Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 21 - Evidence of September 26 meeting (morning)
OTTAWA, Tuesday, September 26, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, respecting Canadian citizenship, met this day at 10:33 a.m. to give consideration to the bill.
Senator Gérald-A. Beaudoin (Deputy Chairman) in the Chair.
The Deputy Chairman: Honourable senators, we will resume our study of Bill C-16. Our first expert witness is Mr. John Aimers from the Monarchist League of Canada. Please proceed.
Mr. John Aimers, Dominion Chairman, Monarchist League of Canada: Honourable senators, I appreciate the opportunity to appear before your committee today. Copies of our brief were submitted to the committee last June.
Perhaps I should begin by explaining that the Monarchist League of Canada is a non-profit, non-partisan federal corporation that tries to encourage rational rather than emotional support for the Crown across Canada and tries to foster understanding amongst elected officials, the media, and especially young and new Canadians that would lead to the full expression of the Canadian constitutional monarchy as a vital part of our national identity and our democratic institutions.
We have four key concerns in respect of Bill C-16. First, we deplore the removal of the phrase "heirs and successors" from the oath of Canadian citizenship in the new formulation. The minister told you last Wednesday that the words have been excluded from the text for conciseness. With respect, I do not believe that any rational argument can be made that brevity should triumph over national identity on the day when new Canadians make one of the most important promises of their lives. As long as we remain a constitutional monarchy, the advantages of that system are continuity and a sense of certainty.
Honourable senators, we know our future heads of state. We know that in the fullness of time we can look forward to the reigns of Charles III and William V. The scrapping of that phrase sends a message not only contrary to reality, but also contrary to the position taken by the minister and her predecessors, which is that if the debate on the monarchy is to take place it belongs to another "time, place and debate."
The average long-time resident of Canada, let alone new fellow Canadians, can hardly be expected to understand the position of the law officers of the Crown that the dropping of the phrase "heirs and successors" makes no substantive difference. The average man or woman on the street or in a citizenship court is not a QC learned in the law. The average person will see this change as nothing other than a chipping away of the institution of the monarchy.
Second, the new oath makes the unfortunate suggestion of some dichotomy existing between Canada and the Queen. It also makes reference to an amorphous concept, which is Canada. I will come back to that later. The Queen is the embodiment of the Canadian state. Therefore, any suggestion that the Queen and Canada are separate entities, or that there exists some sort of cafeteria Canadianism whereby one can pick one and not the other in terms of allegiance or loyalty, is surely to be deprecated. It is untrue in law and should not be suggested in the new oath.
Our brief suggests that the addition of two little words, "so to," would create the necessary link. In other words, the oath should say, "I give my loyalty and allegiance to Canada and so to Her Majesty;" or, even better, reverse the order: "to Her Majesty and so to Canada." I think that would go to the unfortunate suggestion that is in the oath proposed in the legislation.
The minister says that the oath should contain references to Canada. We certainly have no quarrel with that objective, but I would invite senators to read the portion of our brief pointing out the diverse and possibly conflicting interpretations of allegiance to Canada and our suggestion that an abstract noun, such as "love" or "pride," would be more properly substituted for the legal term "allegiance" in respect of Canada.
In terms of Canadian references, if the committee is disposed to present an entirely revised oath of citizenship rather than make some of the individual amendments I am speaking to this morning, perhaps it would also like to look at this language, the groundwork for which has largely been laid by John Bryden, MP. This version does not entirely meet all our priorities and all our expectations. Our baseline position was that there was nothing wrong with the oath in the current citizenship act. However, this one might be broadly acceptable, and it runs as follows: "I promise my allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, and so to Canada, and thus I take my place amongst Canadians, a people united before God, whose sacred trust is to uphold these five principles: Equality of opportunity, freedom of speech, democracy, basic human rights, the rule of law." Those are the very values that have been associated with the Crown, I would suggest, since time immemorial.
Third, we have a technical but important change. There is a curious, awkward and unprecedented form of reference to the sovereign in the suggested new oath as "Her Majesty Elizabeth II." We have checked with every authority and expert we know, even Rideau Hall. We have been in this business for 30 years. No one had ever heard the Queen referred to in that way. We have heard the following references to the Queen: Her Majesty the Queen; Sa Majesté la reine; the Queen of Canada; La Reine du Canada; Her Majesty Queen Elizabeth II; Sa Majesté la Reine Elizabeth II; la Reine; the Queen. However, we have never heard the references Her Majesty Elizabeth the Second or Sa Majesté Elizabeth Deux. Those are not known formulations. It is a solecism, and the kindest motivation I can ascribe is the economy of language that the drafters of the bill apparently were concerned about.
I would urge senators not to impose on new Canadians a form of referring to their monarch that is never used elsewhere in common or even ceremonial parlance. This is not an example of simplified language, to which the minister referred in her testimony before you. This is a misnomer.
Fourth, there is a concern -- and I understand that it is within the ability of this committee to note concerns that do not necessarily go to a specific amendment in the legislation -- about citizenship and civics generally. In her testimony before you last Wednesday, the minister spoke eloquently about the sense of pride and celebration that she sees at citizenship ceremonies and reflected in Bill C-16. No doubt that is true, and it is right in terms of the ceremonies themselves, but pride, celebration and the words of the oath themselves are hollow if not accompanied by some basic understanding of what they mean and what Canada means. It is all very well, I suggest, for the minister to speak of the new commissioners as being "ambassadors to communities and schools," and the schools could use some of those ambassadors. However, the new commissioners or perhaps some other corps of competent volunteers, as suggested in our brief, should focus a mission on giving a thorough education in civics to our potential new fellow Canadians between the time of their arrival and the time of their obtaining citizenship. That would be better than becoming "flying feel-good-about-Canada squads," which the federal government, through the information office, does effectively anyway.
What really horrified me about Ms Caplan's presentation before you last Wednesday was the following assertion: "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." No doubt they did, in that warm and sometimes rather vacuous way of the focus groups whose ruminations so often seem to determine policies of all levels of government in Canada.
Mr. Chairman, it is precisely this view of society, that governing institutions are of secondary, if any, import, that has created the gigantic information gap of which you are all aware. I suggest that this notion tends to preclude any intelligent debate about any of our institutions. It has led to a citizenry, including prospective citizens, that is incredibly uninformed about the facts of our history, Parliament, the passage of legislation, the monarchy -- civics in general.
I recognize that the committee cannot right all these wrongs today or probably even in the course of the hearings on this bill. However, I do think that national patriotism built on fuzzy-based feelings is a house built on sand rather than on the rock of reality and facts. I hope that the committee would maintain a watching brief over that. We certainly invite you to consider amending Bill C-16's oath of Canadian citizenship in the small but significant ways that we have suggested.
The Deputy Chairman: To be clear, are you saying that you want an amendment?
Mr. Aimers: Several amendments, sir.
The Deputy Chairman: You would like several amendments for the designation of the sovereign?
Mr. Aimers: That is the easiest amendment because it is technical and it goes to the nomenclature issue. If there is a priori acceptance of the principle that the Queen will remain in the oath, surely she should be referred to in a way that we refer to her in common parlance, or indeed in legal parlance. In the suggested oath, the reference to the Queen is not in such a formulation.
The Deputy Chairman: You said that you have consulted many experts.
Mr. Aimers: We have consulted people across the country.
The Deputy Chairman: I understand that you disagree with what has been said by the officials of citizenship.
Mr. Aimers: The minister.
The Deputy Chairman: You do not agree?
Mr. Aimers: I accept their word. I am not a lawyer. I accept their saying that in law this has no particular bearing and that the Crown is indissoluble and would continue. At the demise of one sovereign, allegiance is automatically transferred to another.
I am not disputing their legal reasoning. I am merely saying that, on the plain face of the words, it would be seen by any reasonable non-lawyer in Saskatchewan, Newfoundland or British Columbia as an attack on the Crown or as a diminishment of the loyalty in the oath that exists currently.
The Deputy Chairman: Yes. We have not discussed yet the question of the institution itself. The debate is on the designation. That is the only debate.
Mr. Aimers: There is the debate on the designation of the Queen. There is the debate on "heirs and successors."
The Deputy Chairman: You say that that phrase has been omitted.
Mr. Aimers: It has been omitted; that is correct.
The Deputy Chairman: It should be reinstated.
Mr. Aimers: In our opinion, yes, it should. Moreover, the specific title given to the Queen is one not hitherto known in Canadian parlance. It is not one that these new fellow Canadians of ours would ever hear in any other setting, as far as I am aware. It seems curious, to say the least, to use those terms on the day that they become part of the Canadian family.
The Deputy Chairman: Yes.
Senator Andreychuk: In the present act, it says that one swears or affirms to be faithful and bear true allegiance to Her Majesty, Queen Elizabeth the Second, Queen of Canada.
Mr. Aimers: That is correct.
Senator Andreychuk: You want that oath in that form?
Mr. Aimers: We would have been very happy had the minister continued the present oath, because we thought that the problem with the old oath was not its formulation, but rather a lack of any education as to what those words meant. However, the new oath in the schedule to the proposed bill refers to the Queen as "Her Majesty Elizabeth the Second," instead of "Her Majesty the Queen" or one of the more traditional formulations by which Canadians refer to their sovereign. It is not a formulation that is normally known.
I think that the drafters of the bill were trying to avoid repeating the word "Queen" twice. The brief that I gave you last June suggested "Elizabeth the Second, Queen of Canada" if they want to avoid repeating "Queen." This particular formulation is simply strange. It does not fall on the ear euphoniously. It is not one that our new fellow Canadians would ever hear again.
Senator Andreychuk: Have you had an opportunity to question the minister or the department as to why the oath was worded in this fashion? If I understood your presentation, you are suggesting that it has come from focus groups or from some misunderstanding. You are saying that the average Canadian would believe that there was a reason for the drafters of the bill to take "heirs and successors" out of the oath. I wondered what the intention was when I first read it. I wondered if it were a diminution of the Queen's role, the constitutional monarchy.
Mr. Aimers: Senator, two summers ago I had a very courteous and full briefing from one of the minister's senior officials. There had been debate for 12 years as to whether the Queen, in any form, would remain in the oath. That briefing was to inform us that the former minister had decided, upon reflection, that the reference to the Queen should be kept in the oath as it was not the time for a debate on the matter. I asked about the matter of dropping "heirs and successors." I received the same answer that the minister gave you last Wednesday. I was told that it was a purely technical change for economy of language and did not affect the legal position. That is extent of any discussion on the topic.
Senator Andreychuk: Those commissioners would have the responsibility to travel and talk about our values, et cetera. I have heard the criticism that, inevitably, people will start determining their own values beyond democratic values, et cetera, and that that will exacerbate the difficulty of conducting oneself in a pluralistic society, which we seem to hold as important.
Mr. Aimers: I have sympathy for that position, senator. As I said, we would have been happy with the old oath that invited, I think, the Canadian citizenship department, the citizenship judges, to do some education around what that oath meant. Surely, if the Crown and Canada mean anything, it has to do with service to others, respect for the rule of law and the democratic values that we cherish. However, the department or the minister decided that it was important to have more references to Canada -- I think that is the way that both the minister and her predecessor put it.
I agree that the language in the Charter would invite each person to give his or her own views of what those qualities and values are. That points out the genius of the existing oath. I am simply trying to suggest that if we are going to cloak the Crown and Canada with values, we had better be very careful about the language we use, in terms of taking it right from the Charter.
Above all, we need to encourage education about what the oath means. I discussed briefly with the department two years ago the possibility of a core of volunteer commissioners. In any case, people had better be grounded first in the facts before they are invited to consider, in their own way, as is their right, what is meant by those facts, what the implications are for the values that we cherish. We all may have very different views of those values.
Senator Andreychuk: Do you think that the oath will politicize people even more? It has been said that citizenship judges are politicized today because they are appointed by the party of the day. Do you think that the appointment process would perhaps be better in some ways under this bill because it would be more institutionalized? Or would the change create even more problems?
Mr. Aimers: I can see the potential for more problems. Many Canadians would love to give something back to their country, but they do not know how to do that. It strikes me that one marvellous way to achieve that end in the context of citizenship would be to allow Canadians to volunteer, and then train them to give education in civics to prospective new Canadians. Those Canadians would dedicate one week or two weeks each year to come to Ottawa or travel to other cities across Canada to give that kind of civics education class on a volunteer basis under the supervision of the department. Clearly, the department has neither the budget nor the time to organize such an event. I believe that that would be a wonderful way for Canadians to share with their future fellow citizens the values and the facts of what is Canada.
As I travel across the country and speak to university classes and high school classes, I find there is a zero base of knowledge of the facts of Canada, and that includes political science students in relatively advanced courses at universities. How on earth can we have any debate about values or what is appropriate in the Charter or other areas unless we have that basic information?
I see the danger you are referring to. I, personally, do not want to see these commissioners become, as I mentioned earlier, a "flying feel-good squad" because we have plenty of "feel good" in Canada. There is room for that, but real patriotism is grounded on information, and the "feel good" part comes from that. There is a tendency in government today, and I do not mean just in Ottawa, to reverse the process.
Senator Fraser: Mr. Aimers, I would observe in passing that I am struck by your remark that you think it is imposing a political agenda to have new Canadians swear to respect our country's rights and freedoms. You do not necessarily need to comment on that. I am also interested in the Monarchist League itself. Can tell me about the league? How many members do you have, what is the structure and how does the League work?
Mr. Aimers: We are a federal non-profit corporation and have about 16,000 members across Canada. We have branches in different communities of cities. We began 30 years ago, and we try to dispel the notion that the monarchy was somehow the property of one ethnic group or one age group in Canada. Mr. Trudeau said in 1969, in his year-end interview, that the new values of the up-and-coming generation would cause Canada to give up her connection with the monarchy in the ensuing decade. However, the Gallop Poll last fall revealed that support for the monarchy was at its highest level -- up 8 per cent over the previous year -- and that support for the monarchy was on the rise in Quebec. That is a testimony to the strength of feeling and, perhaps, to the information that we and others have spread around country.
It is the youngest Canadians, as we see reflected in our memberships, who are the most enthusiastic about the Crown. They often feel that they have been robbed of a part of their birthright, or adoption right, by not being educated in our schools about this element of our governance. These young Canadians look to the Crown -- and certainly this is an idea that we promote through our red box programs in the schools and through other programs -- to provide a proud boast of Canadian identity on a continent where that "great republic to the south" dominates our cultural lives. The American way also dominates our kids' understanding of government processes, so naturally they talk about presidents, congresses and primaries far more than they understand the concepts of the Crown and parliament.
Senator Fraser: How does one become a member of the Monarchist League?
Mr. Aimers: There is a small fee, for which you get a magazine.
Senator Fraser: How much is that?
Mr. Aimers: The fee is $22.
Senator Fraser: Do you have group membership, for example the IODE, the Imperial Order Daughters of the Empire, if it still exists?
Mr. Aimers: There could be. Sometimes IODE groups or legion branches join as groups.
Senator Fraser: How many of those 16,000 would be individuals?
Mr. Aimers: I do not keep statistics, but the great majority would be individuals, as we have few group memberships.
Senator Fraser: What is your annual budget? Does it come from the membership fees?
Mr. Aimers: Some people donate, even though there is no tax benefit. We fall under "promotion of patriotism" in the tax act and that is not defined as "charitable." We do everything each year for $300,000 to $400,000.
Senator Fraser: Do you work at this on a full-time basis?
Mr. Aimers: I am a full-time volunteer.
Senator Fraser: Are you paid for your work on behalf of the league?
Mr. Aimers: No, I am not.
When Canada Post said that in late December or early January this year they would issue a stamp for the Queen Mother's 100th birthday, there was a strength of feeling right across the country. That outpouring of support was not just in an emotional sense for the Queen Mother, who is a revered figure, but was also an understanding that this was something precious and important. Canadians have been invited to do that again, to ensure that there is a symbolic representation of our Queen's golden jubilee in 2002.
Senator Fraser: How do you produce a brief like this? Do you have a board of directors? Do you have consultant representatives of your membership? When you take a public position, how is it derived?
Mr. Aimers: Sometimes a public position must be arrived at instantly and based purely on instinct. However, when it is a brief, for example, we are lucky to have input from many people who have both academic and legal training. I can call upon them and others in government and the private sector to help.
Senator Fraser: Are you the only officer of the league? Do you have elections?
Mr. Aimers: We have elections that are not contested. Anyone who wants my job is welcome to it. Along with our dominion vice-chairman, Mr. Benoit, we have a wonderful team of 58 volunteers right across the country.
Senator Fraser: I ask because you, personally, have been so identified with the Monarchist League of Canada since its inception. It is unusual perhaps for someone to continue as long as 30 years.
Mr. Aimers: It has been a long 30 years, but it is been gratifying to see that our work has had some impact. Canadians who feel strongly about a given issue may not be passionate monarchists in their day-to-day lives, but they have a voice. If we have accomplished anything, it is to ensure that Canadians who care about the Crown, on a variety of different levels, are able to find an expression for their views that otherwise might not exist.
The Deputy Chairman: I intend to clarify whether in law the reference to the Sovereign, Queen Elizabeth the Second, the Queen in right of Canada, includes successors and heirs. I believe that it does, but for the purpose of the record, I will ask an expert with the department and, perhaps, someone with the Department of Justice also.
Senator Cools: Thank you, Mr. Aimers, for coming before us. As you said to Senator Fraser, many eminent Canadians are members of your organization. I understood you to say that you were quite satisfied with the current oath and that there is no reason for this proposed change to be put before us. Each time these kinds of changes come before me, I wonder what it is about this country that causes this to happen day after day. I know of no other country where a bill comes forward regularly in respect of its oath of allegiance. "Oath of citizenship" is said, but "oath of allegiance" is correct. Citizenship is about to whom allegiance is owed or about the borders of the country. It just seems to me to be a constant. It must be Tuesday today because this week we have this bill; two months ago we had Bill C-20. I hear you say that the old oath was just fine.
Mr. Aimers: Yes, senator.
Senator Cools: It was doing a perfectly good job. It seems to me that rather than amend the bill to say "Queen" and to have the proper style, we could use the old language. It might be a better proposal to delete those clauses totally and let the status quo remain.
Mr. Aimers: That would be a great option, senator, but my realpolitik bones suggest that it is not likely to happen. However, there are several approaches one could take. I have suggested three or four specific amendments to this committee, as I did to the committee of the House, and John Bryden put an entirely different formulation on the table. If there were a problem with the old oath, perhaps it might be that, while it said everything that needed to be said, it did not explain adequately.
Senator Cools: That is not a problem with the oath. That is a different kind of social problem.
Mr. Aimers: You are quite right to say that the old oath was entirely sufficient. It contained the words "fidelity," "faithful," "true allegiance" and "perform my duties as a Canadian citizen," and it linked those to the Crown, which is the origin of citizenship, the rule of law, parliamentary democracy, community service and the idea of giving back to the community in Canada. That oath was entirely sufficient from our point of view.
Senator Cools: Mr. Chairman, I understand Mr. Aimers to be quite satisfied with the status quo. The interesting thing is that there are large numbers of Senators who are quite satisfied with the status quo.
Last week when the minister was here, I asked her what policy objectives she was trying to achieve by proposing this change. The response I received was somewhat unsatisfactory. It seems to me that we must have an answer to the question of why a change is being proposed. The oath of allegiance worked and it worked well for many years. I wonder why the oath must be changed. I will be quite happy to support the status quo.
This relates to what we used to call the law of allegiances. It is very interesting that the term "Canada" has been introduced into Bill C-16 at page 34. A curious situation occurred some months ago when Bill C-20 was before us. I quite often compare government initiatives over here to government initiatives over there. Quite often the lack of harmony is striking, because if there is anything about monarchy and allegiance, it is the perpetuity, permanence, stability and permanence. Bill C-20, called the secession bill in local language, said that the executive could negotiate the division of Canada if certain conditions were met. It is striking that the passage of a bill that has made it lawful to divide Canada for the first time in the history of Canadian existence is followed by this bill which is altering the oath of allegiance to insert the word "Canada."
In your view, does the pledging of loyalty to Canada mean the whole of Canada, the divided Canada, Canada with Quebec or without Quebec? How does such an oath operate alongside Bill C-20?
Mr. Aimers: Senator, I had not made the linkage that you have done between the Clarity Bill and Bill C-16. It is an interesting suggestion. We did point out in our brief that Canada can mean many different things. It means something very different to Mr. Bouchard than it does to Mr. Harris. You might have a very different view than I of what Canada is. That is why the idea of allegiance to an amorphous concept is peculiar. Canada is a country that we all love, undoubtedly, but we may each have a different view of what it means exactly.
I am intrigued by your argument. I read Senator Joyal's interventions at the time of the Clarity Bill as to the indivisibility of Canada and the inability of the political executive to divide or cede territory. If the Monarchist League of Canada has had any success, it is because we have kept our focus very narrow. We prefer not to become involved in issues that do not directly affect the monarchy. We see the monarchy as the big tent under which every Canadian can find his or her place. It is an intriguing argument and an interesting anomaly.
Senator Cools: It causes me considerable distress that every time a bill comes before us I see yet another nibble, yet another chip, yet another erosion, whatever word you want to use, of Canada and Canadian existence. The creation of Ontario was a political decision. It was born of allegiance. From that original unit, Canada continued to develop and grow as a function of allegiance. What causes me enormous anxiety and troubles me deeply is what I see as a persistent and consistent nibble on the part of government to remove all the outward and visible signs of Canada's system of governance and monarchy. I know of no other country where such behaviour has been going on so consistently. I know that one of the objectives of your organization is to promote support for Canada's monarchy. Has your organization ever adopted a position on government's persistent and consistent nibbling away at these institutions?
Mr. Aimers: For 31 years we have been troubled by these erosions in the symbolic presence of the Crown. It seems to be an attitude that one might expect to find in a totalitarian regime that wishes to rewrite history and so changes the history books. Removing the symbols of the Crown in Canada, allegedly to achieve greater unity or awareness of Canada, has led to a Canadianism sometimes based too much on feeling and emotion and not enough on inquiry into what lies behind those symbols now too often rendered invisible. There is nothing wrong with the maple leaf, the beaver and many other symbols being part of Canadian identity. The best explanation for that was given to me some years ago. Senators who are familiar with Shakespeare will recognize the lines from Julius Caesar, when Caesar looks at Cassius and says, "Such men as he be never at heart's ease Whiles they behold a greater than themselves."
The simple lack of understanding of the popularity and endurance of the Crown in the face of some little or great official dismissal -- the chipping away and relegating it to subsidiary importance -- and the growth of the political executive and the power of the Prime Minister's Office under successive administrations may not be concepts all Canadians understand, but they do understand the importance of the Crown as a bulwark of freedom and the guarantee that whoever would love to yield absolute power will never be allowed to do it in Canada as long as we have a monarchy.
Senator Cools: Mr. Aimers has just explained the old principle: The system of monarchy means that no man or woman should want to be king or queen because the matter is settled. The other axiom is to beware of any man or woman who wants to be king or queen.
Mr. Aimers: That is a very appropriate one.
Senator Cools: That is lesson one in politics.
Senator Joyal: I have tried to understand the principles that the oath embodies. There is no doubt that there are significant differences among the three texts, the two that have been adopted by Canada -- the 1946 text and the 1976 text -- and the one proposed here. I have tried to understand which principles of our system those differences are linked to and what those differences reflect.
If I understand correctly, the first Citizenship Act followed the responsibility that the Canadian Constitution recognized to Canadians after the Statute of Westminster to adopt legislation for themselves in relation to citizenship. The fundamental differences between a republican government and a constitutional monarchy are still not very well understood by many people, including politicians. It is very important to realize that we interpreted a constitutional monarchy in 1946 as allegiance only to the person of the monarch. The 1946 oath reads:
...I will be faithful and bear true allegiance to His Majesty, King George the Sixth, his Heirs and Successors, according to law, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.
Then, in 1978, it was changed to:
...I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.
In other words, there was a continuity of allegiance to the status of the monarch of Canada embodying, as you said, the whole of Canada. Now we have a different concept in terms of constitutional principle, which is:
...I pledge my loyalty and allegiance to Canada...
It is not defined; it is "Canada."
...and Her Majesty Elizabeth the Second, Queen of Canada. I promise to respect our country's rights and freedoms, to uphold our democratic values, to faithfully observe our laws and fulfil my duties and obligations as a Canadian citizen.
When I compare the principles underlining this oath versus the previous one, I have the perception -- I might be wrong -- that I will pledge my loyalty to two different elements.
Mr. Aimers: Exactly.
Senator Joyal: Canada and Her Majesty, Queen of Canada. So there is a dichotomy there.
Mr. Aimers: Exactly.
Senator Joyal: If Canada were a republic, we would pledge allegiance to the United States of America. Sorry, I go overboard on the historical development of our country. If we are a constitutional monarchy, there are essential principles that are part of that reality. It seems that there is confusion in peoples' minds between two essential notions: the notion of subject and the notion of citizen. When we say -- I believe rightly -- that the sovereign is the embodiment of Canada, the sovereign is the embodiment of the constitutional sovereignty of Canada, but the people of Canada remain sovereign. The people of Canada can decide, through their own will, to change the system. The Canadian constitution recognizes that, as was entrenched in 1982, putting the constitution over and above certain principles and needing unanimity of all the governments. Premier Buchanan will remember that.
The way that we phrase that reality does not correspond to the distinction of notions and concepts that Canadians have to understand when they become Canadian. The double allegiance asked for in that oath does not seem to be close to the definition of the principles that are at stake there. As you said, we are dealing with notions that not many people in Canada debate. It is as if those notions were in a domain that our conceptual vocabulary prefers to leave in the grey zone of our imaginations. Each one can think what he or she thinks should be the way to understand those notions. It is not very well perceived in that oath that the double allegiance that the constitutional monarchy system entails has to be reflected in the very principle of, first, the nation, because in Canada we never define the nation. It does not exist in our vocabulary that we are nationals of Canada. As you know, there is confusion between the notions of citizenship and nationality in Canada. We are very reluctant to recognize that we are one nation. I do not know why.
We are one nation. We are recognized by other countries as one nation. We do not have two nationalities in Canada. There is only one nationality in Canada. There is one citizenship in Canada, recognized as such by foreign countries, according to international practice and rules.
However, when it is time to recognize how this is embodied and expressed in our constitutional monarchy system, we apparently cannot express it. If there is an appropriate opportunity to do it in a bill, it is here. I have no problem recognizing that Queen Elizabeth the Second is the Queen of Canada. This is part of our constitutional system, but when the bill reads "to Canada," it should define what we mean by that. Do we mean the sovereignty of Canadians as a whole, that the sovereignty belongs to the Canadian people and that we form a nation as such? Is this what we mean by Canada? Or is it just as you said, the geographical entity of Canada, the territorial entity of Canada as it is now? Do we mean the whole of everything at the same time, our geography, territory and system of government? It is not clear because we fail to define what essentially we are. There is no surprise that people do not know what they are all about. They prefer to shy away from the notion of monarchy because, for them, it is part of a past they think is colonial.
My understanding of this oath is that it does not define too clearly those essential principles that at least should have been stated in the bill somewhere, either in a preamble or in a purpose clause where they would be clearly defined. It is as if we refrained from defining those principles. I think it is something we have to question ourselves on.
I do not agree with you on the fifth paragraph of your presentation. We could argue that, but I want to restrict the discussion essentially to that definition of sovereign, the sovereignty of the people of Canada, because those are the two notions at stake there, the embodiment of a constitutional order that is vested in the Queen of Canada, as you properly said, and the kind of allegiance that we have to have to those two essential notions that are at stake, given the reality that we are a constitutional monarchy and will probably stay so for a long period of time.
I know that is a long preamble, but the question is this: How would you define those two essential elements of the monarchy and the constitutional monarchy in such a way that people will understand, when they have asked to become citizens of Canada or they are born citizens of Canada, that this is the system under which they live and under which their rights and freedoms are protected?
Mr. Aimers: You have put far more eloquently than I, senator, our concern about that implied dichotomy, which you mentioned at the beginning of your remarks, of the Queen and Canada, and the idea that they are somehow, in the proposed oath, separate entities. The way I explain it to anyone who will listen is that the Queen embodies, as you said, the sovereignty of Canada; in the name of the people, she lends the inherent power of the Crown to those we have elected in the name of the people. Thus she reminds all our elected officials that they hold power that is not inherent by right, that is but lent to them, perhaps for a short and very unpredictable season. Further, the two levels of authority we have in Canada -- the Crown and the elected political executive, if you want to call it that -- are part of the genius of our system, providing in the one a focus for the things that quite properly divide us -- the great issues we debate -- and in the other, the things that unite us -- that big tent I referred to, the Crown, the entity that represents the values that all Canadians cherish.
What concerns me in the oath is the lack of any linkage between the Crown and Canada. I did suggest that adding the two little words "so to" might make it clear. That does not speak to all you said and to all our concerns, but I recognize that, in an oath of some reasonable length that has some sort of euphony instead of being a mini civics lesson, there are necessarily restraints.
That goes to the point I made earlier that any oath that this committee or you or I could ever come up with will in the end mean little if it is not accompanied by a process of education in civics that explains the different levels of authority in Canada, including the Crown. As you said, the Crown is something we do not quite know how to express. We tend to shove it under the table except at royal visits or anniversaries or times of crisis in the personal lives of the royal family, and yet we know it is entrenched in our Constitution, so much so that it would probably be very nearly impossible to remove. It seems to me, then, that the Crown is something we should be celebrating. We should be focusing on finding a methodology to explain, both to Canadians who have lived here for a long time and especially to our new fellow Canadians, what it means.
If instead you hide that, if there is no process of education, if government does not educate the people about that aspect of our system of governance -- and, I agree, it is but one of the many things that make up Canada, but it is fundamental -- then you have an awful information gap, as I said earlier, which I think tends not only to increase divisiveness in Canada but also to give rise to the sort of bigotry and ugliness on behalf of which some people speak in the name of the Crown, which of course should be understood to be antithetical to everything the monarchy stands for. The monarchy stands for unity and tolerance and getting along with each other and giving back to the community, not for divisiveness or appeals to a certain racial or ethnic group, which are sometimes made in its name by either crazy or otherwise well-meaning people.
That is one of the burdens we carry as we go around the country. People say, "You are just Brits," or, "You just want to bring back the colonial past." You referred to that, senator. We need a whole process of education, which I do not believe can be accomplished in any oath we could come up with, but at least the oath should be a reflection of some intentions that we have. We do see that pendulum beginning to swing back. There is a big conference in Toronto this weekend about Canadian history, and you see what the CBC is doing and the National Post and Maclean's and so on. The conference is put on by people who are forming an umbrella group to look at the whole question of history and of civics. Obviously, that is largely a provincial responsibility in terms of what goes on in the classroom, but in terms of the federal responsibility it has to do with citizenship.
I do not have all the answers, but I think the current oath could be improved in several ways -- if indeed that reflects the concern that you as parliamentarians have about that lack of understanding and that seeming dichotomy in the oath as it has been proposed.
The Deputy Chairman: In any event, I might just say for the purposes of the record here that it refers to "Her Majesty Elizabeth the Second, Queen of Canada," so there is a direct link in law. The Queen is the Queen of the United Kingdom, but she is also at the same time Queen in right of Canada, Queen of Canada and Australia, so the link is there.
Mr. Aimers: Senator, if I could respond to that, it says that I give my loyalty and allegiance to Canada and to Her Majesty. That implies that you could excise one of those, that they are somehow divisible.
The Deputy Chairman: Legally speaking, the Queen is part of Canada. It is the word "and" that seems to worry you.
Mr. Aimers: Adding the words "so to" would not solve all the problems we have been discussing, but it would make the linkage clear. Let's face it, the people who will be swearing this oath are not senators or MPs or monarchists. They are our new fellow Canadians, and we ought to make it as clear as possible to them what a wonderful journey they are embarking upon. That is my concern.
The Deputy Chairman: I understand. Thank very much for your appearance before this committee. The oath is an important part of the bill. Your views will be taken into account.
Our next witness is Mr. David Matas. Mr. Matas, as we all know, is an expert in the fields of immigration law, citizenship, international law and human rights, and perhaps some other fields as well. He is from the Canadian section of the International Commission of Jurists, and he is very active in the international sphere. Welcome, and please proceed.
Mr. David Matas, Senior Counsel, B'nai Brith: Honourable senators, I am talking today for B'nai Brith about the citizenship bill, particularly from the perspective of revocation and war criminals. B'nai Brith has been very concerned about war criminal issues for decades now. We have been involved in pursuit of all the remedies from the days when there were none. Now several remedies have been successfully invoked.
According to my tabulation, 25 different cases of alleged World War II war criminals have begun. Of course, initially our concern was simply to get a functioning remedy. Now that we have functioning remedies, our primary concern is delay. These cases are taking an inordinate length of time. Part of the problem is bureaucratic and administrative delay. Another part of the problem is the legislative structure, which is multi-stepped and which provides in effect a legal recipe for delay.
Of the 25 cases I mentioned, 8 have been lost through death or illness. In another case, a dismissal motion is pending because of illness, and that motion may well succeed. The number of losses can only accelerate as the years go by and the witnesses and the accused persons get older.
The system proposed in Bill C-16 is basically the same as the present system with its delays and lost cases. The committee clerk's letter suggested I spend five minutes on my initial presentation. I do intend to keep to that but, in doing so, I cannot read to you my 22-page brief. I am confident that you have read it yourselves, so I will instead briefly review my eight recommendations.
At the bottom line, there are two concerns: first, these cases must be done faster; second, these cases must done more fairly. Those are not contradictory conclusions. Indeed, speed is a component of fairness. It is a common saying that justice delayed is justice denied. The delay of justice for the victims here is tantamount to a denial of justice for the victims. I am concerned, too, about the lack of fairness to the victims. Fairness does not exist under the present system.
My first recommendation is that war criminals and criminals against humanity should lose their citizenship as soon as they lose their court cases. Bill C-16 should be amended to give the Federal Court Trial Division the power to revoke citizenship. That power should be taken away from the Governor in Council. That revocation now requires an additional, very prolonged step. My brief details some of the delays involved in waiting, after the Federal Court decision, for the Governor in Council decision. In two or three pending cases, the Federal Court revocation was made a considerable time ago. We are still waiting for a decision by the Governor in Council. It concerns me that the government would defend and relegislate the present system while sitting inexcusably on these cases and, in the course of doing so, discrediting the present system.
The second recommendation is to amend Bill C-16 to allow a Federal Court judge to order the removal of a war criminal or criminal against humanity from Canada at the time the citizenship has been revoked. In other words, consolidate the immigration and citizenship proceedings. The Federal Court judge could issue both orders at the same time.
B'nai Brith is proposing a similar amendment to Bill C-31, the immigration bill. If the committee does not accept this proposal for this bill, you may well hear me make this proposal a second time when Bill C-31 gets to the Senate.
Third, Bill C-16 should be changed to allow for removal of citizenship on the basis that there are reasonable grounds to believe that the person was a war criminal or criminal against humanity prior to the granting of citizenship, without the need to prove fraud, false representation or knowingly concealing material circumstances. In other words, we are proposing adding an additional ground of revocation to deal with substantive allegations, as opposed to various forms of misrepresentation.
Fourth, Bill C-16 should be changed to allow citizenship to be removed on the basis of a criminal conviction for war crimes or crimes against humanity committed before citizenship was granted, without the need to prove the offence separately in citizenship proceedings.
As honourable senators know, Bill C-19, the War Crimes Act, revived the possibility of criminal prosecution that was squelched by the Finta decision in the Supreme Court of Canada. That bill never really saw much in the way of Senate hearings, but the Senate has mandated a study of that bill after its passing. I look forward to that Senate study.
One can assume that the government will resume prosecutions now that the legislation has removed at least some of the problems thrown up by the Finta decision. When it does, we also intend, through this proposal, to attempt to consolidate in one forum the criminal proceedings and citizenship proceedings.
Fifth, Bill C-16 needs to allow for an appeal with leave of the court for Federal Court Trial Division revocation decisions. Here I come back to the need for fairness to the victims. We have at least one case in the Federal Court Trial Division, Dueck, that the government lost on highly questionable legal grounds. The decision could not be appealed. The government argued that the Dueck decision was wrong in another case in the Federal Court, Kisluk. It won that argument and that case, so we now have two different judgments in the Federal Court Trial Division that are in unresolvable conflict with each other. In my view, the Dueck decision was decided adversely to the victims on the basis of a legal error. There is no way to sort that out under the present system. B'nai Brith would propose appeal with leave.
Next, the bill should be amended to allow a Federal Court judge in criminal against humanity proceedings to base a decision on any evidence he or she considers credible or trustworthy or necessary for the decision in the case without regard to the technical rules of evidence. The reason for this proposal is that varying evidentiary rules exist for immigration proceedings and citizenship proceedings on the same issue. That does not make much sense. This recommendation attempts to find a uniform system of evidentiary rules that is consistent both with these offences and with the Immigration Act.
Finally, we suggest deleting from the bill the power to allow the minister to annul citizenship. There is a fairness problem, but there is also a speed problem. One would presume the minister can act quickly, perhaps even more quickly than the Federal Court, but the minister's decision is subject to judicial review in the Federal Court, then the Federal Court of Appeal and then the Supreme Court of Canada. In other words, it sets up a train of procedures that would take far more time than the current system or the revised system that we propose. The annulment procedure is less fair and longer in time than we would like to see.
Senator Cools: Mr. Chairman, Mr. Matas has gone to a fair amount of trouble to write a brief. He has also been very utilitarian in speaking for only five minutes. Perhaps we could take his brief as read. It seems to me so unfair to witnesses.
Senator Finestone: We can append it to the minutes.
Senator Cools: We can take it as read into the record or we can append it to today's minutes. It would be good for the record. It may mean a bit of work for the staff, but when we pick up the record, it would be good if we could have the benefit of these kinds of distinguished presentations without having to go to the trouble to discover that a brief was also sent in. Quite often, we do not get all the briefs.
The Deputy Chairman: To a certain extent, I am inclined to follow the tradition.
Senator Cools: The tradition is that they used to be appended to the record. That was the tradition.
The Deputy Chairman: I am sure that it is first class. We have first-class briefs from time to time. I am quite ready to do something on that; but what are you asking for?
Senator Cools: Perhaps we should do it. I would happy to move such a motion. I move:
That Mr. Matas' brief be appended to today's record as part of the testimony.
The Deputy Chairman: We have the motion. In practice, we do not do it.
Senator Cools: We used to do it a lot. It has only been recently that it is not being done. A lot of excellent material is being lost to people who read these records, and there are some of us who do.
Senator Finestone: I will second the motion.
The Deputy Chairman: If you want to discuss the motion, I am quite ready to allow a debate on it, although we do not have much time.
Senator Fraser: Mr. Chairman, could we proceed to the vote? We do not have much time.
The Deputy Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
Senator Cools: Let the record show it was unanimous.
The Deputy Chairman: The first questioner is Senator Fraser.
Senator Fraser: Mr. Matas, this is a truly excellent submission, providing food for much thought. There is one point, however, at which my head started to spin, which relates to my lack of familiarity with the system. On page 9 of your brief you discuss removal and go through all the different steps. You then go into the areas where appeals can occur, even though the law is apparently silent on them. Could you explain for me, perhaps in words of one syllable, what this sequence is that you are describing?
Mr. Matas: I am afraid my own personal brief does not have the same page numbers.
Senator Fraser: I am referring to Part VI, "Removal."
Mr. Matas: There is a distinction between what the law requires and what the law allows. The law requires certain steps, and they are cumbersome and time-consuming enough. In addition to what the law requires, there are other steps that the law allows but does not require. In terms of timing, obviously, the government has to wait until the steps that are required have been taken. It cannot ignore those steps. It does not have to wait for the steps that are allowed to occur. The government can proceed with revocation of citizenship and removal of the person whether or not the permissible, as opposed to the required, steps are completed.
In Part VI of my brief I point out not only the required steps but also the permissible steps. The permissible steps are, of course, many. Indeed, it is enough to make anyone's head spin. The point I was making there is that the government need not wait for the permissible steps to occur, but it has waited for the permissible steps to occur. That has dragged out the time even further.
Senator Fraser: The first step for revocation of citizenship is a report from the minister, which is appealable.
Mr. Matas: That first step is a required step. That first required step can be challenged in Federal Court and taken all the way to the Supreme Court of Canada. However, that is not required. It is permitted but not required.
Senator Fraser: Then we have a decision of the Federal Court Trial Division, which is appealable. Then you have the Governor in Council decision, and that also is appealable. Those are just the first three steps we are talking about. Is it conceivable that one person with sufficient means could appeal all the way to the Supreme Court, given leave, on all three of those ground successively?
Mr. Matas: Of course it is. Now, the Federal Court Act says that there is no appeal from the decision of the Federal Court Trial Division.
The Deputy Chairman: That is what the act says.
Mr. Matas: That is what the act says, and that is what the bill says. However, a couple of people, Luitjens and Katriuk, have appealed anyway and have argued that what is in the statute is unconstitutional. Katriuk appealed that issue all the way to the Supreme Court of Canada. Of course, he is free to do that, but what I am concerned about is that the government just waits for that to happen. Even though there is no appeal, the government sits around waiting for Katriuk to get a confirmation from the Supreme Court of Canada that there is no appeal. Thus, his case is pending in the meantime. Obviously, that delays proceedings tremendously and unnecessarily.
Senator Fraser: Therefore, you propose that all these potential appeals be collapsed into one potential appeal.
Mr. Matas: That is right. There would be, first, one decision of the Federal Court Trial Division on revocation and deportation. There would be one appeal, with permission of the Federal Court, although not automatic; and there could be removal before that appeal unless there is a judicially ordered stay of execution of the removal order. So the person is removable immediately after the first Federal Court Trial Division decision. That is the proposal.
The Deputy Chairman: Do you not think that there is a constitutional question at that stage?
Mr. Matas: If there is a constitutional question, you use that to apply for leave. If it is a serious question, leave may well be granted. In order to get a stay of execution, you have to meet a three-part test: serious issue, irreparable harm and balance of convenience. A constitutional issue, even a good one, is not sufficient to get a stay of execution. You also have to show irreparable harm and balance of convenience in favour of the applicant. If an applicant can show all three, then he or she would get a judicially ordered stay of execution.
The Deputy Chairman: That, therefore, is part of the debate for the right to appeal. The constitutional question may then be invoked.
Mr. Matas: Absolutely, or it can be invoked at the Federal Court Trial Division.
Senator Fraser: I think I am significantly better informed than I was.
Senator Finestone: A complaint we hear from people who have not had the opportunity to sit around this table and talk with legal counsel is that all they look at is process. For instance, did the minister do it on the thirtieth day or did she wait until the thirty-first? The content, however, is never reviewable. Is that true?
Mr. Matas: Yes. There is a difference between appeal and review. For a review, it is only process. For appeal, it is content.
Senator Finestone: Is the trial division process?
Mr. Matas: No, it is content. According to the act as it is now, there is no appeal. There are only various reviews, which take up a lot of time and, when it comes to content, are kind of empty. Thus they achieve neither speed nor fairness.
Senator Joyal: With regard to the subject of appeal, if I understood the minister's statement in her appearance last week, she mentioned that on those issues the bill essentially restates what is in the previous legislation.
Mr. Matas: That is correct.
Senator Joyal: To your knowledge, has there been any case where this section of the act has been taken on constitutional grounds to the Supreme Court?
Mr. Matas: Yes. To my knowledge, the absence of appeal has been taken up to the Supreme Court in the case of Katriuk. Leave was denied, but there was an application for leave. There have been decisions in the Federal Court of Appeal.
I do not question the system constitutionally. I am here on policy grounds, not legal grounds. In my view, that system, though constitutional, is non-functional because it is too slow.
The Dueck case gave a highly questionable legal ruling. Part of the problem is that the system is asymmetrical. If a person losses at the Federal Court trial division, they can go to the Governor in Council. You cannot say that they are treated unfairly, because they have that recourse. If on the other hand the government loses at the Federal Court trial division, they cannot go to the Governor in Council. They have lost. The victim has lost, and they have no recourse. The victims cannot challenge the constitutionality of the absence of appeal; they are stuck. That is the problem.
Senator Finestone: What is the answer?
Mr. Matas: There are eight recommendations on pages 21-22 of my brief. I would encourage you to adopt them all.
Senator Joyal: If I may, I will make the contrary argument. For the sake of the expediency that we are looking for in the treatment of those cases, it would be better to have a right of appeal at the trial division than to postpone either in the form contesting the decision on the basis of constitutionality or after the decision of the Governor in Council.
Mr. Matas: You say that that is contrary, but I think that it is in agreement with what I am saying.
Senator Joyal: Your fundamental argument to appeal is based on the legal constitutional ground and on the basis of expediency. There are two arguments for you to support amendment to clause 17(3).
Mr. Matas: Saying that my argument is based on constitutional grounds would be going too far. The Supreme Court has ruled on the constitutionality. My concern with that ruling is that it is a ruling on whether the system was fair to the person concerned. It is not a ruling on whether the system was fair to the victims.
Indeed, with the Dueck case we are stuck, because there is no possibility of applying for intervenor status at trial division. There is no possibility of an intervenor appealing if the government does not want to appeal. There is no mechanism for ruling on the constitutionality or the legal fairness of that to the victims. It is just left as a policy matter. As a policy matter, we say that it is not fair.
Senator Joyal: As a civil libertarian, what is your opinion on clause 17(3) as stated now?
Mr. Matas: The fact that there is no appeal is worrisome. The courts have said many times that fairness does not require an endless series of appeals. We have seen the problem of no appeal through the case law. We get contradictory rulings, and there is no way of sorting them out. They are rulings on law, not just different impressions of the facts, which you can attribute to the cases. For example, one judge says that there was no statutory or regulatory basis for security screening before June 1950. Another judge says that there was. That is strictly a legal issue.
One can attribute that to fairness, but it is simply a matter of common sense. You need a way of sorting out highly contentious legal issues, otherwise it becomes a lottery of which judge you get in court.
The Deputy Chairman: I should like to come back to the public interest problem, because last week we had a long debate on this. We referred to some cases like Morales, and we asked the minister questions. The answers about the meaning of public interest were not very clear. The expression itself is very general.
I should like to know from you, because you are an expert in that field, what you think of the expression "public interest." We have two paths here. One path is the Governor in Council and the courts. The expression "public interest" is not defined in the statute. I should like to know your reaction to that.
Mr. Matas: Obviously, I do not know everything going on in the minds of drafters and the government when it comes to that particular provision. My brief did not address that. My understanding is that the government had in mind at that time the case of Ernst Zundel, who has applied for citizenship. It is not immediately evident on the present law how his application can be denied, although there is obvious reason for it being denied. They started security proceedings against him.
To remind you, Ernst Zundel was convicted twice in Canada of the Criminal Code offence of spreading publicly news he knew to be false. I think that one of his sentences was 15 months in jail, and another was 13 months in jail. He was convicted twice because his first conviction was overturned on errors of charge to jury. It went back for a second trial. Mr. Zundel said that the Holocaust was false. Two juries found beyond a reasonable doubt that he had denied the Holocaust while knowing that the Holocaust existed. Saying that was against the public interest or was public mischief.
The Supreme Court of Canada struck down that provision as unconstitutional. My organization interceded in that case unsuccessfully. It was a mystery to me then, and still is now, why the government has never prosecuted under the hate propaganda section that has been held to be Constitutionally valid.
There are currently various proceedings against Mr. Zundel. In addition to the security risk proceeding, there is also a Canadian Human Rights Commission proceeding against him for using the Internet to communicate hatred. He was using an American site and bringing it back into Canada. Canadian human rights law talks about the telephone. There is a legal question as to whether the telephone is Internet. There are international jurisdictional questions. This case has gone on for years, and may go on for years longer. Mr. Zundel was using his status in Canada to broadcast through the Internet, not only back to Canada from the U.S. but also to Germany. He is a German citizen.
The government feels very uncomfortable about giving him citizenship, with good reason. My own view is that we need to make our hate speech laws more effective to deal with someone in that situation so that we would not have to worry about this kind of public interest catch-all to deal with it. I am not unsympathetic to the government's concerns. My solution is a stronger hate speech law, but that is really way outside the citizenship bill. I do not feel that I can adequately address it. You could address it here.
"Public interest" is vague, no doubt about it. Normally you must tie public interest to something. It is not tied to anything here.
There is no fundamental human right to multiple citizenship. There is a right for a person not to be stateless. I have seen the brief of the Canadian Council for Refugees, which I believe addresses that issue quite well. I endorse their recommendations.
Mr. Zundel already has German citizenship. He is not stateless. Therefore, that is not an issue. He does not want to go back to Germany because he has been prosecuted there. They have tougher laws. He does not want to run the risk of being sentenced there. He is using Canada as a haven.
I would say that the concerns about the provision are real. I do not see them as a violation of human rights in the absence of the problem of statelessness.
The Deputy Chairman: I see.
Senator Andreychuk: You said you were interested in the policy issue. The section on public interest is not defined. Its being vague and not tied to anything concerns me. There is no understanding of what it means, nor any explanation of who will interpret what it means. One is at the whim of the evidence presented in cabinet. I prefer your approach. There are ways to strengthen the situation. Perhaps, under section 28, there is a way to provide for cases like Mr. Zundel.
Mr. Matas: Yes. I believe it would be possible to draft a more narrowly worded provision that would encompass what they have in mind, and I would prefer that.
Senator Finestone: The question of revocation of citizenship leaves the individual who has not met the value criteria to be a citizen here as an immigrant. Do you have any problems with that?
Mr. Matas: The revocation of citizenship can occur only on the basis of fraud. There is a sequence of fraud, false representation or knowingly concealing material circumstances. It depends on when that fraud occurred. Examine the Immigration Act and the way it defines "permanent resident." If the fraud occurred before the person was a permanent resident, and the result is loss of citizenship, that person does not go back to permanent resident status; he or she has no status in Canada whatsoever. It is only if the applicant was honest at the time permanent resident status was granted and then later looses citizenship because of fraud committed after getting permanent residence but before getting citizenship that the revocation leads to the reversion to permanent resident status. That seems to be quite reasonable. Therefore, we can consolidate the two procedures, because once a person is revoked on the basis of fraud on landing, they have no status in Canada. Getting them out of the country is a formality, and it takes years. Thus, because they are immediately deportable, why not issue the order against them right away?
Senator Joyal: On that issue of streamlining both procedures -- the immigration and citizenship -- in your opinion, what is the reason that the system for citizenship is different legally? Is it that individuals have fewer rights as citizens than they have as landed immigrants? Why would one procedure be more protective of the rights of an individual than the second procedure? Where is the philosophical point in those two different treatments?
Mr. Matas: I think what you are getting at it is that if a person is a permanent resident and looses status because of fraud, that individual can appeal to the appeal division of the Immigration and Refugee Board. That appeal can be allowed on all of the circumstances of the case. However, if a citizen looses citizenship because of fraud, the individual can go to the Governor in Council on all of the circumstances of the case, but not to the appeal division of the Immigration and Refugee Board. The substance of jurisdiction of the appeal division of the Immigration and Refugee Board is somewhat similar to the Governor in Council, but there is greater procedural protection at the appeal division because it involves oral hearings, an extra tribunal, and due process.
Senator Joyal: In cabinet, the person is not present when the case is discussed.
Mr. Matas: That is right.
Senator Joyal: What kind of representation can the person have in cabinet, other than a written letter to the minister stating his or her arguments contrary to the decision?
Mr. Matas: Part of the problem we face is that we are dealing with a multitude of sins under one rubric. The law does not distinguish between fraud by a Nazi war criminal, the person who hides the fact that he was in a "killing unit," and the person who hides the fact that he was married or the fact that he had an illegitimate child. Both of those issues are fraud, or false representation, and they are both, under the current law, treated the same way.
In my view, the "Nazi" case should be treated more harshly than the "nanny" case, which is a common situation where there is non-disclosure. I suppose the law has evolved differently because they have different prototype cases in mind. Realistically, most of the cases before the appeal division of the Immigration and Refugee Board are of the "nanny" kind. Under the Immigration Act, if it is a war criminal case and status is lost because of war criminality as opposed to fraud, then there would not be an appeal on all the circumstances of the case. That is one distinction.
I believe it is important to single out these cases and treat them differently, because they are different. They are treated differently in other areas of the law. For example, in the refugee convention, war criminals -- criminals against humanity -- are excluded. They are treated differently in terms of ineligibility to apply for refugee status. In the Citizenship Act, the distinction is not there. There is not a separate ground of revocation for war criminality, which I am suggesting we should have.
Although I must say that it is pleasant to appear before the Senate, the sequence of legislation has been frustrating, because there have been four different pieces of legislation dealing with this issue recently before Parliament. Each of those dealt with a portion of the issue and did not integrate the whole structure. There was Bill C-40 <#0107> extradition; Bill C-19 -- the Criminal Code; Bill C-16 and Bill C-63 -- citizenship; and then Bill C-31 -- immigration. They all deal with the war criminality problem, but none of them integrates one with the other to be put together as a package. Thus, they do not make much sense, and the whole thing strings out indefinitely. They do not work well together. With each of these submissions and each of these bills, I plead for a coordinated approach.
Senator Joyal: On that very point, the late Justice Deschênes made a recommendation in his report some years ago.
Mr. Matas: Yes, he dealt with this issue across the board, in terms of all the remedies, and it is still a valuable source. Bill C-40 is gone, Bill C-19 is still open to review in terms of study, Bill C-16 is here and Bill C-31 is at an early stage. With each of those pieces of legislation, we look at the problem as an integrated problem rather than as numerous, individual pieces of legislation.
Senator Finestone: Have you presented to the minister?
Mr. Matas: Yes, and it has been most frustrating. I met with the minister and talked with her afterwards about all the problems. She said, "We will go through this with Bill C-16, so make your submissions to the committee." However, the committee said, "Sorry, you have already made your submissions on Bill C-63, and we will not have more submissions." It was very difficult, as you know, to have the Senate hold hearings on this. The government wanted to pass this bill in June, with perfunctory hearings. Since then the minister has indicated to me that this is a done deal and that the government is not interested in any changes. That was my discussion with the minister.
Senator Andreychuk: Thank you for covering that point. My concern has been that Bill C-31 has an impact on this. We have no idea whether there will be amendments or not. I do not know if it is a done deal. Do I measure this bill against Bill C-31, anticipating no changes? Although that is not the parliamentary way, there could and should be amendments if they are deemed necessary. I do not know how this piece fits in.
Mr. Matas: The minister and the department are much more fluid on Bill C-31. They have suggested some of the changes that I propose through Bill C-31. In terms of consolidating immigration and citizenship proceedings, that can be done through either Bill C-16 or Bill C-31.
Senator Cools: What is Bill C-31? Is it before us?
Senator Finestone: It deals with immigration and is still in the House.
Mr. Matas: As I understand it, the government is proposing a number of amendments to Bill C-31.
Senator Andreychuk: That is the point. We do not know what form it will take.
Mr. Matas: One must take the legislation as it stands right now. Considering how the courts will deal with this, I would say it is appropriate for the Senate to look at the present Immigration Act. Bill C-31 may never reach the Senate. There could be an election tomorrow.
Senator Cools: Chairman, perhaps we should hang on to this bill until we get Bill 31 and look at the two in tandem.
The Deputy Chairman: You want us to suspend our committee?
Senator Cools: Some of us must find new strength. Witnesses such as Mr. Matas track these issues closely. He cited four bills in particular, the International Court, the previous extradition bill two years ago, this one, Bill C-16, and Bill C-31 yet to come. These issues are coming to us in a very haphazard sort of way. In addition to never getting the adequate amount of study, this bill was supposed to be addressed last June and it was not. The bill relating to the International Court was passed with no study.
Perhaps we might do the country and these communities some good service if we could look at some of those bills in a coordinated way. To be frank, some of the discussions we have been having have been unintelligible. We should slow these hearings down until we get the other bill and start to look at it.
I was quite distressed in June when we passed Bill C-19 with absolutely no study. I do not know how senators can sleep at night when passing bills under those conditions.
Senator Andreychuk: I am not rebutting that, but I was comfortable with that one. The point I wanted to follow up on is that fraud on the basis of misrepresentation of war crimes is substantially different than fraud on some other basis in the Citizenship Act. That seems to be where the unease about that section is coming from in certain sectors across Canada. One might be thinking, "I may not have spoken the language, I may not have understood the full consequences of some act that I committed, et cetera, on my applications forms, and that makes me constantly vulnerable. On a good day I think that surely a country like Canada would not institute proceedings against me, but there is always that nagging fear." Would you have a separate section for the war criminal issue that we all believe is a serious matter and should be treated as such as opposed to what could be more of a routine dilemma that faces people who want to come to this country?
Mr. Matas: I do separate them, and in recommendation No. 3 I propose that citizenship should be revocable on the ground that reasonable grounds exist to believe that the person is a war criminal and a criminal against humanity. I take the phrase "reasonable grounds to believe" from the refugee convention, which is already part of our immigration law. It is an attempt to consolidate the two so that if you did find "reasonable grounds to believe" in a citizenship case, you would not have to find it all over again for the purpose of immigration proceedings.
Senator Andreychuk: Would you have that as a separate section completely?
Mr. Matas: I have not drafted the bill as I would see it. I have just made some proposals. There are alternative ways of drafting it. One is to put it in the same section with both grounds of revocation, one following on the other; the other is to put it in separate sections. That is really for the drafters to do. I do not have a drafting suggestion.
Senator Andreychuk: Are you basically concerned about the war criminals issue?
Mr. Matas: Very much so.
Senator Andreychuk: Do you have an opinion of other misrepresentations?
Mr. Matas: I am not aware of other misrepresentation cases for revocation. There are many examples in the immigration area, but there are some others in this area about which I vaguely recall hearing.
The government has been reluctant to use revocation in non-Nazi cases because it is very difficult to prove fraud. In the immigration system, it is an innocent misrepresentation; all you have to do is say somebody said something wrong and they have violated the Immigration Act. It does not matter if it is the person who said it who got it wrong or somebody else. It does not matter whether it was through silence or express statement, and it does not matter whether there was any intent.
The Citizenship Act is more harsh -- there must be intent. It is more difficult to prove and the result is that there are many cases. I believe there are some non-Nazi cases, perhaps a mere handful. Because the standard of proof for fraud is so high, the present system has not seen a problem of getting too many revocations through fraud. It is the opposite; there have been too few revocations in the Nazi area because the standard is so high.
In Unauthorized Entry: the Truth about Nazi War Criminals in Canada, 1946-1956, Howard Margolian, a researcher for the war crimes unit, estimated the number of war criminals at around 2,000, and that is consistent with other estimates. However, the reason we have 25 instead of 2,000 cases is largely evidentiary. We do not know the names of every one of the 2,000 war criminals, but I could kick around many more than 25 names. It is just the evidentiary problems. Therefore, we must be careful when we are dealing with this. That is why I dealt with the issue of evidence in one of my recommendations. We must make this fair and quick, but we cannot make it so onerous that instead of having 25 cases we will have no cases.
The Deputy Chairman: Thank you very much for your presentation. It was useful and precise, which is very important in cases like this, because the bill is technical.
The committee adjourned.