Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 21 - Evidence of September 26 meeting (afternoon)
OTTAWA, Tuesday, September 26, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, an Act respecting Canadian citizenship, met this day at 1:09 p.m. to give consideration to the bill.
Senator Gérald-A. Beaudoin (Deputy Chairman) in the chair.
The Deputy Chairman: With us this afternoon we have representatives of the Canadian Bar Association and the Barreau du Québec. On behalf of committee members, welcome.
Ms Carole Brosseau, Counsel, Secretary, Barreau du Québec Cultural Communities Committee: First, I would like to thank you for inviting us. As counsel with the research and legislation department, I am responsible for this matter.
The Barreau du Québec has a statutory mission to protect the public. That is the spirit in which we make arguments on all bills, whatever they may be. With me are two members of the Cultural Communities Committee -- the committee that dealt with Bill C-16 -- Mr. Hughes Langlais and Noël St-Pierre.
Mr. Hughes Langlais is chair of the Cultural Communities Committee. He was also president of Acadie, an association of lawyers specializing in immigration law. He is the honorary vice-president of the Young Lawyers International Association and president of that association's Human and Defence Rights Commission.
Mr. St-Pierre, in addition to being a member of the committee, is a former representative for Eastern Canada of the High Commission for Refugees and former vice-president of the Civil Liberties Union. Both of these representatives are experts in the field and will be able to fill you in.
As for our presentation, as you may have noticed when you read the submissions we sent you last June, we have made some additions. Mr. Langlais will discuss the situation of adopted children. He will also address a couple of issues which were not part of our earlier submissions: the situation of women before 1947; the situation of public servants abroad; and the residency test.
Mr. St-Pierre will talk about the remedies available under citizenship Bill C-16. I turn the floor over to Mr. Langlais.
Mr. Hughes Langlais, Counsel, Chair, Cultural Communities Committee, Barreau du Québec: It is a pleasure to have been invited to this Senate committee to set out the Barreau du Québec's position on Bill C-16. My submissions, as outlined by Ms Brosseau, have to do with adoption first and foremost.
We commend the proposed provisions of the Act. However, as representatives of the Barreau du Québec, we have concerns about potential decisions of citizenship officials that could in effect overturn ordinary court decisions on adoption.
Let us assume that we are dealing with full adoption, for which there has been an adoption judgment abroad and an adoption judgment in the country of adoption, confirming that family ties have been severed and new ties created. Bill C-31, the Immigration and Refugee Protection Act, contemplates certain situations requiring some qualifications in this respect. Those situations -- albeit not before your committee -- involve partial adoption or adoption by a guardian.
We hope citizenship officials will pay heed to those situations when making decisions so that they do not overturn valid decisions by ordinary courts. With respect to full adoption, we hope citizenship officials, while respecting the best interests of the child under section 8, will avoid overturning the effect of a decision by an ordinary court that has officially recognized the adoption.
In the case of partial adoption, we understand that there are other considerations to be taken into account, together with the best interests of the child, and that every effort will be made to take those interests into account. The Barreau primarily wants to avoid situations in which the decisions of citizenship officials could in effect overturn decisions by ordinary courts of law. Thus we had concerns about this that we wanted to put forward, concerns about potential contradictions between the effects of decisions by citizenship officials on one hand, and in Quebec's interests, on the other hand, decisions by the International Adoption Secretariat or by another similar organization.
In our view, in the event of a discrepancy or a refusal by the citizenship official, an appeal should lie not to the minister, as provided for under the bill and as Mr. St-Pierre will discuss, but to the Appeal Division of the Immigration and Refugee Board.
With respect to the residency test, we have concerns about the way it is formulated in the bill. The Barreau du Québec much prefers the approach taken by the Federal Court in Papadogiorgakis, in which Mr. Justice Thurlow set out at length the considerations and criteria for establishing residency in Canada.
It is not the Barreau's intention to rehash each of its arguments. I just wanted to let you know that this is the Barreau's position and that the current test in the bill is more akin to a throwback to the 1947 Citizenship Act. At that time, people did not have much in the way of international mobility; they were generally confined to their country and travelled very little by train and even less by airplane. The Barreau du Québec recommends that appropriate representations be made to the minister with a view to a more flexible residency test.
Our two concerns with respect to residency have to do with international officials, permanent residents of Canada, on assignment abroad on behalf of international organizations. The Citizenship Act does not recognize this situation and we think that it should. I will give you a real-life example, that of a foreign citizen who reportedly worked 40 years for a foreign country and was a permanent resident of Canada all the while. Each time he came back to Canada for his holidays, he had to apply for a returning resident permit. For 40 years, year after year, he applied for one returning-resident permit after another. After 40 years, his citizenship application was denied.
There was something preventing him from obtaining citizenship. He was not recognized as a true citizen; he was not seen to meet new criteria despite the fact that for 40 years he had chosen to be a resident of Canada.
This situation is not provided for in the current bill nor in the Act as adopted by the House of Commons. The Barreau du Québec feels that such an amendment should be made.
The other situation that is not provided for has to do with children born of Canadian citizens before 1947. The 1947 Citizenship Act provides that only children born of unmarried women could be recognized as citizens of Canada. That was a historical error; attempts were made to correct that error with the 1947 Citizenship Act and subsequently with the 1977 Act. However, people born before then are not currently covered, and an amendment is required. In this connection, the Supreme Court in Benner said, and this is an approximate quote:
It has never been established before judicial authorities why women born before 1947 were legally unable to pass on the valuable privilege of Canadian citizenship.
The Supreme Court allowed the appeal in that case. The situation is somewhat different, but that statement illustrates the situation that arises. We feel that it is highly discriminatory, considering the corrective effect of the bill, of the legislation as adopted. In our view, there could be infringement of section 15 of the Canadian Charter of Rights and Freedoms. We therefore strongly recommend that children born of married British -- later recognized as Canadian -- citizens should be granted citizenship on application, and that the current legislation should be amended.
Mr. Noël St-Pierre, Counsel, Member of the Barreau du Québec, Cultural Communities Committee: I too am pleased to be here, particularly as there are some people here with whom I have already had the pleasure of working, including Senator Finestone. I wanted to illustrate some of the problems with the current Citizenship Act. At present, if a person's citizenship application is denied, an appeal lies to the Federal Court Trial Division. Very often, people with a straightforward problem, for example a miscalculation of the period of residence resulting in a negative decision, currently appeal to the Federal Court. Given the processing time for Federal Court cases, it may take a year for a decision. People very often start the procedure over. In fact the very purpose of the procedure is wiped out by the court decision.
The bill attempts, in part, to remedy this situation. In our view, the proposed mechanism is inadequate. The bill provides for citizenship decisions to be made by commissioners. As we understand the bill, those decisions would be judicial or quasi-judicial. However, under section 30 of the bill, it would be for the minister to review those decisions. In fact, the minister can delegate that power to an official, for that matter. Thus a judicial or quasi-judicial decision would be reviewed by a purely administrative body, which is rather unusual in Canadian law.
Moreover, looking at the drafting of section 30, and particularly when compared to the drafting of section 20 in English, it appears that the minister is given some discretion. It is important to look closely at both versions. In French, section 30 reads, quote:
Le ministre peut casser toute décision...
That is completely consistent with the English version.
The minister may reverse a decision.
The English version of section 20 is more clear. It uses the term "shall," so there is a requirement. There is no requirement because clearly the legislator does not waste his breath. It appears clear to me that the minister has discretion.
In my view, this problem could be solved by a mechanism that already exists and is much less cumbersome. We already have a very specialized Immigration and Refugee Board. The Appeal Division already exists and hears for example all sponsorship cases. Board members have a great deal of citizenship expertise given the connections between citizenship and immigration. Furthermore, when the case originates in Canada, the board can make decisions within a few months. In Toronto, it may take longer, but in other regions, it usually takes two to three months. That would take care of miscalculation cases. It could also deal with questions of law. In fact, it would just be a matter of giving the Appeal Division jurisdiction over citizenship issues. This seems logical to us, particularly as citizenship and immigration come under the same department. Thus the same board could effectively solve all of these problems, which would shield administrative decisions from political decisions that are not for the minister to make on judicial review.
The Deputy Chairman: Perhaps we should hear from the representatives of the Canadian Bar Association.
I understand, Mr. Trister, that you also represent the Chamber of Commerce and the Canadian Bar.
Mr. Benjamin J. Trister, Vice-Chair, National Citizenship and Immigration Law Section, Canadian Bar Association; Counsel, Canadian Chamber of Commerce: I do, in some respects. First, Ms Thomson would like to introduce us.
Ms Tamra L. Thomson, Director, Legislation and Law Reform, Canadian Bar Association: Honourable senators, the Canadian Bar Association is a national organization that represents over 36,000 jurists from across Canada. Among our primary objectives are the improvement of both the law and the administration of justice. It is in that optic that the Canadian Bar Association is very pleased to appear before this committee today to speak about Bill C-16.
Mr. Trister, who is the Vice-Chair of the National Citizenship and Immigration Law Section of the Canadian Bar Association, also speaks for the Chamber of Commerce in certain aspects of the brief where the two organizations are ad idem. He will speak to which items those are.
Before I turn to Mr. Trister, I would also like to introduce Gabriela Ramo, who is a member of the National Citizenship and Immigration Law Section of the Canadian Bar Association.
I will give you a brief rundown of the paper that you have before you.
First, there is a bound submission that is a complete analysis of Bill C-63, which is the predecessor of the bill that is before this committee right now. When the bill was reintroduced as Bill C-16, there were some amendments made by the government. A letter addressed to the Standing Committee in the House of Commons dated April 4 addresses the changes that were made from Bill C-63 to Bill C-16.
When the Canadian Bar Association appeared before the House committee, we handed it two pages of technical amendments. It came to our attention only this morning that that list had not been sent to this committee as well. I have provided copies of that list to the clerk. I regret to say that at this point they are only in English. We will later provide them to you in French. We will refer to those technical amendments in the course of our discussion.
The Deputy Chairman: Is it the wish of the committee that we circulate the amendments even if they are in English only?
Hon. Senators: Agreed.
Senator Finestone: Were they presented to the House of Commons committee first?
Mr. Trister: Yes.
Senator Finestone: That means they are available in both languages.
Mr. Trister: Yes.
Thank you very much. Just to clarify my two hats, I will speak on behalf of the Canadian Chamber of Commerce and on behalf of the CBA as regards the residency test and the standard of granting citizenship when people do not meet the test. All my other remarks will be solely on behalf of the CBA.
I coauthored what I believe is the only book in Canada on citizenship law. This does not give you the right to ask me specific questions, although as senators you have whatever rights you wish.
The Deputy Chairman: Is this a recent book on citizenship?
Mr. Trister: Yes. It is a couple of years old. I will need to redo it when this bill is passed.
First, on the residency test, the position of CBA and the Chamber of Commerce is that we are concerned about what is in Canada's best interest. We believe it is in Canada's best interest not to penalize business people who need to travel or assume international assignments on behalf of Canadian companies, because these people contribute to Canada's economic success. To that end, we have made representations to the government.
Right now, our law allows people to be granted citizenship if they have made an extraordinary contribution to Canada. The government has implied that people will be granted exceptions under this section, which has similar wording in the new law. The clause itself says you must be physically present in Canada for three years out of the six years preceding your application. The problem is that we do not want people who are abroad on business or are being asked to take up an international assignment to refuse to do so because they are concerned about getting their Canadian citizenship. That is what will happen. We have already begun to see it happen in our practice. People are refusing international assignments because they want the passport first, and then they will travel freely.
The minister has asked us to take her at her word that she will be more lenient than she and her predecessors have been in granting citizenship to people who cannot meet this requirement. We are suggesting that that should be reflected in the legislation so that not only will she be bound by that but also so will subsequent ministers.
One of our technical amendments is that in order to alleviate a situation of special and unusual hardship or to reward services of a significant benefit to Canada the Governor in Council may, after being informed by the minister and so on, grant citizenship. The significant-benefit-to-Canada test exists in other areas of immigration law. Officers would be familiar with how to apply the test and what it means. It would be apparent to all that the standard had changed and that Canada were more open about granting citizenship if people were abroad on behalf of Canada and its interests.
The other residency issue is how physical presence is proved. Presence is tough, and it will arise again when Bill C-31 is before you. The government has also moved to a physical presence requirement for maintaining permanent resident status. Under that bill, you must be physically present in Canada for two years out of five. I could ask all of you, in your own personal circumstances, if you had to prove you were physically here for two out of five, what would you provide? Or three out of six?
Senator Finestone: My appointment book. What else?
Mr. Trister: I understand that, but there are many immigrants dealing creatively with their own personal documentation. Objectively, if someone says he or she is working for a company, you do not know where that person is physically. If someone is studying, you do not know whether the person is actually in class or whether that person prefers to study at home and write the exams from the books. We do not have controls on when people come in and out, so we are taking people at their word.
From an administration of justice point of view and from a view of the respect of our legal system we cannot create a law that would make it easy for people to circumvent the intent of, by providing their diary, for example. We are asking you, before you pass this legislation, to ask the department to provide you with what they will ask people to produce as evidence of physical presence and see if it passes your sense of an appropriate manner in which to administer justice. Will it be something that is easy for people to get around? If it is, we need another solution. The department has not shared its ideas, and we think they should share them with you first.
On a similar note, we talk about the issue of review, clause 30, which my colleague spoke about. Certainly, the initial position of the CBA was that the IRB should be vested with these decisions because they have the experience. Therefore, we support the view expressed philosophically. However, the government has steadfastly opposed that view because it does not want applicants to have access to the type of appeal available through that process. The government views it to be more or less a counting exercise and not an issue of substance and humanitarian grounds and so on that the IRB has seen.
I am told there has been a very interesting discussion within the department as to who should handle the review. The immigration people and the visa officer side think their people should do it; the citizenship officers do not think those people should do it, at least from what I am told. You can hear that from them yourselves. A report prepared by a regulatory consulting group for the government made several recommendations about the creation of an independent body within the department, a body with firewalls around it, in the words of the department, so that it could independently review decisions and reach appropriate conclusions.
The report talks about an administrative relationship with the integration branch, which would assist in personnel functions, and it talks about appropriate firewalls being established between the functions of the review unit and other departmental activities relating to citizenship decisions. The report says that review officers should not perform any other functions in the department. It also says that review officers who are appointed from various sources should take into account the variety of expertise required and that consideration must be given to the need to establish a credible reputation for fairness and professionalism when the appointments to that body are made.
We mentioned the technical amendments. We presented these to the house committee but they did not seem to pay attention to them. They are self-evident. Other than the amendment about significant benefit to Canada and the test about granting citizenship to someone who does not otherwise meet the physical presence requirement, the rest of the amendments are there for drafting purposes to make the clauses not contradict with one another. Those justifications are there. If there are no justifications underneath the amendments, they are for purposes of readability. I would urge you to look at these and consider them. They are not policy-oriented and would, in the end, make the bill more understandable to people who must interpret it once it is passed. For now, those are my comments.
Ms Gabriela Ramo, Member, National Citizenship and Immigration Law Section, Canadian Bar Association: Our main concern at this point with clause 8, the adoption provisions of the citizenship bill, relate to the introduction in Bill C-16 of the concept of "best interests of the child." Let me start by saying that we are obviously not opposed to, nor are we here to suggest that we do, the concept that, in an international or any other type of adoption, the best interests of the child are paramount. Our main concern is that a citizenship application is neither the forum nor the time for the test of the best interests of the child.
With all due respect to visa officers, we do not believe that they are individuals who are trained or equipped to make decisions regarding the best interests of the child. This is a concept that normally arises. We see it most often in custody situations. It is a concept that people who have devoted their lives to child welfare -- family court judges, social workers, workers in the adoption area -- grapple with daily. To impose the burden of making a decision of what is in the best interests of a child on a visa officer who has no training or experience is a grave error. I think in this time of fiscal restraint and budgetary considerations we do not have the resources necessarily to properly train officers.
By the time a family makes a citizenship application on behalf of a child they have adopted abroad, they are at the end of the adoption process. In most cases, the couple lives in Canada. They have gone through a myriad of tests, met with social workers, and completed home studies. They are now at the end. The couple is now at the happy moment where they have a child. To now put the burden on them to prove that this is in the best interests of the child is very difficult in terms of timing. It is wrong to add a further burden at this point.
We also have concerns with the vagueness of the term. What does "best interests of the child" mean? What kind of definitions are officers going to be given? How much guidance will they be given? How much of the officers' individual bias will come into play in making such a determination? In today's world, many adoptions are often interracial. Are biases of that nature going to come into play?
Our main problem with the bill is that there are no definitions or guidance. It is essentially, as Mr. Trister has said, a blank cheque. We do not know how it will be interpreted. The department must provide answers on what exactly this means and how it will be implemented.
As to the report that Mr. Trister discussed on section 30 reviews, that report recognizes that the adoption area is very different from any other aspect of this bill. The consulting group anticipates that proposed section 8 will give rise to the most section 30 appeals. The report states that the stakes are high with these applications, that considerable emotion, resources and time may have been invested in adoption applications and that, as such, an error may jeopardize a family relationship and the welfare of the adoptive child. The report also states that the consequences of errors either initially or at the review level and the nature of the decision lend a need for a higher degree of fairness or due process dealing with these cases.
Before this bill is passed, we need to give serious consideration to those high stakes, and we need to have the department give us clarification, both at the initial stage and at the review stage, of just exactly what it is they are looking for. I understand the concern to prevent adoptions of convenience. No one wants to see abuse of the process. However, as in every other piece of legislation, there must be a balance between interests. The bill does provide other checks and balances to prevent adoptions of convenience. It requires that there be a true parent-child relationship, and it requires that the adoption not be entered into for purposes of convenience. These are the same tests that visa officers have grappled with as they dealt with adoptions under the Immigration Act. They have experience in this. The best interests of the child is a brand new concept for them. We think it is an excessive check or balance, that the rest of the provisions of proposed section 8 take care of it, and we have concerns.
Should the bill proceed as it is, we do agree with much of what the report says on how section 30 reviews for adoptions should be handled. The report suggests that an independent body of individuals who have experience in the area of child welfare should handle the section 30 reports. It provides suggestions such as retired or even acting family court judges, social workers or child welfare advocates. We wholly support the notion that for the section 30 review to have any meaning in the concept of adoption, the individuals handling them cannot just simply be members of the department or visa officers or other immigration officers. They must be experts in the field of child welfare.
Senator Andreychuk: Thank you for the comments on the best interests of the child. Having spent 12 years as a family court judge, I do not take that term lightly. In fact, it is a term that has changed over time; therefore, we need to know exactly what it means, and I have some concern about burdening visa officers and immigration officers who may not have the time and expertise to do that. Your comments are well placed.
Do we have a copy of the report of this consulting group? It seems to have raised some legitimate and fundamental issues. I have not read it.
The Deputy Chairman: Which report are you referring to?
Mr. Trister: The Regulatory Consulting Group Inc. That report was provided to me by the Registrar for Citizenship, Mr. Sabourin. Presumably you can get a copy from him. It is an excellent report. His department commissioned it, and I think he is in agreement with it, from what I understand, and we are in agreement with the report as well.
Senator Andreychuk: It would be helpful.
I have a question about the adoption clauses. I am sorry I missed the beginning of your comments. Do you have any constitutional concerns with the terms in here when some of the issues around child welfare certainly are provincial jurisdiction? If you have covered them, then I will wait to read the transcript.
Mr. Langlais: We did not raise the constitutional issue, but it goes without saying when federal interests are called upon to rule on areas of provincial jurisdiction. From the moment this issue is raised, in our view there is a potential jurisdictional conflict. I would find it hard to accept a public servant's decision overturning a valid judgement by the Court of Quebec or the Superior Court upholding a properly executed adoption; this would be a full adoption as I explained earlier. It is hard for me to imagine this type of decision being made without the constitutional issue being raised. Is it appropriate for an official with no knowledge of the rules regarding the best interests of the child to be able to overturn a Superior Court judgment? To my mind, the question is absurd, but it is very likely to arise.
Senator Andreychuk: Perhaps more on a question of fairness or justice, I think you have made your comments quite well known and adequately explained. My concern is that we continue to combine immigration and citizenship. You have made the comment that perhaps some of the immigration things are a close fit with citizenship. You represent the bars of Canada. It seems to me that when we use the term "citizenship" we are really talking about how to obtain and lose citizenship. The constant bringing of citizenship in with immigration does not speak to the broader issue of citizenship for all of us. My concern is with the only clause in this bill that I find talks to all of us, whether we were born here or came here, because we are all to be equal. By having this bill highlighted as a citizenship bill, it gives rise to the expectation that it should talk about what all our obligations and rights are, and there is that clause that alludes to that, but the rest talks to those who came here, how they become citizens and how they may lose their citizenship.
Do you have any comments to make, from a public policy point of view, as to whether the bill is properly titled, whether this is the correct road to follow in citizenship? Do you have any other comments from a policy point of view, particularly as someone who has self-acknowledged to have written a book on it and others who have no doubt pondered on it?
Mr. Trister: Are you directing the question to me in that respect?
Senator Andreychuk: It is to everyone on the panel.
Mr. Trister: Part of the reason we have a new bill at all is that the government wants to make it clear that there are rights and obligations of being a citizen, that being a citizen is extra special and that perhaps it has been too easily acquired in the past. The government wants to make sure that if people come here and acquire citizenship they do so honestly, and if not, they want the power to deal with them.
We deal with legislation; we try to stay away from policy. However, I will leave you with this notion. Unlike the immigration legislation -- which the CBA would like to see die a quick and entire death -- the CBA supports Bill C-16 as structured, subject to our comments, because it streamlines the system.
There is an issue with the citizenship ceremony and who should administer the oath. There is a movement away from citizenship judges and toward people who are well known and recognized for their contribution to Canada and who can stand as examples. That is a good idea. From a citizen's point of view, the government is making positive changes that enhance the emotional attachment to the act of acquiring citizenship. It aids in the explanation of the rights of citizenship. The bill is not the only place to do that, but, in that respect, the bill probably meets the test.
Senator Andreychuk: Does the bill help to highlight citizenship in a positive way? Do you think it unduly highlights the difference between being a nationalized citizen and being born on this soil?
Mr. Trister: That is an interesting question. Bill C-31 calls permanent residents of Canada "étrangers" in French and "foreign nationals" in English. We are entirely opposed to that change because those terms do not properly represent the historical recognition of immigrants to Canada.
I grew up with a guy who is now directing Sylvester Stallone's movie. I never knew he was not a Canadian citizen. He came to me five years ago when he found out that he did not have Canadian citizenship, and I helped him to get it.
These people, these permanent residents, are taken into our lives. They are like Canadians but they cannot vote. That has been my experience. The department has been so focused on the few who abuse the system that it ends up creating legislation designed to plug a hole but they end up creating more of an immigration enterprise without really enhancing the administration of justice.
How do we view this bill in terms of the taste of the legislation? It is not a pro-citizenship bill in that sense. The immigration bill is far worse than this one.
Senator Andreychuk: I know that the CBA is here representing the citizenship and immigration law section and not other administrative law sections. We have had much discussion about the power that would be given to the cabinet, in essence, to deny citizenship in the public interest. Do you have any comment on the validity of that clause? Does the term itself give you any difficulty?
Mr. St-Pierre: I would like to deal with your question a bit more broadly. For years, the trend we have been seeing in the whole area of citizenship and immigration is one of fear of the court system in Canada. Our experience in the area of immigration shows that remedies that previously existed are increasingly limited or scrapped.
As a private practitioner observing the workings of the court system, I certainly do not always agree with what judges say. Nevertheless, we do have a court system that on the whole, works very well and serves as a model abroad.
I find Bill C-16 tinged-with a kind of philosophy that you cannot place power in the hands of people acting as judges. It makes no difference whether they are called commissioners, board members or judges. It is as if we did not want to give them any power or at least as little as possible, and as if that power had to be kept strictly within the political realm, or the purely administrative realm under political control.
Canadians tend to be wary of purely political decisions on an issue as fundamental as, for example, who deserves to be a Canadian citizen, or under what circumstances one becomes Canadian.
Mr. Trister: This department likes to say that it needs more tools to do what it wants to do. It is big on getting more tools in its tool box. On Bill C-86, during the last round of changes to immigration, the department said it just wanted some provisions that it did not intend to use; yet, it has used practically all the tools created in that bill.
In this instance, you must be very careful about the powers and the tools that you are giving. This is broad legislation. As lawyers who are concerned about the administration of justice, this bill makes us very nervous.
Senator Andreychuk: I have other questions on the right of appeal, but I will leave them to the second round.
Mr. Langlais: It is hard for us, as lawyers, like Mr. Trister said, to entrust judicial decisions to the political arena.
With reference to revocation of citizenship, politicians are being given the power to revoke a judicial decision. According to my history lessons and training, that is a fundamental error in that the political and judicial arenas have always fulfilled separate roles. All of a sudden, we have a situation in which politicians can overturn judicial decisions.
Senator Finestone: Politicians or bureaucrats?
Mr. Langlais: Both politicians and bureaucrats can overturn the decisions.
Senator Finestone: There is a difference between the two.
Mr. Langlais: Once the power is given to the minister, there are both administrative and political elements at play. Which one will prevail?
Senator Finestone: That is the question.
Senator Andreychuk: Historically, we have had political involvement on humanitarian grounds that are clearly transparent. If the legal requirements lead to a conviction or to a stripping of citizenship, there has always been the political involvement. We clearly understood that it was political and it was generally on humanitarian grounds. I take your point.
Mr. St-Pierre: We do have a rich series of jurisprudence in the appeal division of the Immigration and Refugee Board on humanitarian issues. We deal with that every day. We have questions on the deportation of criminals and on issues of sponsorship. Such humanitarian issues are taken into account every day. It is quite clear that, yes, there will be political jurisdiction but courts in this country are doing that every day.
Senator Joyal: First, I would like to ask my question to the representatives of the Barreau du Québec; to Mr. St-Pierre in particular because he raised the question. I am surprised to see that at page 5 of your brief you refer to the power to reverse a decision under the legislation and you say:
The Barreau du Québec would like to point out that the Minister is not given enough time and faces too many constraints in reversing a decision under section 30 of the bill.
You merely raise the issue, but you do not propose any formal amendment. This morning, we had a witness, Mr. David Matas, who proposed very formal amendments because he felt, on behalf of the association he was representing, that there were serious grounds for amending the bill.
Although I agree with you in principle that we are introducing an element of political discretion into an otherwise administrative procedure, thus leaving the administration of the objectives of the legislation open to interference that is beyond review -- and I will come back to this a bit later -- you make no formal recommendation to amend.
When the organization that is authorized to speak to the working principles of the court system makes no recommendation, it remains a concern, but goes no further than a general observation. It appears to me that there is a difference between the French text and the English text of section 30. The French text says, and I quote:
...dans le cas où, selon lui, la décision est entachée d'une erreur importante.
The word "importante" is important. The English text says:
...if there appears to have been a material defect in the decision.
A "material defect" is much more specific and limited, and in my view, is not as significant as an "erreur importante." It seems to me that there are two standards for exercising discretion which could lead to two types of decisions, depending on whether the case involves a "material defect" or an "erreur importante." Am I going too far by interpreting the section in this way or does this not confirm, in a way, your conclusion that submitting a decision to the minister's discretion may lead to two types of decisions?
Mr. St-Pierre: First of all, I would like to say that you are absolutely right. The Barreau du Québec's brief is lacking insofar as the assessment of the review mechanism is concerned. That is why I dwelt on this issue a few minutes ago. By way of explanation, however, I must say that it is important for us to analyze the review structures in the proposed immigration legislation. If you recall, not very long ago, there was talk of doing away with the present board. Our comments are therefore premised on the continued existence of an independent specialized board, with added functions, for example, country of origin risk assessments. A new power has been created; an appeal mechanism for refugee decisions is proposed. The minister has clearly proposed that the board continue to exist and be enlarged. We took that into account when studying the power to reverse a decision under the current bill and concluded that there is obviously a problem. I agree with you, the drafting of section 30, to a lawyer, clearly poses a problem.
Federal Court case law on the review of decisions of immigration officials deals with the notion of discretion, at the heart of an immigration official's powers. The test applied by the Federal Court is usually to determine whether the official did or did not have regard to all of the evidence, not whether there was an error, but whether all of the evidence was taken into account. Is there an error so patent that the court must intervene? Section 30 of the bill gives the minister a review power that seems a very broad discretion, that might indeed lead to decisions that would be unacceptable to the public and could not be legally challenged. That is one of the problems that we can anticipate with this drafting.
I have obviously listened closely to my colleague's comments on the department's wishes. As I also pointed out, we have a major problem with the philosophy that seeks to eliminate judicial remedies in Canada.
Sen. Joyal: I would like to continue in that same vein with a question on the definition of "public interest." It seems to me that the Canadian Bar Association, especially on the recommendation of amendments to clause 23(6), introduces a notion that is certainly of a different nature than the one that the bill contains at clause 21. Clause 21 provides that the minister be "satisfied that there are reasonable grounds to believe that it is not in the public interest." There is a notion of public interest in the bill.
You are proposing another element that is not in clause 23(6) of the bill, which is the consideration of national interest. If you read clause 23(6) correctly, this notion of national interest is not contained in that paragraph. That clause says:
On completion of its investigation, the Review Committee shall report to the Governor in Council on the investigation. The Review Committee shall, when it is convenient to do so, provide the report's conclusion to the person who is the subject of the report.
You express a criterion of national interest that is not present in the paragraph. Since we have had discussions on the definition of public interest versus national interest, and the possibility that there should be some criteria, why are you supporting at this point that we introduce that notion of national interest there?
Mr. Trister: That is a good question. I wish Mr. Gordon Maynard from Vancouver were here. I am not entirely sure.
The clause says "when it is convenient to do so, provide the report's conclusion to the person who is the subject of the report." The expression "when it is convenient to do so" is broad and ambiguous. I think they wanted it replaced. I will ask my colleague whether she knows the answer.
Ms Ramo: I think part of our concern at the time was that "when it is convenient to do so" is a broad concept and that, as such, individuals might never get the information. We would suggest an amendment that would provide some guidance for "as soon as possible." There should also be something to make it more palatable to the department to make this change rather than a complete wholesale change. Our idea is that the report should be provided as soon as possible unless the department could provide some issue of national interest whereby they could withhold that information.
Mr. Trister: Are you clear on that or should we take another go around?
Senator Joyal: In my opinion, it is important for lawyers to have coherence within the legislated text.
Mr. Trister: You are asking, I believe, whether we care particularly about national interest versus public interest in the context of that clause? The difference between national interest and public interest is only reflective of the fact that the federal government is involved in the national interest. I do not mean to say that that is different from the public interest; it is more reflective of the fact that the federal government is handling it. It does not matter whether the word "public" can be found elsewhere in the bill and in this clause also, that is fine.
The key point we are trying to get across is that the report should not be provided only when it is convenient to do so. The report should be provided unless it is in the public or national interest not to provide it. That is the point.
The Deputy Chairman: What is the difference between "public" and "national"?
Senator Fraser: "Public" holds a broader meaning.
Senator Joyal: Perhaps I am wrong, but my average understanding of "public interest" is that it would cover issues that relate to order in society. It is not in the public interest, for example, to expose children to pornography, whereas an item of national interest involves the nation. The word "nation" is contained in "national," but it is not in "public." As such, national interests refer to a kind of body politic of the existence of Canada, to put it in the broadest terms. With that, there can be matters of security, system of government, respect for the judicial system and many elements attached to that definition. Public interest covers, to a point, issues of private society.
Mr. Trister: In that context and with that definition in mind, "national" would be more appropriate, because it was written in contemplation of security issues. That is the whole point. The nature of the information that would likely be withheld in this circumstance would relate more to a security issue than any other issue.
Senator Joyal: That is the reason we wrestle with this bill. There are different concepts that are mentioned, or referred to, and they are not defined. At least there are no criteria or sets of criteria that provide direction, without defining them in an exhaustive way. It is always difficult to give a comprehensive definition of those terms, because they are evolving terms. When we introduce a new definition, where there are existing definitions in the bill of other interests, it becomes necessary to create coherence. An act of Parliament must be interpreted in terms of a coherent system of rules.
Mr. Trister, you are an expert on citizenship.
Mr. Trister: Simply because I wrote a book on it does not mean that I am an expert.
Senator Joyal: Taking the initiative to write a book is commendable. Clauses 47 and 48 contain notions that are important for us to understand. We would appreciate it if you could be of help to us. In reference to "a citizen of the Commonwealth, " clause 47(1) states:
Every person who, under an enactment of a Commonwealth country other than Canada, is a citizen or national of that country has in Canada the status of a citizen of the Commonwealth.
Clause 47(2) states:
Any law or regulation of Canada, unless it provides otherwise, has the same effect in relation to a citizen of Ireland who is not a citizen of the Commonwealth as it has in relation to a citizen of the Commonwealth.
We know the very special situation in Ireland, under the Statute of Westminster.
Clause 48 states:
For the purposes of an enactment in force in Canada on and after the coming into force of this section that refers to the status of British subject...
Years ago, passports indicated that a Canadian citizen is a British subject. What kind of qualification do you make of the status of British subject in reference to the status of Canadian citizens or citizens of the Commonwealth? In other words, what are the benefits that I enjoy, according to that clause, as a Canadian citizen in consideration of the fact that I have the status of British subject?
Mr. Trister: The point is that certain legislation passed by countries creates international agreements, treaties, and so on. The notion of being a member of the Commonwealth has certain practical implications in immigration law. For example, if you are a member of a Commonwealth country, you may be visa-exempt in Canada. If you are a member of a Commonwealth country, you may be visa-exempt in the United States. If you were a permanent resident of Canada and from a Commonwealth country, you would not need a visa to go to the United States. However, if you were a permanent resident of Canada but not from a Commonwealth county you would need a visa to enter the United States.
It is important to know that you have the benefit of being a British subject, because certain countries will grant British subjects certain advantages; the same holds true for members of the Commonwealth. Thus, clause 47(1) simply states that, as a Canadian citizen, to the extent that those organizations grant rights to Commonwealth citizens, a person will receive those benefits. What the benefits are depends on the document that grants it. On immigration, it often means that you can be visa-exempt to other countries.
Senator Joyal: What is the essential link that is made between the status of British subject and the mention of Canadian citizenship? I understand that my passport has not changed even though that particular wording was removed from it.
Mr. Trister: If this clause were not included, one would wonder what else could grant you the rights of being a British subject, whatever those rights might be.
Senator Joyal: What would entitle me to benefit from the rights that normally accrue to a British subject, because I am not a British subject? You cannot say that I am a British subject, as I am not a British subject. As a Canadian citizen, I enjoy the benefit of the rights that are afforded to British subjects. I believe there is a clear distinction of essential elements.
Mr. Trister: It is clear to me that before we had Canadian citizenship, we were British subjects. To the extent that we have citizenship, it maintains our rights as British subjects, although we do not call ourselves British subjects now. We still have the same rights in relationship to the Crown that we had as individuals before we became Canadian citizens.
Senator Joyal: I understand that, even though there is a major nuance in terms of concept. My interpretation is that because I am a Canadian citizen, when I travel in a foreign country I am assimilated to the protection and special status that might be recognized for a British subject. However, I am not a British subject, as such, because I do not live under the authority of the Queen of England. Rather, I live under the constitutional authority of the Queen of Canada, who happens to be, of course, the Queen of England. Legally, however, those two terms are different, in that they imply two different sovereigns vested in the same person but they are very different from one another.
If I am a Canadian citizen, I live in a constitutional monarchy; I am not a British subject. There is only one sovereign over me; there cannot be two sovereigns. I enjoy the benefits that are recognized to formal British subjects because I am a Canadian citizen, not because I am formerly a British subject.
Mr. Trister: Clause 48 states as follows:
For the purposes of an enactment in force in Canada on and after the coming into force of this section that refers to the status of a British subject ...
Thus, if there is existing legislation in Canada that speaks of rights to British subjects, when you become a Canadian citizen, since those laws may not have been updated, per se, essentially those statuses are equated. That is how I read the clause and that is what the clause is accomplishing.
I read the previous clause in regard to the Commonwealth slightly differently, in the sense that that seems to grant membership in the Commonwealth, which is not the same as being a British national. Clause 48 does a different thing. It states that if a British subject has been referred to in previous legislation that is still in force that means Canadian citizenship.
Senator Joyal: I do not dispute your interpretation, Mr. Trister.
Senator Andreychuk: My understanding is that we signed certain undertakings and agreements when we entered the Commonwealth. Does that not reflect what we have done and our obligations?
Mr. Trister: I believe that is the purpose of first clause, yes.
Senator Andreychuk: Is clause 48 interpretative of that obligation?
Mr. Trister: Clause 48 speaks to the fact that there are laws in Canada that exist. When this bill comes into force, those elements that refer to British subjects will stand because they were passed before we had Canadian citizenship, and, to the extent that these exist, Canadian citizenship is to be read as if you were a British subject for the purposes of those laws.
Senator Andreychuk: Clause 47 is explanatory. It is interesting that we have noted clause 47 because of an international obligation like the Commonwealth. I agree that it is historical and different. We have other international obligations, all of which we should have listed.
Mr. St-Pierre: I have no formal answer to give that question. However, subsections 32(1) and 32(2) of the 1993 Immigration Act look to me to be virtually identical to the English version you quoted. Unfortunately, I do not have the English version. It might be a good idea to look at the proceedings from that time to see what the understanding was.
The Deputy Chairman: What year was that?
Mr. St-Pierre: It is a 1993 document. The amendment referred to would be Act 108, 74, 75 and 76, section 31. There do not appear to have been any amendments between the former act and the new one.
Senator Finestone: I asked the government for an explanation and was told that Part 6, clauses 47 and 48, deal with the status of Commonwealth citizens, the property and legal rights of non-citizens in Canada and the status of non-citizens in legal proceedings.
I was informed that the changes to the provisions in Part 6 are minor technical amendments, such as changing section numbers so that they are compatible with the proposed legislation. Since there was no need to make any substantive changes to this part of the current act, this element of the clause-by-clause analysis only provides a brief description of each section without a rationale section.
Thus, clause 47(1) clarifies that a person who is a citizen or a national of a Commonwealth country other than Canada has the status of a Commonwealth citizen in Canada. That is a significant amount of language to say that it is all the same.
Clause 48 clarifies that a reference to the status of a British subject is an enactment enforced in Canada on or after the coming into force of the proposed legislation and is to be considered a reference to the status of a Canadian citizen or of a Commonwealth citizen or both. Does that explain the matter?
Senator Joyal: We tried to understand those difficult elements. As you know, this is the kind of concept that is not a favourite of political scientists or lawyers. There are very few discussions about what is citizenship essentially.
Some witnesses and members of our committee have pointed out that the definition of the rights of citizenship is very limited, even in our Charter of Rights and Freedoms. Only sections 3, 6 and 23 of the Charter speak to citizenship.
All these notions of citizenship are very poorly defined. You must be aware of the consultation document released by the Government of Quebec last week, which also deals with citizenship. International legal citizenship is confused with being a member of a society. In our definition or approach to this bill, it would be desirable to define these terms.
In Canada in particular, there is some confusion between the words "nationality" and "citizenship". The United States refer very specifically to nationality in their legislation, whereas we do not in our legislation. We merely assume without defining.
In a clause of the bill, we should formally recognize the legal ground on which we understand citizenship in Canada. In the context of the movement of people that will take place in the forthcoming years, that will become an important element of understanding the concept and notions of how the entire sector of citizenship in Canada is defined and understood.
Could you comment as to why in Canada nationality and citizenship has been confused? Could you suggest a way of interpreting that in order that we could profit from your expertise?
Mr. St-Pierre: International law creates some confusion. There is a reason why we have this problem. The 1954 Refugee Convention uses the word "nationality" in both English and French to mean two completely contradictory things namely, ethnic origin and citizenship. International law uses the term "nationality" in the way it has been used in France since the French Revolution to mean citizenship.
The Deputy Chairman: When studying the bill on the Nisga'a Final Agreement, we even saw Amerindian citizenship.
Mr. St-Pierre: Yes.
The Chair: That gave rise to a huge debate, but we were no further ahead.
Mr. St-Pierre: Based on international law and in part the Canadian Charter of Rights and Freedoms, the notion of nationality usually has more of a connotation of ethnicity or national origin. I would like to second Senator Joyal's idea with respect to this notion.
You asked a very important question that goes to the very heart of this country's approach. At present, debate on the notion of citizenship is occurring almost exclusively in Quebec. The issues raised are: What unites us as a society? What are our common values? There is another question. What can we do to ensure that people who are citizens by right and those who come to Canada share values of equality, respect, and tolerance?
In immigration law -- and particularly in citizenship law in Canada -- this issue has historically been brushed aside. Here, the test that has been set is not whether or not certain values are shared, but rather the use of one of the official languages and knowledge of the country.
You and I know what this means, especially for applications processed when elections are pending; it is no more than minimal. The knowledge is very limited insofar as the future citizen's actual integration into Canada is concerned. In fact, these requirements are based on the period of residency, minimal linguistic knowledge and sometimes -- depending on the timing -- minimal knowledge of Canada. Historically, these are the choices that have been made in Canada.
Your question is very broad, very interesting, and very difficult to answer. The debate in Quebec raised a great deal of interest about questions like: What unites us? What democratic values do we share as a society? These things are rather difficult to define because they reach beyond what is contained in the Charter. It is far broader than that. This includes respect for given democratic standards and given ways of living together in society.
I find your question very creative and interesting. However, I do not know whether it will be truly answered with the current review of the Citizenship Act.
Senator Moore: Mr. St-Pierre, in discussing clause 30, you were commenting on the words "shall" and "may." I missed what you were saying. Could you go over that again?
Mr. St-Pierre: Yes. I will do so in English because nuances are lost with translation.
There is a large body of jurisprudence that says "what goes one way goes the other." Normally, "may" grants a power to do something; "shall" creates an obligation. "May" has been interpreted in certain situations to mean the minister must do something. We are in danger when you have a piece of legislation that uses both terms.
In clause 20, a woman who was deprived of her citizenship before 1947 shall be reinstated. I may not have it word for word, but "shall" is there. There is a very clear obligation to grant that woman citizenship.
In the same bill, "The minister may reverse a decision." I think one can say, in interpreting this proposed act, that one has to take that difference into account. I do not think an argument would stand in law that the "may" under clause 30 means the minister must do it, especially when you see the other criteria built into that proposed section. We are very close to the notion of administrative discretion, and the review of that under federal law, in the federal courts, normally means that as long as the agent has taken into account the evidence before him or her there will not be any interference by the courts.
Senator Moore: The Canadian Bar Association commented on the proposed use of regulations. Clause 43, for all of the possible regulatory provisions as set out, includes at the end, "generally, to carry out the purposes and provisions of this Act."
I sit on the Joint Committee for the Scrutiny of Regulations. I would like to see us work ourselves out of business. This bothers me, but the CBA does not comment on it. Do you have a comment? Did you not consider it important enough to make note of it in your brief?
Mr. St-Pierre: There are certain comments made by the Canadian Bar Association that we fully support and did not want to repeat. You will receive very lengthy comments on the same issue with the new immigration legislation. These comments will be rather scathing. This is a problem we are living with even more in immigration than in citizenship. You will receive comments under each clause of the bill as to what should be in the act and what should be in regulations. I fully understand your comments about your particular work.
Senator Pearson: I have several practical questions. I appreciate your comments on the flexibility of the residence requirements. I spent 35 years in the foreign service. Quite a number of my friends and colleagues suffered from serving Canada and were never allowed to get citizenship. I am hoping that your wording will address the situation, but I am not sure that it will address it adequately.
You have talked about the special unusual hardship reserved for services of significant benefit. I would guess that that is supposed to cover that particular issue. I would like to have a particular reference to the fact that people who serve Canada abroad should be considered serving Canada abroad and that that should go to their credit. That is just my own preference. I like what you said and I would be prepared for you to go a bit further on that.
This brings me to an area that I have not heard discussed greatly yet, and that the issue of dual citizenship. If our notion of citizenship is limited to the virtues, values and wonderful things about being Canadian, I have friends who have three passports. I do not have a problem with that, but I do not know how it works out in this bill. I would like to hear comments on the issue of dual and triple citizenship.
Mr. Trister: For someone who is just a lawyer, I have found myself on CJAD, in fact. When we went to war last time in Serbia, a fellow from Serbia who was a Canadian citizen went to fight for the Serbs against our side. I was asked whether our government would consider that to be an act of treason and whether that person would be stripped of citizenship.
I am sorry, we did not go to war?
Senator Andreychuk: I say we did go to war, but they are saying that it was an intervention, not a war. There was no declaration of war.
Mr. Trister: Fair enough. As I said, I am just a lawyer.
This is a bit sarcastic, but my sense of the public view would be that if the fellow was silly enough to volunteer to be killed let him go.
Senator Finestone: Who raised the question of women? Would you mind writing us and telling us what it was about women that you do not have in your brief?
Mr. St-Pierre: It is the children.
The Deputy Chairman: You won your case, senator.
Senator Finestone: And I am not even a lawyer.
Mr. Trister: In those oddest of circumstances, it does pose a legitimate problem. However, I think you will find that most countries in the world are moving toward dual nationality, including America. If you are a citizen of Canada and must live and work and be mobile in this world, dual nationality is something --
Senator Pearson: I am not objecting.
Mr. Trister: The question was about the rationale for it. I am just expressing that overriding globalization would dictate support for the concept of dual nationality. It is an interesting problem.
Senator Pearson: It is an interesting problem, yes.
Senator Buchanan: I have been trying to listen carefully. Have you already covered the technical amendments proposed by the CBA?
Mr. Trister: Some.
Senator Buchanan: As a member of the CBA, I have always come to appreciate that anything coming from the Canadian Bar Association is understandable, clear and concise. I find myself now looking at something that I do not find to be clear or concise or understandable.
What is the problem with clause 3 in the bill? I know the subtle difference is that word "immediately," but having read your technical amendments I do not understand what you are getting at here.
Mr. Trister: Actually, on that one it is pure readability, just old-fashioned English grammar.
Senator Buchanan: You have taken out the word "immediately."
Mr. Trister: It is actually a reordering of where "a citizen" goes.
Senator Buchanan: I looked at that too, but I still do not understand what you are getting at. To me, both your technical amendment and clause 3 mean basically the same thing.
Mr. Trister: They do. It just says it in a clearer fashion. If one is writing a bill and people must interpret it, one should make it as clear as possible.
Senator Buchanan: I know that. For many years, I was involved in helping write bills, and they were always clear, concise and readable. Senator Moore will agree with that, no doubt.
The Deputy Chairman: You have independent sources?
Senator Buchanan: The other issue is that clause 4(1)(b) is in conflict with clause 3 by limiting the right of citizenship to those who do not meet the new generational requirement. The new generational requirement only comes into effect when a person is born outside Canada after the coming into force of this bill. It does not have any application to anyone who is born before the coming into force of the bill. What is the reason behind your technical amendment?
Mr. Trister: Clause 3 provides that all people who are citizens before the bill came into force will continue to be Canadian citizens. Clause 4(1)(b) conflicts with clause 3, as we say, by eliminating the right of citizenship to those who do not meet the new generational requirement.
Senator Buchanan: But only those after the coming into force of the bill.
Senator Andreychuk: No.
Senator Buchanan: Yes. It says here it applies to persons born after the coming into force of this act. Then you say that, as currently drafted, it says that citizens by virtue of their birth abroad to a Canadian parent beyond the second generation would cease to be citizens. How could that be if it only applies to those who were born after the coming into force of the bill?
Mr. Trister: Are you reading from the amended version that came out of the house?
Senator Buchanan: I am reading from the technical amendments proposed by the CBA.
Mr. Trister: We have added "after." Let me read it.
Senator Buchanan: Maybe you are right. No, it does say "after."
Mr. Trister: I am sorry. This was prepared for the house, and it was accepted.
Senator Buchanan: So I am right.
Mr. Trister: And so am I.
The Deputy Chairman: You are both right.
Senator Buchanan: I will agree you are right if you agree I am right.
Mr. Trister: Consider it done, sir.
Senator Pearson: On the question of adoption, I tend to agree with you on the issue of the best interests of the child. I think we will ask the people from the department what they meant by that, because I do not see the point of it. I think you are quite right that an immigration officer is not the right person to decide that, but the drafters must have had something in mind when they put it in.
Mr. Trister: I can express to you what I was told, if that will assist you. I was told that it was put in at the request of the provinces. Some of the provinces have concerns. I am told that some of them want to make sure that counselling is done by a visa officer regarding issues of medical inadmissibility or medical conditions. They want people to understand what they are getting into. The purpose of this clause was to ensure that that happens, because some provinces do not actually do that.
Senator Moore: What clause are we talking about?
The Deputy Chairman: Clause 8.
Mr. Trister: I was thinking about referring to it earlier, when I was asked about the issue of provincial jurisdiction. It is ironic that this was put in supposedly at the request of the provinces.
The Deputy Chairman: That is provincial.
Mr. Trister: I know. Isn't this fun?
Senator Pearson:I have great respect for immigration officers, but they are overworked beyond belief. I cannot see them having to do counselling in addition to everything else they do. Most of them are just trying to survive one day to the next. Thank you for clarifying what you thought it was. I will raise that again.
Senator Moore: You said earlier that you thought that the cases that the minister may be called upon to review under section 30 would mostly arise from clause 8.
Ms Ramo: That is the feeling of the report.
Senator Moore: I am confused as to whose decision the current minister would be reviewing. This would be a decision of both the Quebec Bar Association and the Canadian Bar Association saying that it is important that review be done by the same persons who will be responsible for other reviews under this section. Who would be doing the review? You said earlier, Mr. Trister, some independent body and persons expert in child welfare. Where will I find that in this bill?
Mr. Trister: It is not in this bill.
Senator Moore: Is that not very important?
Mr. Trister: Totally important. That is why I asked at the beginning that you not let this go through until you get an explanation as to where the government stands on this point. There is a branch of immigration called case management. Theoretically, they could put someone in the case management side of the immigration section that is part of the international region, or allied or beside international region. As a lawyer, one could send a letter and say that one wants them to review a decision. That review would be undertaken by some senior visa officer who happens to be on a rotation into Canada because it is their turn to be in Ottawa for a couple of years. That is something that the registrar for citizenship is not in favour of, as I understand. However, I shall leave that for him to explain in more detail.
When adopting framework legislation, as this department seems to like to do now, much discretion is left to the department and there is much to be put in regulations. I think this issue is too important. If we had our choice it would go before the IRB. The government does not want it to go before the IRB because of a fear that the IRB will consider broader things.
Senator Moore: This is a citizenship bill.
Mr. Trister: Right, but it must go somewhere, and we support at a minimum what the regulatory consulting group recommended, which was the creation of an independent body. Why is reference to that body not in this bill? It should be.
Senator Moore: We are missing a step here. That is not provided.
Mr. Trister: They are asking you to take them on faith.
Senator Moore: No, they are asking us to do this under the regulations and they will get back to us.
Mr. Trister: That is right.
Senator Moore: It scares me.
Mr. Trister: It scares us as well.
The Deputy Chairman: I wish to thank you. This has been a good exchange of views with both the Canadian Bar Association and the Quebec Bar Association -- a most fruitful and interesting session.
Mr. Trister: May I say that I have appeared before the House committee several times and I commend you on the quality of your questions, without denigrating the quality of theirs. It was enjoyable and stimulating for me. Thank you.
The Deputy Chairman: Honourable senators, our next panel includes witnesses from the Canadian Jewish Congress and from the Hellenic Canadian Congress.
Welcome, and please proceed.
Mr. Jack Silverstone, Executive Vice-President and General Counsel, Canadian Jewish Congress: Honourable senators, for more than 40 years, Canadian Jewish Congress, the organization I have the honour to represent here today, as well as many other organizations and concerned citizens struggled to see that Nazi war criminals who gained admission to this country were brought to justice. That struggle proceeded without much success until 1987 with the tabling of the report of the Commission of Inquiry on War Criminals presided over by the late honourable Mr. Justice Jules Deschênes. That effectively broke a logjam that was, I think, a stain on the history of this country.
I personally had the privilege of attending many of the hearings of the commission of inquiry as Canadian Jewish Congress's associate counsel before that body and subsequently participated in a great number of meetings with various elected and appointed officials on the issue, and my colleague, Mr. Vernon, was with me through most of them. We believe fervently that, after a long struggle from 1987 on, with ups and downs, essentially the situation in this country changed and that suspected Nazi war criminals, and indeed subsequently suspected war criminals and perpetrators of crimes against humanity from other conflicts, could no longer find a relatively safe haven in this country.
It is now, in the year 2000, part of the orderly administration of justice in Canada that perpetrators of war crimes and crimes against humanity be brought to face legal proceedings. Naturally, in a situation of such profound moral impact there will be dissatisfaction and frustration on the part of many people, either because they feel the process is not rapid enough or they feel the process is unfair or inadequate. Indeed, I submit that any process regarding perpetrators of mass murder would be inadequate, but Canada is a country of laws, a country that respects citizenship and respects human rights, and no punishment that could be meted out to perpetrators of such acts could be remotely commensurate with their crimes. Nevertheless, to do nothing would be inexcusable and unacceptable.
I mentioned our involvement in this issue for many years, and I indicated that the situation now in this country, although not necessarily entirely to everyone's satisfaction, is one where suspects are slowly being called to account for their crimes. The legislation that we are looking at today, Bill C-16, and in particular the Part 2 clauses dealing with revocation of citizenship, we believe, with great respect to those who have contrary opinions, will continue the process upon which we are embarked now, without diminishing the rights of any Canadian or anyone who finds himself or herself in this country.
I have had the opportunity to review some of the proposed amendments that have been submitted before this committee and elsewhere and I can say that some may have, on an individual basis, great merit and are worthy of discussion on their own. However, in the context of the situation in which we find ourselves today, we cannot, as Canadian Jewish Congress, support amendments that might inadvertently derail the current process, particularly with respect to suspected Nazi war criminals. Time is very late. There is not much time left to deal with perpetrators of crimes from the Holocaust, from World War II, from the Nazi era. Amendments, well-intentioned as they may be, would, I believe, have a great likelihood of engendering a Charter challenge or other ancillary legal proceedings, which might produce delays that would render the whole process moot and incapable of completion.
We have no objection to considering the revisions to the procedures and indeed to the philosophy of the legislation, perhaps five years down the road, and it should be studied in the interim, but for now we are firmly convinced -- based upon the legislation, the experience, the jurisprudential analysis that has resulted from the various cases that have gone forward, right up to the Supreme Court of Canada and elsewhere, and at various other levels, primarily before the Federal Court, Trial Division and Appeal Division -- that the process in place provides ample due process and ample safeguards for everyone associated with it and in no way compromises Canada's high standards of justice.
Bill C-16, we believe -- and I again essentially confine our comments to Part 2 -- preserves the viability of the denaturalization process, which has been judicially validated, particularly with regard to suspected Nazi war criminals. We had experience in this country -- I think an unfortunate one -- with the criminal route, although, with great respect, we at our organization never believed that the Supreme Court of Canada decision in Finta should have obviated the possibility of further criminal prosecutions. That is actually beyond the scope, I presume, of the committee's deliberations today, but I have personal strong feelings about that, as a lawyer, as a member of our organization, and as a Canadian. However, the fact is that after that judicial process we entered a period of hibernation for four or five years with regard to bringing suspected Nazi war criminals to justice. Only since the second half of the past decade have we had a situation where people who are accused of heinous crimes are being called to account through denaturalization. We would certainly not want to see a repetition of that hiatus. Again, there simply is no more time. The biological clock is ticking with regard to perpetrators, witnesses and victims.
We believe that this legislation in no way trenches upon the rights and benefits of all Canadians and all people who find themselves in this country, that it preserves respect for Canadian citizenship and for the high standards of Canadian justice. In that context, we find the legislation to be worthy of support, particularly with regard to the clauses we referred to, and we are very pleased to have the opportunity, honourable senators and Mr. Chairman, to make that view known to you now. We would be happy to answer any questions.
Senator Cools: Chairman, before you open up the floor for questions, the witness said something very interesting about the Finta case. He should expand on that. He sort of flew over it, but I think it is crucial to his point.
The Deputy Chairman: Perhaps it is a good idea. You referred to the report of Mr. Justice Deschênes. The Finta case was thereafter. The witness did invoke that case, and I consider it to be pertinent to the bill to a certain extent. I would like your opinion on that case, if it is not asking too much.
Mr. Silverstone: I would be honoured. The Finta case was the first real attempt after the Second World War at prosecuting a suspected criminal from the Nazi era. It is very difficult to articulate moral equivalencies or moral culpability with regard to participation in state-sponsored mass murder. O n the scale of Nazi perpetrators, the case of the accused Mr. Finta was a rather unfortunate test case. Although we were told by the Justice Department that it was not a test case, it certainly turned out to be precisely that.
Mr. Finta was acquitted at trial and his acquittal was upheld through to the Supreme Court, where the decision was a narrow one. We always felt that if Mr. Finta had not been accused simply of confining individuals, reprehensible as that was, but had been walking around the brickyard in Segyet, Hungary, shooting people in the back of the head, the results would have been very different both at trial and at appeal and at the Supreme Court of Canada level. We felt the Finta case was not determinative of the ability to bring forward more criminal cases.
Mr. Finta's actions were reprehensible. While we did not agree, with great respect, on the decision of the jury or any of the courts thereafter, we did understand some of the reasoning. Again with great respect, we certainly did not agree with the majority in the Supreme Court. The standard established for subsequent criminal prosecutions was very high, but we believed and we still believe that a great deal of time was lost until the Justice Department re-engineered its initiatives toward the denaturalization process.
We now have legislation that specifically deals with the Finta problem. We hope and believe that problem will be successfully overcome, but, as important as it is, we felt perhaps it may not have been necessary and that the criminal route was not closed. In general, given the age of the witnesses and the perpetrators, the criminal route probably will have a very restricted applicability with regard to Nazi-era war crimes. We believe that route will have a profound impact on future prosecutions for contemporary war criminals. We believe the legacy of the Nazi war crimes saga in Canada is an acute awareness of our domestic and international obligations to bring perpetrators of war crimes or crimes against humanity to justice. While we hope there will be no such need in the future, our experience post-Second World War has shown that humanity has learned very few lessons. I hope that clarifies our position.
Mr. Eric Vernon, Director of Government Affairs, Canadian Jewish Congress: I would underscore Mr. Silverstone`s comment. There was a six-year gap between the Supreme Court decision in Finta and the passage of Bill C-19, which, while it was providing enabling legislation for the International Criminal Court on the domestic front, once again overcame some of the problems that were, according to the Justice Department, put in the path of criminal prosecutions for domestic cases.
There was a six-year hiatus when there were no criminal prosecutions undertaken. Our present concern is that if we dramatically amend Bill C-16 we will inevitably face a Charter challenge that will chill domestic prosecutions or civil proceedings at a time within which we have a very narrow window to operate.
Mr. Nicholas Katsepontes, Counsel, Hellenic Canadian Congress: Honourable senators, I am legal counsel and policy advisor for the Hellenic Canadian Congress, the largest organization of its kind in Canada representing, we estimate, 350,000 Canadians of Hellenic heritage. We are comprised of first-, second- and third-generation Canadians who place profound significance upon Canadian citizenship, given that most of our fathers and founding fathers who came here from Greece acquired Canadian citizenship by choice, as opposed to by birth.
We share many of the views enunciated today by my friends and fellow Canadians from the Canadian Jewish Congress with regard to keeping in this legislation an inherent right to revoke Canadian citizenship. Certainly we believe that our shared Canadian values make the presence of war criminals, be they from the Second World War or more current conflicts around the world, unacceptable to Canadians in general. We do believe, though, that any exercise of this right to revoke citizenship of such individuals requires that certain due process provisions be put in place, in part to protect the populace at large but also to help bring to the forefront in a court of law the nature of the allegations made against the individual. Essentially we believe that that is a rallying point to some extent, to help show the significance of Canadian citizenship: We do not accept as Canadian citizens those who have perpetrated crimes again humanity throughout the world.
I appreciate the sensitivity of the position of the Canadian Jewish Congress and their point that time is of the essence with regard to this legislation. The concern of the Hellenic Canadian Congress is that while we need a vehicle with which to go after war criminals we must also address certain deficiencies that we see in the legislation currently before you.
We do not suggest going back to the drawing board. We should proceed with all haste to address this matter, but we cannot overlook the fairly significant problems that we see in the bill.
I will outline some of the more general concerns. My brief deals with them in more detail. Then I will answer any questions you have.
As I indicated, we are in favour of a process whereby citizenship is revoked in the rare instances where it is proven that the individuals concerned are unworthy of that citizenship. We believe that that is a reflection of the common values of all Canadians and that we are prepared to only grant citizenship to those people who share those values.
The legislation bestows a new power upon the minister. I would call it a super power of annulment. The minister can make a decision leading to the revocation of citizenship. A limited scope of appeal to the courts is provided to challenge that decision. The rights of the individual to challenge the decision before the Federal Court are therefore narrowed.
The denial of citizenship in the public interest is of concern to us. This is a super power bestowed upon the minister whereby the minister can make a report to cabinet. Cabinet in turn can make a decision denying someone citizenship. That denial is valid for five years and cannot be reviewed by any court.
We have a grave concern in that there is no definition of public interest. If it is to address war criminals, let's say that. If it is to address certain people we deem objectionable to having Canadian citizenship, let us state that.
We are very concerned that cabinet would be bestowed with a power to interpret what is in the public interest. That is not acceptable.
The final area with which we have a substantial problem is the proposed amendments to the act changing the administration of how citizenship is bestowed in this country. Essentially there will be abolishment of the citizenship court process and the citizenship judges. The Governor in Council will appoint citizenship commissioners.These commissioners will have duties as dictated by the Minister of Citizenship and Immigration. I refer to them as the citizen police.
Central to what we believe is Canadian citizenship is an independent assessment of individuals who seek that citizenship. Something is lost when an independent citizenship court or judiciary that makes decision and reviews citizenship applications is abolished and that authority is placed into the realm of politics with public servants making those decisions. In other words, it has become essentially a component of the government, subject to the whims of civil servants, policy directives and possibly even political agendas of the ministers and cabinet. That is an objectionable element of this legislation.
We believe that citizenship is an individual's relationship to the state. It cannot be taken to the level where it becomes an element of a department of government where the minister of that department dictates what the citizenship commissioners can and cannot do upon reviewing and assessing citizenship applications. In this regard, we find these elements of the legislation very offensive and suggest that it will be a step away from some of the inherent principles of Canadian citizenship for those who seek to acquire it.
That concludes my submission. I would be happy to address any questions that the committee may have.
Senator Andreychuk: Mr. Silverstone, it seemed to me that your assessment of the Finta case is correct, that it need not have been the definitive criminal case.
When Bill C-19 was introduced, I objected to the fact that everything was lumped together. I would have preferred the International Criminal Court to have been a separate statute and the Canadian process to have been separate as an educational value. We would have been able to say what the International Criminal court would do. We could have said that when a case comes in it is a test and these are the obligations. The other part of Bill C-19 would have informed Canadians that we still care about war criminals and explained the process we would use.
It would have strengthened your ultimate objective for the public interest section. If we are saying that it is war criminals we are after, then we should have identified them as such.
Our history of handling war criminals is decades of no action, followed by some action that did not work, followed by a hiatus of six years. There might have been some justification for a shorter process that might have included some Governor in Council involvement.
If the two had been separate, our objective would have clearly stated why we had a separate, shortened due process, or lack of court process, built in. There would have been an onus on the government to explain it. Our target would have been clear. However, we now have an act that is fraught with more difficulties in attempting to get at war criminals.
Do you agree with my assessment that it is going to be even more difficult under these rather questionable broad generalities and broad mandates? Do you believe that there will be all kinds of court challenges?
Do you not have confidence in Bill C-19, because you said that you did not think the criminal process was working?
Mr. Silverstone: To answer your second question first, when Mr. Justice Deschênes tabled his report, it was based on, as far as we were concerned, three possible remedies. One remedy was extradition, which requires the request of another country. One example in regard to Nazi war criminals was the Rauca case in the early 1980s. It was largely due to the very commendable efforts of the then Solicitor General, Robert Kaplan. That was the only extradition case that occurred. Mr. Justice Deschênes certainly validated that remedy.
There was the criminal route. Mr. Justice Deschênes named many interesting findings with regard to the criminal route, some of which were quite innovative and never really found application in this country, unfortunately.
The third remedy he recommended was denaturalization. I do not think the report I have was read widely enough. It was a very important Canadian document. Mr. Justice Deschênes recommended the consolidation of the denaturalization, the revocation of citizenship and deportation proceedings in order to speed things. That was not accepted by the government of the day. Although the government deserved great credit for having appointed that commission, in 1985, it is unfortunate they did not adopt that recommendation.
I think that the criminal route still remains a very important factor in bringing war criminals to justice, for a variety of reasons. Bill C-19 will at least give a certain confidence to departments that they can proceed with criminal proceedings in the wake of Finta.
However, in terms of C-16, given the experience of the past five years and the statements made by ministers and senior officials, we believe they have chosen primarily to proceed with denaturalization for suspected Nazi war criminals. That will be the route that they will continue to follow for the foreseeable future.
I still believe, perhaps naively, that if a good criminal case were to present itself they would proceed even without C-19. However, I suppose that has not been borne out by the experience.
Our concern is not with Bill C-19 at this point or with the other provisions of Bill C-16. We have taken no position on whether "public interest" should relate to war criminals. We would certainly have no objection to it, obviously. Nor would we have any objection specifying that hate mongers and racists who sow social discord should be prevented from obtaining citizenship.
We have no objection to that clarification. We do not think it will affect adversely the process of bringing suspected Nazi war criminals or other war criminals to justice.
Our primary concern is not to upset the denaturalization proceedings as they go forward now. We do not believe that the provisions in the legislation relating to the public interest or the provisions in Part 2 will have that effect. That is why we support it.
Was your first question about the timing or the speed of the process?
Senator Andreychuk: I will rephrase one of my concerns about the passing of this bill. There has been comment that using the department and cabinet through this process might invite more delays, more court challenges and, certainly, more reviews -- judicial review can always be used. This could occur on, perhaps, two grounds: it seems more fair and just to have the right of appeal in the court, and it would be more efficient.
Mr. Silverstone: The provision for public interest is prospective, primarily. It is not going to have a great deal of impact with regard to suspected Nazi war criminals. Our organization is very concerned about that issue. If that provision were to result in new court challenges, and it may very well, there would be, we believe, little or no impact on the war crimes issue.
Senator Andreychuk: My concern is about clause 17 if it remains as is. I know it has been included before, but the criticism is that it has not moved quickly. This is an opportunity to ensure that due process is transparent, open, fair and just. We have heard also that if there were the right of appeal to the Federal Court and full due process -- not just judicial review -- it could be more expeditious and supportive in terms of appropriate action with respect to the person that we legitimately want to denaturalize.
Mr. Silverstone: I respect that view, but I do not concur. I understand the objective, but we believe that we will have an inherent, or built-in, right of appeal, plus reviews. Judicial review is always available when there is excess jurisdiction, or for any other reason. We believe it will retard the process rather than expedite it.
In terms of inherent fairness, we can look at the current status. I do not think that by either domestic or international standards anyone could criticize the accessibility of due process with regard to suspected Nazi war criminals, or other war criminals. There is a notice from the minister that they have ample opportunity to make their case before the Federal Court Trial Division. I read all of the jurisprudence on these cases, and the Federal Court Trial Division has conducted thoughtful reviews of the evidence, although, perhaps, a little more slowly than we would have liked, has come to conclusions based on individual cases. The accused, then, have launched a variety of appeals indirectly through judicial review and through application to the Immigration and Refugee Board, as well as a variety of other things that we believe are purely dilatory and have no real merit. In fact, these other things constitute, in most instances, just an abuse of process.
However, we do not believe that any of that would be obviated by adding yet a further layer of built-in appeal. We do not believe anyone is unjustly dealt with because of the lack of appeal to the Federal Court. I am not necessarily advocating this view, but some would argue that the process is inherently fairer now because the minister has a political accountability and can take into account certain factors, which a court of appeal would not be able to take into account, such as humanitarian considerations.
Therefore, I think it is a double-edged sword. I know that sometimes when the Crown loses a case it certainly would be nice if there were an appeal opportunity. In some cases we have conflicting judgments at the Federal Court Trial Division that would be nice to resolve. As a lawyer, I would like to see them resolved, but before anything else I am a pragmatist. The issue is too important and it is too late in the day to reinvent the judicial wheel.
We do not believe that this unfairly treats anybody and I think this would withstand any objective test, either domestic or international, concerning the fairness of the process and accessibility of due process. I repeat that some would argue that it is more advantageous to the accused.
Senator Andreychuk: I do not like to interpret other witnesses, but Mr. Matas appeared before us and said that without the right of appeal in the federal system the government often has its hands tied. That denial of appeal is inherently wrong for the victims. You seem to say the opposite. Am I correct?
Mr. Silverstone: With great respect to that view, we believe that the administration of justice in this country is better served by moving along as quickly as possible. That in itself pays the greatest respect to the victims. I do not mean to be dismissive because I have great respect for Mr. Matas, but, frankly, I do not think that the victims who watched their families murdered right before their eyes really care about the legal niceties. They would like to see the issue dealt with because it is now the year 2000 -- 55 years later. I think the issue of time, coupled with fairness, absolutely, is of paramount importance. I do not want to interpret the wishes of or put myself in the place of survivors or victims.
I had the privilege of being born in this country, as did my parents and grandparents, so I do not know what it means. I can only imagine, and thank God I do not know what it means. I never had the impression -- and I have dealt with many survivors of the Holocaust -- that victims were particularly concerned about access to the Federal Court of Appeal of Canada, with all due respect.
Mr. Vernon: We are not convinced that having that extra layer of judicial appeal would necessarily speed things up. We have had all too many experiences with the court in dealing with these cases, where the slow pace has contributed to the delay in justice. Therefore, I do not think we can necessarily equate extra judicial layers with efficiency and speed based on the track record.
The flip side of that is that if we are going to leave the decision-making power in the hands of the minister and the Governor in Council there must be an accelerated pace in that process. It is unacceptable to have delays at that level if we are to say that we will trust the political process to handle this. The process must be accelerated.
In fact, there is one idea that we toyed with, and we are not exactly sure whether it passes administrative muster. It may be useful to consider putting something in the regulations limiting the time by which the minister has to make these decisions once these cases are brought forward.
In reference to Bill C-19, I believe you are right -- it would have been preferable to divide them. In fact, we had been told for years that the Finta problems would be overcome by direct amendment to the Criminal Code. That certainly would have been preferable, because it would have been done years ago. We kept hearing that the advent of the ICC was delaying the process, because they wanted to ensure that domestic law was consonant with international law and the obligations that would fall to us under this new instrument.
However, it seemed as though in order for Canada to become a member of the ICC it had to have the option -- the legal remedy -- of domestic criminal prosecutions in place. That spurred the government into that course of action, and that is why the two of them are seen together in the legislation. For Canada to meet the criteria of membership it needed to have that option available to it. It would have been nice if it had happened sooner.
Now that it is back in -- as Mr. Silverstone said it is probably too late to relate to World War II cases -- it will be a legacy if the government resumes criminal prosecutions of war criminals who come here from contemporary conflicts.
Senator Finestone: Welcome and thank you for your interesting presentation. Are you in support of David Matas' presentation?
Mr. Silverstone: There are many aspects of the presentation that I have not had an opportunity to study. I did look at it before coming in. It is worthy of serious discussion.
Senator Finestone: Some of the points I took away from the excellent presentation include timing, inefficiency and delays. Time is a factor we cannot afford given the age of the people involved.
Mr. Vernon: One of the things you may wish to consider is putting in a five-year parliamentary review of the legislation in order to revisit the discussion.
Senator Finestone: Are you suggesting that we do so after or before we pass this proposed legislation?
Senator Cools: You cannot put anything in the bill after you pass it. He is suggesting that you amend the bill in order to bring the legislation back before us.
The Deputy Chairman: We have done that for the military courts, for example.
Senator Cools: I also wish to thank the witnesses for appearing before us. We must be sensitive to the Hellenic gentleman's interests in order that they are not submerged as we go around the table.
Mr. Chairman, perhaps we could have some of our people look at clause 21. As I was just reading clause 21 on the question of the public interest, as we are all trying to discover what is meant in this clause by the public interest, even within the bill there is an obvious mistake or obfuscation, because clause 21(1) states:
If the minister is satisfied that there are reasonable grounds to believe that it is not in the public interest for a person to become a citizen...
It is not the person not becoming the citizen that is the public interest question, it is the minister's exercise of powers that is the public interest question. Clause 21 says that the minister should exercise these rather large prerogative powers in the public interest to deny citizenship.
In looking at the drafting of the bill, one sees these peculiar little twists, which I find tedious and deceptive. However, maybe you can respond to that. Then I have a question for Mr. Silverstone.
Mr. Katsepontes: Senator, there is always a time element with regard to legislation. By the time this bill is proclaimed law and then amended 10 years from now, governments can implement policies and agendas that could give a variety of interpretations to what is public interest. That causes me concern.
Let us assume that within the next five years we can address all the issues of World War II Nazi collaborators and that they are all addressed before the Canadian courts and done. This legislation will still be on the books. The term "public interest" will still be there subject to interpretation by bureaucrats who will be advising the minister. The broad definition given here causes me concern as to what end that could be put.
There is an urgency to address this issue, and I can appreciate that, but this legislation may be on the books for 10 or 15 years before it is brought before a body such as yours to be further dissected, amended or updated.
Senator Cools: Have you ever seen a proposed law drafted this way? My understanding is that every minister is supposed to exercise these large discretionary powers in the public interest. I cannot immediately think of a bill or piece of legislation that has been so drafted with a section called "the public interest" in this way.
It may be interesting if one of our researchers could determine if this is an emerging pattern for ministerial practice. I do not know. I have no recollection of seeing anything drafted in quite this way. It would be nice to know.
Mr. Silverstone, you made some very interesting statements. You spoke about the hiatus and the halting in the field in respect of the Finta decision. I have not looked at that case for some years, but I remember then Solicitor General Bob Kaplan's interest in the matter. I remember that with some vividness.
My question is perhaps to seek your comment and opinion. It seems to me on the questions of war criminals that there are two separate issues. Sometimes I think we have a misplaced emphasis on one over the other. The first issue is denaturalization and the second is the question of bringing criminals to justice and due process before a criminal proceeding.
There is sometimes a misplaced emphasis on going down the denaturalization road because it seems that if the objective were to bring a person to justice, with all that that means, it really does not matter whether they were worthy to become Canadian citizens. To be frank, there are many people born in Canada who are undesirable citizens as well and so poor citizenship is not only a characteristic of naturalized citizens.
I have often wondered why some of these people could not have been treated as nationals, why a process did not evolve of going down the other road of trying the offences rather than hanging the entire case on whether or not they are worthy Canadians. That is a pretty hefty judgment.
Mr. Silverstone: I do not think the issue is really whether or not they are worthy Canadians. There was a book about -- the title was something like "Quiet Neighbors" -- neighbours written in the United States on this issue. That pretty well says it all. Almost invariably, people who commit heinous crimes and then seek refuge in this country are likely to be people you would not mind having in your neighbourhood, if you did not know what they had done before, because they do not want to draw attention to themselves. The issue is not whether they are good citizens; it is whether they had any legal right either to enter this country in the first place or to obtain citizenship.
With regard to the criminal route, we always felt that criminal prosecution was one of the pillars for dealing with this problem. The initial objective of the war crimes unit was to launch criminal and denaturalization proceedings depending upon the nature of the case, the evidence and the parties.
What happened was that the criminal route was completely derailed as a result of Finta, at least in the eyes of the Crown, and they put all their efforts toward denaturalization after a long period. The point now is that the process is well on its way. Perhaps it would have been desirable to see more criminal cases brought forward earlier on. Now we have a procedure in place. We have judicial pronouncements upon it; we have a unit that is experienced in dealing with the issue. Even though it is a rather slow process to deal with the problem, it is probably the most efficient way.
Denaturalization is a pretty weak punishment.
As I said before, no civilized country could exercise punishment against these individuals that was remotely commensurate with the nature of their crimes. The United States has followed a similar route and has denaturalized a larger number of suspected Nazi war criminals and deported them.
Notwithstanding the fact that the criminal procedure, had it been successful, would have been perhaps more satisfying, the moral component of this cannot be forgotten.
If the objective is to assert aggressively that people who perpetrated war crimes and crimes against humanity have no place in this country and cannot find safe haven in this country, then we are doing a very important public service. If a case is susceptible to criminal prosecution, then I believe, as we always have, that it should be carried forward. That is the situation today. We still believe that.
Senator Cools: I used to be on the National Parole Board. There were many instances of naturalized citizens who had gone abroad and done some terrible things. I can tell you that the wheels of justice did move to allow those individuals to be brought to justice in various countries. A few cases spring to mind. I wonder why we have not pursued those kinds of routes more successfully. Whenever we hear about the question of the individuals of whom you speak, there is always a long, emotional, passionate, touching and sensitive appeal about whether or not they are worthy to be Canadian citizens. I think we are all agreed that they are not. However, at best, due process is a very clumsy tool. I have heard enormous emphasis on this whole process of denaturalization and too little on the other front.
Mr. Silverstone: I tend to agree with you. The problem is that you cannot ignore the historical experience in this country. The reality is that the criminal route was derailed because of Finta, and only now do we have legislation that, in the minds at least of the war crimes unit, presumably, resolves the problem.
Initially, and again I refer back to the report of Mr. Justice Deschênes, there was a three-pillar process. Some cases would be more susceptible to extradition; some would be better served by criminal prosecution; and some would be dealt with for denaturalization. One was not given preference over the other necessarily, although in all instances successful criminal prosecution probably would have been the most satisfactory, after extradition, which would have been even more satisfactory because you would have had a criminal proceeding against the individual in the country in which he or she committed the crime.
Senator Cools: Your concern is Nazi war criminals. I am saying that there are other areas of related concern. I am thinking in particular of international terrorism. Another area about that I read much about a long time ago was international organized crime and generations of organized crime. Families were knitting together internationally. Some were born here and some were born abroad. Even sorting out a lot of those details was quite an enormous difficulty for the system. However, in those sets of cases, it was the crime that loomed as the important issue to be tackled, not the citizenship.
Mr. Silverstone: There are many ways of getting at criminality. Anecdotally speaking, there are many figures from organized crime who were brought to justice for income tax fraud rather than for murder. You do what you can, given the tools you have available to you. We certainly favour criminal prosecution when it is available.
Please, senator, be assured that ours concerns are not confined to Nazi war criminals. As I said before, we believe that the legacy of this issue is dealing prospectively with contemporary war criminals, be they from Cambodia, Rwanda or wherever. Organized crime and international terrorism are a little different, but certainly no less important.
Mr. Vernon: It is also to important to remember that one of the revolutionary aspects of Deschênes' report was this made-in-Canada solution that resulted in legislation amending the Criminal Code to permit criminal prosecutions here in Canada.
As we have said several times already, it is unfortunate that the interpretation of the Supreme Court decision in Finta was that that process was no longer available.
The Deputy Chairman: We have two other panels from whom we wish to hear. I thank you very much for your very interesting appearance before this committee.
Our next panel is from the Canadian Arab Federation. We will hear first from Mr. Aliweiwi. Please proceed.
Mr. Jehad Aliweiwi, Executive Director, Canadian Arab Federation: Mr. Chairman, with me today is my colleague Linda Tabar, who is an assistant and adviser to the executive committee.
We begin by extending our gratitude to the honourable minister for her intentions and the compassion that she has demonstrated during her tenure. We also acknowledge the fine work of the department.
We see the seeds of a forward-looking agenda in some of the clauses of Bill C-16. In particular, we support the clauses on citizenship through adoption and the clear residency requirements. The new citizenship-through-adoption criteria alleviates stresses on families and reduces bureaucratic backlog. The clearer residency requirements appropriately specify the responsibilities of people seeking to gain the privilege of Canadian citizenship.
That notwithstanding, the proposed act includes sections that are of serious concerns to our community and many other communities across the country. In particular, we wish to highlight specific sections of Part 2 and Part 4, sections that deal with the revocation process of the Canadian Citizenship Act. Our concerns have already been outlined and detailed in a written submission that we have submitted to you. My colleague and I will present a synopsis of our main concerns with the bill.
To begin, we foresee the danger of the development of a two- and possibly three-tiered system of citizenship rights.
First, a clear differentiation has been made in the proposed bill between the rights of Canadian-born and naturalized Canadian citizens, with the latter being made vulnerable to a sudden loss of citizenship and being forcibly uprooted without full recourse to the judicial system and a place to protect them. In addition, and equally troubling, in Part 2, clause 16.1, there is an absence of a humanitarian waiver that would give consideration to the circumstances that may propel a person into an action such as retaining citizenship by means of false representation. It is well known that such actions are often driven by complex and dramatic circumstances, including fear of persecution, which would unquestionably warrant humanitarian consideration.
Second, CAF believes that bestowing the authority to renounce citizenship as proposed in Part 2, clauses 16(1) and 17(3), and in Part 4 of the bill in the hand of one individual and removing this issue from the normal judiciary process is regressive and opens up the possibility of a serious misuse of power. A single person is liable to the sway of subjective factors, political pressures, errors and simple misjudgments. Therefore, we recommend a restoration of judicial procedures maintaining the right of immigrant Canadians to have their say in the court system.
Third, with reference to Part 2, clause 18(3), we believe that the stipulated time frame of 30 days notice does not provide individuals with enough time to prepare a legal defence. We fear that for such a serious accusation such a limited time frame will only benefit the rich and those who can afford an adequate defence, while the poor will be vulnerable to the possibility of inadequate legal protection.
Ms Linda Tabar, Volunteer, Canadian Arab Federation: We are alarmed to find that, as outlined in Part 4, clauses 22(1) and 23(2)(a), in cases of perceived threats to public interest the power to deny or revoke a Canadian's citizenship by the Governor in Council has been coupled with the vague use of the concept of reasonable grounds as well as an ill-defined notion of public interest. We believe that in order to preserve the legal integrity of the proposed bill and the right of innocence until proven guilty, a clearer criterion against which guilt can be established must be included. Here we stress that there is a significant gap between the notion of "reasonable grounds" and the substance of the concept "beyond a reasonable doubt." This gap should be addressed or, at the very least, what constitutes reasonable grounds must be clearly defined.
Fifth, as stipulated in Part 4, clauses 22(3) and (5), it is unacceptable that in such serious matters as accusations of threatening public interest Canadian citizens are being denied their full access to the judicial system and the right to an appeal.
Together, the various strands of Part 4 relegating the power to stop the granting of citizenship to the Governor in Council, the usage of insufficient terms such as reasonable grounds for establishing guilt and the removal of the right to an appeal represent an indignity to the Canadian legal and judicial systems, as well as the Canadian Constitution. Furthermore, we believe that these proposals will not withstand a Charter challenge.
Sixth, with reference to Part 4, clause 23(2)(a), we believe that revoking an individual's citizenship on the basis of the assumption that an individual may engage in an activity that is considered a threat to the security of Canada is unfounded. Can future behaviour be predicted? This guideline for determining guilt moves the onus of proof away from the realm of empirical facts to the realm of conjectures and assumptions.
The second issue requiring serious consideration in this section is that evidence used in assessing threats to national security is often secretive, not clear, and rarely presented in a manner that allows the accused to cross-examine the material in the court proceedings. We impress upon you the importance of addressing the secretive nature of such evidence in order to protect the right of individuals to a fair trial.
In closing our comments on Bill C-16, the Canadian Arab Federation wishes to reiterate statements presented at the outset of this submission. We believe that if the articles of the proposed bill are enacted as is, Canada will be moving towards a potentially two-tiered system of citizenship rights, those for Canadians and those for Canadian immigrants. We fear the latter will be singled out and potentially unfairly penalized for former political affiliations. We make these comments bearing in mind the experiences of many individuals in our community.
We end our submission by requesting that the honourable committee reconsider the above articles in light of the spirit of Part 5, clause 33(2)(d), which reaffirms the importance of the rights and freedoms of Canadian citizens and the values of democracy. As Canadian Arabs, we proudly share and cherish these principles and look forward to them being upheld and preserved in this potential legislation.
Mr. Harold Otto, Historian, Latvian National Federation in Canada:Honourable senators, I speak on behalf of the Latvian National Federation of Canada. I am neither a lawyer nor a Latvian, but I am married to a Canadian who was born in a displaced person's camp in Germany of Latvian parents. I am personally concerned as well that my wife's citizenship seems to be worth a great deal less than mine because it can be taken away on the decision of one person under the proposed act. With that in mind, bear in mind that I am not unbiased in this matter.
The Charter of Rights and Freedoms guarantees the equality of all Canadians and equality of treatment. The Latvian National Federation of Canada believes that Canadian citizenship is extremely important and extremely valuable. Depriving someone of it is, therefore, a very serious matter indeed. The concern here are the clauses regarding revocation of Canadian citizenship, in particular, the lack of appeal from the decision of a judge of the Federal Court Trial Division, and, further, the standard of proof provided in the bill, a balance of probabilities, the same as civil cases that involve mere money. A balance of probabilities may be, as indeed it is, sufficient standard of proof for money or for civil cases, but the Latvian National Federation of Canada submits that it is inadequate for questions involving Canadian citizenship, especially in the absence of a right of appeal.
As Mr. Silverstone has said, one of the important issues is the question of Nazi war criminals in Canada and what to do with them. Here something must be said. The Latvian National Federation of Canada has absolutely no interest in defending war criminals or those guilty of crimes against humanity. These people should be tried as criminals and punished if found guilty. The Latvian National Federation supports the arrest and trial that would result in long or lifetime prison terms for those convicted and revocation of Canadian citizenship, of course. No one can or should deny that atrocities occurred in the Second World War. Let us punish those found guilty in criminal trials, and let murderers die in prison, either in Canada or in their places of origin.
Mr. Silverstone mentioned the Finta decision. The Latvian National Federation of Canada does not believe that the Finta decision precludes trying accused criminals as criminals. However, following the Finta decision, in January 1995, the then Minister of Justice, the Honourable Allan Rock, made a public statement that no denaturalization case would proceed in the absence of individual criminality. In saying this on behalf of the government, he said, in effect, that anyone against whom the Minister of Citizenship and Immigration proceeded was indeed a war criminal. That is an extremely serious allegation that carries the worst stigma of all, that of being a mass murderer, and to defend oneself can bankrupt an entire family.
I was consulted extensively by the defence in one of these cases, which had seemingly been precipitated on the basis of a 1962 KGB book published in the Soviet Union that, for political purposes, sought to discredit people. The case proceeded. On cross-examination the RCMP lead investigator in the case testified that he had seen no evidence of individual criminality. The trial proceeded nevertheless. The accused was exonerated in the end. He was clearly not a criminal.
On the whole, the decisions in the recent denaturalization cases have delivered conflicting results. An appeal process would allow reconciliation of the findings of fact and of law. In one case, for example, it has been held that there was no legal basis for screening of immigrants for security. Other decisions assume the legal basis for such screening. There are similarly conflicting findings of fact. Even if we are to accept that a court is an appropriate forum to decide questions on which historians have been unable to reach consensus for decades, when the findings conflict they cannot both be right. An appeal would resolve that conflict.
To resolve this, the Latvian National Federation of Canada recommends the following. One, delete the sections regarding denaturalization from the present Citizenship Act and make material fraud or misrepresentation in immigration a criminal offence, with denaturalization one of the consequences of conviction. That would allow an appeal and an appropriate standard of proof for such a serious charge. We know the real issue here is whether someone is a war criminal. If that is judged inappropriate, take it out of the Citizen Act and put it into the Criminal Code and amend the proposed Citizenship Act to allow for appeal. This would give Canadian citizens who are citizens by choice, because they immigrated, the same right of appeal that refugee claimants already have.
Two, make the standard of proof much higher than a balance of probabilities to reflect the worst of Canadian citizenship and the loss of liberty of a Canadian citizen that depriving him or her of citizenship would involve. This is already the case in the United States where loss of citizenship is seen to be a loss of liberty.
Three, in cases where there are allegations that revocation of citizenship is proposed because of World War II or other war crimes, which is really where the controversy lies, make the standard of proof the criminal one of "beyond a reasonable doubt." In such cases the stigma of being a mass murderer is equivalent to a criminal conviction, one that is richly deserved by the real criminals.
Mr. Eugene Czolij, National President, Ukrainian-Canadian Congress: The Ukrainian-Canadian Congress, also known as the UCC, is the national coordinating body of the Ukrainian-Canadian community. Since its incorporation in 1940, the UCC has played an active role in the development of national policies and programs that not only impact on Ukrainian-Canadians but also on Canadian society as a whole. Through this proactive approach, we have been able to ensure that the voice of our community is heard in areas such as multiculturalism, immigration, justice, constitutional development and foreign affairs.
Since the Government of Canada introduced Bill C-63 in the last session of Parliament, the UCC has monitored its progress. The UCC has gathered information and feedback concerning this draft legislation in order to communicate effectively the view of our community to members of Parliament and to this committee.
When Bill C-16 was in the House of Commons, the Minister of Citizenship and Immigration stated that citizenship is at the heart of what it means to be Canadian and that one of the ways we define ourselves as individuals is through our citizenship.
On March 30, 2000, we appeared before the House of Commons Standing Committee on Citizenship and Immigration and made certain recommendations to ensure that this ministerial statement is better reflected in critical areas of Bill C-16. Unfortunately, our recommendations were not retained. That is why we are grateful to be given the opportunity to address these issues once more.
One of the primary concerns that the UCC has with Bill C-16 is clause 17, which deals with the revocation of citizenship. Revocation of citizenship and deportation are serious issues, ones that have a tremendous impact on an individual and his or her family. In some cases the loss of citizenship could lead to a loss of freedom. Therefore, clause 17 needs to stipulate that an onerous standard of proof applies in the revocation of citizenship proceedings.
In addition, clause 17 should include a limitation period similar to that stipulated in subclause 18(5) of the bill, especially if the standard of proof on a balance of probabilities regarding violations of the Citizenship of Canada Act is maintained in subclause 17(1).
This would also ensure that the government could not use denaturalization and deportation proceedings against Canadian citizens who have lived in Canada for a substantial number of years, even though the government's employees had already destroyed immigration files. The destruction of files is consistent with the government's policy for disposal of unnecessary records after a fixed time.
Furthermore, this proposed section should provide a right of appeal from decisions rendered by the Federal Court Trial Division to ensure that uncertainties in this important field of our law that could result from contradictory first instance judgments be clarified by appellate courts. Therefore, we would recommend to the committee the following changes to clause 17: One, strike out the words "on a balance of probabilities" in subclause 17(1)(b) and replace them with the words, "beyond a reasonable doubt." Two, modify subclause 17(3) by providing a right of appeal from a decision of the Federal Court Trial Division to the Federal Court of Appeal, and ultimately leave to the Supreme Court of Canada. Three, add a subclause 17(4) and provide that "the minister may not make a report under subclause (1) more than five years after the day on which the citizenship was obtained, retained, renounced or resumed, as the case may be."
Clause 18, dealing with the annulment of citizenship, is also problematic. As members of this committee are aware, a notice of intent to seek a revocation order under clauses 16 and 17 against an individual who is suspected of having obtained citizenship by false representation or fraud or knowingly concealing material circumstances entitles the accused to a hearing before the Federal Court Trial Division.
An annulment order under clause 18 against someone who is suspected of having obtained citizenship in contravention of clause 28 or by using a false identity should also entitle an accused to an impartial hearing before the Federal Court Trial Division.
Indeed, a naturalized Canadian who has lived in Canada for almost five years should not have to make representations to the minister -- who is already satisfied that the person obtained citizenship in contravention of the Citizenship Act of Canada -- as to why his or her citizenship should not be revoked after all.
Furthermore, and very importantly, the law should not force the minister to be a judge and a party in the same case.We noticed that, contrary to Bill C-63, subclause 18(4) of Bill C-16 gives an individual the right to apply for a judicial review of the minister's order under the Federal Court Act.
We recommend, instead, that clause 18 provide a referral by the minister to the Federal Court Trial Division, similar to that stipulated in subclause 17(1).
In addition, clause 18 should provide a right of appeal to the Federal Court of Appeal and, with leave, to the Supreme Court of Canada. It should also stipulate that a high standard of proof applies in proceedings for annulment of citizenship; namely, proof beyond a reasonable doubt.
Mr. Chairman, the UCC would also advance, for your consideration, amendments to subclauses 22(3) and 27(3) to ensure that a permanent Canadian resident who has lived in Canada for at least 1,095 days should be entitled to apply for review by our courts, including appeal courts, of an order or declaration of the Governor in Council prohibiting such a person from obtaining citizenship.
Finally, Mr. Chairman, subclause 44(1) is troublesome, since it authorizes the minister to delegate anything that may be done by the minister under this bill to any person. We believe that such a broad right of delegation by the minister should not apply to the process of revocation or annulment of Canadian citizenship, in view of the very serious and disturbing consequences of such actions for the lives of Canadian citizens.
Citizenship is one of the fundamental tenets of any nation. Throughout its history, Canada has opened its doors to people who were looking for a tolerant and free society based on democratic principles. As a result, Canada stands proudly on the world stage as the best place to live, work, and raise a family.
Therefore, we must ensure that legislation dealing with citizenship, especially proposed legislative provisions advanced by the government concerning the revocation or annulment of this right and responsibility, also reflects the core values of our democratic system.
The proposals we have brought forward today attempt to strengthen the bill, enhance the value of Canadian citizenship, and ensure that the core values of our justice system are utilized to guarantee fairness and justice for all Canadians.
When Bill C-16 was tabled, the Minister for Citizenship and Immigration stated that citizenship was crucial to our Canadian identity. She also said that citizenship is a part of our individual identity.
The recommendations of the Ukranian-Canadian Congress are in agreement with the Minister's statements. In fact, we recommend that the process of revoking and annulling Canadian citizenship be an equitable legal process, including the legal right to appeal, and provisions for a heavy burden of proof whenever a government wants to revoke or annul fundamental rights of Canadian citizens.
Thus we enhance the value of Canadian citizenship by ensuring that our principles of natural justice, equity and respect for individual rights are not sacrificed for the sake of simplicity and procedural expediency.
We look forward to answering any questions you may have.
Senator Andreychuk: I should like to thank all of the panellists for putting forward their views and concerns succinctly and clearly. There is a commonality in them, and in other concerns that have been raised with me, and that is that the sign of a democratic society is access to an impartial and objective process, and that putting so much power in the hands of a minister is fraught with difficulties and raises questions.
Second, over a number of decades, Canada has attempted to ensure that new Canadians were afforded equal rights and were treated as equal citizens. We know that the process of coming to Canada and integrating into Canadian society itself creates many difficulties. Each wave of migrants has had to fight its way into mainstream society.
People have told me that putting all this power in the hands of the minister makes them feel that they may become the subject of an investigation at any time. It is not that they believe they have done something wrong, but that if the bureaucracy malfunctions, a future government may put them under a cloud of suspicion.They have said that this is beginning to make them feel that they are still second-class citizens.
How would you respond to that?
Mr. Aliweiwi: You are absolutely right, and this is at the heart of our concern. It potentially creates two systems and two classes of Canadian citizenship, which should not be the case. There should be no difference between naturalized Canadians and Canadians born here. I am now concerned that I might be suspected of something and denaturalized. I am familiar with no other place, and have no other citizenship. To suddenly face the loss of my citizenship of the country with which I have been familiar for so many years, in which I have established my life, and face the prospect of deportation, is unjust and very problematic. The potential for abuse is great.
Mr. Peter Doody, Counsel, Ukrainian-Canadian Congress: If you start with the proposition that there will be a process for removing citizenship from naturalized Canadians, you are also starting with the proposition that naturalized Canadians will necessarily be treated differently from natural-born Canadians. That is probably a given. However, the Ukrainian Congress submits that the process for removing citizenship should not be exacerbated by then subjecting the citizen to unfairness. That is why we think that there should necessarily be an appeal.
This has already resulted in unfairness. I know of a gentleman who went through the revocation process. It was determined by a judge at the Federal Court that he obtained his citizenship by false representations. The basis of that finding was that Canada had the right to reject applicants for immigration prior to 1950 because of security concerns.
Had this gentleman come before Mr. Justice Noël instead of Mr. Justice Lutfy, he would not have lost his case, because Mr. Justice Noel held, in another case, that Canada did not have that authority.
In every other case, be it shoplifting or income tax evasion, you can appeal to the Federal Court of Appeal.
There is no other process I know of that deals with something as important as citizenship in which there is no right of appeal, and the result is that like cases under this proposed legislation are not treated the same. We believe that it is a fundamental proposition in Canada that the rule of law means that like cases are treated alike. The only way you can ensure that is through a right of appeal.
I know the minister has said there is a right of judicial review. In fact the people who are trying to deal with this legislation in the courts, because this bill is identical to the existing legislation, are still trying to figure out where that right of judicial review is. In a case called Fast in July this year, the Federal Court ruled there is no right of judicial review from the process that starts it -- the minister's decision to issue a notice of revocation. In a case called Katriuk, from about a year ago, the Federal Court of Appeal said there is no right to judicially review the decision of the trial judge in a determination that an individual had or had not obtained his or her citizenship by fraud. The only place left is perhaps judicially reviewing the Governor in Council, who makes the final decision. My view is that that will be almost impossible.
Interestingly, if your citizenship is annulled within the first five years because of one of these clear categories, clause 18 of this bill says there is a right of judicial review from the minister's decision. That means you can go to the Federal Court and attempt to get it reviewed for an error of law or perverse finding of fact, and appeal from that to the Court of Appeal as of right, and to the Supreme Court of Canada with leave. Yet it seems there is no real opportunity to judicially review the decision to revoke your citizenship when you have been a citizen for longer than five years. The really perverse result, in my view -- at least in practical terms -- is that the people who have been in this country longest and have been citizens longer than five years may, in fact, be subject to, as Mr. Otto says, having their citizenship removed de facto by the decision of one person, from whom there is no effective review. Honestly, I do not understand how there could be any policy rationale for that.
Mr Otto: As Mr. Doody says, having two classes of citizens is, at least to some extent, inevitable, but as a friend of mine said at lunch today, most Canadian citizens born in Canada are just DPs with seniority.
Mr. Doody: My father immigrated from Newfoundland in 1946.
Senator Andreychuk: It is still prevalent, unfortunately. Mr. Doody, you are suggesting that citizenship, and the revocation of it, is such a fundamental issue that the test before the Federal Court should be not on a balance of probabilities, but beyond a reasonable doubt. As I understand it, the courts to this point -- and I am not going to review the cases -- have said that it is definitely not a criminal process and that the balance of probabilities is the test that we recognize in Canada. However, they have said that there are varying standards and degrees of quality of proof required in civil proceedings, and that a balance of probabilities is not the same thing in every case.
If the standard of beyond a reasonable doubt is not used, are you aware of how one could put it higher than just the preponderance of evidence as a probability, the usual test in a civil case that may involve money or some other issues that certainly are not as serious as revocation of citizenship?
Mr. Doody: To put the standard of proof into legislation is extremely unusual. I do not know of other legislation that enunciates it. In criminal cases, there has been a rule of interpretation that it is beyond a reasonable doubt, and in the predecessor legislation there was no mention of what the standard of proof was. What the courts have actually said in citizenship cases is as follows, and I am quoting from Mr. Justice McKeown in Bogutin:
Accordingly, I apply the civil standard of proof on a balance of probabilities, but I must scrutinize the evidence with greater care because of the serious allegations to be established by the proof that is offered.
That is what is happening in the courts now. If that wording in the legislation was not there, if that clause was not in the bill as ultimately passed, that is what would happen. Certainly in the cases in which I have had some involvement, the government has accepted that phrase I just read as the appropriate standard of proof. If the bill in its present form is passed, there is room for the courts to conclude that Parliament believes that the present standard that I just read is perhaps a little too high and wants it weakened. I do not know if that is of any assistance.
Senator Andreychuk: One other area that troubles me is the blending of citizenship and immigration. Every time we mention citizenship, we seem to be talking about immigration, naturalization, denaturalization, and revocation. I know that when Bill C-63 and other bills were before us, some groups came forward to say that at least a preamble that talked to all of us as citizens should be included. Have any of your organizations considered that, or are you simply looking at the areas of the bill with which you disagree? Are we missing an opportunity to bring the naturalized citizens and the native-born citizens closer together through some statement in the preamble?
Mr Otto: It seems to me that it would be a pity to leave the clauses on revocation the way they are, and contradicting a preamble. I have discussed this with people from the Latvian National Federation, and yes, a statement that Canadian citizens are equal, that Canadian citizenship is a precious thing, far more precious than mere money, would be a wonderful thing. However, it would be a pity to contradict it with something that made some kinds of citizenship far less equal than others.
The Deputy Chairman: It is true that the preamble does not have the same force as the body of the statute, but it is still very useful in the case of citizenship or immigration because it concerns the whole state, the whole federation, at the same time on the same level. I understand that nobody would object to that.
Mr. Czolij: Obviously, a preamble would help. This bill seems to put more emphasis on how to revoke or to annul citizenship than on telling all Canadians the value of Canadian citizenship. Although clause 12 of the bill states that a citizen, whether born in Canada or not, is entitled to all rights, powers and privileges and is subject to all obligations, duties and liabilities to which a person who is a citizen at birth is entitled or subject, and has the same status as that person, once that is said, one flips a page further and looks at clauses 17 and 18 and sees that one individual can annul one's citizenship if that individual is of the opinion that the citizenship was obtained by using a false identity.
We have heard from the Department of Immigration that clause 18 deals with clear-cut cases. I do not see a substantial difference between clause 18, which allows the minister to annul a citizenship obtained by an individual using a false identity, and clause 17, which says the minister can make a report if a citizen obtains citizenship by false representation.
The situation is even more troublesome when one looks at subclause 44(1):
Anything that is required to be done or that may be done by the Minister under this Act or the regulations may be done on behalf of the Minister by any person that the Minister, in writing, authorizes to act on the Minister's behalf, without proof of the authenticity of the authorization.
That means the minister can delegate to anyone the power to annul the citizenship of a Canadian. That is troublesome.
The Deputy Chairman: This point has been raised before. Do you disagree with that?
Mr. Czolij: I find it stunning, especially in view of subsection 6(1) of Bill C-31, dealing with refugees and immigrants:
The Minister may designate persons or classes of persons...to carry out...powers and duties...
However, powers dealing with public interest and other such broad discretionary powers may not be delegated by the minister according to subclause 6(2).
Bill C-16 does not curtail the minister's powers of delegation, even for the very broad powers provided by clause 18.
Senator Andreychuk: You are making the point that a due process and an objective standard would be better than a ministerial power, if I can use that in a broad sense. Do you think that the Charter of Rights and Freedoms is being violated by denying the right of appeal in this clause?
Mr. Doody: The Federal Court of Appeal, in a case called Luitjens from about 10 or 12 years ago, held there were no Charter rights at issue in this process because the factual determination by the trial division on a reference from the minister does not affect any rights. It is simply a recommendation. The Governor in Council is the body which makes the decision affecting rights.
I have significant difficulty with that analysis. I can certainly tell you I had difficulty explaining to my clients why their rights were not being affected by this process, but that is the state of the law right now. That does not mean that will not change or that the process whereby the Governor in Council makes these decisions behind closed doors will not change, because the decisions affect Charter rights.
Under section 6 of the Charter, a citizen has the right to enter and leave Canada. If the end result of this process is to deprive one of one's citizenship, then it takes away a right guaranteed by the Charter. I would have thought that the process -- certainly a process behind closed doors in which the Governor in Council makes the ultimate decision -- raises concerns under sections 6 and 7 of the Charter.
I have not done a lengthy analysis, but the current state of the law is that the present process, up to the end of the trial division decision, does not raise Charter issues.
The Deputy Chairman: The delegation, we are told, is strictly necessary because of the number of requests. In other words, one human being could not dispose of every request because there are too many. However, it is true that this delegation is expressed in very broad terms. The minister may designate or identify a person. The language is not very precise.
Mr. Czolij: Mr. Chairman, unfortunately on this point the Federal Court of Appeal is consistent. In the case of Katriuk, the court said in December 1999 that section 7 of the Charter cannot be invoked because the finding of the Federal Court Trial Division is only a preliminary finding which may later form the basis for a decision by the Governor in Council to revoke his citizenship. The Supreme Court of Canada has denied leave to appeal from that decision.
The Deputy Chairman: That is because the cabinet has such a power?
Mr. Czolij: It is probably extremely simple to review a cabinet decision, especially if the individual will probably not even be entitled to attend the session which will ultimately decide whether his Charter rights have been violated or not.
Mr. Doody: It is, by any standard, a procedural quagmire. It is a complete morass procedurally. I do not understand the policy justification for it. It would be so simple, as someone suggested, to make the court the final determinant, get the court to take away the citizenship, and provide for a right of appeal. That is the way we do everything else.
The Deputy Chairman: Since the beginning, we have had two paths, one before the court and a second before the minister. Historically, that is so. We are told that was done because of some elements which have nothing to do with law but may have something to do with politics or national security or other such factors.
Whether this is precise enough for the courts remains to be seen. It is like the definitions of "national interest" and "public interest." We consider the terms to be vague. If we do not define the terms in the statute, the courts will do so in our place.
What is the best policy? Should we define these terms in the statute or leave them for the courts? My first reaction is that we should be more precise in the statute.
Mr. Doody: The courts will not do it unless there is a right of appeal. Instead, individual judges at the trial division will give their views, with no opportunity for the appellate courts, nor the Supreme Court of Canada, to fix things. You will have a multitude of different views.
Historically, this revocation originated with a tribunal of some sort. I think it was the Registrar of Citizenship who conducted a hearing to determine whether citizenship was obtained by false representation. In 1977, when the present Citizenship Act was passed, that power was given to the Federal Court, perhaps by a sort of slip and a miss. That is my hunch. The Federal Court was given the power because there had been no appeal from the decision of the registrar, which could be judicially reviewed.
The same thing happened with the language in 1977. It is lost in the mists of time; that is my guess.
Mr Otto: As for cabinet's consideration of the political issues, the decision to make a notice of revocation by the minister is probably, to some extent, a political decision anyway. I can imagine that it might very well be considered in cabinet in the first place. A review of the end result from the Federal Court would be merely returning full circle to its political point of origin. That is the impression that one gets.
Our proposal would be to take the power of revocation out of the Citizenship Act entirely. It should not be considered material fraud if someone were to say that he is a tailor when he is a professor in order to fit under the tailor quota. Making material fraud a criminal offence under the Criminal Code with denaturalization consequences would depoliticize this. That seems like a good idea to the Latvian National Federation of Canada. The process is too political at the moment.
Mr. Czolij: Mr. Chairman, I said sarcastically that it would be very simple to review a decision by cabinet. One of my reasons for saying that is that subclause 17(3) states that a decision of the Federal Court on the findings of fact are final. It would be very difficult to review anything that the cabinet ultimately decides once the minister reports to cabinet and attaches to that report the final decision of the Federal Court Trial Division. That is one of the reasons that Mr. Doody had said initially that under clause 17, an individual who has lived in this country for 20, 30, or 40 years may have his or her citizenship revoked by a decision of one individual. People would know that had they been before another individual, another judge of the Federal Court Trial Division, they may have won their case. It is amazing that such a person would not be in a position to present that to a Federal Court of Appeal.
Mr Otto: It seems contrary to the principles of fundamental justice guaranteed in section 7 of the Charter.
The Deputy Chairman: We have had that debate since the beginning. Some people say that citizenship is not a fundamental right. If it is, the last word should be with the courts. I have no problem with that if it is a fundamental right.
Senator Moore: Citizenship is not a fundamental right. It is a right to appeal the decision.
The Deputy Chairman: I am in favour of a right to appeal, but I have been educated that way because of my law course. However, some say that is not entirely legal. It is legal and political at the same time. I would feel much better if the right of appeal was possible in all cases.
Senator Andreychuk: You are saying that it is trapped under the Charter, and that we can discuss it. Also, I think that we are entitled to look at whether it is good public policy. Is this what we want in Canada? Does it serve us as citizens, all of us, to have a system that we could not hold up to scrutiny as being visible, transparent, fair and just, if it is done without the kinds of appeals and due process that we have represented?
The minister said it has been there since 1977. That does not mean that all the governments before us were right. We tested something. If we now have some experience that it is not in our public interest, and if we have not matured as a society, we must look at it. There is the legal end, but there is also a public policy issue at which we must look.
My final point is that we are trying to correct problems of immigration in the Citizenship Act. We do not have sufficient officers, time and resources to do the scrutiny that is necessary and desirable when we let people into our country. We seem to be using particularly section 18 to clean up what we did not do right in the first place. We continue to hear how understaffed the immigration sections are around the world.
Mr Otto: It is certainly true that in the 1940s and the 1950s, Canadian immigration officials in Europe, and particularly the RCMP security branch personnel charged with screening potential immigrants, were completely inadequate, in my opinion. I am speaking as a historian who has done some research on this. There is no way that they could have processed the hundreds of thousands of people who came to Canada in any manner nearly as thorough as the government is now alleging.
There is a serious gap between a high-minded policy and completely inadequate means. It is clear that with all the turmoil and the accusations flying around that scrutiny of people's desirability is completely inadequate.
Mr. Czolij: I would like to answer your question slightly differently from Mr. Otto. Mr. Otto announced that he is neither Latvian nor a lawyer. I am Ukrainian-Canadian and a lawyer, so I have two strikes against me.
Canadian citizenship is not a right, it is a privilege. In order to give any meaning to clause 12, which says that naturalized Canadians have the same rights and obligations as Canadians who were born in Canada, one must ensure that an individual who has lived in Canada for 40 or 50 years knows that the process will be fair. That is essentially the message that all of us have brought to you today.
The Deputy Chairman: It is impressive.
Ms Tabar: I just want to make an additional comment. I am not a lawyer either. I am recently out of grad school.
We represent a community in which many individuals have been misinterpreted due to their political affiliations. To address your comment that it is not just a question of problems with the immigration system and the screening of new citizens into Canada, it is sometimes misinterpretation of previous actions that we must consider.
Once individuals have been granted this important privilege of becoming Canadian citizens, we do not want to take away from them the right to have an opportunity to defend themselves, with full access to the legal system. This is very important.
An individual must have the opportunity to take his case to the next level, to appeal, if this act is in place. The right to appeal is also important to us. The right to appeal is essential.
The Deputy Chairman: We have another panel. I wish to thank you on behalf of all of us.
Our next witnesses are from the Canadian Polish Congress and from the German-Canadian Congress.
Mr. Andrzej Garlicki, Senior Vice-President, Canadian Polish Congress: I fear that whatever I say will be a repetition; nevertheless, I can assure you that the notes I have in front of me were written a few days ago, not during this committee.
I will say a few words about the background leading up to Bill C-16. The issue of war criminals has been on the public agenda for a number of years. In 1985 the federal government established the Deschênes commission. The commission held hearings in Montreal, where presentations were made by the Jewish community as well as by the Central and East European communities, predominantly the Ukrainian-Canadian Congress. While the Jewish community representation dealt only with the prosecution of Nazi war criminals, the Central and East Europeans wanted the mandate of the commission to be expanded so that they could deal with communist war crimes during and immediately after the Second World War. In the end, the commission dealt only with Nazi war criminals.
The commission found that there were Nazi criminals residing in Canada, and that they should be prosecuted by the criminal justice system. Only one prosecution was successful, that of a Dutch collaborator who lived in Vancouver. He was deported to Holland. The prosecution of a Hungarian gendarme, who participated in the deportation of Hungarian Jews to concentration camps, was unsuccessful. After two trials, he was acquitted.
Not long ago, in 1996 or 1997, the then Justice minister instructed the department to deal with alleged Nazi war criminals not through the justice system, but through the denaturalization and deportation process. Since not enough evidence could be produced to prosecute through the courts, the Ukrainian and German communities made presentations against this process.
Bill C-16 seeks to legitimize the use of administrative methods to strip Canadian citizens of their citizenship. Bill C-16 goes too far in its proposed form. Politicization of the process of denaturalization and deportation occurs through allowing the Minister of Citizenship and Immigration to be both the prosecutor and the judge. The decision to proceed with denaturalization and deportation will be made through administrative means by the minister -- the prosecutor -- and the final decision to strip the individual of his or her citizenship by that same person -- the minister -- who will be the judge.
There is one key thing in the life of a nation, and that is to make sure that the rights of citizens are protected by the courts in our land, and that those rights are not subjected to the capricious elected. That recent statement by Prime Minister Chrétien formulates the prerequisite condition asserting the rights of Canadian citizens.
The Canadian Polish Congress supports, in principle, the need to revoke the citizenship of persons who obtained it fraudulently. The congress, however, is troubled by the proposed changes to the Citizenship Act regarding citizenship revocation. The congress feels that the proposed changes presently before the Senate, if approved, will be in contravention of the Charter of Rights and Freedoms. The congress fears that the proposed changes are politicizing the process by giving the Minister of Citizenship and Immigration the right to decide who obtained Canadian citizenship fraudulently. Since fraud is a criminal offence, it should be a court decision to charge an individual with that offence.
The congress is of the opinion that the time limit of 30 days from the date of the decision to contest the revocation does not give sufficient time for an individual to respond properly.
Rights and obligations of citizens are clearly formulated in clause 12 of the proposed Bill C-16:
A citizen, whether or not born in Canada, is entitled to all rights, powers and privileges and is subject to all the obligations, duties and liabilities to which a person who is a citizen at birth is entitled or subject and has the same status as that person.
Personally, I believe that a dreadful thing has transpired with Bill C-16, namely two classes of citizens in Canada. Keeping in mind that the congress feels the decision of one judge of the Federal Court Trial Division, without possibility of an appeal, does not constitute a legal process. Moreover, when the Minister of Citizenship and Immigration is responsible for recommending to cabinet the revocation of citizenship without full recourse to the court system, the process is thereby deeply flawed.
In conclusion, the Canadian Polish Congress proposes that Bill C-16, as passed by the House of Commons, be amended to ensure that only the courts decide on revocation of citizenship. In addition, the process of appeals should be enshrined in the bill to allow individuals to appeal the decision of the Federal Court Trial Division to the Federal Court of Appeals and/or the Supreme Court of Canada.
If clause 12 of Bill C-16 holds, then all of the other paragraphs contradict that clause, or vice versa.
Mr. Dietrich Kiesewalter, Director, German-Canadian Congress: I appear before you on behalf of the German-Canadian Congress, Ontario Division.
Many of our members came to Canada in the second half of the last century. Before admission to Canada as immigrants, the backgrounds of the people were investigated by Canadian officials in accordance with the stringencies of Canadian immigration regulations under the Citizenship and Immigration Act. To fully participate in the building of this, their chosen country, they became Canadian citizens. That meant fullest possible integration into Canadian society, with all rights and responsibilities. Among these rights are full enjoyment of protection under the law and the resources of the Canadian legal system.
Honourable senators, Bill C-16 is an important document to which a great deal of work has been devoted. However, as others appearing before you have argued, we have grave concerns about certain provisions, in particular clauses 16 and 17, dealing with the revocation of citizenship.
It is our submission that the bill appears to provide Canadians who came here by choice, i.e. naturalized Canadians, diminished rights compared with both native-born Canadians and even non-Canadians living here as illegal immigrants. This is in contradiction of the stated rights in the existing Citizenship Act, according to which, citizens "whether or not born in Canada" have the same rights and obligations.
The proposed legislation could render naturalized Canadian citizens stateless and, in effect, refugees under international law. This is not on the basis of any guilt proven, but because of a Federal Court finding on the basis of the much lower standard of balance of probabilities.
The Prime Minister of Canada recently stated that there is one thing key in the life of a nation: to ensure that the rights of the citizens are protected by the courts in our land and not subjected to the capricious elected.
Mr. Joachim Moskou, Representative, German-Canadian Congress: Honourable senators, your chamber is so often referred to as the House of sober second thought. We believe that there are two choices before you: to adopt Bill C-16, and thereby potentially deny some Canadians their full constitutional rights, or to send the bill back to the other chamber for remedial action to ensure that all Canadians have equal rights and protection under the law.
If we may be allowed a more personal comment, given the circumstances of our origin and because we belong to a particular generation, Mr. Kiesewalter and I are exceptionally sensitive to the issues before you. We grew up in a country that, for a period of years, effectively built inequality into its entire state system in terms of legal remedies and protections, security of the person, and access to services.
In short, the country in which we grew up had created a multi-tiered system in which rights could be denied and where arbitrary decisions based on flagrant violations were the rule rather than the exception.
Honourable senators, we are not comparing two fundamentally different systems, but it is our humble submission that there can be a slippery slope and we have seen it. Therefore, we urge you to seriously weigh the ultimate consequences implied in the present wording of the bill.
We thank you for this opportunity.
Senator Pearson: You have raised similar questions to the other panels of witnesses that have appeared. I have been thinking about those issues as I have been listening to people reflect upon them.
I am interested in the quotation that two of the groups have used. One of the points that the minister made to us was that if you leave everything to the judicial system, things will be decided by a process of law, whereas when you have ministerial discretion, you can allow compassion and other humanitarian concerns to be considered.
When all of you argue for the rights of appeal, perhaps you are underrating that particular aspect of ministerial discretion and responsibility. The sense is that ministers and the cabinet must live with the political consequences of their decisions; the judiciary does not. I think ministerial responsibility is a good safeguard in our system in that sense. Could you comment on that?
Mr. Moskou: The Crown, in this case, would almost be usurping a role that the judiciary needs to play before the Crown ultimately acts. The Crown is the ultimate court of appeal. Here the Crown appears to be almost invading a field where the judiciary should first be used to exhaust all possibilities and avenues. Indeed, the bill should be as precise as possible, so that the judiciary can do its full duty.
Senator Pearson: Having come from a background in the foreign service and having spent some time in Moscow, I am conscious of some of the inherent difficulties in security issues and how much of that should actually be handled within the court system and how much of it should be handled within the protection of a cabinet decision.
Mr. Moskou: You do have a system for annual reviews within the CSIS legislation. That is a mechanism that can be employed before the Crown, or in this case the minister, makes a determination as to whether there is an ultimate security risk. Is that not right? Does the chain not go from CSIS to the Crown for ultimate determination?
Mr. Garlicki: I would like to quote my own case as a good example. I strongly believe there are hundreds of similar cases. I have been in Canada for 48 years and I got my citizenship papers in 1957 -- a long time ago, probably before some of you people arrived here.
I am not a lawyer, but I am a scientist. I am an officer of the Canadian Armed Forces. During the war I served with the British army. During the course of my work, I was involved in some security matters, both military and scientific. I am also a member of the Order of Canada. If I were to do anything wrong, I would be treated as a second-class citizen. Is it right that I would be treated in such a fashion by a minister and not dealt with by a court? I cannot understand this.
I can assure honourable senators that there are hundreds of cases similar to mine in this country. I speak on behalf of all of them.
Senator Pearson: I do not understand what you could do wrong that would bring you into such a situation.
The Deputy Chairman: Could you offer an example?
Mr. Garlicki: If I were working for a foreign country and I brought disgrace to this country, should I be judged by the Minister of Immigration or by the court? May I have your answer?
Senator Pearson: It seems a bit extreme.
The Deputy Chairman: As a supplementary, could you be deported for something that you did after the citizenship had been conferred? I do not think so.
Mr. Garlicki: I do not know. I am not a lawyer.
The Deputy Chairman: My expert at my right says that it is impossible.
Mr. Garlicki: Is it possible?
The Deputy Chairman: It is impossible.
Mr. Moskou: With respect, Mr. Chairman, is it not possible to invoke the example of an elected Member of Parliament who, upon conviction and having served time at Kingston, was indeed expelled by Canada? That is Fred Rose, Member of Parliament from Montreal. He was a Canadian citizen, born in Poland.
He was put on trial and then sentenced. He served a little time at Kingston. His citizenship was revoked and he was deported to Poland, his native country, with his Canadian-born wife, where he died not so many years ago.
The Deputy Chairman: What was the reason for his deportation?
Mr. Moskou: The allegation was that he was involved in a national security case.
The Deputy Chairman: After he came to this country?
Mr. Moskou: He became a citizen. He was elected to the House.
The Deputy Chairman: If you say that, it must be true. However, the issue now is that, apparently, that is impossible.
Senator Finestone: Fred Rose was from my city. He left voluntarily. His citizenship was only revoked after he had been away for more than seven years, which is what the law provided for. He was gone from this country for over seven years before his citizenship was revoked.
The Deputy Chairman: I want to be fair. I am just trying to ascertain the facts.
Mr. Moskou: I believe that the late Mr. Rose would dispute the contention that he left voluntarily. Certainly, Mrs. Rose disputed it to the end of his natural life.
Mr. Garlicki: Mr. Chairman, there were some cases, especially after the war, where some people, former citizens of the then communist-dominated countries, could not go back to their own countries. Now it is slightly different; but until the late 1980s, that was the case. How could a minister deport a person to a country where it is certain that he would be prosecuted for some other offences against a communist regime?
Senator Fraser: As I read the bill, the only ground on which a naturalized citizen could be deprived of citizenship for something done after it was granted is national security. It seems to me that by its very nature, national security has always, and everywhere, raised difficult questions of secrecy and of conflicting rights -- the right of a country to protect itself and the right of its citizens to due process.
The decision would be made by a retired judge and the person in question would be notified that this was happening. The retired judge would have to report to the Solicitor General -- basically Parliament. The Solicitor General would have to respond to the report within two weeks of receiving it.
The need for some such provision is real, especially in more modern times. For example -- and I want to be very careful how I phrase this -- there have been suggestions that there are people in Canada, I believe Canadian citizens, who may be involved in an international conspiracy network that led to the deaths of hundreds of people in the bombing of an aircraft. Surely, somewhere along the line, when the national security of Canada is at risk, such persons, or persons engaging in even worse activities, ought to be deprived of the rights and freedoms that they have acquired as citizens of this country.
Do you agree with that basic proposition?
Mr. Garlicki: Yes. My question is whether a person who gained citizenship at birth would be subjected to the same judgment of the retired judge of the Supreme Court.
Senator Fraser: Clearly, the answer to that is no.
Mr. Garlicki: My point is that there are two classes of citizens.
Senator Fraser: I appreciate the point you are making, and one can only begin to address it with great delicacy, prudence, and substantial misgivings. Yet I cannot conceive of a country anywhere in the world that would not retain this power in some form. We know that there are people who seek a citizenship of convenience. That is because they can use this country as a base for activities in which we do not believe they should be engaged. They may not even lie. They may not even obtain their citizenship through false representation, which would be the other ground for depriving them of it. Should we be stuck with them for ever?
Mr. Garlicki: Would their children not be citizens at birth?
Senator Fraser: I believe that the revocation would not apply to children born in Canada, would it?
Senator Andreychuk: This is a troubling issue. If it is a national security issue and someone is really threatening Canada, then we are not acting under clause 17, as I understand it, but clause 28. That is when CSIS and the Royal Canadian Mounted Police become involved. National security goes back to clause 28. Forms of scrutiny have been built in. What separates Canada from the rest of the world is that we have committees overseeing CSIS and the Royal Canadian Mounted Police, as well as ombudsmen. It is not a purely bureaucratic act. We know that those systems work. We know that people make sure that they work.
Does the unease come from the fundamental fact that if born here you are here, but if you come here you can be removed? Are you arguing that you should not be removed, or are you arguing that if you are going to be removed, there should be some judicial scrutiny of the process?
Mr. Garlicki: I think that a Canadian citizen, whether by birth or naturalization, should receive the same treatment for the same offence. That is my point. Therefore, we will have two classes of citizens.
Senator Finestone: You mean that they should both be subject to the same criminal court proceedings and criminal charges.
Mr. Garlicki: Exactly.
Senator Finestone: You are saying that if you have only been here for up to five years, then you can go the other route. However, if you have been here 25 years --
Mr. Garlicki: Then there should be a time limit set on it.
Senator Finestone: I understand the discomfort. We have been hearing it from everyone who has appeared here. I find that most regrettable. However, there is no question that if you are born in a country you are a citizen of that country, wherever it is. Since Canada is a land of immigrants, perhaps we have to have more stringent or more discomforting rules and regulations than other countries. I understand and appreciate what you are saying. However, that does not change the fact that one accepts certain rules and regulations of behaviour which go along with becoming a citizen of a country. When you say, "I want to be a citizen," you have to fulfil the criteria. If you do not, then you have the right to say "goodbye."
I think that was Senator Fraser's point.
Senator Andreychuk: I spent 12 years as a Family Court judge, and I will use an analogy from that experience. We said for years and years that whether children were adopted or were natural children, we should treat those children the same and give them all the same rights and responsibilities. We discovered that that was not true. An adopted child faces different issues from a natural-born child. The adoption laws try to minimize those differences where they are unnecessary. It would seem to be the same here. Whether I am born in Canada or elsewhere, I would hope that the law would try to bring us together as much as possible and treat us equally. Only on those rare occasions where that cannot be accomplished will there be a different system for the naturalized citizen.
Why would you not want to have due process, particularly when many immigrants come from countries where executive action has been detrimental to them? Executive action is one of Canada's hallmarks. That is why I like the Prime Minister's statement. I believe he believes it. I believe he thinks we are an example for other people. We believe in due process and the courts. Transparency is important. We teach these concepts around the world. I hear people questioning whether we have really diminished or reduced the number of unnecessary actions that drive people apart rather than bring citizens together.
I acted for people who were trying to obtain Canadian citizenship in the 1960s. I will only admit to starting to practise law in 1967. People were repeatedly denied citizenship because of what two or three other citizens said against them. It was only until when we started to deal with rights, and highlight rights, that people obtained a fair trial and an opportunity to defend themselves.
I look at this bill and say that national security is important and must be taken into account, but are we using the most transparent and objective way of judging these naturalized citizens? If we are, then this bill is fine. If not, then let us amend it so that we do not drive a wedge between citizens and exacerbate the situation.
I hear these witnesses, and previous ones, suggesting some practical ways to avoid exacerbating their problems and their feelings of uncertainty. I am sure it is not directed at any particular bureaucrat, minister, or government. It is an unease with executive action as opposed to a legal, third-party, objective standard.
Mr. Garlicki: Would you then propose that clause 12 should be rewritten?
Senator Andreychuk: Actually, I have no problem with it. I will have to think about it again. I take clause 12 to mean that it is incumbent on the government and parliamentarians, and all Canadians, to bring citizens together and equalize them to the extent that we can.
Mr. Garlicki: I can assure you, if it is rewritten --
Senator Andreychuk: I do not want to rewrite it. I want to make sure the other clauses come as close as possible to the objective that clause 12 sets out. Therefore, I ask if we really need to have a "public interest" clause like clause 18. Do we really not need to have an appeal process? What would assure naturalized citizens that they would get a fair opportunity to defend themselves against any allegations made against them? That is the way I look at it. If that were accomplished, I think section 12 would have a lot of merit.
Mr. Moskou: Perhaps I can respond to Senator Fraser's earlier question and the point raised by Senator Finestone. Should revocation be permitted? Broadly speaking, yes of course, but in the narrowest possible sense, and this is where I come to Senator Finestone's point. Perhaps many of the people who gained admittance to Canada should never have passed scrutiny and been allowed in. Therefore, responding to Senator Finestone, I would not say that more stringent regulations are required. There should be adequate enforcement of existing legislation and regulations.
To go back to the experience of post-war immigrants like me, we were not put to the test. We would typically meet on short notice with an individual Canadian immigration officer. The immigration officers who scrutinized prospective immigrants were overworked, the apparatus was vastly understaffed, and typically the interview would take ten or so minutes for a family of five. Greater attention was paid to the X-ray shots and whether or not we were able-bodied. I have actually surveyed this a little in recent months as a working journalist, because this bill was before you. I have asked people how long their interview took. Where was it? Under what circumstances? How many people were in the queue that particular day, be it in Hanover, Cologne, or other processing centres? These were turnstile operations. This was not a careful process, with much weighing of evidence and multiple interviews. No.
However, there is this case before the Federal Court of someone who, on balance of probability, is alleged to have misled immigration officials about his doings between 1939 and 1945.
Senator Finestone: I do not think you can deny the fact that Canada gave safe haven to hundreds of people who had been actively involved in the destruction of the Jewish communities in Europe, and that today we give a kind of safe haven to people who were involved in crimes other than in the Nazi era.
By the way, I want to correct something you said, Mr. Garlicki. Both Mr. Matas and Mr. Silverstone talked about the war crimes issue as universal, and not just involving Nazi Germany.
I would say that this country, in its naiveté and with its population explosion, did not have either the experience or the knowledge to handle the situation. You have just said that that is what you found in your research. That being said, there are people here now, and people coming from other countries of the world, who are not welcome to share our neighbourhoods. We need some mechanism.
Arguments have been made that the denial of an appeal of the Federal Court Trial Division initial decision violates the Charter of Rights and Freedoms. In December 1999, the Federal Court of Appeal rejected this contention. They said the Federal Court Trial Division only made a preliminary finding of facts, not final decisions, and thus did not threaten the Charter rights to life, liberty and security.
Last month, the Supreme Court of Canada denied leave to appeal this case, and one assumes, in the absence of reasons given, that the Supreme Court found no compelling national interest in hearing the case. That is an important point to remember. There is also the point that there is due process in meeting the stringent standards of fairness in Canadian law. The trial of an accused at the Federal Court Trial Division is a fact-finding procedure, with all of the built-in mechanisms for due process in the pursuit of justice.
Now there seems to be a difference of opinion as to whether that is fair process and due process. However, the Federal Court did make this decision, and although no appeal could be taken from it, there was a sense that defendants had sufficient avenues of review to pursue following a determination of fraudulently obtained citizenship.
I believe you are looking at a small group of people in Canadian society who have come here to abuse the right of citizenship, and you and I do not want them to have such free rein.
Senator Fraser: The fundamental concern that most of this afternoon's witnesses have raised is the revocation of citizenship on grounds that it was fraudulently obtained. I am not talking about national security, I am talking more generally about "fraudulently obtained," and the assumption that it is wrong not to allow an appeal from the Federal Court's finding. Allusion was made to this in some of the material referred to by Senator Finestone, and is part of my understanding of how the law works, which is why I hope you are the right witnesses of whom to ask this question.
My understanding is that in the judicial system, one appeals only on questions of law, and that the first court's finding on matters of fact is taken as standing by superior courts. We would be asking the Federal Court Trial Division to establish facts. Was there or was there not misrepresentation? Then the cabinet could decide to revoke citizenship or not, which would allow for some discretion on humanitarian or similar grounds. Therefore we could just say that we know there was fraud, but you are a good person and it was not a serious fraud so we will keep you anyway.
I do not understand why a lack of appeal on grounds of fact is an abuse of the judicial system, or am I just completely wrong in my understanding of how the law works?
Senator Finestone: I wanted a clarification of that, too.
The Deputy Chairman: Could you repeat the last sentence?
Senator Fraser: If the Federal Court Trial Division is only examining facts, then why is it an abuse of our system to say there is no appeal from that? The Federal Court is only looking at facts, and we do not normally appeal on facts, do we?
The Deputy Chairman: There is no such thing as "facts only." You may have fact-finding commissions or a fact-finding judge. When you go before the court of first instance, everyone may agree on the facts and then disagree on the law. The court usually has the power to do more than mere fact-finding.
Senator Fraser: False representation, fraud, knowingly concealing material circumstances -- that sounds pretty factual to me. Was it or was it not a lie?
Senator Finestone: Does not the word "fact" cover content and substance? It does to me.
The Deputy Chairman: I like the distinction between the facts and the application of the law. If everyone agrees on the facts, that is good.
Then you apply the law, and of course mistakes may be made. That is why we have a Court of Appeal. Even the Court of Appeal may be wrong; therefore, we have the Supreme Court. The Supreme Court is right because it is the court of last resort. They are inviolable because they are the last resort, but we accept that system.
The issue of the ministers raises a political element; that is "political" in the right sense of the word. We have two systems. Is it good or bad? Well, it is there, and I do not think we want to entirely get rid of the appeal to the ministers. It may be useful. That is my reaction, but it is only an opinion. You say that a Canadian-born citizen can never be stripped of his or her citizenship, but a person who has acquired citizenship may be stripped of it in certain circumstances. This is against the law of equality.
Mr. Kiesewalter: There is no question.
The Deputy Chairman: It creates two different treatments. Suppose I am born in this country and I am a Canadian citizen from the beginning. I do something terribly wrong, such as participate in treasonous acts. Can I be stripped of my nationality? Never. However, in the other instance, I can be stripped of my nationality.
Senator Finestone: Let us consider the situation of Canadian citizens who live in another country, or are the children of Canadians working overseas in any one of a number of countries and who have dual citizenship. If these people acted in a subversive, fraudulent, or inappropriate way in that other country, they could stripped of their citizenship or their right to stay in that country, and shipped back here, if they are lucky, and not shot first.
The Deputy Chairman: Who may strip them of their citizenship?
Senator Finestone: If people have gone to work in another country. They may be second generation, integrated into that other society, and empathetic to the people's struggle in Tibet or in Laos, or another country that is fighting over two different political and ideological philosophies. These people have become part of that society. They may be caught up in the fervour of youth and excitement about change and new democratic processes, but they are not democratizing those countries.
If they were in China and standing in Tiananmen Square, they were being shot as Canadians who were living there, or if they were in Tibet or Burma, they were in trouble there too. However, if these people get caught, they could be sent back to Canada. I can guarantee you, though, that they will not be sent back to Canada; they will probably receive much harsher treatment.
The Deputy Chairman: A Canadian-born citizen can never be stripped of his or her citizenship.
Senator Finestone: No.
The Deputy Chairman: A person who has acquired citizenship can be, in some circumstances, and you say this is against equality before the law.
Mr. Kiesewalter: We do not argue against revocation of citizenship if it was obtained under false pretence. No one objects to this. It is a matter of whether it should be a political decision, which in this case it will be No one has anything against revocation of citizenship if there is substantial proof that it was obtained under false pretences.
The way this bill is written, it will be a political decision made by cabinet. You cannot appeal to cabinet; you cannot appear in front of cabinet. It is very different from a court, where evidence is collected upon which a decision is based, and then there is a right of appeal.
The Deputy Chairman: How do you interpret clause 12? It reads:
A citizen, whether or not born in Canada, is entitled to all rights, powers and privileges and is subject to all the obligations, duties and liabilities to which a person who is a citizen at birth is entitled or subject and has the same status as that person.
I like that.
Mr. Kiesewalter: The bill contradicts that.
The Deputy Chairman: You are arguing that clause 12 is contradicted by other clauses?
Mr. Moskou: If I may, with respect, the greater difficulty is that, were Mr. Garlicki and I to commit this heinous crime, we would, as individuals, be in an even more complicated situation, because while Poland will always take him back if need be, Germany need never take me back. Once I am a Canadian, I am a Canadian only. I am not like the Swiss and the French, who enjoy eternal dual citizenship. A German can be cast into some netherworld and have to fall on the mercy of the Crown.
Mr. Garlicki: Mr. Chairman, if my citizenship is revoked because I obtained it fraudulently, what happens to my children? Are they still citizens at birth?
Senator Fraser: Yes, I believe they are.
Mr. Garlicki: Even though my citizenship was taken from me?
Senator Fraser: If you have been living here and your children were born here, I do not think their citizenship can be revoked.
The Deputy Chairman: The witness said that if citizens who were born in Canada do something wrong, they may be put in jail, but they will never lose their citizenship. People not born in this country, who have acquired citizenship, may be stripped of it.
This, in your opinion, is against equality before the law. I understand your argument.
Senator Andreychuk: The point is that there is also discretion. If a citizen born here, and a citizen who was not born here, commit the same offence, the first goes through a judicial process and the other goes through an administrative process for the stripping of citizenship, which is not necessarily under the act, although it could be.
The Deputy Chairman: In other words, I would fall under the Ontario court system. The citizen who was not born here would be at the minister's discretion.
Senator Fraser: The other process is not quite as arbitrary as that. The other process is carried out by a retired judge, who is given quasi-judicial independence while he serves. He must report to the Solicitor General and to Parliament. That is the only ground upon which you can lose your citizenship, other than having obtained it fraudulently.
Senator Andreychuk: Even if you have obtained it fraudulently, it is taken from you by an administrative act. If there is now discretion as to whether to take someone to a criminal court or to strip them of their citizenship, that is an important thing to bear in mind.
Senator Fraser: Apparently the national security provision only applies to the granting of citizenship, not to the revocation of it. Therefore, I withdraw in confusion, and I think perhaps, sir, you should too.
Senator Finestone: What article are you referring to?
Senator Fraser: I refer to subclause 23(2), which deals with national security concerns. It reads:
...any person who, in the opinion of the Minister, should not be granted citizenship, take the oath of citizenship or be issued a certificate of renunciation...
In single-syllabic words, this is saying that you cannot lose your citizenship just because you committed a crime after you became a citizen.
We could read the French version for further certainty. I confess that I have only read the English version.
The Deputy Chairman: That is very interesting.
Senator Fraser: The French is frequently clearer.
The Deputy Chairman: Do we conclude that once you have citizenship, you can never lose it due to the commission of a crime?
Senator Fraser: No, you can only lose citizenship if you gained it fraudulently in the first place. We know that. This is the national security clause.
The Deputy Chairman: If citizens born in Canada commit a crime today, they do not lose their citizenship. Are you saying that if someone who has obtained citizenship commits the same crime today, they do not lose their citizenship?
Senator Fraser: That is right.
Senator Moore: I might go to jail for committing treason, but I will not lose my citizenship, while those other fellows will.
Senator Fraser: The researcher is saying no, and I think the researcher is right.
The Deputy Chairman: This is what we need to settle.
Senator Fraser: Maybe we need to have the officials in.
The Deputy Chairman: We will bring back the department officials and ask them that very question.
In my opinion, this is the most fundamental point of the day. If those persons will not lose their citizenship, that is the end of it. There is equality before the law.
I think we will conclude at this stage. We have exceeded our time, but it was a fascinating discussion.
I wish to thank you very much for your collaboration.
The committee adjourned.