Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 24 - Evidence
OTTAWA, Thursday, October 19, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, respecting Canadian Citizenship, met this day at 10:53 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: Honourable senators, what I like to determine from honourable senators, to attempt to bring some order into what quite likely could turn into chaos here, is which clauses we wish to discuss in detail, or perhaps to propose amendments with respect to. So far on my list, I have clauses 2, 16, 17, 18, 21, 22, which also includes 27(3), and 24. There has been some talk about the oath and some talk about a preamble.
If honourable senators are agreed, we will take one clause at a time, although I know that Senator Beaudoin must leave at 11:30.
Senator Andreychuk: I did not think we were filing amendments.
The Chairman: We are not. I have been handed amendments that at least one of the members would like to propose, but I would like to leave that as a discussion and append them to our discussion today.
Senator Kinsella: Your order, Madam Chair, is perfectly agreeable. I simply wish to request to add clause 1.
Senator Cools: Did I hear you say that the oath itself is a schedule, that it is not a clause?
The Chairman: It is in the schedule, at the end of the bill.
Senator Cools: What I heard was a list of the clauses; and I did not hear a schedule.
The Chairman: Yes. I am at clause 16, 17, 18, 21, 22, 23.
Senator Grafstein: I have 27.
Senator Poy: Clauses 6 and 30. I think all the other ones have already been mentioned.
Senator Grafstein: I have clauses 27, 28, 34, 58, 60, 63 and 64. I will table them all, Madam Chair.
The Chairman: As the list of clauses is expanding, it would probably be easier if some honourable senators are prepared to table their remarks or amendments.
Senator Grafstein: I intended to table them all. Perhaps we could table the others and then, in the goodness of time, we could come back and parse them, one would hope, more carefully. It is more difficult, I think, with senators presenting these at this time, but if everyone is intending to do so, it will give us a clear understanding of not only what they are saying but what they think the amendments should be. Then we will be able to react in a more coherent fashion.
I have a package that I am comfortable with. I only wish to correct the record with respect to one factual item that came to my attention, when I have an opportunity to do so.
Senator Beaudoin: Was it agreed that we would speak today on the substance of the amendments?
The Chairman: That is right. We will not try to word amendments by committee.
Senator Beaudoin: It is ideas; correct?
The Chairman: We will be speaking to our ideas and concerns.
Senator Cools: Therefore, I am hearing you say that the bill is essentially dying and that senators are being accorded an opportunity to place their concerns firmly on the record in the sincere hope that the ministry and the government will read them with some considerable sympathy; also, that the new Parliament, when it deals with the Citizenship Act, will heed senators' concerns.
The Chairman: That is precisely what I pointed out yesterday when you were not here, Senator Cools.
I would also like to say -- and perhaps I should say this now, while everyone is still here, rather than at the end of the meeting this morning -- that this committee has a history of fairly non-partisan debate. Consequently, it has been a pleasure to work with this committee. Because of our non-partisan approach to improving bills, we also have a record of a great deal of cooperation from the ministers of the departments that we deal with. Over the five years I have been on this committee, I can think of the Departments of Health, Justice, and National Defence, and the Solicitor General. Each minister has listened to our concerns and has cooperated in attempting to improve the legislation. Of course, part of the job of the Senate is to improve legislation for the people of Canada.
That said, I shall carry on. Do we want to talk about a preamble, to begin with?
Senator Joyal: Madam Chair, on the preamble, it raises a procedural question. Since the bill does not have a preamble, the information that has been confirmed by our law clerk is that we cannot propose a preamble to a bill that does not contain a preamble. We can propose a purpose clause, but not a preamble, as such. With that information, I will be ready to propose a draft for consideration, what could be a purpose clause, but certainly not in the form of a preamble at this point.
Of course, the drafter of a future bill may decide to put the objectives of the legislation in a preamble.
The Chairman: That is useful information.
Senator Beaudoin: Will we follow the order of the clauses?
The Chairman: Yes.
Senator Beaudoin: I have no objection, as long as we are able to address my concerns respecting clause 22 before 11:30.
The Chairman: We will certainly try to accommodate you.
Senator Kinsella: To the question of preamble, Senator Joyal is absolutely correct, as far as the bill that is before the committee is concerned. However, I would hope, and I thus wish to place on the record, that any proposed citizenship act that comes before the new Parliament will include the kind of preamble to which Senator Joyal and other honourable senators have alluded in our debate.
My vision and hope is for a new Canadian citizenship act, a brand new 2001 one, that the current one will be repealed. We have only had two citizenship acts in our history, the first in 1947 and the second in 1977. A new one would only be the third in Canada's history. We need a new citizenship act. I concur that it should have a preamble.
Senator Andreychuk: If a new act is structured, as Senator Kinsella has alluded to and some of us have talked about, citizenship meaning more than denaturalization, then I am all in favour of it. I thought Senator Grafstein had a compelling argument yesterday that if proposed legislation is really about denaturalization and aspects of how individuals become Canadian citizens, for those who were not born on this soil, then we have a real problem, even in a preamble of defining what citizenship is. I want to put on the record that that is the wrong way to go about it. My preference is for a new act, an act that speaks globally to us.
Senator Grafstein: Just on a small factual matter, we were told that some 20,000 Canadian citizens were born outside the country. I received a letter, which I will send to the committee, from the Mennonite society. I think others received it as well.
The Chairman: Several copies of it, from different societies.
Senator Grafstein: If the number were 1,000, we would ask why we need the amendment. The number 20,000 seems to me to be more compelling as to why they should not have full notice. I raise that as a factual matter.
I agree with Senators Kinsella and Andreychuk, I think this bill came in as an amendment to clean up an existing act. We are caught by the outmoded and outdated structures of the existing act. It would be better for the ministry, if they want to come back to us, and this is the consensus that I see developing around the table, to try a fresh approach, as Senator Kinsella says, a new act that includes a preamble in which I hope would be included a statement of the specific duties of a citizen.
There would, I would hope, be some general discussion about what the responsibilities of citizenship would entail. In that way, we can bring more certainty to what we are talking about when we talk about citizenship. The more certain we can become, the less we will leave it open to the courts to determine for legislators what should be the definition, the application and the workings of a citizenship act.
I have a raft of motions here. I intend to table them, just to allow colleagues, in the fullness of time, as well as the ministry, to see how some of us feel about particular provisions. We are not just making general statements. They will see specifically how we come at this. We will have a fulsome lexicon, section by section and chapter by chapter, of where we should go.
Senator Andreychuk: I hope the rights of the citizen is the highlight. It seems to me that throughout our discussions there has been a creeping movement to mix immigration issues with citizenship issues. Some of the ills in this proposed legislation are an attempt to correct would be better dealt with in an immigration bill, not a citizenship bill. We really want those two separated, which goes to a policy issue of a department that deals with immigration and citizenship inevitably being overwhelmed with immigration.
Senator Cools: I think we are hearing a couple of questions coming before us. I will be trying to crystallize out the different questions.
For myself, I am of the opinion that the current Citizenship Act is a lot better than Bill C-16. The status quo is better or more workable than Bill C-16. I want to differentiate between the need for a new citizenship act and the need for a better Bill C-16. What we had before us was Bill C-16, which I think the committee universally thinks is an insufficient measure. That is not to say that the committee could come to agreement as to what a totally new citizenship act should be about. I speak to the fact that I think Bill C-16 is a very insufficient proposed act. If the minister returns with a renewed Bill C-16, the problems that we had with the bill should be attended to.
I get lost in the consideration of a whole new citizenship act, because soon a whole new immigration act will be running alongside. What I think should be one of the thrusts of our concerns is that before the minister returns with a new proposed citizenship act, or even a new Bill C-16, or a new Immigration Act, Bill C-31, which is also dying on the Order Paper, perhaps the minister could look at the questions related to citizenship and those to immigration, and approach these problems with a more integrated and holistic view.
I just wanted to be quite clear today that what I am speaking to are the inadequacies in Bill C-16. I cannot countenance right now a whole brand new citizenship act, but I am prepared to say wholeheartedly that Bill C-16 is quite insufficient.
I do not know exactly what order we are moving, but I have many issues that I want to raise, particularly in respect of citizenship and the so-called oath.
It seems to me that what is needed, and perhaps this could come out of this committee today as a recommendation, is for a Senate committee to look at the whole question of citizenship. When we return in a new Parliament, perhaps a committee could study, in a more full and rounded way, the question of citizenship. That would allow us to tackle these issues in a more full way and to bring recommendations forward with an eye to new legislation at some time in the future.
For the most part, right now I think we should direct ourselves to what is wrong with Bill C-16 and try to place some limitations on ourselves that way.
How are we doing this, Madam Chairman, because I also want to speak to these problems?
The Chairman: At this point, I think we have all expressed our views on the proposed act in general, and I will start now with clause 1. We will work our way through to the oath.
Senator Kinsella: Madam Chair, in reference to clause 1, I would have been proposing an amendment that the bill be amended on page 1 by replacing the long title with "an act respecting citizenship and naturalization." This would make the point in Bill C-16 that there is a big difference between citizenship, which speaks to the 30 million of us, and the acquisition of citizenship, which is a naturalization process. They even got that wrong because the bill is more about denaturalization.
The Chairman: Are there further comments on clause 1?
Senator Cools: I concur completely with what Senator Kinsella said. If one looked to an older form of the same act, the 1946 act, it referred clearly to the questions of naturalization and the status of aliens. It was quite clear in the older, long titles that the citizenship they were speaking about within the act was in respect of the citizenship in regard to naturalization and denaturalization. That seems to make a distinction between the two.
The Chairman: In going through this long list of clauses, if everyone comments on each clause we will be here forever. Thus, I would suggest that we keep our comments as brief as possible. If any honourable senator has written material, as do both Senators Joyal and Grafstein, that material will be tabled and appended to today's proceedings.
We turn now to clause 2.
Senator Kinsella: Shall I table that now?
The Chairman: If you have something brief to say, please do.
Senator Kinsella: I think I said it. I would amend clause 1 in that way. The second part of it is that I would replace line 5 in clause 1 on page 1 with "Naturalization Act." With the consent of honourable senators, I shall table what would have been my proposed amendment.
Senator Grafstein: I see there are substantive amendments from Senator Joyal, from me and from others as well. To save time, I would suggest that we table all of them now. I will then not be compelled to comment on drafting issues, because some of them are drafting issues that relate to amendments and so on, seriatum. As well, I shall highlight only one or two of the principal issues, so I will not be taken to not having spoken to all of them. This procedure will save a lot of time. I will speak to one or two issues as opposed to the mass of things I have here.
The Chairman: I appreciate that very much. I will accept that to be tabled now, as well as Senator Joyal's.
Senator Grafstein: That is both an explanation and amendments. I must say that Mr. Narvey, who has been attending these meetings, was very helpful in drafting and advising me with respect to this -- not that I accept all the concepts he enunciated, but he has been very helpful in providing some of these provisions for me.
Senator Joyal: Madam Chair, I could certainly circulate copies to my colleagues. As Senator Grafstein mentioned, some amendments are rather of a technical nature, but others are more substantive, especially the one dealing with the purpose clause, the one dealing with the status of parties in the Senate, which refers to clause 24, the one dealing with the public interest section that we have discussed at length in this committee, and the one related to oaths.
The Chairman: We will proceed to discussion on clause 2.
Senator Cools: Clause 2 on the surface was always sort of innocuous and tending to be ignored. When I looked at the schedule in respect of section 34 of the act -- the schedule obviously is the oath of citizenship -- I discovered that the oath of citizenship is not an oath at all. I did a fair amount of work looking up the definitions of oaths. I referred to many learned documents.
When I looked at clause 2, the interpretation, to see how it defined an oath, I discovered there is no definition of the oath in the definition section of the proposed act, which is very convenient, is not it?
There are many proposed sections where the words "oath of citizenship" are used, such as clause 28. The term "oath of citizenship" can be found in many places in the bill. If you remember, in previous and earlier forms of this act, those words used to be "oath of allegiance." In the development of this process the oath of allegiance was replaced by the words "oath of citizenship," but the oath of allegiance would form the text of the oath. By the time we get to this bill there are words throughout the text of the bill that refer to the oath of citizenship, but there is no oath. An oath is not a pledge.
The interpretation, unless it is governed by another act, should include something to do with an oath. If we look at the words of the oath itself in the 1977 act, we will find the words "oath" or "solemn affirmation." The minimum that we should do is to include in clause 2 the fact that an oath includes a solemn affirmation.
The Chairman: I fully agree with you on that.
Senator Cools: Because it is not an oath at all.
The Chairman: It was rather astounding to me when I was sworn in as a senator that I could not affirm.
Senator Joyal: That is why, Madam Chair, there is an amendment that I have circulated.
The Chairman: We will get to that later on. The idea is to put a definition in clause 2.
Senator Cools: In the law of Canada, "oath" means something in particular. What we are dealing with is not the erosion of reference to Her Majesty, but the erosion of references to what oaths are. It is really quite clever and quite deceitful.
Senator Beaudoin: The oath of allegiance includes affirmation.
Senator Cools: That is what I am saying, because affirmation is the alternative to an oath. Bill C-16 needed no affirmation because it is not an oath. That is why I am saying it is deceitful.
The Chairman: Senator Beaudoin has informed me that he must leave at 11:30 and he would like to discuss clause 22.
Senator Beaudoin: It will take only three or four minutes.
The Chairman: Does the committee agree?
Hon. Senators: Agreed.
Senator Beaudoin: After having heard what has been stated again and again, I have only one amendment. Many other amendments are possible, of course. However, I am interested in clause 22(3). I do not see any valid reason why this clause should remain.
Senator Moore: Clause (3) or (5)?
Senator Beaudoin: (3):
The order is final and, despite any other Act of Parliament, is not subject to appeal to or review by any court.
This goes directly against the Constitution of Canada, because we have the control of the constitutionality of laws. We have access to courts. When you have access to courts, you have a right to appeal.
This paragraph is of no utility. It is even bad. My suggestion is that subsection (3) of clause 22 be deleted.
The Chairman: While we are speaking of this, I have a question of Senator Beaudoin. Do you think this applies to clause 27(3) as well?
Senator Beaudoin: Yes, I think it would apply, because it is exactly that philosophy that is, in my opinion, bad.
The Chairman: Thank you.
Senator Beaudoin: I do not think I have more to say, because yesterday I developed that argument.
Senator Grafstein: On that point, it strikes me that there is a question of due process, but a due process that in some sense should be limited. It strikes me that if we are going to take away the provision that there is to be no appeal, which then allows for an appeal, perhaps we need a provision that says that in the event of an appeal the appeal should be based on questions of law. I say this because at least this fulfils the Charter responsibilities. There has been a fact-finding question and then, if there is to be an appeal based on a judgment taken, at least it is limited to questions of law, which makes it much more important that we define public interest and the basis upon which a grant can be given or withheld.
If you put the two of them together, I think, Senator Beaudoin, you may want to give some consideration to the proposal that when we take the appeal, it not be a trial de novo at every level, because at the end of the day, this, to my mind, is contrary to the public interest.
Senator Beaudoin: My suggestion is very clear. I want to get rid of that paragraph, I want it deleted, but I have absolutely no objection that the right to appeal be restricted to questions of law. Yes, of course, it is implicit, but it is perhaps better, you are right, to say it. That is the substance of my proposed amendment. It is not a formal one, but I think it is clear that I do not want that paragraph to be there.
Senator Cools: Once we are moving, as Senator Beaudoin is, to say delete this, delete that, I think we will run into difficulty, even getting agreement around this table. It seems to me a better way to proceed would be to say that there are problems with this clause, and to articulate what one sees as the problems. I see the clause as having some problems, but at the same time I must tell you, Senator Beaudoin, I believe that there are certain orders of Her Majesty that should not be appealable to any court in the land. It could be a fundamental civil law-common law difference, but it does not really matter. I am prepared to agree that the entire thing is needing review. I could think of a dozen ways to improve this other than to delete it, but I think that your concern is profound and it should be heard. However, I think we should not be moving in a way where we are trying to get perfect agreement.
The Chairman: We will not be able to do that, I will tell you right now.
Senator Cools: However, the point must be made that there are certain orders of cabinet, or certain exercises of the Royal Prerogative, that are really beyond the purview of the courts. As a matter of fact, did the judges not just tell us that in the case of Mr. Black?
Senator Nolin: I have one comment on Senator Grafstein's comment. I understand his point, but while in clause 27 it is really an appeal from somewhat of a due process, in clause 22 it is not. The question of examination and interpretation of fact at least needs to be looked at from a judicial point of view somewhere.
Senator Grafstein: I do not quarrel with that. I am saying we do not want to leave the impression with the public that we are prepared to have a minister go through a fact-finding mission or whatever and then end up having trials de novo on facts all the way up, because that to my mind is an abuse of process. In other words, where is the balance between the two?
Senator Nolin: I think the problem is more on the publicity of the fact-finding by a court or a judicial process. I am sure the Federal Court can be asked to order an in camera session of the court for the purpose of protecting the interests of the country. It already exists.
On the question of having a judicial process not looking into facts because another judge would have done it, fine, because the evidence rule will be applicable to the first level judge. I would agree to that. That is why I do not have a problem with clause 27, because there is a judicial process in the bill but not in clause 22. That is why I want to make that comment. We both agree.
Senator Beaudoin: I agree with that, as well.
The Chairman: We move on to clause 6.
Senator Joyal: On clause 2, Madam Chair, what about Senator Beaudoin's amendments?
Senator Beaudoin: There is an amendment that will come on clauses 21 and 22. I want clause 22(3) deleted, but that will not be necessary if 21 and 22 disappear, which is another amendment, but I am not going to go that far.
Senator Joyal: As I stated earlier, the bill in its present form does not contain a preamble. It is more advisable at this stage in the present form of the bill to move a purpose clause. I have circulated a draft of what could be a purpose clause. The purpose clause is a very important element because, first of all, nowhere in section 91 of the Constitution Act is citizenship referred to. Section 91 refers essentially to denaturalization and aliens. It does not mention citizenship as such because, of course, when the act was adopted, Canada was not a sovereign nation with the capacity to grant citizenship.
Senator Beaudoin: Now it comes under the residual powers.
Senator Joyal: Now it comes under the residual clause. It is certainly appropriate to state that citizenship is a responsibility of the federal government. In that regard, the first paragraph mentions clearly that the purpose of this bill is to provide for the citizenship status and rights of Canadians as an essential characteristic arising out of the recognition of Canada by the international community as one sovereign nation. Thus, the source or the capacity of Canada to grant citizenship is essentially based on the fact that Canada is one sovereign nation, recognized as such by the international community. This is essentially the source of the capacity of Canada since 1947, since Canada, through patent letters, was able to exercise the full status of an independent and sovereign country.
The second paragraph states the benefits of citizenship, which include the right to live under the rule of law as established by the Constitution of Canada, sharing individually and collectively the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms and other federal and provincial laws. In other words, once you are a Canadian citizen, you benefit from the rule of law and you benefit from the rights and freedoms as provided in the Constitution and by other provincial and federal statutes.
Finally, the last paragraph states that this proposed act is the sole authority for the conferring of citizenship status in Canada other than citizenship status in relation to a First Nation.
That is an important point, and I want to draw the attention of my colleagues to this, because we never really had a discussion on the status of citizenship in relation to First Nations. In drafting the amendment, I came to a point in conflict with the Yukon First Nations Self-Government Act that contains an interpretation clause that states:
"citizen", in relation to a first nation, means a citizen as determined in accordance with the constitution of the first nation.
"constitution" means the constitution of a first nation, as referred to in section 8;
In other words, the concept of citizenship exists in at least that act of Parliament in relation to the First Nation. That raises a troubling important element, one that was raised in relation to the Nisga'a bill. Some of my colleagues -- among them Senator Grafstein and some senators on the other side -- expressed their concern about how many citizenships there are in Canada. There is no doubt that, if we want to establish a citizenship bill that is in direct relation with the responsibility of the federal government, what we mean by "citizenship" must be well established and clarified. That is why, with the state of the law of the land as it now exists, the only way to properly address that issue, after consultation, is in reference to citizenship status with First Nations. I do not mean that it should not be discussed and clarified another time or, as was suggested earlier, that we should not look into it more carefully. It was clear to me from the beginning that there is only one type of citizenship in Canada. There is only one passport, not two, and that passport is recognition of citizenship and the benefits that accrue with citizenship.
I want to be sure that the words that we are using are clear in their interpretation. That act spells out an element that is very important. We could certainly spend some time discussing it and how we would streamline the concept of citizenship arising from the responsibility of Canada as a sovereign nation and the competence of Canada arising out of recognition of a sovereign nation by the international community and citizenship status in reference with First Nations. Perhaps there is a confusion of terms there that is important to clarify. Perhaps we will have to define the words "citizens" and "citizenship" in clause 2 in the true concept of what we mean there, because within this bill there is one definition of "citizen" while in another act there is another definition of "citizen." That raises some problems; however, the purpose clause cannot solve all of them at this point.
With the present state of the law of the land, this seems to be the proper way to address it. It is very important that we consider that. I know we did not have any witnesses on this, nor did we reflect upon it, but there is no doubt that it is part of that whole discussion about citizenship in Canada. That is quite peculiar, because, as we have said before -- and this is my purpose -- there is one citizenship in Canada. There is no question of dual citizenship or triple citizenship. There is one citizenship, which, to me, is why there is one Canadian Charter of Rights and Freedoms. That is why, when we promoted the entrenchment of the Canadian Charter of Rights and Freedoms -- and Senator Kinsella will remember this -- we thought that the aboriginal people would be subjected to the Charter of Rights and Freedoms and to the rule of law. This needs to be addressed in a way that today might not be in the overall proper context, but there is no doubt that it is there. That is why it is reflected in that paragraph.
The Chairman: Thank you, Senator Joyal. Your purpose with this amendment is to add a new clause to a purpose clause.
Senator Grafstein: We had a very active discussion in the Aboriginal Peoples Committee about citizenship. I abstained at that time, because of that provision. Let me recap the two issues and then try to bring it into some focus so that I can explain my position on this.
First, I agree with everything that my colleague, Senator Joyal, has said about paragraphs one and two of his recital. However, I do not agree with paragraph three because it deals with a fundamental issue yet to be resolved. True, we have some statutes dealing with citizenship, but they are different in the Yukon legislation than they are in the Nisga'a legislation. In the Yukon legislation, the definition of "citizenship" is subordinate because the federal government and Parliament is able to deal with it without aversus. That was not satisfactory to me, but at least it did not provoke me into dealing with that issue at that time.
However, when it came to the Nisga'a, it was substantially different because they set up the ability for that First Nation -- and I have no quarrel with this -- to establish of set of principles for people to live within their confines and receive the benefits of their land claims. The problem with the Nisga'a bill is that it established a principle where the federal government and Parliament were no longer supreme and an issue such as this would require their ascent, which they were not prepared to do. Anywhere from 80 to 120 groups define themselves as being First Nations; hence, we could end up, 20 years from today, with a country made up of 121 different types of citizenship. This allows Quebec to ask, "Why not us?" We then get into the two nations theory and the multinational theory, contrary to the Charter. The Charter talks about "the Canadian nation." It does not talk about Canadian nations or the Canadian family of nations; it talks about the Canadian nation.
I agree with the principle that the highest honour one can confer on the country is citizenship. That is purely within the power of the federal government. It is consistent with the prerogatives of the Crown and with peace, order and good government. Yet, we now have a blend of ideological notions that inhibit us, at this moment, from dealing with this. I hope that we can end up with this solution, which is the American solution. The American solution does not prevent the Apache nation from calling themselves the Apache nation. Congress never gave up its supremacy. Politically, it might not be acceptable to interfere, but Congress or Parliament never gave up its supremacy. That is the way the Constitution works. I had a fundamental disagreement with the Nisga'a; it is going to the courts.
I invite all of you to read Mr. Justice Williamson's decision about citizenship. I want to be careful here. We should not be critical of judges, because they cannot defend themselves. However, that decision encompasses the most extraordinary definition of "citizenship," which is that citizenship, voting and so on is not important -- at least, that is my interpretation of it. I invite every member of the committee to read that lower court judgment, which, I hope, will be overturned.
We must come up with a notion that there is one supreme citizenship in Canada and that there are other designations. I was always curious by the fact that the First Nations wanted to call themselves citizens, but the notion of citizenship, based on my cursory notion of First Nations, never applied to aboriginal people. In other words, their concept of "citizenship" is a European notion that they have imported into their native folklore. The reason is quite clear: They want to establish rights. I know this sounds horrendous, but it is important to have a dialogue about this, to come to some conclusion as to why we could not end up with a situation where citizenship is supreme and in fact designations other than citizenship can be made for those people who want to be identified in other ways.
I say that on the record because I think it will be a horrendous debate.
The Chairman: I must tell the committee that I did not think to order lunch today. Please make your points as briefly as you can. I know some of these are intricate questions.
Senator Pearson: I would be happy to support Senator Joyal's statement of purpose. It is an issue that we have not discussed very much here. As I read it -- and I would be glad to hear whether you agree -- it allows for the fact that many people in Canada are dual citizens. That reading simply states that, as a Canadian citizen, you have these kinds of rights. It does not exclude whatever rights you may have as a citizen in another country.
The Chairman: Some have rights as British subjects or peers.
Senator Pearson: Some are dual Irish-Canadian citizens. There are many examples. This debate was not often brought up here and it is not one with which I have any problem. I have no problem with someone being the citizen of two countries as long as citizenship is properly understood and that it does not mean anything exclusive. That was changed, I guess, in the act. My mother, I remember, lost her citizenship when she voted in a Canadian election. That was changed.
Senator Joyal: Yes, it was changed.
Senator Pearson: Now a person can hold dual citizenship. The phrasing here is just fine. As a Canadian citizen, you enjoy these rights. I am supporting that.
With respect to your question on First Nations, I think that is technically correct because of what already exists. It also raises an issue on which I do not think we should spend any time but it is an ongoing issue with the aboriginal nations. The Mohawks came before us, as you remember, Senator Andreychuk, and said they do not even claim to be Canadian citizens. They travel on their own passports. That is an unresolved issue, and we will not resolve it now, but you have helped us to address it, to acknowledge its existence and to take it on another time.
Senator Nolin: I agree with the idea of including a purpose clause in the bill. I would rather it be as succinct as possible. Most of the rights mentioned in the second paragraph are recognized in any case, whether a person is a Canadian citizen or not. The Charter extends these rights to all persons living in Canada. I would not want us to create more problems by listing these rights. Are we to understand on reading the second paragraph that these rights would not extend to persons who are not Canadian citizens?
Senator Joyal: No, not necessarily.
Senator Nolin: This includes existing rights. I agree that we should have a purpose clause in the bill. However, I do not want us to create additional problems. While the clause should be as specific as possible, it should also be as broadly worded as possible.
Senator Joyal: On that score, my colleague knows that the Canadian Charter of Rights and Freedoms specifically mentions in three places the benefits that derive from citizenship. These are the right to vote, the right to move freely within and outside the country and the right to education in both official languages. Conversely, a person residing in Canad who has landed immigrant status is not entitled to vote or to run for public office and cannot enter or leave the country at will. Any time spent outside the country is not considered for the purposes of residency which will entitle that person to receive additional rights. There are also distinctions in terms of mobility and education rights, not to mention a number of other rights, including the right to hold a passport.
Senator Nolin: The point I was trying to make had more to do with the right to live under the rule of law. All persons in Canada have this right. I understand the rationale for a purpose clause, but I do not want to create more confusion than we already have. We should have a debate on the subject of dual citizenship. What do we do with people who have dual citizenship? Which citizenship takes precedence?
Senator Joyal: The point is that there is a link.
Senator Cools: The Charter of Rights and Freedoms does not confer citizenship. Certainly Canadian citizenship pre-dates all these acts.
Senator Nolin: We are not saying that.
The Chairman: I still have Senator Andreychuk on my list, and Senator Poy would like to speak to clause 6 and must leave shortly.
Senator Cools: I still want to speak on the oath.
Senator Andreychuk: Madam Chair, I also must leave shortly and I wish to address several clauses.
If we are here this week -- because we do not know whether this blessed event will happen on Sunday or not -- we need to pick up this debate and determine what experts to call. I do not want to debate the definition today. Should there be no meeting next week, which seems more likely, we need to send to the department a signal that the bill contains a fundamental flaw and that we are wrestling with citizenship. I will not agree or disagree with Senator Joyal because that would mean a two-hour debate.
The Chairman: This is what we want to do.
Senator Andreychuk: The signal to the department is that they had better address how we resolve this issue.
The Chairman: This is what we want to do. We are trying to flag problem areas, rather than trying to solve them today, because we are not in that business.
Senator Andreychuk: Nor is it our responsibility should there be a new proposed act coming. It is the government's responsibility.
The Chairman: Precisely.
Senator Poy: I would like to address clause 6 particularly because the proposed changes adversely affects refugees. Clause 6 requires an accumulation of time towards residency requirements to become citizens. A refugee sometimes waits longer than a year before they are cleared to remain in the country. Under this bill, time does not count until the refugee becomes a permanent resident, whereas things are not that way now, to my understanding. This bill is going to change the requirement.
I would just like the minister to review that change. It is not fair to those who are given refugee status. If refugee status is not given, the people must leave anyway. If they are given refugee status, why not count the time that they have spent here waiting, through no fault of their own. Immigration processing delays can cause them to lose a lot of time.
Senator Andreychuk: One of the dilemmas we face is that we know there is an immigration bill that is still waiting for House of Commons scrutiny. It is hard to judge the appropriateness or fairness of Bill C-16 because we do not know how the proposed new immigration laws will affect refugees.
Senator Poy: I asked the minister that question when she was here. She said that the proposed immigration act is part of immigration law, that it is not related to citizenship, but the two are linked. You cannot sort exclude one from the other.
The Chairman: This brings us back to what Senator Cools was saying. It is part of a whole process.
We go to clause 14.
Senator Andreychuk: Madam Chair, I also have given some reflection to this one. It was not one that I had thought of first of all. I think it was Senator Grafstein who suggested that it is unfair for someone who has a right now to lose that right without any notice, bearing in mind the difficulty of finding out where these so-called would-be Canadians are.
Had we continued with this bill, I intended to file an amendment, a grandfather clause. My amendment would have said that six years from the date of the coming into force of this act the grandfather provision would click in. That would then oblige the department to use every reasonable means to advertise the legislation around the world, through its usual routes, embassies, NGOs, et cetera.
The lawyers told me that it would mean a change to clause 73, the coming into force clause, which would mean that that clause would not come into force until six years hence. That seemed to me to be a compromise. If we wanted to maintain the integrity of what the ministry was saying, that they wanted some attachment to this country and this was a new point of view, one could accept that if there was at least a six-year grace period for some notice and some understanding of what this clause meant.
The Mennonites had also said that Bill C-63 was more acceptable than what was changed and ended up as clause 14. The clause that had originally been in Bill C-63 is another option, or having a grace period of six years, which means that everyone to this point would still have the benefits that they would have had but for the coming into force of this act, and the act would kick in six years hence.
Senator Poy: Supplementary to that, we were approached by the Mennonites --
Senator Andreychuk: And others as well.
Senator Poy: It was my understanding that, at present, those who already have their certificate of citizenship, because they are children of second generation, of people who no longer live in Canada but they are Canadian citizens, have a certificate that does not have an expiry date on it. Without an expiry date, they do not know when it expires. They just presume, because normally they do not look at that. We just know we have a certificate. These people could lose their citizenship without knowing, and that was the concern.
Senator Andreychuk: That was Bill C-63, where their recommendation was that there would be some expiry date. That would be another way of notice to these people.
Senator Poy: That is right.
Senator Andreychuk: The alternative would be to grandfather everyone henceforth, which would oblige the government to do due diligence to notify as many as possible.
The Chairman: I also received letters from the Mennonites. When a group such as that wants to sway the decision of a committee, I would note that it would be better if they appeared before that committee rather than trying to contact each one of us separately. It should be out in public so that everyone can see and hear it at the same time.
Senator Andreychuk: In defence of the Mennonites, we had moved on the bill. They did appear here after the list had been cut off. I had thought they were one of the groups that had asked. I think there was some confusion about that. I think they appeared. The gentleman was quite fair; he knew you had closed the list, so he then approached all of us.
Senator Cools: My understanding of the Mennonites is that they wanted to appear but they thought it was impossible, so they properly approached the members of the committee, which I think is in order.
The Chairman: We will then move from clause 14 on to clause 16. Someone put this forward. It may have been Senator Grafstein, who is not here at present. In that case, we will move on to clause 17.
Senator Moore: Clause 17 does not set out the grounds as in other places. I can circulate for consideration a draft amendment to include after the word "notice" that the notice must include a summary of the grounds contained in the report.
Senator Cools: That is regulatory and procedural rather than statutory.
Senator Moore: It is in another place, so I think it is inconsistent. There is no appeal from that decision. If that were me, I would like to know what I was fighting. That is why I think we should consider putting it in.
Senator Cools: I am not disputing that they are basic rights.
The Chairman: We will table that proposal as well.
Senator Andreychuk: On 17, I would have filed an amendment to the same effect. However, I am adamant that there should be leave to appeal. The groups compellingly pointed out to us that, at the moment, this finding of fact that goes to the court is not appealable. That is a prejudice both to the department's case as well as to the person who is subject to the revocation.
It seems to me that the minister's response was that this has been in the act since 1977 and that it works well. I think the contrary body of evidence that came before us was that it does not work well, that after having tested it it does not really comply to our understanding of what due process is.
Certainly people have become used to the idea that there is at least the right to appeal. That does not mean that they will get the appeal, but there should be a right to appeal. That should go both ways, because it can hamstring the government as well. I think it is inherently wrong, particularly when there is a balance of probabilities test here. The courts have been saying that citizenship, although it is administrative law, is fundamental. I think the whole body of understanding in Canada is that people really believe that when they are citizens they are equal.
We heard from people who said, "Let us know what the case is against us so that we can adequately meet it," and that means some form of appeal, something more in due process than what the minister said is here. It seems to me that it is fair and right that six million Canadians would think that their rights on a due process point should be at least equal to something for a minor criminal offence.
I know it is administrative law, but perhaps they do not know that. It seems to me important from a fairness and justice point of view. The two amendments I would have asked for would have been the one that Senator Moore is alluding to and the opportunity for the right to request an appeal.
Senator Joyal: Briefly, I just want to associate myself with what Senator Andreychuk has just said.
I had a discussion earlier with Senator Beaudoin on that very issue. We agreed that, instead of floating many amendments in relation to that, there would be only one, and that is the one.
The Chairman: We will move on to clause 18.
Senator Andreychuk: My comments here are the same. As I understand it, it is restricted to judicial review. The premise of the amendments was to have the right to request an appeal. It is rather strange that under our law we say you are a citizen, but is it conditional citizenship, is it citizenship on probation? It is interesting. Again, due process would make it fair. The amendment would have been for the right to more than a review.
The Chairman: We will move on to clause 21.
Senator Andreychuk: Clause 21 was the subject of much testimony. We could try to improve clause 21, and thereby also clause 22; however, should this bill not be passed, the clear signal we want to send to the government is that with such a broad and vague definition there must be compelling reasons given, and there were not. The examples that we were given were really matters of national security, or clause 28 matters. They were really not extra issues.
The only example we were given of this values issue is very troubling to me. There are certain tests that one must meet in order to become a citizen, and citizenship will be revoked if there is some risk to Canada's national security or national interest, or if citizenship was fraudulently obtained. To now say that certain people should not come in is not the way that Canada should proceed. It not in keeping with our national standards, our international obligations, or our example. If there is some compelling public need for this clause, the government should give us a more narrow definition of "public interest" containing a good due process model. What we have here is virtually an unfettered right to define without scrutiny.
My amendment would have been to delete clauses 21 and 22. If the bill does not proceed now and is later re-introduced, the government should seriously consider what it really needs. Clauses 21 and 22 should not be used to clean up the immigration process.
Also, we should not act on suspicion. If we cannot prove a case under national security or under clause 28, and if we cannot define it, we should not be excluding people on suspicion. We pride ourselves in the rule of law and it should extend to this. I found this very troubling. Unless the government comes forward with something better, we can perfect it.
The Chairman: Have you read Senator Joyal's proposed amendment to clause 21?
Senator Andreychuk: Yes. If we continue with this bill, we will need to look at that. However, I believe that I should not become the government. Before a new bill is introduced, if that should be the case, I plead with the government to seriously reconsider whether there is a real need for this. We were asked to provide some tools and that they would be used rarely. As the Canadian Bar Association told us, in 1977 the government said the same thing. The Bar Association told us that the government used every tool provided. Once they exist, they are used.
Canada is above those regimes that use blanket discretion. I plead with the government not to go that route.
Senator Joyal: Madam Chair, you alluded to the proposed amendment that I have circulated. It is in line with the exchange we had with the expert witness yesterday with regard to the notion of public interest in relation to the rule of law and the democratic principles promoted in the Constitution of Canada and the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms. In other words, the public interest is in relation to those fundamental principles and not to the vague notion of value that various people may have at any given time. We do not make legislation for two years or the life of a government. The current act has lasted for 23 years and the one before that for 30 years.
In an effort to help the government review the notion of public interest, this seems to me to be a good exercise of reflection on the definition of public interest in relation to what we all claim are our essential democratic principles as they are framed in the Constitution and in the Charter of Rights and Freedoms.
Senator Cools: As I have said, we do not have to reach a consensus on what we think of each other's proposals. We are merely putting them on the table.
Senator Andreychuk: Clause 23(6) reads, in part:
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...
I believe that even the government said that that was not appropriate phraseology and could have been better. It should be more definitive.
Senator Nolin: Judges are forced to render a judgment within six months.
Senator Andreychuk: "As soon as possible" has been defined in criminal law and other statutes, and that compels action with due diligence. "Due diligence" and "as soon as possible" are known terms. I could not find anywhere that "when it is convenient to do so" includes "due diligence." That should be reconsidered. It may be simply a drafting issue.
Senator Moore: Is there any reason not to recommend a set term such as "within six months"? Is there any inhibition?
Senator Nolin: I would prefer "as soon as possible." It addresses all the problems.
Senator Andreychuk: The difficulty is that some investigations take a long time. The other concern is that we are always mindful of resources and capacity to deliver, and this is a risk issue to me. It is not a public interest, it is a risk issue. We are looking for due diligence as soon as possible.
The Chairman: Clause 24.
Senator Joyal: Madam Chair, I have circulated the list of possible amendments that would deal with the party system the way we know it exists in both Houses of Parliament. I feel that clause 24(1) should reflect that situation. There was an omission in a previous piece of legislation. We should not repeat it; we should correct the omission. I have stated all along and in discussion with the minister and with the officers of the department why we should establish parity between the two houses on this. We have known previous Parliaments whereby a party was underrepresented in one house and formed the majority in the other house. It seemed incongruous that that party would be omitted from consultation while, in fact, its leader occupied a function in the other house that is provided for by the Constitution. That is essentially re-establishing parity between the two houses.
Senator Cools: The real issue, it seems, Madam Chairman, is to include the Senate in the deliberations. I view, for example, the words to be a little pretentious. "The Governor in Council shall, before making the appointment, consult with the Prime Minister of Canada." It seems to me that the Prime Minister was leading the Governor in Council on this matter. I would submit that if the Prime Minister can be in that clause for consultation, so too can the leader of the Senate.
The Chairman: I do not think you would have any argument on that from anyone around this table whatsoever.
Clause 27 was the next one identified.
Senator Andreychuk: We discussed that one.
The Chairman: Clause 28. Other prohibitions.
Senator Moore: I have a question. I was discussing this yesterday with Senator Pearson. In subclause 28(f) there is the phrase "is under investigation by."When is something under investigation? What is the status? Is it opening a file; is it getting the anonymous phone call; is it receiving the brown envelope? What is under investigation? Do we know what that means?
The Chairman: I believe we have an answer. Our researcher has spoken to the Department of Justice on this one.
Ms Nancy Holmes, Researcher, Library of Parliament: I spoke to the department about this issue. My understanding with respect to subclause (f) is that there is an RCMP database to which the department has access. Any person who has applied for citizenship will have their name run through the database. What the RCMP is checking is with respect to subsection 73.71, crimes against humanity, and also all Criminal Code offences. The database says that there is a person under investigation by either the Minister of Justice, RCMP or CSIS.
Senator Cools: He is asking what constitutes being under investigation.
Ms Holmes: I would need to check with the department.
Senator Andreychuk: I used to teach at the RCMP depot and I think it is something that we could bear in mind. There are many protocols and rules. It goes into the international Interpol systems and the agreements that we have signed.
Senator Moore: Subclause (l) says, "is the subject of an investigation under section 15 of the Canadian Security Intelligence Service Act." I am not familiar with section 15.
Senator Nolin: That relates to section 7 of the code.
Senator Andreychuk: Yes.
Senator Moore: The other relates to section 15 of CSIS. I am not familiar with section 15.
Senator Andreychuk: It defines when and how they can investigate. That is either in law or in procedures or regulations, et cetera. I think Senator Pearson's point was that the police are sometimes frustrated because they may know of a pedophile in country X who has not been charged. The police may believe that the laws are not complete in that country and as such may be tracking the situation.
That is the grey area that police always work with, whether they have enough evidence and information upon which to trap these people. The grey area exists. We keep tightening it up, but the situation still exists. A pedophile may be known, but are they known according to the law? I think there is sufficient protection for us, if the immigration services carry out their mandate. We know that in the past they have not always had the resources or, for other reasons, have not done so. We know that people have come into this country who were not properly investigated. Had they been, they would have been found out and they would not be in this country.
Is it because the system malfunctioned that let them in, or is it that grey area where we have some "suspects" that we keep tracking but we cannot do anything about? Surely those cases should have been caught in immigration and not at the citizenship point.
The Chairman: I understand that subclause (l) also refers to the CSIS database.
Senator Moore: Yes.
The Chairman: As compared to both.
From clause 28 we move to clause 30. No one is saying anything, so we will pass right on.
Senator Andreychuk: It is on the record already.
Senator Joyal: I believe it is on the record that we had some question about the translation of "material defect."
The Chairman: Translation.
Senator Nolin: What is important has been said. We heard the official's answer to that, but we still have some concern.
The Chairman: That is one of the questions.
Clause 34. We are onto the schedule.
Senator Cools: Before we get to the schedule, I want to look at the commissioners and the question of removal of tenure. Where is the clause that speaks to their removal?
The Chairman: It says, "hold office, during pleasure."
Senator Andreychuk: It is 31(1).
Senator Cools: It is strange. It says, "during pleasure, for a period of not more than five years."
Senator Andreychuk: That is the normal appointment.
Senator Cools: Where is the reference to removal within five years. I believe I have read that.
Senator Andreychuk: That is it, "for a term of not more than five years."
Senator Cools: Where is the clause with respect to removing them?
Senator Andreychuk: If you are at pleasure, then you must go to the Governor in Council regulations.
Senator Cools: I do not see it yet, but I thought there was a passage in here in respect of that, something to do with cause.
The Chairman: I believe the appropriate words are "at pleasure."
Senator Andreychuk: There were many people who came before us who raised the point that being judged by the system we have now is more preferable. It is seen to be more independent than the commissioners, who seem to be under the umbrella of the ministry more, and that they preferred the strengthening of the independence of that process. The question of having these commissioners promote a sense of civic pride, including respect for the law and the right to vote, ties into the purpose of this proposed legislation, the purpose of citizenship and the clear responsibility of these people.
There was some unease about what the commissioners might be going around and doing. The answer, of course, is it will be in the regulations and guidelines. Well, we have never seen those, so there is an unease about that. I restate some of those legitimate claims by some of the witnesses.
Senator Cools: I think the minister should be aware that some of us were not really comfortable, at least I was not, with the titling of these people as commissioners, particularly when we do not know what it is they are going around doing in terms of promoting values, whatever those values may be. I am very uncomfortable with the term "commissioners."
During her testimony before us, the minister said that they changed the term from "citizenship judges" because they did not want them to be confused with real judges. Perhaps somehow or the other, after the minister reads this testimony today, or the new minister in the next few weeks, she could re-examine the entire questioning of the titling of those positions, commissioners or citizenship judges, as well as look more clearly at what it is they are really doing. I am a little uncomfortable with the new term "citizenship commissioners." In the past, everyone knew that citizenship judges just applied the oath. Commissioners is a far broader term and a much more obfuscated one.
Senator Andreychuk: Senator Cools, I was the High Commissioner to Kenya. When I was appointed, the only other example they seemed to have around Saskatchewan was parking commissioners. They were not impressed that I would resign from being a judge to become one of those.
Senator Cools: The term commissioner in our law has a particular origin, which transcends the purpose of this proposed act.
The Chairman: Let us move to clause 34, which is the form of the oath of citizenship, which also brings us to the schedule.
Senator Cools: This is not an oath at all. I did a fair amount of research on oaths. The characteristic of an oath is swearing, either on one's conscious or one's deity. If one were to look at the words of the oath of citizenship, it says, "From this day forward, I pledge my loyalty --" and then it continues with the newer words.
An oath is not a pledge. It may seem to some people to be a small point, but it is not a small point. Many of our systems in judicial proceedings turn on oaths and people swearing, either on their conscience or under gods, to do what it is they are saying they will do, whether it be in a court to tell the truth or to accept the sovereignty of the country that they are coming to.
It occurred to me that, perhaps, a way that the minister could address this problem was just to stay with the status quo, which would also address the question of the affirmations. If one were to look at the status quo, which is the current Citizenship Act, as the oath that is currently being used, right now even as we speak, one would see that the words are "oath or affirmation of citizenship." The words are as follows:
I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.
To me, the easiest way for the minister to have addressed this particular problem was just to continue the status quo, leave the oath as it has been since 1977 when it was enacted. That way we would steer a wide berth among all kinds of problems. Had the bill been proceeding in this committee it was my intention to propose an amendment to reinstate the oath or affirmation of citizenship as it had been. I would have accompanied that with an amendment to the interpretation clause, clause 2, the definitional clause where an oath would also include a solemn affirmation.
Having said that, those two copies are available. The real issue here is that Bill C-16 contains an inherent deceit. All the clauses apply, state clearly and refer to the words "oath of citizenship." However, when you come to the oath of citizenship, it is not an oath at all.
I would say to you, as senators, we could not let such an inherent deception proceed. An oath in law is an oath, a sworn statement, invoking either a human conscience on your deity to do what it is. In the instance of the oath of citizenship, it is the citizen saying that he or she is accepting the responsibilities of the citizen and accepting the new jurisdiction of power of the king or the sovereign in respect of having to enforce the respective laws of the nation.
I put that out for your consideration. There is a fair amount of research behind this. I view the changes to the oath as the continued erosion of what we view as citizenship in this nation. I think we are all well aware of the day-to-day, minute-to-minute erosion that is going on. I thought the best way to handle the problem is just to leave the status quo.
Senator Joyal: Madam Chair, there are many arguments that Senator Cools has raised that are important, especially the one that states that the form of the present oath is not an oath. An oath has to be, "I swear" or "I solemnly affirm," which is why we made some adjustment earlier on in the bill.
To me, the important element of the oath, as I stated in previous meetings, is the recognition that we live under a constitutional monarchy system. Those two elements must be present in the oath. We could express those two essential elements by keeping the pledge of faith and allegiance, which is one pledge, and the second one, which is the oath itself, which is the oath or the solemn affirmation to respect and uphold the Constitution, including the Canadian Charter of Rights.
To me, it is very important that new Canadian citizens recognize the supremacy of the rule of law, as it is stated in the Canadian Constitution, and the supreme authority of the land, which is personified by the monarch, be it a King or a Queen, and that monarch holds that authority as long as the Constitution provides him to hold it. We are not an absolute monarchy; we are a constitutional monarchy. I thought it important to state that it is according to law. Even the monarch is submitted to law.
This is a very complex issue and I know that anyone can come forward with an oath. What I put forward is worded this way: "From this day forward, I pledge my faith and allegiance to the Constitution of Canada and to Her Majesty, Queen Elizabeth II, Queen of Canada, and Her Heirs and Successors according to law." So it is quite clear that the Queen is submitted to law.
The formal oath would be: "I swear or affirm that I will respect and uphold the Constitution, including the Canadian Charter of Rights and Freedoms, faithfully observe our laws, and fulfil my duties and obligations as a Canadian citizen."
As I say, we can wrestle with adding this or correcting that.
Senator Cools: It is essentially the oath of allegiance. That is what it is.
Senator Joyal: It seems to me that we meet the objectives, which is a very important concern. A citizen must know exactly what is expected. He can go to the text and read the Constitution. He can read the Charter of Rights and Freedoms. He knows what he is doing. One might say that a citizen will respect our country's rights and freedoms, uphold our democratic values, but those are vague concepts that could be defined in different ways.
I think it is important that what we have when we become a Canadian citizen is the full protection of the constitutional system and the rights and freedoms that we enjoy in Canada. That is a fundamental thing. The provincial and federal statutes can be changed. The proof is that we are changing one here. What is permanent is what is enshrined in the constitution. That is why it is put over and above Parliament. That is why some of the rights and freedoms are over and above Parliament. As you know, the derogatory clause does not apply to all rights and freedoms. There are rights that Parliament cannot abrogate. It is fundamental that we refer to those, especially at a time when Canada is becoming more diversified, so that Canadians will know more what their rights and freedoms are.
That is essentially the proposal, again with the reservation that I know someone else can come with a different one. The objectives I had in the beginning were to recognize the constitutional monarchy we live in, the rule of law we are living under, and the rights and freedoms we have under the Charter of Rights and Freedoms. Those are the essential concepts that are enshrined in my proposal.
Senator Cools: Continuing in that same vein, however you cut it, the oath of allegiance has to be, one, an oath, and two, contained in what new Canadians will swear to observe. If one were to look at the history of the development of the oath, one would see that the old oath is the exact oath of allegiance, and the new one proposed in Bill C-16 drops the term "Heirs and Successors." I think the fundamental principle is that it has to be an oath and it has to contain the oath of allegiance, the swearing of allegiance to the constitutional framework of the country, which is a constitutional monarchy. At the end of the day, that is what the oath is about.
Most of us here are agreed, a few words here and there are not the quintessential fact, but new people who come to Canada have sought out this country because it is a constitutional monarchy. Therefore, it is a little difficult to say that new citizens should not have to acknowledge some allegiance. Canada is what it is because of what it has been.
Senator Nolin: Can we ask someone to swear to be a perfect citizen?
Senator Andreychuk: As perfect as we are.
Senator Cools: As perfect as the two of you are.
The Chairman: At this point I will cut off discussion because, although you people may be perfect, I am not.
Senator Andreychuk: Two senators have stated, sufficiently I think, what the oath is. The bottom line is that there is a problem with it.
I have two quick points, if I could be indulged.
The Chairman: We have now covered clause 34 and the oath as well. What clause do you wish to address?
Senator Andreychuk: In the absence of Senator Pearson, I should like to speak to the regulations. I very much supported her point and that of some of the other groups. The issue of the ability of immigration people to be able to determine what constitutes a parent and child relationship is one needing reflection.
The Chairman: You refer to definitions of what constitutes a family?
Senator Andreychuk: It should put on them a responsibility that has been traditionally in the family court and social services and the body of law. It is one that I think bears noting and reflecting upon.
My other point is that it has been brought to my attention that clause 44, the delegation of the minister's powers, is much more sweeping here than in the Immigration Act. Therefore, again, while they are two separate issues, they must be taken into account. One wonders why there is less discretion, apparently, in the proposals of the Immigration Act in delegation than there are in this proposed act. If we are to review that, the delegation of the minister's powers is one that needs to be addressed and weighed against the powers that are being delegated in the Immigration Act.
The Chairman: There being no further comment on clauses 43 and 44, we will move to clause 58, which was the next one identified.
This is Senator Grafstein again. He has tabled his concerns on all of these. In clause 63, the same thing, and clause 64, the same thing.
Senators, I thank you for sitting through this session and for sitting through this entire process and Parliament. I have enjoyed chairing this committee.
If the newspapers are correct, that we will not meet again for some time, I wish you all a very merry Christmas and a relaxing time sometime later in November.
Senator Andreychuk: Since the Deputy Chair is not here, I want to take the opportunity to thank you for your even-handedness and consideration for all of our comments, instructions and wishes. I have very much enjoyed being here. I think Senator Beaudoin would agree with me that it has been a pleasure to work with you as a Chair. We trust that it will continue.
The committee adjourned.