give the individual a chance to make their case. Those around the cabinet table stand accountable for their decision.
Some people will come before you to argue -- and I do not want to be simplistic about this -- that, like the childhood game of hide-and-seek, once you get your citizenship, even if through fraud, misrepresentation or by knowingly concealing a material fact, and even if you knew you were not entitled to immigration or citizenship in Canada, no one should be able to take it away from you. In this case "no one" refers to the cabinet and the Canadian people.
I argue that if you want integrity in Canadian citizenship and if you want to make a clear statement, as the government as a matter of policy has said, then the government can make a decision to take that citizenship away. We will not be seen as a safe haven for those who have committed crimes against humanity, for war criminals and for terrorists. We must have a provision that says to those who have received citizenship when they were not entitled, when they were ineligible and should never have been granted citizenship in the first place, that there is a procedure involving fairness and due process that, ultimately, is on behalf of the people of Canada.
Anyone who has rightly received their citizenship has all of the same privileges as someone who was born here. No one can take his or her citizenship away. There is no home-free provision in Canada.
Senator Andreychuk: You gave an eloquent reason why we should be looking at our immigration process. You say that some people lie, cheat and steal. Safeguards should be properly and appropriately built into the immigration process.
Ms Caplan: They are.
Senator Andreychuk: I am not arguing against looking fully and fairly at those who should not have made it into this country. If you did lie and cheat substantially, then you should not be here. I do not think the previous legislation has stood the test of time to do what I want to do. I had hoped that at this point in time we would not have born citizens and naturalized citizens. I would have liked for there to be more unifiers. I think we will have more time to talk about that in our hearings. I hope you will be following them.
Due process in the courts could have accomplished more than it has. Judicial review is not a substitute for the kind of due process that we could have had. Therefore, there would be no need to go to the executive on such matters. I question why we did not utilize changes to the judicial process to strengthen the ability to give fair and adequate hearings and appeals so that those who should not be here would not be here.
Ms Caplan: I am sure we will have further discussions on the topic. There is no suggestion in Bill C-16 that there is any change in a procedure that has been in place since 1977, either in due process provisions or in the authorities. Legislation on revocation is in place. Bill C-16 does not change what has been in place since 1977. The executive authority has been there since 1977. The processes have been in place since 1977. There is no change in that regard.
Further, senator, there has been no formal consultation with Canadians on any suggestion of change, because this has worked well. There has been no discussion on what that change should look like. Because I have followed the hearings of the Standing Committee on Citizenship and Immigration on both Bill C-63 and Bill C-16, I know that there are some who would suggest an entirely different process from what exists today. There has not been any discussion or any consideration of that because in the government's view the process and procedures that have been in place since 1977 have served Canadian interests well.
Since 1977, unfortunately, we have seen more terrorism in the world. You mentioned Rwanda. We have seen around the world the kinds of crimes against humanity that I have referred to. It is an ongoing challenge for Immigration to be as vigilant as we can be in discovering as much as we can about an individual's past before we grant them permanent residence in Canada. There are some who successfully hide and knowingly conceal their past.
One constituent told me that while sitting in a restaurant in one of our large cities he saw someone at another table who had tortured him in jail. Certainly, there must be actions that can be taken on behalf of all Canadians to send the message that, if we have the proof, we must be able to take action in cases where individuals have lied, misrepresented, or through fraudulent means gained entry into Canada and obtained citizenship status.
This is a fundamental concern of the integrity of Canadian citizenship and the value that we all place on our citizenship. There is no distinction between those who receive citizenship by birth and those who lawfully receive citizenship under the Canadian Citizenship Acts of 1947, 1977 and, hopefully, the year 2000. The only individuals we are concerned about are those who were not entitled to receive Canadian citizenship in the first place. I believe that is not only what Canadians would expect from all of us but also what our obligation is to Canadians, both now and in the future, who will look to this act to protect the integrity of Canadian citizenship.
Senator Grafstein: Regarding clause 14, I am trying to find out about the mechanism of revocation or loss of citizenship. Obviously we are concerned with how one loses and gains citizenship. If I understand this correctly, under clause 14 a person could have been a citizen because he or she was born outside of Canada of a parent who was born outside of Canada but who was a Canadian citizen -- that is, two generations. That person could lose his or her citizenship without being given any notice.
Mr. Sabourin: That is correct. There would be no notice, largely because it would be difficult to track down all over the world all the people who were born to a Canadian parent.
Senator Grafstein: Let me tell you my position. We are concerned about loss of rights and maintaining rights. Let us use the example of a health worker who is a missionary in China. This person is a second generation Canadian whose parents consider themselves to be Canadian. They come back periodically but they are lifelong missionaries. The child of that missionary is born outside of Canada -- that is, the child is a third generation missionary. There are many such families in Toronto and elsewhere across Canada. In fact, that was the case for the former Prime Minister of Canada. The grandchild of that missionary, who believes all his life, sitting in China, that he is a Canadian citizen, loses his citizenship. Why? Because for three years he did not reside in Canada. He could automatically lose his citizenship without knowing about it. He would continue to believe that he was a Canadian citizen. He would have done nothing wrong except to pursue a legitimate Canadian missionary exercise. I am sure there are doctors and many professionals in that position. There must be many people who fit into that category. What is the public policy need for this?
Ms Caplan: It might also be important to know how many people actually claim their Canadian citizenship for their children at our embassies, high commissions and consulates abroad.
Senator Grafstein: But they do not have to.
Ms Caplan: The law provides that, for the second generation, before the age of 28 one must have resided in Canada for three years.
Senator Grafstein: I read that. I understand. I gave you the example of a grandchild of a Canadian citizen who was residing outside of Canada. That person believed he was Canadian and might want to return to Canada from time to time. The history of missionaries in Toronto is very strong. The China missionary movement was very strong. I used that as an example. What is the public policy involved here when that grandchild who seeks to be a Canadian has had his citizenship revoked without his knowledge or notice?
Ms Caplan: It is not revocation.
Senator Grafstein: It says loses. He loses something. It is automatic. He has no right of appeal and he has no notice other than a public statute. A doctor or any number of people could find themselves in that type of situation. I was in Brazil and I met some grandchildren of Canadians who had established a company down there. They believe they are Canadians. They have the Canadian flag in their house and they have visited Canada from time to time. They believe they are dual citizens and they cherish that dual citizenship.
Ms Caplan: They may be if they have gone to the consulate or the embassy and they have their citizenship document. I will ask Mr. Sabourin to give you the more technical answer, but the public policy decision in this legislation is that people should have an attachment to Canada.
Senator Grafstein: The only attachment we have here, minister, is that, without notice to them, they have to have lived in Canada for three of the last six years before they reach age 28. That obligation is put in here for loss of citizenship without notice. They do not even know their rights are being lost.
Mr. Sabourin: Maybe I can answer your question in two ways. First, I will talk about process, to put it in context. In that respect, we are merely emulating a provision that exists today. In Canada it has always been the case that if you are born abroad of someone born abroad you cannot merely perpetuate your citizenship add infinitum without establishing the connection to Canada. Today we have people born abroad under the existing statute.
Senator Grafstein: How is it different?
Mr. Sabourin: The current statute does not define what a person has to do to show their connection to Canada. Therefore, it is unfair to people because it is left to a discretionary assessment of whether or not they have maintained substantial connection to Canada. This statute says, "Come and live here for three years. That will demonstrate that you have an attachment to our country." Under the current statute there are people today who are subject to loss of citizenship at age 28. It is a well-entrenched principle in most countries that follow citizenship by birth to a Canadian parent. That limitation exists for the public policy objective that the minister has mentioned.
In the case of people who are born abroad and who have very limited interaction with Canada, the issue starts to be one of potential immigration to Canada rather than actual close link to the state. A person whose parent was born here has an automatic right to citizenship by birth abroad and will never lose that right. However, the child of those people who are further living abroad and not coming back to Canada are subject to loss on the basis of that attachment we have discussed.
Senator Grafstein: How does this provision compare to the British law?
Mr. Sabourin: I would be pleased to give a full description of the British statute when we do a review of the specific clauses of the bill.
Senator Grafstein: That would be very helpful. My understanding is once a British citizen, always a British citizen. It goes back to the days of the British Empire and India where someone could have been a grandchild. You are shaking your head, but I am not asking you. I thought one continued to be a British subject. I would be interested in that.
Ms Caplan: The note that I have states "children born outside the U.K. to a British citizen who did not acquire British citizenship by descent." We will have to get a clearer note.
Senator Grafstein: I am talking about loss without notice for people who believe on good grounds that they are Canadians and maintain Canadian rights. I have used the missionary example because I am very familiar with that and with the situation involving missionaries from Toronto who went to China. There were second and third generation Canadians and those grandchildren ultimately came back to Canada and formed part of the first Department of External Affairs.
Ms Caplan: It might give you some comfort, senator, to know that in those kinds of exceptional cases there is a petition to the cabinet for those individuals. Clause 9 covers those kinds of exceptional cases. A person could make a petition to the cabinet, state the case and ask that the citizenship be either reinstated or granted.
Senator Grafstein: I am still concerned.
Ms Caplan: There is a safeguard.
Senator Grafstein: I am concerned about loss of citizenship without notice.
Ms Caplan: I understand your point. I believe that people have an obligation to contact our embassies, high commissions or consulates before they are 28 to at least register. They can then be told what they have to do in order to maintain their status. In the exceptional case, there is the opportunity to appeal to cabinet. However, the obligation and the intention of the legislation, which is establishment and attachment to Canada, is one of the public policy provisions of this legislation.
Mr. Sabourin: I understand very well what you are saying. I was not earlier trying to be dismissive about not knowing who the people out there are. We do reach out to community groups. One example is the Central Canadian Mennonite Committee. We work very closely with them because we know that they have many members residing abroad and many who were born abroad.We do the same with other communities.
Perhaps we could improve on the way our consular officials abroad advise people who come in to obtain a passport. Your point is well-taken. We will have to improve on how we reach out.
Senator Grafstein: My attitude has always been that there must be a strong public policy rationale for loss of rights. If it is a problem but not an overwhelming problem, then I would always err on the side of retaining rights as opposed to losing rights.
Ms Caplan: If an individual born abroad of a Canadian has registered with an embassy, a high commission or a consulate, they would be made aware of both their rights and their obligations in order to maintain their status.
Senator Grafstein: I would prefer to rely on the statute rather than information provided by a consular officer outside of Canada. I have experience with such information, as I am sure we all have.
Senator Moore: Madam Minister, you mentioned that in such a hardship case the person can appeal to cabinet. The legislation provides that the person come to you and then you take it to cabinet.
Ms Caplan: That is correct.
Senator Moore: The person does not get to make his or her case.
Ms Caplan: The person makes his or her case to the minister and the minister takes it to cabinet. It is an appeal to the cabinet.
Senator Prud'homme: That is exactly the debate.
Ms Caplan: You make the request to the minister. The minister then takes that appeal to the cabinet. There is provision for judicial review of the minister's decision should the minister decide not to take it to cabinet.
Senator Moore: Clause 34 reads:
The form of the oath of citizenship is set out in the schedule.
We have heard comments today about the content of the oath. Aside from that, the oath is a very key part of this bill. Why do we say "the form of"? Why do we not just say "the oath of citizenship is set out in the schedule"? Can it be changed? I do not like regulations. I like law that everyone can read.
Ms Caplan: Perhaps when the Department of Justice people are here you can ask their legislative draftsmen to tell you why they used that language. I am assured that the oath is in the act and that it cannot be changed without an amendment to the act.
Senator Grafstein: It would be very helpful to have an explanation of the legal significance of the words "respect," "uphold" and "observe."
Ms Caplan: Department of Justice representatives will appear before you and I am sure that they will be happy to answer your questions.
Senator Grafstein: You are trying to tighten up the act and here is the oath. We want to know what the oath means in legal terms.
Senator Prud'homme: For 30 years I have been looking everywhere for the definition of two words that are used very often -- "terrorist" and "terrorism." I will use Nelson Mandela as an example. If he were to apply today, I imagine it would be difficult for him to become a Canadian citizen. Those are very dangerous words that we sometimes use. I know some very well-known people right here in Parliament who are still refused Canadian citizenship, although they have every other benefit. They were not even told why they were refused citizenship. They are here as landed immigrants. I am concerned about that. I do not want to know what they were up to, but maybe they would like to know why they were refused. At least you can defend yourself when you know.
Ms Caplan: You raise an important point. There are some individuals who are deemed to be inadmissible to Canada and subject to review of the decision by the Security Intelligence Review Committee of CSIS to advise our department that they are inadmissible. We refer to those as the limbo cases. It is always unfortunate when we have people in that situation. We like to have things clarified as quickly as possible and SIRC does the review of those cases for people who have not been granted permanent resident status in Canada. The law is very clear and we will have a chance during the discussion of the Immigration and Refugee Protection Act to look at the inadmissibility provisions.
Again, it is a public policy imperative of this government to send out the strongest possible message that those who are engaged in the activities that you have described are inadmissible to Canada, that this will not be a safe haven for those who engage in activities of terrorism, those who have participated in crimes against humanity, or those who have serious criminality. We know that there are some who appeal, and there are provisions for relief as well as rehabilitation for certain criminal offences.
However, it is the government's policy that we will be vigilant to ensure that those who are inadmissible to Canada do not get permanent resident status, because once they have permanent resident status they are on the road to becoming Canadian citizens and it is that much more difficult to send the message that they are not welcome in Canada.
The Chairman: I wish to thank you very much for your performance and your patience.
The committee adjourned.