Standing Committee on Citizenship and Immigration hearings
on Bill C-18, the proposed Citizenship of Canada Act
The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Good morning, colleagues.
This morning we are to have a technical briefing from Joan Atkinson and Rosaline Frith to take us through the denial, annulment, and revocation clauses of the bill and do a comparison and discover the rationale behind why these clauses are there or, perhaps, how the whole system is working now and how we compare that to the new bill.
I wonder if we can do it section by section, so that if there are questions in a particular area, such as denial, we can deal with that. Then we'll move on to annulment, then the revocation clauses. I think that might be helpful to the committee, so we can focus specifically on those, if that's fine with you. In your preamble or overview, Joan, perhaps you want to take us through the whole thing first and then we'll get right into the specifics.
Again, thank you for always being available to us and working with the committee so that in the end we all get a better piece of legislation. Thank you very much.
Mrs. Joan Atkinson (Assistant Deputy Minister, Policy and Program Development, Department of Citizenship and Immigration): You're very welcome, Mr. Chairman. It's always a pleasure to be in front of committee and to have these discussions with you.
I thought I would address some general comments and then get into some of the specifics you mentioned, Mr. Chairman.
As you know, this bill is essentially the same as the bill the committee saw before, in April 2000. However, it does incorporate some important changes that came about very much as a result of the consultations and the comments that we heard from stakeholders and parliamentarians. In the last round with the citizenship bill we had some good discussions in committee, and I think the changes that you see in Bill C-18 are reflective of some of the concerns that were expressed by parliamentarians at that time.
As you know, the proposed revocation process is now fully judicial. There are also provisions in the revocation process for expedited removal of war criminals, for members of organized crime and terrorists, as well as a certificate procedure similar to the one we use in the immigration context. I think we can and will go through the details of that, but our objective here, in terms of the revocation process and having an expedited removal process and the security certificate process, is to allow us to be able to deal expeditiously yet fairly with those who should not be granted citizenship, particularly those where we have the concerns and the evidence that they are a terrorist threat or a member of organized crime, or that they have committed crimes against humanity or war crimes.
A second important change is in the denial process, and that is the power of the governor in council to refuse to grant citizenship. In the previous bill, the governor in council could refuse to grant citizenship if it was not in the public interest to do so. We have made a change in Bill C-18 to replace the words "public interest" with a more specific description of what the government has in mind, which is that "...a person has demonstrated a flagrant and serious disregard for the principles and values underlying a free and democratic society...."
Now, these are words that are really taken from the charter and underline what the government's objective is in this clause, which is to be used in very rare cases for a denial of citizenship if it is felt that the individual has demonstrated a flagrant and serious disregard for basically the democratic values that underpin Canadian society.
The third is a purpose clause that was added to this bill to clarify the policy objectives and values in the bill, as well as promoting respect for the principles underlying a free and democratic society.
I think what you see, together with those changes, is the government's intent to try to enhance the value of citizenship and ensure that our citizenship legislation is promoting the values that we aspire to and hold as Canadians. Obviously other important elements of Bill C-18, as the earlier bill had, are a greater emphasis on those values by changing the oath of citizenship to include a direct expression of loyalty to Canada; changes for adopted children to ensure that we are treating adopted children the same as natural-born children in granting them citizenship; replacing citizenship judges as decision-makers with public servants; and also providing a clearer and more objective and transparent definition of residency to ensure that our citizenship decision-making processes are more efficient; very importantly, allowing judges to remain, but as commissioners in the new act, in an expanded promotion role and continuing to have their very important role in citizenship ceremonies; and finally, as I said, clarifying and making more transparent the rules on residency so that we have a clear objective for both decision-makers and citizenship applicants.
I know you've been hearing a lot of witnesses and that you have many questions you want to put to us. I have a team here that includes Patricia Birkett, our director of citizenship; Daniel Poulin, from our war crimes unit; and Paul Yurack, who is our legal counsel.
Before we open ourselves up to questions, I'll turn to Rosaline, if you don't mind, Mr. Chairman, so that Rosaline can take you through a comparison of denial, annulment, and revocation, so hopefully we can clarify for members what the different processes are, what the differences between the different processes are, and the consequences of those different processes. I'll turn it over to Rosaline now.
The Chair: Thank you, Joan.
Ms. Rosaline Frith (Director General, Integration, Department of Citizenship and Immigration): I'll start, as you asked, Mr. Chair. I'll go through denial first, and then we can discuss that.
As Joan mentioned, in this case we're dealing with non-citizens. If the person is satisfied that a person has demonstrated a flagrant and serious disregard for the principles underlying a free and democratic society, then the minister can take action. The wording, "disregard for the principles underlying a free and democratic society", mirrors section 2 of the Charter of Rights and Freedoms.
The Supreme Court, in the case of Oakes, said that the values and principles essential to a free and democratic society include respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions that enhance the participation of individuals and groups in society. Clearly there is the outline of a definition.
How does this work? The minister notifies the person. The notice will include a summary of the allegations, and then the person has 30 days to make written representations back to the minister.
After considering the representations, if the minister still thinks the person should not be granted citizenship, he or she will make a recommendation to the governor in council. The governor in council will then decide whether to issue a declaration refusing to grant citizenship. If the governor in council issues that declaration, then there would be no appeal or review of the decision unless it was patently unreasonable and there was a capricious finding of fact or a serious error of law.
If the person was denied citizenship, he or she would continue to be a permanent resident. After a period of five years, if the person had maintained permanent resident status, he or she could reapply for citizenship. The minister, at that point, would reconsider. If the person was meeting all of the criteria and was no longer showing a serious and flagrant disregard for the principles and values of our society, at that point there would be no objection to proceeding with the request for citizenship.
The Chair: Could I ask you one technical question? How is the whole process of denial initiated? I take it that the person would have had to apply to become a citizen. Therefore, in the application process, this is where the administration might get some information that leads to the governor in council looking at a whole bunch of things. Is it something that comes to the attention of the minister even before a person wants to apply? How is this whole denial thing triggered? Is it triggered by a person wanting to apply for citizenship? How does it happen?
Ms. Rosaline Frith: I would tend to think that in most cases, when the person applies for citizenship and fills out and submits the forms, during the process somehow it would come to the attention of the minister.
The Chair: Okay. Let's start with some questions. Who has some? Lynne or Grant? If not, I'll move to Madeleine or Inky. Joe.
Mr. Joseph Volpe (Eglinton-Lawrence, Lib.): I was trying to locate the clause where the potential answer to the chair's question might lie. The government would rely on a source, call it an informant. I'm trying to locate the exact wording. As I recall the clause, there is no verification of the credibility of the source or the informant.
Could you please clarify that for me?
Mrs. Joan Atkinson: Let me start.
I think subclause 21(1) of the bill says that the minister has to be satisfied there are reasonable grounds.
Maybe I can ask Paul to give you a description. It has fairly precise legal terminology. Perhaps Paul could address the issue.
Mr. Paul Yurack (Counsel, Legal Services, Department of Citizenship and Immigration): Maybe I'll take it back to a more pedestrian level. A person initiates the application process. An application is filed in Sydney that initiates certain background security, criminal, and immigration checks. During the course of the verifications, information can come to life. For instance, if a security clearance was obtained or sought from CSIS, perhaps they had information about an individual that disclosed he or she wasn't a threat to national security, but there was information that caused concern to the government, such as statements made perhaps in the public domain that showed a serious and flagrant disregard for the principles underlying a free and democratic society. The information may then, in turn, warrant further investigation by the department. There could be interviews with the person concerned. They might check out websites, potentially, if they're publishing information on the web for access to the public. Then we would look at the information very closely to determine whether the person's case warranted, again, a referral to the governor in council.
Mr. Joseph Volpe: You started a moment ago by saying the denial process is based on charter values. What you've just said there, Mr. Yurack, is causing me a little bit of concern, so please help me through this. A person who in the course of his--and I'm using the term generically--daily expressions of opinion may have said something that would be inconsistent with our democratic values. That would trigger, or could trigger, an investigation of sorts that might lead to a conclusion that some of these statements or opinions were inappropriate in a democratic environment.
Mr. Paul Yurack: Correct.
Mr. Joseph Volpe: Am I on the right track?
Mrs. Joan Atkinson: I think we have to find the balance. Of course we recognize freedom of expression in Canada. It's part of our democratic values, in terms of allowing people to express their opinion and allowing people to have the opportunity to be able to express that opinion fairly widely. So we're not suggesting that we're going too far on one side or the other. That's part of our democratic values as a society and those are rights that we have protected in the charter.
I think we need to look at the words "flagrant and serious disregard for the principles and values underlying a free and democratic society" in that where you draw the line between freedom of expression and go into the territory of hate-mongering, for example, is where we need to look at all of the evidence, all of the publicly available information and evidence that would demonstrate that an individual has somehow crossed that line.
The Chair: Do you think you could hold on there? We'll have a number of questions, but I want to get to as many questions as possible. Madeleine first, then Lynne. [Translation]
Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): I would like to ask a question that may sound stupid, but as the committee has only just started, I am entitled. When someone submits a request for citizenship, naturally there is an investigation. What is the average length of time of an investigation?
Ms. Rosaline Frith: That depends on the case. Normally, it takes about ten months between the time the person has requested citizenship and the day of the citizenship ceremony. The investigation certifies, in each case, that the person is not subject to an interdiction or a prohibition. For that, we consult the RCMP, CSIS and various police departments for more information. These steps can take up to three or four months, but it depends on the case. Ms. Madeleine Dalphond-Guiral: Do you also look into social setting, work environment, community?
Ms. Rosaline Frith: Not at all.
Ms. Madeleine Dalphond-Guiral: So, when someone has a bone to pick with someone else, this is not considered. For instance, imagine that I am on bad terms with my neighbour and I know that my neighbour wants to obtain citizenship -
Ms. Rosaline Frith: No, we do not look into that at all. I am talking about cases where people have done something and there are existing documents attesting to the veracity of this fact.
Ms. Madeleine Dalphond-Guiral: In other words, expressing intent is not enough. [English]
The Chair: Lynne.
Mrs. Lynne Yelich (Blackstrap, Canadian Alliance): I was just wondering if you have an example. Just give me one example of who would be denied citizenship and have to go through the process that Madeleine asked.
Ms. Rosaline Frith: An example would be someone who is hate-mongering, where you could go online, as any citizen of Canada, and you would find information on the website speaking out against a group of people in a way that is not acceptable to our values in Canada. That is one example of hate-mongering, where it is obvious to everybody.
In that case, one would simply deny that person the ability to acquire citizenship for a period of five years. They'd still have their landed immigrant status. There would be no other action taken.
Mrs. Lynne Yelich: I'm going to ask on all three cases, annulments and revocation, are there many denials? Do you have very many denials?
Ms. Rosaline Frith: It's a new power. We have never had the denial before.
Mrs. Lynne Yelich: So what did you do before?
Ms. Rosaline Frith: We couldn't do anything before.
Mrs. Joan Atkinson: That's precisely the reason why we want to put this in place. We felt that we didn't have sufficient abilities and tools at our disposal when we were dealing with someone, as we said, who crossed the line into things like hate-mongering.
Another example would be an individual, where there was clear public evidence that the person had committed a terrible crime abroad, but for whatever reason had not been brought to justice, charged with any offences, or brought to justice in any way, shape, or form abroad, and where, for whatever reason, there was no other mechanism available to us through the Canadian criminal justice system to bring the individual to justice.
This provides us with an additional tool to be able to say, in those cases, this individual is not someone that we want to welcome as a citizen, but he or she can remain in Canada as a permanent resident. There may be action under the Immigration Act if they are found to be inadmissible under the Immigration Act. At this point, when they're applying for citizenship, we want to be able to say that we don't want to grant citizenship to this individual.
The Chair: If I could, while this might be new, the fact is we turn down people for citizenship all the time.
Mrs. Joan Atkinson: Yes.
The Chair: It is based on a number of categories, residency, and even a security check now. To suggest that we don't have the power to deny citizenship ... maybe the word "deny" is wrong, but we do turn down citizenship applications all the time.
Mrs. Joan Atkinson: Yes. We turn down people now on the basis of a number of prohibitions that are the same as they were in the last act. Rosaline, do you want to add anything?
Ms. Rosaline Frith: I would say that, in essence, the denial allows us a tool to deal with cases where the person has otherwise met all of the criteria for citizenship. They do not have criminal records. They're not under any of the prohibitions. They've met the residency criteria. They've met the language and knowledge requirements. It's only in cases where one would look to denial. It's only because, during the process of review, the information came forward that they were carrying out a serious and flagrant disregard.
The Chair: Can you then, for the committee, tell us what new clauses are in the bill that we didn't have before, so that there are references to the old bill and the new? What clauses are there, other than subclause 21(1)?
Ms. Rosaline Frith: The denial is brand new. The annulment is brand new.
The Chair: No, I know. We're dealing with denial now. Which clauses deal with denial, all of them?
Ms. Rosaline Frith: All of the ones dealing with denial are subclauses 21(1), 21(2), 21(3), and clause 22. That's it.
Mrs. Joan Atkinson: Other prohibitions are in clause 28. Clause 28 refers to the other prohibitions that refer to the criminality Rosaline related to. The annulment provisions are in the --
The Chair: No, I'll get to annulment later. I only want denial.
Mrs. Joan Atkinson: Okay. We'll get to annulment. Other prohibitions are in clause 28.
The Chair: Okay. We have Inky and then Andrew.
Mr. Inky Mark (Dauphin-Swan River, PC): Thank you, Mr. Chair. On that note, Joan, the effective period of the order for denying citizenship is five years. After five years, if the applicant is law abiding but somehow he has, for example, trumped-up charges that were laid prior to coming to Canada, or perhaps he still belongs to an international organization but there's no evidence that he's doing anything negative, how does that weigh in with his reapplication for citizenship?
Mrs. Joan Atkinson: I think that what you see in having the five-year period is the sense of what we see in the immigration context. It is the notion that people can change and people can, in a sense, be rehabilitated. If the information and evidence leads the governor in council to deny citizenship, there is the possibility that five years later the situation could have changed, the individual could have changed, there could be new evidence, or there could be different evidence. The minister will review the situation again once the individual makes another application for citizenship. It doesn't mean that they will forever be prohibited from being granted citizenship. They are given another chance to make an application for citizenship. All of the evidence that is relevant at that time will be reviewed by the minister. The minister will decide, or not, whether to make a report to the governor in council.
Mr. Inky Mark: I'm saying that if he is a very responsible person and is a great economic contributor to the country but still belongs to this group that perhaps is on the list of CSIS, how does the system work through that?
Mrs. Joan Atkinson: When you talk about lists of CSIS and so on, you're probably getting into some of the national security prohibitions on members of terrorist organizations and organized crime, etc., and that's when we get into the other prohibitions or get into discussion of revocation and so on. The minister will look at the entire case. We'll not only look at the specific information that causes concern about whether the person shows a flagrant disregard. The minister will obviously balance that against all the other attributes of the individual, if you will. Five years later, as you've described, if the individual has exhibited exemplary behaviour and become a very important member of the community, this is all very important information that will be weighed by the minister in making a decision as to whether or not that person falls within this particular prohibition.
Mr. Inky Mark: I agree that the state should set the rules and conditions for citizenship. That is the job of the state.
The Chair: Mr. Telegdi.
Mr. Andrew Telegdi (Kitchener-Waterloo, Lib.): Thank you, Mr. Chair. We had a couple of comments -- it's in the document and I'm very glad to see it -- about principles underlying a free and democratic society. The misgivings I have on this bill, in a number of clauses but it's in here as well, is not being able to appeal to any court. The decision of the justice is final. We're talking about the principles underlying a free and democratic society, so I look at section 7 of the charter under "Legal Rights" and it says:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.Let me say that I lived in a society where we had to be very careful as to what we said. This was under Stalin and Khruschev in Hungary. People disappeared for saying the wrong things and were not seen again.
The Chair: We're hearing clause 41.
Mr. Andrew Telegdi: What kind of damage do we do to our democratic values, to the principles that underpin our society, when we say, well, the charter gets in the way; it makes it more difficult?
How many cases do you perceive us to be looking at? And why would you not think that if given the power to adjudicate on these matters it would best be left to the best institutions we have in this country, which are the courts? Why not allow a normal court process to proceed and deal with it, so we do not end up erring on the side of injustice?
Mrs. Joan Atkinson: Maybe I can start. These are very important issues, and I appreciate Mr. Telegdi's concerns around this. Let me see if we can attempt to allay some of those concerns.
You're quite right, Mr. Telegdi, that what we're trying to find is the balance here in giving the government new tools to be able to deny citizenship to those who we feel have somehow crossed the line and where we have reasonable grounds to believe, and evidence that's publicly available, that an individual has crossed the line.
First of all, we are not suggesting that the individual will not have an opportunity to face the accusations against them. I think we have to underline the fact that the process is one in which we build in the ability for the individual to make representations to the minister. Once the minister advises the individual that the minister has this concern, and the minister is planning to find the person prohibited under this provision of the act, the individual has an opportunity to face those accusations, if you will, or allegations, and to respond to those allegations. The minister could change his or her mind after the person has had an opportunity to make representations on that.
Secondly, there's a two-step process here. The minister needs to be satisfied on reasonable grounds that the person falls within the category. He then makes a report to the governor in council, and the governor in council also has to be satisfied that the minister's report is well founded.
Then finally, while there is no right for appeal or review, the courts will always have the ability to intervene and to be able to take steps where there is a finding that the decision is patently unreasonable, that there was a capricious finding of fact or a serious error of law.
So there is still that escape valve, if you will, but the courts will continue to have the ability to intervene and to be able to review a decision if the person makes a representation, applies to the court, and the court believes there has been a serious error or the decision was capricious.
Mr. Andrew Telegdi: Mr. Chairman, what you're saying is, in the first instance, we're going to let the minister, who's a politician, who relies on information from the bureaucracy, make the decision that is normally made by the courts. That's what we're saying.
The reason we have an independent judiciary as one of the pillars in our society is that we do not in fact make basic civil rights and human rights decisions through the political process. I think that's so fundamental to a free and democratic society, the values that we all want to uphold.
What we're hearing is that the minister can do it. The minister can make reasoned judgments. The minister will make balanced judgments. We have an institution for that. It's the court system in Canada, with the citadel being the Supreme Court.
That's what we have, and we're doing it for a small number of cases and we politicize that? That's what you're doing when the minister does it. It is politicized. A minister is a politician. I just find it incredible that we're going to deny somebody citizenship, in a political process, because they have disregard for the principles underlying a free and democratic society, and we're going to do it in a fashion that ignores the principles of the separation of the judiciary from the political.
The Chair: I won't get into the debate here. I have other questions. Diane, and Joe again.
Mrs. Diane Ablonczy (Calgary-Nose Hill, Canadian Alliance): This is a good discussion on important issues, as we all know. I refer to subclause 21(1), where it says, with respect to refusal of citizenship, of course:
If the Minister is satisfied that there are reasonable grounds to believe that a person has demonstrated a flagrant and serious disregard for the principles and values underlying a free and democratic society I understand from an earlier briefing that this clause has no other definition. So I ask you to explain to us what will be understood by "the principles and values underlying a free and democratic society".
Mrs. Joan Atkinson: Let me start, and then Rosaline or others may want to jump in.
As Rosaline talked about when she described this, this is taken very much from section 1 of the Charter of Rights and Freedoms and a precedent-setting decision from the Supreme Court, Oakes, in 1986, which said "the values and principles essential to a free and democratic society" include :
respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.That is what we are going to use, really, as the basis for our interpretation of this particular section, which is taken directly from the Supreme Court.
The Chair: Would you give us that reference again, Joan.
Mrs. Joan Atkinson: It's R. v. Oakes, 1986, Supreme Court record 103.
Mr. Joseph Volpe: Can she provide us with a copy of that, Mr. Chairman?
The Chair: Yes. Thank you.
Mrs. Diane Ablonczy: The fact is that this definition is wide enough, broad enough, and unspecified enough that it could mean almost anything to different people in different contexts.
The other concern is that even if we have a meeting of minds about the meaning of these phrases, the values are those that apply to a society. So are we saying in this bill that unless every single person in Canada adheres 100% to each and every one of these values, which as a society Oakes says we should hold, are we personalizing this so that unless each and every one of them adheres 100% to those values, they are at risk of being refused citizenship?
Mrs. Joan Atkinson: Again, I think what we're saying here is to put emphasis on the words "flagrant disregard". We are not talking about people who are expressing their opinions. We are not talking about the people who are using the freedom of expression rights that they have under the charter, who are exercising their right to different religious faiths or different political opinions or different social ways and cultural norms. That's not what we're talking about.
What we're talking about here are cases where an individual has crossed the threshold, if you will, in that balance between exercising their freedom to express their social, political, religious, and cultural views, towards an individual who is not respecting the inherent dignity of individual human beings and their right to pursue different cultural, social, political, and religious beliefs. We're really talking about a person who crosses that threshold.
Mrs. Diane Ablonczy: But that's really the point, isn't it? That threshold is in the mind of the decision-maker. There's no objective threshold that can be objectively identified so that each and every person understands precisely what that threshold is, and so "flagrant and serious disregard" clearly is in the mind of the adjudicator -- in this case, the minister and those who advise the minister.
So you may have, for example, a Muslim who, because of faith background, does not accept the faith background of Christians and Jews and believes Canada should be a Muslim society. Are we going to say that is a serious and flagrant disregard for the values underlying our society? The fact is, that belief could actually contravene the terms of this bill, therefore such a person could be refused citizenship.
There are more serious implications, too, which I'll get to later. For example, if someone does not believe in hiring equity, does that mean they have contravened the values and therefore can't get citizenship?
So you get into so many areas where -- if I can say this -- politically correct notions of the day can debar people from participation in our society, which, according to the charter, should be open to freedom of belief and honestly held positions on issues with which others may disagree. I think that is the real concern about clause 21.
Mrs. Joan Atkinson: I would say in response to that, I think what we're talking about here is that people obviously will hold different beliefs about a number of different things, whether they be religious, political, cultural, social, or whatever. Where I think it causes us concern as a society is where those individuals use those beliefs in a way to incite others to engage in hatred or violence, or do harm to those who do not share those beliefs. I think that's where we're really trying to draw the dividing line here when we talk about "flagrant and serious disregard".
Mrs. Diane Ablonczy: Precisely. So --
The Chair: I'm sorry, we have to move on.
Mrs. Diane Ablonczy: Let me please make just one final--
The Chair: But this is not the end of the process. I have a lot of people who have asked. You came in late --
Mrs. Diane Ablonczy: But if I could make one final point, just one sentence ....
The fact is, what we really are trying to deal with is not what's in a person's mind or belief system, but their actions. So if we're going to deal with actions, why not specify that it's actions that will debar people from citizenship, not what might be in their mind? I think that would be much more reasonable, much more objective, and much more according to the rule of law.
The Chair: Is there a final comment on this question.
Ms. Rosaline Frith: The person must demonstrate the "flagrant and serious disregard". Therefore it is an action that is taken, and that is what is clearly meant.
Mrs. Diane Ablonczy: It could be words, too, though.
A voice: Words are actions.
The Chair: We'll get into the details. This is just a preliminary briefing. I know everybody wants to get in, and some of the questions that have been raised are absolutely fundamental.
Mrs. Diane Ablonczy: Thank you for your patience, Mr. Chairman. I appreciate that.
The Chair: Joe, and then Grant.
Mr. Joseph Volpe: I'm going to try to be as brief as I can, Mr. Chairman. I thank you for your patience, as well.
I'm intrigued by some of the discussion, because the issue of flagrancy is very important to me, and I accept it. But I go back to what you said earlier on, that what we're doing is trying to make the whole process much more judicial.
In my view, the word "flagrancy" must be proven; you have to verify. You've used other language. You've said there is a body of public evidence, but evidence is not necessarily proof. So I'm wondering how the issue of "flagrant" is going to be interpreted, by whom, and how this public evidence will be turned into proof, so justice will indicate that the burden of proof is on somebody.
Secondly -- I'll just make my points and then give you an opportunity to respond -- subclause 22(1) says, if the governor in council is "satisfied that the Minister's report is well-founded" .... Again, I'm not sure how that is determined, that it is well-founded.
But at any rate, the minister makes a determination, and in subclause 22(3), that determination is "not subject to appeal or review by any court." Yet you've made reference to the fact that there is always a court process available. The only way that an applicant can respond to an allegation is, according to subclause 21(3), by making a written representation, never having to face an accuser and not having an opportunity to develop an argument against any of the accusations.
Finally -- because I'm concerned about this process -- subclause 22(5)says, in addition to the order not being subject to appeal or review by any court, the order is "conclusive proof". So we've moved from body of evidence to "proof of the matters stated in it."
We haven't had any determination before an impartial body of any of these actions, and as abhorrent they might be, Madam Atkinson, we have not gone through some of the fundamental characteristics of the Canadian values, one of them being -- just one of them -- that you face an accuser before an impartial judge and have an opportunity to defend yourself and maybe to appeal the decision. That, as I read clauses 21 and 22, is totally absent from the process, yet you have taken great pains to grant comfort to the questioners around the table that there is always a judicial process at play.
I hope I'm mistaken, and if I am, I'm willing to acknowledge it. But I'd like you to explain that to me, because in my mind, Madam Atkinson, if somebody has demonstrated a flagrant and serious disregard for our principles and values and that person is in violation of several sections of the Criminal Code, I'm not sure I could understand what that person is doing in Canada. I really can't. I think that would be the intent of the determining officer. But please help me understand why you would give the person a five-year reprieve.
The Chair: Don't forget this person is a permanent resident, too. That's what we discussed in the Immigration Act.
Mr. Joseph Volpe: That's right, but that's not what this clause says.
The Chair: No. I know.
Mrs. Joan Atkinson: Rosaline is going to start first.
Ms. Rosaline Frith: I'd start by saying that citizenship is a qualified right. It is the power of the government to grant citizenship. Not granting citizenship does not threaten the life, the liberty of an individual. Not granting citizenship is withholding it, as in this case, for a period of time within which things might change.
I will give you two different examples. You might have someone who has been promulgating hate, a hate-monger. At the time they apply for citizenship, they have a website running. They have associations. They are hate-mongering in a very flagrant way, in a very serious way, and it is evident to the Canadian public. There is no way of not agreeing to give them citizenship if we do not have this particular clause in place. That's one example.
Mr. Joseph Volpe: I appreciate that. I want you to clarify that for me. The Minister of Justice, for example, is tabling legislation today that addresses yet another issue -- the issue of child pornography. That's even more recent than your R. v. Oakes decision of 1986. I don't need to remind you what the decision was. There's a large body of evidence in this country that says that's a flagrant abuse of the dignity of young people.
Ms. Rosaline Frith: With that kind of legislation in place, that would fall under the prohibitions. If someone was either accused or was convicted of such a crime, then they would not be able to apply for citizenship because they would be prohibited from citizenship.
Mr. Joseph Volpe: Without going through the courts.
Ms. Rosaline Frith: In those cases where we have a law or a process in place to deal with it, we would never use this kind of an action to deny citizenship. It's only in those cases where the law is not coming into play. The other example I would use is where you have the actual videotaping, the sworn statements from people that someone committed a crime in a country where there is currently no judicial system in place, no way of dealing with that crime, and that person has legally made it to the point of applying for citizenship. When they apply for citizenship, that is when we can say we would deny under this provision. That would be the only way of dealing with it. In that case after a period of five years, if that same person reapplied, it may be that nothing has changed, and the government would still feel that it is inappropriate to grant citizenship.
The Chair: We have to move on. Grant.
Mr. Grant McNally (Dewdney-Alouette, Canadian Alliance): Thank you, Mr. Chair.
I share some concerns that have been raised. Would it not be worthwhile to insert that definition you mentioned in Oakes, along the lines of defining what we mean by values, perhaps clarifying it somewhat? How do we objectively quantify a subjective interpretation of what a Canadian value is even with that definition?
That is one question. I'll just fire these out and then listen for your responses.
The second question I have is that it seems to me we are leaving a lot of discretionary power in the minister's hands and the governor in council's hands through this process, because as Mr. Telegdi pointed out and Mr. Volpe as well, there is no appeal process. Ultimately how do we add in some kind of counterbalance to that? We want to assume there is fair and reasonable application of that discretion applied by the minister or the governor in council. But we also, as parliamentarians, want to make sure there is some safety valve there as well. How do we do that?
My third question would be this. Do you think this clause could come under a charter challenge, and would it survive?
Mrs. Joan Atkinson: I'll ask Paul to address the issue of charter challenge and appeal.
Mr. Paul Yurack: Mr. Chair, the member raises excellent points. Those are good comments.
I'll begin by addressing the point about the discretion. Firstly, prior to the charter coming into force, the grant or refusal of citizenship -- Rosaline made this point -- has always been regarded by the courts as a matter of the Crown prerogative. So we began with the complete discretion of the Crown to grant or deny citizenship. Now we've moved, and we are moving, to objective criteria for the grant of citizenship. They're completely objective criteria -- everyone knows them and they're able to meet them. And out of that almost complete objectivity we've carved out a limited discretion and reserved it for the governor in council. As you would acknowledge, these are significantly high-placed officials in the government. So we've done that. We've just carved out a limited exception.
Now we've used the expression "a flagrant and serious disregard for the principles and values underlying a free and democratic society". Again, we've focused those words on the charter. So they do have meaning. They've been interpreted. Every time section 1 of the charter has been interpreted by the courts, there is a fairly wide array of case law that interprets those phases. We know what those words mean.
But at the same time, it's not desirable or necessary to precisely define, or attempt to define, these terms exhaustively. We need to allow for some scope of discretion, to allow these terms to evolve as our society evolves. I think that is the first point. We don't want to define these terms with mathematical precision, because we need them to evolve. We need to allow some scope for discretionary decision-making at that level. But at the same time, the balance and check is again that we have a high-ranking official, the governor in council, the minister who's accountable to Parliament, and that decision has to be reasonable and in conformity with the charter.
To date, no case law has held that the denial of citizenship engages any charter rights. The effect on the individual is that they remain a permanent resident. No charter rights are affected. They won't be subject to removal. So again no charter rights will be affected.
The Chair: Jerry. We have to go on. We have two other sections and I have to vacate at 11 o'clock for another committee. I'm sure we'll come back if we don't have enough time. Go ahead.
Mr. Jerry Pickard (Chatham-Kent Essex, Lib.): I maybe have a different view as well. I believe that this part of the legislation has been enacted because you found yourself unable to deal with a few cases.
I guess my first concern was raised when someone said "accused". I think often people are accused when they're not guilty and I have some concern since that word was raised by Rosaline. And I hope we look at that awfully carefully. The second part that would assure me we're heading in the right direction would be an idea of how many. I would guess the numbers of cases would be minuscule. We all want to protect the rights of those who need protection. I think that's why the questioning has been as careful as it has. At the same time, there is a greater mass of population that needs another form of protection. I believe that's what this is trying to do.
In cases in your past record, two things could be looked at. Foreign experience is one. I'm sure you're drawing upon other countries' experience in putting this into the legislation. Do other countries do this? Who, and how do they do it? And number two, how many cases are we really talking about on an annual basis, approximately? What are we dealing with?
Mrs. Joan Atkinson: Let me deal, first of all, with the issue of accused. I'd like to underline again a point that Rosaline made earlier. If a person has been charged with an offence under the Criminal Code in Canada or convicted of an offence overseas that is equivalent to an offence under the Criminal Code, they fall within the other prohibitions and are denied citizenship on the basis of that evidence that they have been charged with or convicted of a criminal offence.
What we're talking about in clause 21 is a person who has demonstrated through their actions a flagrant and serious disregard. So we are talking about individuals who may not have been accused under the criminal justice system, either because the criminal justice system does not contain the appropriate law because we haven't yet passed it or we don't have an appropriate mechanism under the criminal justice system to deal with this particular type of activity and haven't criminalized it yet, but where their actions have demonstrated this serious and flagrant disregard as defined by the jurisprudence.
I think the point Paul made is a really important one. For the Supreme Court, as we all know, the jurisprudence changes as society changes. We don't want to pin ourselves down with a very precise definition, because those definitions are really determined by the highest court of the land as Canadian society evolves and changes. So the way in which this is interpreted really will be guided by the jurisprudence of the Supreme Court of Canada. That's where we have to give ourselves, in the very small number of cases in which we will use it, that kind of discretion to ensure that as Canadians we are not granting citizenship to individuals who have crossed the line in a very serious way. In terms of comparisons and other things, maybe I could just ask Rosaline to speak to those issues.
Ms. Rosaline Frith: There isn't the exact same kind of provision in other legislation that I know of, but there are other even more vague ways of denying citizenship in other countries that are not anywhere near as precise as this statement.
The other thing you asked was how many cases. I think that's very important. I can only think of one case of hate-mongering where this would have been applicable in 30 years.
The Chair: Can I just recap the discussion here. First, I think you've heard that the committee, especially as it relates to this definition, which Jerry just picked up on .... I keep hearing the words "serious" and "flagrant", and I understand that. Also, there has been Supreme Court jurisprudence, and as we broaden that definition we get ourselves caught up in a problem. I keep hearing "hate-mongering", "demonstrate", and "incite". The question is, is this too broad? I don't need an answer right now, because I think this is where the committee is at. Should we not narrow it to ensure that's what we're talking about, hate-mongers, inciting, or demonstrating some stuff, or do you make it so broad as to catch everybody and yet there are only one or two cases? I just need you to give some thought to that.
Second, where is the citizenship judge in this thing? I take it that under the present system, if a person had applied and the administration had done all of their preparatory work and nothing had come up, or maybe it had but the citizenship judge presently -- maybe not under the new system, because there are going to be commissioners and essentially ceremonial people who therefore don't have any discretion to approve or deny .... Where was the judge in this? Did the citizenship judge have any role to play under the old system?
Ms. Rosaline Frith: No. It's a brand-new provision. Under the current system there would be no discretion whatsoever on the part of the citizenship judge to deal with such an issue. However, the citizenship judge might have decided to act on this. The person could have appealed and likely would have won in a court because they would meet all of the requirements they legally must meet in order to become a citizen.
The Chair: But there was a quasi-judicial, independent sort of person, and now there won't be.
Ms. Rosaline Frith: There was no quasi-judicial discretion --
The Chair: The citizenship judge was.
Ms. Rosaline Frith: But there was no --
The Chair: Rosaline, you don't have to get so defensive. We're just asking questions.
Ms. Rosaline Frith: I'm sorry if I appear defensive. I just want to be very clear.
The Chair: We're working together on behalf of the Canadian people, so let's not get defensive right off the first hour. We're asking some very good questions.
Ms. Rosaline Frith: Yes, sir.
There were no legal grounds for quasi-judicial decision-making in this area. They have to take the decision clearly on the criteria that are laid out. There is no discretion on this particular issue.
The Chair: The last thing is, on behalf of the committee, all of these other things, especially revocation, seem to be based on a judicial-based system. This one is governor in council. The next one we're going to get to is about a minister. I keep hearing this reference that there is a Federal Court appeal mechanism -- and I know, Paul, you tried to deal with it -- except if you read the Federal Court provision on any decision made by the government, that bar is pretty darned high, because it says you must demonstrate that the decision was patently unreasonable and therefore the decision-maker was without jurisdiction to deny citizenship.
My point is that if we're giving the impression that there is an appeal mechanism, the appeal mechanism may or may not be there, because it's not on this particular clause. It's on a Federal Court provision that exists for any government decision.
Mr. Paul Yurack: That is correct.
The Chair: All right, let's take 10 deep breaths and we're going to move to annulment.
Mrs. Joan Atkinson: I'll ask Rosaline to take you through the annulment process.
Mr. Joseph Volpe: If you want to take 10 deep breaths for a moment, I guess we interrupted Madam Frith when she was going to explain, in response to my questions, the process of the decision and the elimination of any appeals process and how that fits into the concept of judicial process and appeals being put in as part of Canadian values. I think I pointed out the subclauses of each one. I wonder whether you would allow her to respond to that.
The Chair: Okay, I thought --
Go ahead, Rosaline.
Ms. Rosaline Frith: Again, the grant of citizenship is not a judicial procedure; the grant of citizenship is an executive decision, so the denial of citizenship is also an executive decision. It's not part of the court action. But I believe that when the Supreme Court ruled in the case of Oakes, it interpreted section 1 of the charter. It established that the government can limit the rights and liberties guaranteed in the charter, but only if that limit can be clearly and rationally justified in a free and democratic society. I think that the courts themselves have made a statement on this issue.
The Chair: We'll review that. It's going to make for some great reading during our Christmas break, I'm sure.
Joan, do you want to take us through annulment?
We thought denial was difficult, let's get to annulment and ratification.
Ms. Rosaline Frith: Annulment is also a new power. It is not in the existing legislation. In annulment, what happens is that within five years of the grant of citizenship, should information arise that a person clearly obtained his or her citizenship under a false identity or while prohibited, then we can proceed with a case for annulment.
What we would do is the minister would notify the person that he intends to make an annulment order. He would provide the person with a summary of grounds. The person would have 30 days to make written representations back to the minister. The minister would consider the person's representations and then decide whether to proceed with an annulment. The person concerned can apply to the Federal Court Trial Division for judicial review of the minister's decision to annul. Either the minister or the person concerned can then appeal to the Federal Court of Appeal if they disagree with the decision from the Federal Court Trial Division -- this is clause 18 on page 12 -- and either the minister or the person concerned can then appeal the Federal court of Appeal decision to the Supreme Court of Canada.
If a person's citizenship is annulled, he or she reverts to becoming a permanent resident. Those who maintain their permanent resident status can reapply for citizenship after a period of five years.
Why do we want this new provision? It is because it will allow us to avoid going through a judicial process in those cases where we have the documentary evidence that a person obtained his or her citizenship either through false identity or while being prohibited.
The Chair: Now, is clause 18 the only relevant clause?
Mrs. Joan Atkinson: Yes, subclauses 18(1) to 18(5).
The Chair: Okay, that'll help. Andrew.
Mr. Andrew Telegdi: Thank you very much, Mr. Chair.
The Chair: No speeches, please, just questions, if you could.
Mr. Andrew Telegdi: In the previous clause, where we were dealing with non-citizens, it was stated that to grant citizenship is a Crown prerogative. We have no case law that denial of citizenship infringes the charter. Well, we have now moved into the category of actually having a citizen. So you're again arguing that this denial be done by the minister or by administrative process. It's interesting that you said, "avoid...a judicial process".
Question number one: how many cases do you see us dealing with in this category? Question number two: in promoting expediency to this degree, what damage are we going to make to our fundamental values as outlined by section 7 of the charter? I'm worried about expediency. There used to be a man in Italy who promised to make the trains run on time.
An hon. member: And he succeeded.
Mr. Andrew Telegdi: He succeeded, unfortunately.
The Chair: He was a favourite of mine, too.
Mrs. Joan Atkinson: Okay, let me try to address the issue of expediency. We're looking at different ways of being able to deal with an individual who obtained their citizenship through fraud and misrepresentation and therefore should not have been granted citizenship in the first place.
In the annulment provision, we're talking about cases where the evidence is clear and it's recent. We're only talking about the first five years after a person obtained citizenship. Beyond five years, it inevitably gets more complicated. If the evidence is less clear and we need to apply discretion, and there needs to be a balancing, then we're into a revocation process, which is fully judicial.
The annulment process allows us to take a case where the evidence is clear and recent that an individual should not have been granted citizenship. They provided false documents; they provided false information; and they should not have been provided citizenship, because they are prohibited from citizenship. In the annulment process, if the minister is satisfied that the individual is so described, it allows the minister to proceed to annul citizenship. The person has access to the Federal Court to seek a review of that decision, and through the Federal Court's Trial Division to the Federal Court of Appeal, and, ultimately, to the Supreme Court.
So it allows us to distinguish those cases from ones in which the false representation came to light and happened some time ago, and where there is a much more complicated case. The cases will go into the revocation process and be dealt with entirely through the courts.
Mr. Andrew Telegdi: How many do you see this applying to? Where's the magic in the five years? We heard from the Canadian Bar Association, the Quebec Bar Association, and the B'nai Brith. None of them liked this clause. To quote David Matas, he said if you're going to do it, let clause 16 apply. The fundamental value is that the accused gets their day in court. What you are saying is that you want to avoid a judicial process. Well, if somebody is accused of having done something, and they say, "I have not done it", then we have to have an independent body, which is what the courts are, instead of having the bureaucracy be prosecutor and judge, and having it be signed off by the minister.
The Chair: There were a number of questions there, such as why five years, and so on.
Ms. Rosaline Frith: First of all, we've had about seven cases over the last 25 years.
To give you a feeling for what kind of case you would have, it could be someone who applied when they were prohibited and where it did not come to the attention of the department until after they had been granted citizenship. We then have the court documents to show that they were prohibited at the moment we gave them citizenship.
The reason I mentioned avoiding going through a judicial process and wasting the time of the court is because we have the documentary evidence, which we would put in front of the person at the time we told them that we were going to annul. Today we would have told them that we were going to do that before revoking their citizenship and going through the process of revocation. In many cases the people will simply allow us to go ahead. They acknowledge right away because we have the documentation. That is the only reason.
Five years is the same thing. If it was over five years, we felt that it might not be as clear-cut and that there might be other things to be taken into consideration, and therefore it should go through the revocation, through the judicial process.
The Chair: What triggers that annulment process, though? Is someone calling up, or does a document land on your desk one day after the guy or gal has been given citizenship? What triggers it if not a certificate or a phone call saying we heard that So-and-so did this and that?
Ms. Rosaline Frith: Even if someone called and said they had heard that, we would have to have the information in front of us in order to proceed.
The Chair: Paul.
Mr. Paul Yurack: I want to make what is perhaps an obvious point. It's that the citizenship officer, had they had this information before they granted, would never have granted. The person would have been prohibited, so as you say, if the information comes to light a day or two later, then we have a conviction. The person never should have gotten citizenship in the first place. It's obvious they fall within the prohibited sections, so it's the ability to quickly undo what we should not have done in the first place.
The Chair: Diane.
Mrs. Diane Ablonczy: Why was the five-year window chosen? It seems arbitrary. Why not 10, 15, or 20?
Mrs. Joan Atkinson: Or one? To a certain extent you're right, there is a certain arbitrariness to choosing a five-year window. We felt that five years was a reasonable balance in terms of choosing a process where the facts are very clear and straightforward and the evidence is very clear that the individual should not have been granted citizenship in the first place. You wanted to make a point about the five years, Rosaline.
Ms. Rosaline Frith: I think the only reason we chose five years was that we felt that after five years someone's civil status needs to be reviewed properly through a system; it becomes more complex and shouldn't be done arbitrarily.
Mrs. Joan Atkinson: But I would say that the annulment process is proper. I fall back on Paul's comments here, that essentially what we're saying is that we made a decision we shouldn't have made. That is, if we'd had the information in front of us that the person had been convicted of an offence that made them prohibited, or if on the other hand there was clear evidence that they didn't meet the residency requirements that are very clear now in the new Citizenship of Canada Act, it would allow us to go back and say, this person should not have been granted.
Mr. Paul Yurack: The process is subject to judicial review, so again, the courts would have a mechanism to review the reasonableness of the decision, with the full right of appeal to the Court of Appeal and thereafter with leave to the Supreme Court.
Mrs. Diane Ablonczy: We're aware that safety valve is extremely limited, shall we say. It just seems to me that if someone uses a false identify, it's false. It's not less false after five years, and it just seems strange to me.
I'm struggling a little -- I think we all are, Mr. Chairman -- with the philosophical underpinnings or maybe the principles of this bill. It seems to me that if you have the principles right, then your legislation is going to be solid. Again, to pick up on what the chairman said, I can assure you that although we're being very intense here, it's because we care so much, and it's not personal.
We hear you saying that the conferral of citizenship is a gift of the Crown, and therefore the Crown can be more arbitrary in withdrawing the gift -- to paraphrase what I heard you say. But it seems to me that it's not quite true, because what we have is really a process or a representation for people that if you do certain things you can expect to receive citizenship, and this is codified in the law of the land. This has become a law.
It seems to me that because the conferral of citizenship is codified in law, it is therefore subject to due process of law. In other words, you can't say, well, this is a kind of gift, so we don't have to follow due process when the gift has been codified in law. You can't have it both ways. It seems to me that on that argument there's no reason for us to accept that due process of law should not apply completely to the conferral, the revocation, the denial, or the annulment of citizenship.
Tell me where I'm off track.
Mrs. Joan Atkinson: I would argue that due process does apply. First of all, when we look at both denial and annulment as well as revocation, where there are legal thresholds that must be met in terms of the onus on the decision-maker, we have reasonable grounds to believe these are very well-accepted legal precepts in terms of the thresholds that must be met before action can be taken. The individual is given the opportunity to respond. They are shown the information and the evidence upon which the decision-maker is basing their decision, and they are given an opportunity to respond to that information, to provide additional information to change the mind of the decision-maker, and to show additional evidence that contradicts the evidence the decision-maker has. They are given the opportunity to respond to that.
Finally, there is access to the Federal Court in terms of annulment and denial. As the chair pointed out, the Federal Court always has the ability to intervene and review a decision taken under any act of Parliament if there is evidence that the decision was taken outside the jurisdiction of the decision-maker, that there was an error in law, or that it was based on a capricious finding of facts. I would argue that there is due process.
Mrs. Diane Ablonczy: But I read clause 18, and the words "clear evidence" or "reasonable grounds" are not in that clause, and in fact the minister is not ... a judicial hearing. We don't know precisely what basis of evidence is required. Is it beyond a reasonable doubt? Is it a balance of probabilities? We don't know; it's not specified. And this gets back to Mr. Volpe's point with respect to clause 21, where there's talk about "written representations" and orders being conclusive proof. Those are huge departures from due process as we have had it in common law for centuries.
It just seems to me that there's a huge gap there no matter how you paint it, and I can't understand how that can be justified.
Mr. Paul Yurack: You've raised a number of good points, first, and particularly about the principles, the due process, being set out in law. I want to address that.
I think that fundamentally the reason we got to these provisions was because of that rule of law. This arose out of the immigration context, where people would come to the port of entry and have acquired landing because they didn't disclose a change in their circumstances that occurred after they received their visa but prior to landing, such as a principal applicant dying. Therefore, the dependent applicant didn't have a principal applicant to rely on for their support and well-being.
That being said, we are trying to make the argument in court that the person's status was void, they were not landed, or they didn't have a valid visa--bear with me--and the court said, wait, you have a process in the act, so that person was landed, they did receive a valid visa, so they have a right of appeal to the ID and humanitarian and compassionate grounds apply. So guided by that jurisprudence, we said, right, if we're going to set up a system, we can set up a number of different systems to deal with the different procedural requirements. In clause 18, we've set up more, I'll say, streamlined procedures, but they meet due process because they do allow, as Joan pointed out, summary of the information to go to the person.
And the clauses are quite clear. It's based on clause 28 or fraudulent identity, two very fact-based determinations. So we have the facts. It's not a question of having to uncover a great deal of information and go to a court of law and have evidence proved in a court of law. The evidence exists. It's a conviction certificate that's on record. So we point to that certificate, ask the person, "What do you have to say about the certificate?" And the person has an opportunity to disabuse us of any notions that they weren't convicted. But we'll look at the certificate and make a decision to annul their citizenship. As I said, if we had that information in the first place, they would never have acquired citizenship.
The Chair: We'll go to Jerry.
Mr. Jerry Pickard: Thank you very much, Mr. Chairman.
I was disappointed that you said the five years was arbitrarily coming down. I thought it was so consistent with your denial. After five years you review the case and give new opportunity. Five years after a person has given documents that aren't correct, you may have a track record of them in Canada over that five-year period of time, as a citizen, and there may be a totally different light shed on it. So it's the same review system that I see, and I see it as consistent. Anyway, it's interesting that you said it wasn't.
Mrs. Joan Atkinson: It's internally consistent.
Mr. Jerry Pickard: I also would suggest that we're not just talking about expedience. When somebody has obviously been so flagrant as to submit false documents, do people get special rewards because nobody caught them at the time, but caught them two days later, or six months later? I think Diane's comment was accurate: if they have done it, they have done it, and that is getting rewarded fraudulently, or getting a reward, as they shouldn't have received it.
So again, part of the principle here, in my view, is cost more than expedience. By the time we run these cases through courts with the costs involved, we're putting the Canadian taxpayer in a difficult, if not impossible, circumstance. There aren't many people in this country who support, if it's that obvious .... There were seven cases. In other words, we're not talking about a whole lot of flippant decisions; we're talking about seven cases in 25 years. Folks, I don't know that this is not so limited that the costs would be carefully considered, and I would wonder if it's worth the cost to the Canadian government to go ahead. I assume we have better places to spend our money.
The Chair: It was seven under an old system. Do you know of any pending cases that with this new authority you could move fairly quickly on?
Ms. Rosaline Frith: I think we would likely do more cases, because it has been so difficult to put it through the system and it takes so long that we probably have avoided some.
The Chair: So we'll probably have more appeals, more everything.
Ms. Rosaline Frith: So we may have more.
Mr. Jerry Pickard: I have one other comment. With that type of documentation, and with that statement in the bill, someone who is submitting false documents may reconsider doing that very carefully. So actually having it there is a deterrent to their doing it as well.
Mrs. Joan Atkinson: I would just like to clarify something. In terms of the arbitrariness of the five years, you're right, it's internally consistent within the bill between denial and annulment. But in terms of why five years on the denial and five years on the annulment, we had to make some decisions about what made sense. It's a good point.
The Chair: Joe.
Mr. Joseph Volpe: Thank you, Mr. Chairman.
You're trying to give us the comfort level required to accept what would appear to be, at least on the face of it, rather draconian measures, especially given that we're dealing with seven cases in the last 25 years, and potentially more that we don't know about. We especially don't know because you haven't given us an indication of how many more you would have gone after in the last 25 years if you'd had the mechanism. No comment.
You've established this bar of five years. Last year you gave a qualified right to 160,000 Canadian residents who became Canadian citizens. If you'll allow me to sort of flatline that number, because we have landed approximately 3.2 million since the Oakes case in 1986, you probably have a pool of 3.2 million potential aspirants to the qualified right. Every one of them who hasn't already got Canadian citizenship would be subject to this five-year window.
You said you're going to give up after five years. In response to Madam Ablonczy's question, if you're in violation, you're in violation. You're putting a statute of limitations of five years on this. But in your explanation you appear to take that away, because you say in the last sentence of your explanatory page that if a serious situation is discovered after the five-year period, the more complex revocation process is available to the minister.
Please forgive me, but it sounds to me like that qualified right never becomes a permanent right, and once I have my citizenship I'm on probation for five years.
Madam Frith, I see you shaking your head. Thank you very much.
However, I think you indicated that the only way we're going to be able to take this away is if somebody comes up again with the flagrant evidence, the sort of business we talked about before, which I think some people might look at with a little bit of a question. In order for that to be appropriate to me, I'm thinking a bureaucracy has to be established to review all 160,000. Tell me that's so.
Mrs. Joan Atkinson: We don't intend to go on witch hunts, if that's what you're asking. Information could come to us through public means, the media, or people bringing it to our attention. It could come to us through our law enforcement partners providing us with information on an individual. Information can come to us through different means.
If, in a relatively short period of time after we've granted citizenship, the information is clear, there's a certificate of conviction, there is clear evidence that the individual would not have been granted citizenship if we'd had that information in front of us at the time, the annulment procedure gives us the ability to be able to take action.
Mr. Joseph Volpe: The process doesn't work in reverse, Madam Atkinson, does it? It can never work in reverse.
For example, if a family comes to Canada from abroad with very young children -- I don't know, pick an age, whatever the word "young" means to you -- that child grows up in a Canadian environment never having had citizenship, but believes that he or she has always been Canadian because it's the only life that person has ever lived. After turning 18, he or she may be convicted and on applying for citizenship realizes that not only can he or she not get citizenship, but finds an immigration enforcement officer at the penitentiary taking him back to someplace -- God only knows where.
But if I use your logic, I would say, well, if the parents had taken out citizenship when the child was a minor, that person would have received that qualified right and probably the five-year period would have expired and therefore we would not have been able to take it away from him. Follow my logic through, okay? To use Madame Ablonczy's point again, if the principles are right, then the mechanics for either applying those principles, enforcing them, or whatever are also capable of withstanding scrutiny.
Now, in my view, if your principle is accurate and correct, yet it doesn't apply on the flip side, I'm wondering why.
Mrs. Joan Atkinson: Let me see if I can attempt to answer that question.
If I understand, this is the scenario that you're putting on the table here: an individual who was a minor child arrived in Canada, lived many years in Canada; the parents never took out citizenship, so the individual remains a permanent resident of Canada, then engages in criminal activity, is charged and convicted, is incarcerated as a result of that, and that person then is inadmissible under the Immigration Act; and immigration enforcement action is taken, and that person ultimately is removed from Canada. I'm not sure where the citizenship process comes in at this point.
Now, if the individual's parents had applied for citizenship when that child was a minor and the parents -- the principal applicants -- met all of the requirements of citizenship, the child at the time would have been granted citizenship. If that child then later on in life was engaged in criminal activity, he or she would be like any other Canadian citizen in the judicial system. If no one was inadmissible at the time or filed within one of the prohibited classes at the time that citizenship was granted, then they're not subject to any annulment procedure, because they were granted citizenship based on the fact that they met all of the requirements.
Mr. Joseph Volpe: I realize that some of this is anecdotal. I'm going to cite one of my colleagues from the Senate who, upon reading this, said to me, you know, Joe, I really don't think I know anybody who came here in the post-war -- for the young people in the room that's World War II -- period who didn't get here by lying about their identity or their background; otherwise they wouldn't have been able to make it on the boat. Forget the flights, because they didn't exist. And these are some of Canada's finest citizens. Now, all of those people would probably have been disqualified under this piece of legislation, but also their children would have been disqualified. Let me give you half an example, Madam Atkinson. My dad became a citizen in, I think, 1953 or 1954, but he didn't put me on the list.
An hon. member: I wonder why.
The Chair: Hey, revocation.
Mr. Joseph Volpe: Do you see where I'm headed, Madam Atkinson? I was just a young babe.
Mr. Paul Yurack: If you would get back to first principles, the principle is, if someone acquires citizenship honestly, they have it for life, from that day forward. However, if someone acquires it fraudulently or through misrepresentation, then all bets are off. There are no limitations on frauds. Equally, under the Citizenship of Canada Act, that status will be taken away. Like yours, my father became a citizen at about the same time. I think I was on the list, though.
The Chair: We'll check that out.
Mrs. Joan Atkinson: I have one point of clarification. Every citizen is dealt with individually. If a parent is annulled, that doesn't mean their children have their citizenship annulled. We look at the individual in the context of annulment. The fact that a parent may have obtained their citizenship through fraud and misrepresentation does not necessarily mean that the children will have their citizenship annulled.
The Chair: This is your last question.
Mr. Joseph Volpe: Okay, the last question on that is simply--and I'm sure it will come to it--in order to qualify for citizenship, the very first qualification for the individual is to become a landed person. We'll come to the point through our discussion.
If the individual is found to have been landed by fraudulent means, then the application would, of necessity, be declared an invalid one, and all the individuals on that application, if you have a family application and you include minor children, are out of luck.
If this Citizenship of Canada Act is going to be consistent with the Immigration Act, governed by the same department, I think maybe our presumption that every individual is dealt with on an individual basis may find itself challenged. I'm just wondering whether we thought that one through adequately.
The Chair: Ms. Atkinson.
Mrs. Joan Atkinson: In the citizenship context -- and we'll get to that when we talk about revocation, in terms of what happens when there has been misrepresentation in the process leading up to the granting of permanent resident status -- we make a distinction in terms of the impact of the revocation process and whether it simply reverts a person to permanent resident status and they then go into an immigration process, or whether it actually ends up being a removal order.
I don't know whether that gives us a good segue, Mr. Chairman, to go into a description of the revocation process, which I think we wanted to do today as well, or whether there are other questions around annulment, because I think we can deal with some of those questions in the revocation process.
The Chair: Yes, but to tell you the truth, we won't get to revocation today, unfortunately. But I definitely want to do it before the committee starts to travel, because I think all this information is very, very useful. I'm thinking we will take a couple of hours on Tuesday to go through revocation, which I think is important.
I still have two or three questions on annulment, if I could.
Mrs. Lynne Yelich: I too want to talk about the five-year window. You flippantly said, why can we do it in one year? We said 20 years. Well, I'm thinking, yes, 20 years for the real hard criminal, and one year for the person who just, as you've said, got in by lying on their papers.
My question is, of those seven cases that you've said exist, what would you do with them now? Are you glad you have this in place? Would you take it away? Does that five-year window make sense? To me, if they're really bad, as Diane said, you don't want them. They're still criminals; they usually don't change in five years. If they're just small ... then why not leave it and not go through all the court cases? As Jerry had said, why would you put all that before the courts?
Ms. Rosaline Frith: I think what we were trying to do ... and I would be very glad if this came into effect today. It would help us to deal with those cases that are black and white, which we are facing time and time again. The example I would use is if we have a system failure, and for a period of several months there is a backlog and we're not getting up-to-date information from the system through the RCMP and other legal systems, so we don't know there actually was a criminal conviction against someone. They have lied through the process, and we have granted citizenship, and then three months later the system clicks in and all the information comes in. We've just gotten those files, and on the files the clearances are showing we have a problem, which we've just missed by a matter of days, when that information wasn't available.
Mrs. Lynne Yelich: The problem is from the onset.
Ms. Rosaline Frith: If that happened, we would be able to deal with those right away. For those cases that happened five years ago, and for those more complicated cases of the real criminals that we're dealing with that happened five years ago, again, if it's a really bad person and someone we wanted to deal with in terms of having our removal expedited at the same time, then it would be better to deal with it through a revocation process, in any case.
The Chair: But Rosaline, let's be clear here. We're not talking about new arrivals to the country. We're talking people who are permanent residents and have at least been here 1,095 days or have to prove that they have been here, or they could be here 5 or 10 years.
On the citizenship application, I can't remember whether or not there's a declaration there --
Ms. Rosaline Frith: Yes, there is.
The Chair: -- in terms of convictions that they may have gotten 15, 20, or 30 years ago, when they were in their other country, or something like that.
Ms. Rosaline Frith: So with the person who has been here already for the three-year period, we then have this problem where they either lied or didn't admit to something in the processing when they were signing their documents. For these, it's black and white, because we have the documentation. Shortly thereafter, we know we have a problem and can deal with the problem. I would think it would very unlikely anyone is even going to want to appeal it, because the evidence is so clear.
The Chair: Andrew, one question.
Mr. Andrew Telegdi: Mr. Chairman, if we have slam-dunk cases, which the Crown often says they are, it seems fine to me if the person pleads guilty or the case proceeds very quickly.
I want to read one thing into the record, Mr. Chairman. I think it's important, and we'll provide documentation to all members. Let me tell you a story about the importance of that spirit.
A friend of mine told me he and his parents arrived in Canada four years ago. They had fled eastern Europe. They were alone and looking to start anew. They wanted to start again in Canada. To get to Canada, it was necessary to have a blood relative already on Canadian soil. Their family was scattered and gone. They knew of one man in Canada, a dear friend of their father. So they claimed him as an uncle.
On the day of their interview with the Canadian officials in the office in Paris, they dressed up in their finest clothes-clothes that were threadbare at best. At the Canadian embassy, that six-year-old boy heard his mother speak French for the first time. As she told her tangled tale to the Canadian official, the child didn't understand. But he felt her tension. After a silence, the immigration official responded and his mother broke into tears. To this little boy, it was clear they were not going to Canada after all. As he told me this story, his eyes filled with tears. I knew I was talking to that little boy who was remembering and reliving his fears. Later his parents hugged him and said they were going to Canada. The immigration official had said that Canada needed them, and had added that they were going to a country where they would not have to lie any more. He said, "Welcome to Canada". I think this is important, because it was given on November 8, 1999, by the then Minister of Citizenship and Immigration. Here we have a case where the people misrepresented themselves in coming into the country, who are subject to expulsion within the meaning of the act. This obviously didn't happen, because the person was an understanding immigration official.
This ties into what Joe said, but I guess that if we were to chase these cases down, we'd be dealing with God knows how many. But how can you praise this as a good thing, on the one hand, as a minister, and promote having legislation allowing us to revoke, on the other hand?
What's bothersome is that if we had adopted in Bill C-63, one of the recommendations coming forward from you folks, we would have had the power to revoke his citizenship as well, because his parents acquired it through fraudulent means within the meaning of the proposed act - and because I take it that the parents of this young boy are now dead. Of course, this would have taken his citizenship away.
The Chair: Is there a question in there, Andrew? Or did you want to use it as an example?
Mr. Andrew Telegdi: Yes, I want to use this as an example. But I will file it with the clerk, who can get it out to members of the committee.
The Chair: Do you have a response to this, Joan?
Mrs. Joan Atkinson: Taking that story, Mr. Telegdi, the fact that the family came to Canada is an indication of the humanity that was in the system and is there today. When an individual applies for permanent residence to Canada from overseas, those officers have discretion. In this case, the misrepresentation was uncovered during the course of that interview. The visa officer confronted the individual with that misrepresentation, and it became evidence. There was an explanation as to why. The visa officer continued to deal with that application in a positive fashion, having used the discretion available to them to deal with those cases. And that family came to Canada.
That story is an indication of the humanity in our system that allows us to be able to deal with individuals in a humane fashion, according to their individual circumstances.
On this annulment provision, under the Citizenship of Canada Act, even if many years later a fraud or misrepresentation were uncovered, those individuals would not be subject to an annulment process, because it happened a long time ago. They would be subject to a revocation process, but the child would not be affected. But the moral of that story is that our system does have humanity within it.
The Chair: Okay. Jerry, quickly.
Mr. Jerry Pickard: Quite frankly, sometimes one case can distort a whole system. If I were sitting in opposition and a case came along where somebody had very clearly lied, and so on, I would first ask the minister, "Why couldn't you put something in place to deal with this issue? It's absolutely absurd that we're here and you're hiding behind the courts. You say you can't answer because it went to the court system".
How many times, in my 14 years in Parliament, have I heard that? People on my side, when they were in opposition, said it; people in opposition say it every week now.
This appears to be a step to resolve some of those really obvious things that should be corrected. Quite frankly, I commend the minister and the minister's staff for dealing with such an obvious a problem that needs to be corrected soon.
The Chair: Jerry's talking about an expedited process. I understand that's partly the rationale for dealing with the annulment section.
On the issue of clause 18 and children, if a person's citizenship is annulled, does that mean the citizenship of everybody in that family gets annulled?
Ms. Rosaline Frith: No.
The Chair: Even if they were part of the application?
Ms. Rosaline Frith: In the previous bill we had a clause that affected the children as well, but that was removed. In Bill C-18, annulment is only applicable to the person's citizenship, and has no effect on the citizenship of their spouse or children.
The Chair: Okay. Thanks for that clarification.
There were a lot of questions on the standard of proof the minister should have when it comes to the annulment and its reasonable grounds -- its evidence. I think Diane was asking whether we were talking about a bar that was not so low as to cause some difficulties. If we're talking about a system that is appealable to the judiciary in this instance, then the minister must have some pretty strong evidence of fraudulent stuff in their application. So do I take it, the way the clause reads, we aren't talking about "evidence"? It says "reasonable grounds". It's sort of vague about making sure you have concrete, pretty darned good stuff.
Mrs. Joan Atkinson: Subclause 18(1) says, "If the minister is satisfied that a person has, after the coming into force...", etc.
The Chair: But "satisfied" is such a weak word, isn't it? Ministers get satisfied and dissatisfied each and every moment of the day, I can tell you.
Mrs. Joan Atkinson: Well, we're not trying to prove an allegation in clause 18. In clause 18, the minister must be satisfied that there is proof, concrete proof --
The Chair: Is that what the word is saying?
Mrs. Joan Atkinson: -- that an individual acquired their citizenship through a false misrepresentation.
The Chair: I'm not sure it says that. I like that, Joan. I like what you just said, but I'm not sure that's what subclause 18(1) says. Satisfied that there is proof -- the words "proof" and "evidence" would help, in my opinion, because all the examples you cite, seven, or perhaps that there's some in the system, in fact are pretty well black and white issues. That's what you said. People won't even appeal them because "we've gotcha". Therefore I'm wondering where the words "proof" and "evidence" are with regard to subclause 18(1). I didn't hear that or see that. Anyway, Paul.
Mr. Paul Yurack: That's a fair point you're making. Elsewhere we've put in the standard where we think it had to be inserted in the clause, in particular in clause 17, because it was a certificate process done on the balance of probabilities. We've left it out of clause 16 because it's a civil process and the balance of probabilities applies.
In this clause, you have to read the entire subclause 18(1) to understand its meaning. Where it says "is satisfied", "retained, renounced or resumed", "in contravention of section 28", you then go to the list of clause 28 prohibitions. Again it's clear there the kinds of things we're talking about -- the evidence that's necessary just to reach that level of satisfaction.
The Chair: Yes, and "balance of proof", "reasonable evidence" -- we're hearing all kinds of terms obviously from lawyers who were there before.
If I can talk a little bit about this so-called gift the government or the state confers on people, citizenship is, by virtue of what we do, the greatest thing we can do for anyone. But taking it away ought to be the most difficult thing we do, because there are ramifications, even on the denial and/or on annulment, and even on revocation. It's pretty serious. The result is that you might be only a permanent resident, and you can reapply again, but there are certain serious ramifications.
In this one -- annulment in the first five years -- there's a judicial process, but the person who's making the decision is actually a minister.
For denial, it's governor in council, which is an even higher threshold because it's at least three or four ministers. It is one person who can essentially say, based on the so-called balance of probabilities, until you read that section, I think I can move to annul fairly quickly. There are some appeal mechanisms.
Revocation, though, is a totally judicial system, and I'm sure we'll have some questions on that, which means that you're protecting that right of citizenship, come hell or high water. You're putting the bar up here. The main question is, be it revocation, where the bar is up here -- a total judicial system -- to annulment, where a minister, essentially one person, gets to say yes or no, even though there are appeal mechanisms; to a denial, where at least you have a governor in council, which is three or four, and you might get a judicial appeal if you're lucky through the Federal Court .... I guess we're all starting to say, well, if it's such a great gift and there are certain bars, maybe when you take it away, is it not proper to have a total judicial-based system as opposed to these ad hoc administrative ministerial judicial systems?
Mrs. Joan Atkinson: Let me start, and then I'll ask my colleagues to jump in. I don't think I would describe it as ad hoc. I think that what we've tried to portray to you is the due process that is evident through the legislation and through natural justice and procedural fairness that applies to any administrative decision that is made in administrative law under any act of Parliament. This is true when it applies to the Citizenship of Canada Act, as it applies to the Immigration Act, as it applies to other administrative decisions that are taken under administrative law.
Due process is in the bill. We've gone through the steps in which an individual knows the case against them, is given an opportunity to rebut the case, to provide additional evidence, is given access to the Federal Court explicitly through the legislation, or the Federal Court can intervene in the cases. We believe the different processes we have in place give the government the tool to deal with individuals who should not be given the grant of citizenship.
The Chair: I'm sure we're going to be able to discuss this a little further. Unfortunately, I have a whole lot of committee members wanting to come in here because we have to vacate.
We'll continue with revocation .... Can I just ask you to do one thing that might be helpful to the committee? I like what you did with regard to this, but could you put a section in this to modify it as to where those judicial appeal mechanisms are directly or indirectly, so that at least we know where in fact that judicial process directly or indirectly kicks in?
Can you also put there how something like a denial or an annulment or a revocation gets started? What's the trigger in every one of those? Is it a complaint? Is it information? If you can do that, because I love the chart, I think it'll be helpful for people who want to see what's happening. Yes.
Mrs. Diane Ablonczy: Mr. Chair, can I just talk about a remark made by the parliamentary secretary? I appreciate the skill and zeal with which he does his job, but the opposition, particularly our party, has never, ever asked the government to do something that violates due process. I just want to make that very clear.
The Chair: Well, he's not the parliamentary secretary. Jerry was a parliamentary secretary at one time, but he's just the vice-chair of this committee. The parliamentary secretary ... I don't know where he is.
Mr. Jerry Pickard: Does anybody else?
Mrs. Diane Ablonczy: You mean I gave you a promotion for nothing?
Mr. Joseph Volpe: We asked the witnesses to provide you with more elaborate ideas or explanations. I just wonder whether you could include in that list the numbers of people who would fall under each one of these sections.
Mrs. Joan Atkinson: It's a new process.
The Chair: Annulment was seven years before, under old laws.
Mrs. Joan Atkinson: But the difficulty is, of course, that both denial and annulment are new provisions. On the annulment, the number we gave you included cases where, if we had the annulment tools, we would likely go for annulment rather than revocation.
The Chair: We'll get to how many people are in the revocation. The numbers aren't really big in either category.
Mrs. Joan Atkinson: No, the numbers are not huge.
The Chair: Thank you. We'll see you all at nine o'clock, and the notices will go out.