Standing Committee on Citizenship and Immigration hearings
on Bill C-18, the proposed Citizenship of Canada Act
[Recorded by Electronic Apparatus]
The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Colleagues, my apologies for being a little late, but I had my old school from my riding show up, and they wanted to see me and say hello.
I know we have another group of visitors here this afternoon, and perhaps our colleague John O'Reilly can introduce them.
Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): Thank you very much, Mr. Chairman.
Let me introduce Sharon Robbins, Terry Carter, Nancy Prentice, and the class of grade 12 from Lindsay Collegiate Vocational School, a group of political scientists, all going to be future politicians from Lindsay, Ontario.
Welcome, and thank you for attending.
The Chair: Thank you. And hopefully you'll learn the dos and don'ts of politics at our committee meeting.
I don't know if John has told you, but our committee is embarking on a number of important initiatives. Today we are talking to our administration about our new citizenship bill, because citizenship is something Canadians prize and value very much. In fact, over a million people in the world each and every year want to apply to come to Canada and want to become citizens of our great country.
So we are embarking on our new citizenship bill, and we have done a lot of work on our new immigration bill as well as on settlement programs. We are even debating whether or not we need biometrics and a national ID card.
I want to tell you that this committee has been very busy over the past two or three years. I'm happy to say that all of our committee members represent all political parties. Believe it or not, what you see in question period is not necessarily the rule. What you do find in committees like this is that we do all have one mission, and that's to do the best job we possibly can in terms of laws in our country. And 95% of the time, believe it or not, we agree with one another. Despite what you hear in the media and at question period, we do get along and we do work for a common cause called Canada.
Welcome. And it's my pleasure today to invite Rosaline and Daniel and Patricia and Paul back as we talk a little about our citizenship bill.
Daniel, do you have an opening statement to make?
Mr. Daniel Jean (Acting Assistant Deputy Minister, Policy and Program Development, Department of Citizenship and Immigration): Okay. It will be both myself and Rosaline.
Good morning, ladies and gentlemen of the committee and thank you for this opportunity to come before you to further clarify various aspects of Bill C-18, an Act respecting Canadian citizenship.
With me today are Paul Yurack, Legal Counsel at CIC, Patricia Birkett, Registrar of Canadian Citizenship, and Rosaline Frith, Director General of Integration Branch. Rosaline will be speaking in a few moments about four specific issues that have come up over the course of hearings on C-18.
However, before she begins, I would like to thank the committee for its work bringing this bill across Canada. We at the department have of course followed very closely the comments of witnesses both here in Ottawa and across the country, and it has been invaluable for us to hear so many different voices speaking out about the importance of citizenship, as well as supporting the government's initiative by suggesting how things can be done better.
At the same time, I must admit that some of what was said was upsetting. For example, I was disturbed to hear naturalized citizens at times referred to as “second class”. Such an idea goes against the core philosophy of the department and what I think Canadians believe.
Our citizenship law contains a provision making it clear that all Canadian citizens have the same rights and obligations, regardless of whether or not they were born in Canada. This is an issue of particular interest to me. Two of my three children were born abroad and I never for a moment thought that they did not have the same rights and obligations as my third child.
As a civil servant, I was also dismayed to hear some witnesses question the ability of and care taken by civil servants in their roles as decision-makers. References have been made to the faceless bureaucracy. I would like to assure the committee that, as individuals, we recognize the responsibility we have taken on to serve fellow Canadians and try to reflect this responsibility in the decisions we make.
Bill C-18 draws on our long history of working with newcomers, from the time they first decide they want to make Canada their home through to taking the oath of Canadian citizenship. Rosaline will elaborate on these ideas and others, and with your permission I will now turn the floor over to her.
Ms. Rosaline Frith (Director General, Integration, Department of Citizenship and Immigration): If the committee pleases, I will now speak on four issues that have been discussed in recent hearings with the hope that I can bring clarity to them and facilitate the deliberation of the committee. These four issues are the idea of second class citizenship, automatic loss provisions for the second generation born abroad, the change in role and duties of citizenship judges, and the loss of citizenship of certain minors whose parents acquired another citizenship before 1977. My presentation will take approximately fifteen minutes.
To begin with, as already mentioned by Daniel Jean, I too was distressed to hear the terms “second class citizenship” or “two classes of citizenship” come up so frequently during hearings, particularly when referring to revocation and annulment provisions. You yourself, Mr. Chairman, made a promise to witnesses that this committee would not pass a bill that created two classes of citizenship, and with this I wholeheartedly agree. I was glad to hear you make this statement. It is an important point to underline, therefore, that this bill makes no distinction between naturalized citizens and citizens born in Canada.
Once you are a citizen, no matter what you do, no matter what crime you commit or democratic principle you disregard, Canadian citizenship cannot be taken away. However, if you had no right to citizenship in the first place and you lied to get it, then you cannot legally keep that citizenship. This does not apply to naturalized Canadians. Fraud is fraud. If you lie and say you were born in Canada when you were not, or if you lie and say you are entitled to citizenship when you are not, the effect is the same: you have defrauded Canada, and you do not have a right to citizenship.
Let us take the example of a person who applies for a citizenship card using a fraudulently obtained birth certificate. This is a clear-cut case of fraud. This person is not a citizen, and when we discover the fraud we can take the citizenship card away.
Now let us look at a person who applies for citizenship and purposely omits on the application that he or she has several convictions for bank robbery. This is also a clear-cut case of fraud. When we find out about this lie we should be able to remove his or her citizenship card as well.
This is the reality for which annulment and revocation proceedings exist. There is one kind of citizenship, but some people cheat to get that citizenship. The ability to remove citizenship is not unique to Canada. Revocation and annulment provisions are very common in legislation in other countries.
In New Zealand, for example, the minister may deprive someone of citizenship if the minister is satisfied that citizenship was obtained by fraud. In the United Kingdom the Secretary of State may also deprive a person of citizenship if he or she, again, is satisfied that citizenship was obtained by fraud.
In the United Kingdom, however, the Secretary of State may also deprive a person of citizenship if he or she is satisfied that the person, after becoming a citizen, has done anything seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory.
This, of course, could not happen under Canadian law, where, as I mention, the only way to take away citizenship is if there is fraud in the application for that citizenship.
In the United States, citizenship can also be removed if a person was not originally qualified for citizenship or if the person committed fraud to get citizenship. American provisions, however, can also affect the spouses and children of those who commit fraud. This, again, is not the case in Canada, where removal of citizenship does not and under Bill C-18 will not affect the citizenship of family members.
Again, let me emphasize that the decision to revoke citizenship is never taken lightly. Since 1977 there have been only 50 revocation cases -- two per year. During that same period citizenship was granted to over three million people. The power to revoke citizenship enables us to balance Canada's openness to and need for immigrants with the integrity of the citizenship and immigration programs.
I am sure there will be more questions about this later, but before I move on to my second topic, I want to clarify one other point on revocation.
There were concerns by many witnesses about the possible misuse of clause 17 revocation provisions using a security certificate. The provisions laid out that for a very small subset of cases involving sensitive information on very dangerous persons, where expedited removal is sought.... I want to note that since 1989, when the security certificate process was first introduced for immigration purposes, the total number of certificates issued has been 26. That is for all immigration purposes, both permanent residents and visitors. Hopefully this clarifies how infrequently such a process is and would be used.
I would now like to speak briefly about the automatic loss provisions. These are the provisions that limit citizenship through derivation to the second generation born abroad and require the second generation to demonstrate a commitment to Canada in order to obtain citizenship. Some witnesses before the committee were concerned that these provisions might be unfair or difficult to administer, and some even felt that they constituted another class of citizenship.
I will respond to these concerns generally by pointing out that it is not unusual internationally to limit derivative citizenship. With global population movement as it is, it would in fact be illogical if citizenship could be passed to subsequent generations indefinitely, to third-, fourth-, and fifth-generation Canadians who could end up with numerous citizenships from ancestral countries to which they have no ties. This is not the point of citizenship.
To give some international comparisons, in the United Kingdom, citizenship through derivation is limited to the first generation born abroad. Australia allows citizenship for the first generation born abroad, but that person must reside in Australia for a certain period before citizenship can be passed on to the second generation. In the United States, even the first generation born abroad may not get citizenship if both parents are not citizens and the citizen parent has not lived in the United States for a certain period of time.
As you can see, most countries have some strategy for limiting derivative citizenship. The rules about derivative citizenship in Bill C-18 are as generous as those of other countries with laws comparable to our own. Many countries also have provisions to make sure that those born abroad to their nationals are not stateless because of limits placed on citizenship through derivation.
As you are aware, section 11 of Bill C-18 has been put in place precisely for just such cases. This section not only conforms to Canada's obligations under the Convention on the Reduction of Statelessness, but has also been worded to respond specifically to concerns of the United Nations High Commissioner for Refugees. The commissioner has indicated her approval of this provision.
In response to witness concerns concerning the department's experience dealing with automatic loss provisions, I would like to point out that Canadian citizenship legislation has had automatic loss provisions since 1947. The department has the necessary expertise to deal with these cases.
I will now make a few comments on the third issue, that of the change in role and duty of citizenship judges. To begin with, it is important to remember that citizenship judges today, while operating under a quasi-judicial tribunal, nevertheless operate under the framework of legislation. Certain requirements must be met for citizenship to be granted. While citizenship judges may have used their own judgment in deciding if these requirements have been met, they are requirements nonetheless. If certain requirements are waived, this waiver must come from the minister.
Where citizenship judges have used discretion is in residence issues. Inconsistent interpretations of the term “residence” by the Federal Court have meant that different applications by different citizenship judges have been upheld. This, however, is not so much discretion inherent in the role of the citizenship judge as it is an unintended ambiguity in the law. Differing interpretations of “residence” are not necessarily fairer for clients who subsequently do not know if they qualify for citizenship until after they have been evaluated.
In an attempt to make things fairer for clients, as you know, “residence” has been clearly defined in this bill as physical presence. To balance the consequences of this clarification on business people or those who must frequently be out of the country, the timeframe for meeting the requirement was extended from four to five years, and then at the committee's suggestion, under Bill C-16, was extended again to six years.
What this unambiguous definition in an extended timeframe means is that citizenship will have clear legislative requirements, understandable to those applying for citizenship before they apply. Furthermore, Bill C-18 lays out a system where these requirements will be evaluated by citizenship officers acting as delegates of the minister.
This does not mean that the judgment calls that come with human interaction will be eliminated. Quite the opposite is true. If an applicant fails a test, delegates of the minister can still evaluate knowledge of Canada, for example, or language skills, in face-to-face interviews.
Waivers for certain requirements will continue to be available. Citizenship judges, as commissioners, however, will no longer be required to make routine decisions about clear-cut citizenship requirements. Instead, these respected community members who have demonstrated an understanding of the values of good citizenship and have been recognized for their valuable civic contributions will be able to play an active, and for the first time, legislated role in promoting citizenship, an activity that is currently pushed to the sidelines as citizenship judges are tied up with administrative duties. This is clearly not the best use of such valuable resources.
As my final point of clarification, I would like to discuss the situation of those who lost citizenship as minors when their responsible parents took out another citizenship. To begin with, I would like to explain how this situation came about.
Under various nationality laws in force in Canada from 1868 to 1977, dual citizenship was controlled and restricted. This was based on the premise that dual citizenship was in itself an undesirable situation, a premise that still forms the basis of many nationality laws in other countries today.
Where Canada could control dual citizenship of its nationals, it used the principle that the citizenship of a child should follow that of a responsible parent. One of the consequences of this was that when a responsible parent obtained foreign citizenship, if the child was already a citizen of another country or obtained foreign citizenship at the same time as the parent, generally the parent and the child automatically ceased to be Canadian citizens.
The 1947 act also had provisions to guard against statelessness, and I would like to make it very clear that no child was made stateless by these rules. If the child was not already a citizen of another country or did not become a citizen of another country at the same time as the parent, the child did not cease to be a Canadian citizen.
Views on dual citizenship changed over time, and eventually the 1977 law removed automatic loss provisions for Canadians taking out other citizenships. This was not a correction of an unfair or discriminatory law. However, it was rather a change in philosophy within Canadian society.
This change is today viewed by most Canadians as a sign of Canada's multicultural maturity. Certainly the trend internationally in the last quarter century has been toward an increased tolerance of dual status.
Since this change, there have been people who ceased to be citizens under the 1947 act who have come before the department perhaps thinking they were still citizens or perhaps feeling that they had a right to Canadian citizenship. While some of these stories may be very compelling, as are many stories that come up before citizenship or immigration officers each day, it is important to remember here that this particular issue is not the fairness issue.
While loss of citizenship does not occur today simply by taking out another citizenship, whether by an adult or by a parent on behalf of a child, limiting dual nationality was still a reasonable principle at the time. It was and is a reasonable principle that parents make decisions on behalf of their minor children. In fact, this principle remains in citizenship legislation, as a parent can apply for Canadian citizenship for a child today if that child is under 18 years of age. Parents must consider the consequences of their decisions for both themselves and for their children.
Another idea raised in testimony, in tandem with the notion that children were the property of their fathers, was that women were the property of their husbands. This is simply not true. Under the 1947 act, women were responsible for their own actions, whether it was applying to become a Canadian citizen or bearing the consequences of taking out the citizenship of another country. From the legal perspective, aspects of previous citizenship legislation have been considered discriminatory by the courts and these aspects have been changed or dealt with by the new legislation.
However, when this particular issue of loss of citizenship by minors was challenged in the Federal Court it was not found to be discriminatory, as citizenship was lost because of the deliberate acts of responsible parents.
I have specific rulings of recent Federal Court decisions I can reference if the committee would like more details on this.
To conclude, I would like to again express thanks to the committee for its work on Bill C-18, as it has spoken with representatives from over 80 organizations across the country about numerous citizenship issues. I would also like to thank all of the witnesses, who raised so many issues, as it is only by challenging the bill that we can ensure it is sound. But particularly, I would like to thank those witnesses who together highlighted the positive changes in the bill, those areas such as the inclusion of a purpose clause, the moving of revocation proceedings to the courts, the extension of time to accumulate residence, as well as new provisions facilitating access to citizenship for adopted children.
Those are my comments, Mr. Chairman. I am now open, as are my colleagues, to questions.
The Chair: Thank you, Daniel and Rosaline. I appreciate those comments.
If I could just say right from the beginning, I agree. From all the witnesses we've heard challenge this bill, and while you have highlighted, as they did, some of the very positive aspects of this new bill, three times -- this is the third time at this -- they have raised some very serious questions, which we obviously have to ask you to answer. Because the very foundation...and as I said, I think all of us were incredibly surprised at the depth of passion with which people talked about their citizenship. Whether it's by birth or by choice, people value their citizenship, and the potential loss of that citizenship is a loss of their identity.
I must tell you, this bill didn't get a passing grade from all of those witnesses. In fact, it was unanimous.... A lot of them, and some of the committee members also, believed there were some fundamental foundational sorts of issues we needed to get a better handle on. We're prepared to take the time necessary to make sure this citizenship bill will last as long as the last one did, some 25 years; therefore, we will take the time and hopefully we can work with you and the minister to clarify and improve the bill as we move forward.
So thank you very much for your opening remarks.
I will start with John.
Mr. John O'Reilly: Well, the chairman is giving me the opportunity to ask the question while my class from Lindsay Collegiate is still here, and I thank him very much for that courtesy.
Now I have to think up a question, right?
I wanted to ask, on page 10 of your presentation, where you talk about citizenship judges, you say “Waivers for certain requirements will continue to be available”, and I wondered what those requirements would be. What tests would be used to meet the requirements, and what are those requirements? Could you give us some examples beyond the compassionate? Could you give us some examples of just what requirements would continue to be available?
Ms. Rosaline Frith: I will ask Patricia to detail the waivers we actually have today, which will continue to be in effect.
Ms. Patricia Birkett (Citizenship Registrar, Department of Citizenship and Immigration): Yes.
Sometimes a person who is not yet 18 years old wishes to apply for citizenship and there is no available parent, for instance. So the requirement to be 18 years old when an individual applies on their own for citizenship could be waived if there are good reasons for a 17-year-old to get citizenship, for instance, apart from his parents.
Any person can have a waiver under the language and knowledge requirements if the person is never going to be able to meet those requirements. Routinely, we waive that requirement for people who are over 60. If a person can't take the oath of citizenship because they would not be able to understand the significance of the oath, the person can be waived from that requirement as well.
Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot, Lib.): I'd like to ask questions pertinent to your presentation, but before I do that, there are some areas of the proposed changes to the Citizenship Act you know I have a particular interest in. I'd like to deal with those first, and if I have time, I'll deal with some others as well.
There are two sections I'm very interested in, and you'll know this -- paragraph 3(g), which talks about promoting the respect for principles and values underlying a free and democratic society, and related to that is subclause 21(1), which also raises the wording “underlying a free and democratic society” when it talks about the reasons for recommending that a person not be granted citizenship.
I have had some concern with respect to the fact that “a free and democratic society” is fuzzy language, and various witnesses who have come before this committee have agreed -- not all, but many -- that certainly in paragraph 3(g), it would be appropriate if you're talking about a free and democratic society to name that free and democratic society, which is, of course, Canada. You would do that by saying “underlying the Constitution of Canada”, because that embraces everything.
In subclause 21(1), it's a little more specific. It would appear it would be appropriate there to replace the words “a free and democratic society” with “the Charter of Rights and Freedoms”, which is Canada's version of the rules pertinent to a free and democratic society that should be observed by people who would otherwise, if they don't observe them, be denied citizenship.
Is there any practical legal barrier for either or both of those suggestions?
Ms. Rosaline Frith: I'm going to ask Paul to respond, because we have looked at the legal aspects and he can answer that.
Mr. Paul Yurack (Counsel, Legal Services, Department of Citizenship and Immigration): I'm going to also ask Patricia Birkett to comment on that as well.
However, if you look at the Constitution, particularly the charter, it's clear the charter is meant to protect individuals' rights against undue state incursion. So in clause 52, any law that is inconsistent with the Constitution, particularly the charter, will be found to be of no force or effect.
So it wouldn't make sense to make a specific reference to the charter, which is meant to protect individual interests against the state, in clause 21 itself. It would be like using the sword of the charter against the individual, him or herself.
The protection is meant to protect the interests in the charter itself, which are meant to protect individual rights and interests against undue state incursion against the individual. We'd be using clause 21 to prohibit or deny citizenship.
Mr. John Bryden: If I may reply to that, the way I read the intent of that section was that it was trying to deal with individuals from other countries who, on the authority of the state of the country, or the lack of authority, if you will, acted against individuals. In other words, I would have thought what you were trying to do is prevent people gaining citizenship who perhaps had engaged in genocide in the name of the state in their former country, or in the case of say some countries where there are warlords, where state control is absent.
I don't quite follow your argument, because the persons we are trying to prevent from getting citizenship are those who seek citizenship here who have acted on behalf of the state of the country of origin in a way that is completely inconsistent with the charter. The charter spells out what the state cannot do. When people come from other countries and have acted in the name of the state of origin.... I don't quite follow.
Mr. Paul Yurack: Mr. Chairman, with respect to Mr. Bryden's question, I would say that at least some examples come to mind where the individual's actions could have taken place while the person was in Canada as a permanent resident. That person applied for citizenship and would otherwise meet the requirements, and the requirements set out in the bill are objective requirements, by and large.
However, clause 21 reserves for itself a discretion to the Governor in Council to deny citizenship in appropriate cases where the person has demonstrated serious and flagrant disregard for the principles and values underlying a free and democratic society. So you'd be looking at that person's actions, which would not be trivial actions, and balancing them against the state interest, and the Governor in Council, on report from the minister, would be posed with that discretion.
Mr. John Bryden: Let me try again, Mr. Chairman, and then we'll go back to this.
One of the examples I cited was that there are countries that are defined as democracies which—and this was the example I put to witnesses—have engaged in extrajudicial killing. This is something I as a Canadian absolutely deplore. I would suggest to you it is something not condoned by the charter; it is something the charter would forbid.
I'm not so much concerned, to tell you the truth, that somebody might land in Canada and then, as a permanent resident, do something that is in flagrant disregard.... If they break the law of the land in any sense, they should be denied citizenship when they're permanent residents here in Canada.
It's what they did before they arrived in Canada. They could have done it in a modern state that, in a dangerous world, suddenly decides you should kill people in a proactive way. We don't believe in that as Canadians. That's the kind of protection I would have thought it would give us if we cited the charter in this particular section.
Ms. Patricia Birkett: What we're looking at under the Immigration Act, for people like those in the specific example you're giving—people who were warlords or other things like that—would be that they're seen as people who have committed crimes against humanity, or constitute a security risk, or have engaged in those kinds of crimes that are covered specifically under the Immigration Act for removal.
This kind of clause isn't meant for that at all. This kind of clause is really meant for somebody who falls outside the normal criminal procedures.
Mr. John Bryden: Well then, let me go back to the point. What about somebody who has been a person in responsible authority in a state—a democracy—who has engaged in extrajudicial killing with the agreement of that state?
Set the warlords aside for a minute. What do you do with this alarming trend that is occurring in democracies in the world, where people are deciding that the way you deal with threats to the state is to kill people without trial?
Mr. Paul Yurack: With respect, Mr. Chairman, I think clause 21, when you look at it, obviously raises contentious or extremely emotional reactions. The purport there was to allow the Governor in Council to balance individual cases against the public interest, so that where someone — and we take the example of hate-mongering as a typical example of a type of behaviour — in Canada's multicultural society, which upholds the value and freedoms of practice of different ethnocultural, religious.... We wouldn't want someone who was making statements or promoting hatred or violence against certain groups of people in Canada to be admitted to our citizenship.
I think it would be appropriate for the Governor in Council, in those limited and exceptional cases, to take a stand to deny citizenship, saying Canada is not a country where we would tarnish the value of Canadian citizenship by granting it to such people, based on their abhorrent activities.
Mr. John Bryden: I would suggest—and this is where the collision is occurring—that of course the charter mentions freedom of speech. I say with all the greatest respect—because I really do believe we're all trying to do the right thing here, and I don't want to engage in a lengthy debate—that I think you're on very dangerous grounds when you try to give the state in legislation the right to determine what is a fair statement.
In these conflicts abroad, people can say things that may be seen by some multicultural groups in Canada as hate-mongering, but I don't know how the state can actually determine whether or not that provides grounds for denying citizenship. I think that's very dangerous.
I'd rather use this section, rephrase it however we would, to make sure that the people who are coming to Canada really do respect it and are not importing into Canada the type of state attitudes that exist in some advanced nations of this world. I don't want to name them, but we know who we're talking about, or what nations we're possibly talking about. This, to me, is a far more urgent and overwhelming concern we should have than to try to do what you're suggesting, which I think is actually fraught with a great deal of peril.
Mr. Daniel Jean: There are actually two ways we can deal with the people who either are state-sponsored or themselves have state sponsorship over an organization convicted of crimes against humanity. We have prohibitions in our Immigration Act against those, and we can deal with them if we discover the information after they've been admitted to Canada as well.
I don't think that's what that provision is trying to do; I think we already have the tools for that. This provision is really for what my colleagues have described as extraordinary circumstances where we don't have a prohibition per se, but where the acts people have done are clearly in contradiction with what we are as a democratic society.
As Paul said, there would be a balancing act that would be done, and I don't think you would have a lot of these cases. This power would be used in very extraordinary circumstances.
The Chair: Madeleine.
Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you, Mr. Chairman.
Good afternoon to the witnesses. I was pleased to hear you say that Bill C-18 would do everything but promote the concept of second class citizenship. I'm very reassured to hear that.
The Chair: Excuse me. I can't allow people just to come up to committee members and start passing around papers. I'm sorry, if you have something to give us, give it to the clerk, please. Thank you.
Ms. Madeleine Dalphond-Guiral: Nevertheless, we'll have to wait and see what the bill will ultimately look like -- some of us have brought forward amendments -- when it is adopted.
I'd like your opinion on three things, first of which is the definitions. In my estimation, one of the most critical aspects of legislation is agreeing on the terminology used. Mr. Bryden will surely agree with me that expressions such as “democratic values” and “Canadian values” are extremely vague.
Would the department be willing to go along with our agreeing to a definition to be included in the clause containing the definitions and to including a reference to the Oakes decision, which provided a framework of sorts for these values? For starters, I'd like you to comment on that point. Then I'll put my other questions. Since I'm the sole opposition member, I'll have plenty of opportunity to do that.
Ms. Rosaline Frith: In my opinion, if we include a very narrow definition in the act, we limit our ability to deal properly with individual cases. On the other hand, it's important to understand clearly the precise meaning of the terms used in the Oakes decision.
Let me read you the definition. I wasn't able to find it in French, so I'll read it to you in English.
The Supreme Court said in Regina v. Oakes in 1986 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 which enhance the participation of individuals and groups in society”.
That was the first time the Supreme Court provided an interpretation of section 1 of the Charter. In the process, the Court ruled that the government could restrict rights and freedoms guaranteed in the Charter, but only if such a restriction could be rationalized in the context of a free and democratic society.
I believe that interpretation is sufficiently clear to provide a reference point for those called upon to make a decision.
Ms. Madeleine Dalphond-Guiral: Thank you.
My second question concerns persons who always believed themselves to be Canadian citizens and at some point discovered that that was not the case. I'm wondering if maybe some provision could be made in C-18 for the legal restoration of their citizenship.
Restoration of citizenship is a fairly lengthy process. It disturbs me that people have to go through such a rigmarole, not to mention that's its unfair to them. I think an amendment is in order to facilitate and accelerate restoration of citizenship in the case of persons who believed they were Canadian citizens, but in fact legally were not because of outdated laws that still apply to some people.
Would this be something you might consider recommending? We know the department carefully considers amendments and that you have a heavy foot, just like I do when I'm heading down the 417.
Ms. Rosaline Frith: I have to say that the bill gives an advantage to persons who believed themselves to be citizens, that is who were once citizens, but now no longer are. Persons who want their citizenship to be restored should have an easier time dealing with the immigration process than others. Moreover, citizenship will be restored to persons who have resided in the country for one year, not three. This provides them with an opportunity to demonstrate their attachment to Canada. One year is not a very long time. When a person who has already been a Canadian citizen applies to immigrate to Canada, that application will be reviewed differently by immigration officers than other applications. From an administrative standpoint, an effort is made to process these persons as quickly as possible.
I think the provisions in the act are quite generous, in terms of residency requirements for Canadian citizenship.
Ms. Madeleine Dalphond-Guiral: You used the word “generous”, but I would have preferred to hear the word “reasonable”.
My last question is probably the most complex. The consensus is that there will be one, not two, classes of Canadian citizenship. Regarding loss of citizenship, section 17... If I lose my citizenship because I lied about something I did in a previous life, then obviously, everyone can understand that. However, there's another very small group of people whose needs must also be served by our justice system. I'm concerned about the absence of appeal provisions in the event of loss of citizenship for reasons tied to State security or for other very serious reasons.
You're going to tell me that the Immigration Act contains similar provisions. However, in the case of that particular legislation, we're talking about persons who are not already citizens, but either want to come to Canada, or are already here but have not been granted citizenship status. In the bill, we're talking about persons actually losing their citizenship.
Would Canadian citizens by birth who may be nasty characters seeking to destabilize the government or some such thing be denied their right to appeal? Would they be denied the right to know what they stand accused of and what the evidence against them is? Supposing I committed an act of sedition -- one never knows -- if you tell me that I would lose my right to appeal, fine then, I wouldn't ask any more questions. However, if you tell me that I am entitled to appeal the charge, I would want to know why naturalized citizens accused of the same crime would not be entitled to appeal as well. If that's not creating two classes of citizenship, then what is?
I see Mr. Jean looks totally discouraged.
Ms. Rosaline Frith: We're not talking about persons who acquired citizenship honestly. We're talking about persons who fraudulently obtained citizenship, that is persons to whom citizenship should never have been granted in the first place. We're not talking about treating some persons differently. We're focussing on persons who immigrated to Canada under false pretences, persons who otherwise would never have been entitled to citizenship. We're talking about two different things here.
Ms. Madeleine Dalphond-Guiral: Persons who should never have been granted Canadian citizenship because of past actions.
Ms. Rosaline Frith: Absolutely.
Ms. Madeleine Dalphond-Guiral: Nevertheless, take the case of a naturalized Canadian citizen who, five or six years after acquiring Canadian citizenship, joins a terrorist organization. What happens then? Could that person's citizenship be revoked without any right to appeal the decision?
Ms. Rosaline Frith: Absolutely not. If a person...
Ms. Madeleine Dalphond-Guiral: Would you swear to that?
Ms. Rosaline Frith: Yes. If a person is a Canadian and does something that is unacceptable to Canadians, then he or she will be prosecuted according to Canadian law. That person acquired citizenship through legal means and will be subject to Canadian laws. There's no question of that. Provisions respecting revocation and the like do not apply to that particular individual.
Ms. Madeleine Dalphond-Guiral: Now then, if in the unlikely event the constitutionality of section 17 was challenged on the basis of the absence of an appeal process and the Supreme Court, in its infinite wisdom, held that this provision was in fact inconsistent with the Charter in that the Charter protects all persons on Canadian soil, regardless of their status, I would imagine that the Canadian government, in its infinite wisdom, would go along with this decision. Or, would it invoke the notwithstanding clause?
Mr. Daniel Jean: In fact, as you know, for immigration purposes, we have such a thing as a security certificate. It has withstood a Supreme Court challenge. However, as noted in our opening remarks, only 26 security certificates have been issued since 1989.
Ms. Rosaline Frith: That's right, only two per year.
Mr. Daniel Jean: This proves that we do not take this matter lightly. We only issue a certificate when we have hard evidence to go on.
Ms. Rosaline Frith: I'd just like to interject that the proposed legislation was reviewed by our Justice Department colleagues to ensure the constitutionality of every single provision and consistency with the Charter. Theoretically, we shouldn't encounter problems of this nature.
Ms. Madeleine Dalphond-Guiral: We'll have to monitor the situation.
The Chair: Andrew.
We'll come back to you, of course, Madeleine, representing all the opposition parties today.
Go ahead. Start your questions.
Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): I don't know if you need some more coming from that side.
Let me say, I'm a little disturbed by the editorial presentations we heard across the country. I was expecting that we might get specific rebuttals of all the witnesses you might have disagreed with.
The real problem with what we're dealing with is there are so many ways of approaching it. On the one hand we have the presentation that people obtain citizenship by fraud. In this country, we have a very accepted, proper method of determining if fraud has occurred. It happens in our criminal courts each and every day, I dare say tens of thousands of cases a year. The system is set up to be able to deal with it.
Instead of following that kind of a process, which meets the legal requirements as enshrined in section 7 of the charter, we have a process where the existing legislation does not allow for an appeal to a report by one judge who makes a determination on a case that the truth.... The test for it is, did you lie or did you not lie to a question that might or might not have been asked fifty years ago. And there is no appeal to the decision on that report of that one judge.
Certainly that creates second-class citizenships. As a matter of fact, I can go through this bill and say to you that we have three classes of citizens. Now it makes a difference whether you've been here for five years before the government decides they want to revoke your citizenship or not.
If the question is fraud, we have a way of determining it. This process is more akin to a show trial -- and as far as I'm concerned it's fraudulent -- versus what is spelled out in the Canadian Charter of Rights and Freedoms. That's what the people across this country reacted to.
Now, Mr. Jean, I'm very impressed that you don't feel that it's a second-class citizen. Well, I can tell you, as a Member of Parliament, it took me as a parliamentary secretary studying this bill to recognize that I was a second-class citizen. I saw Bill C-63, and in case you haven't seen it, you might want to take a look at it. The government further proposed that if this fraudulent -- and I say it's fraudulent -- process that we have in place now were applied against my parents then the government could propose that my citizenship -- I dare them -- could be revoked.
The Chair: Could we just let him answer that question? I know you have a lot more questions, Andrew. This is only the start of the process, and not everything is going to be done in two hours this afternoon. Why don't we let them answer, at least on first blush, some of the concerns you've raised with regard to the question of fraud?
You addressed this, Rosaline and Daniel, in your opening statement. I guess it has been a concern of this committee that fraud is fraud, and what is the true test of whether or not a person lied or committed fraud? Why not just put it through the court system?
Ms. Rosaline Frith: As you know, there are three ways of dealing with people who have acquired citizenship through misrepresentation. The first, which is the lowest level of involvement of the courts, is annulment. An annulment is only to be used within a five-year timeframe, specifically because it will be easier to ensure that all of the documents are there. They are available. We have the information in black and white on the person. The person has the opportunity to present to the minister, and if the person disagrees with the decision the minister would take, then that person has access to judicial review.
It's only going to be used for those cases where the person was prohibited and we have the legal documents that show the person was prohibited in the first place and never should have been granted citizenship. Or in cases of false identity, we have the documents to show that this is truly a case of false identity. That's the very simplest of cases. It's not a complex case that requires judgment.
We moved revocation to the court system in order to ensure that people would get a more transparent hearing in terms of anything that is more complex. Should we be talking about an issue of residence where there is a calculation and there might be a bit of subjectivity in trying to evaluate whether or not the person was here or not here for the required amount of time? In those kinds of cases it would go before the courts. It would be dealt with as part of that particular process, where they would have full access to appeals, where it could go all the way to the Supreme Court for a final rendering of the decision, because it's a more complex case.
In the case of those very small numbers where we might have to use a securities certificate, we are talking about a case where releasing in full the information that leads to that trial would result in either a breach of security for the country or an issue of personal safety for somebody's name who would be released.
It's only in those cases where two ministers would have to be convinced — the Minister of Citizenship and Immigration and the Solicitor General — where they truly believe that releasing the information would be so detrimental to the security of the nation or to a person's safety that they would even bring it forward.
It would only be used in those cases where they are dealing with war criminals, with organized crime, terrorists. In those cases they would have to bring that information to the judge of the Federal Court. The Federal Court judge would then look at that information very carefully and have to render a decision as to whether or not he or she felt that the information would cause difficulty in terms of the nation's security or a personal safety issue. Then the judge would decide whether or not to continue the case by not releasing the information. The judge would then have to give the person a summary of as much of that information as is possible and make sure they have a chance to present their case back to the court.
If the judge disagreed with the ministers, the judge could go back and say to the ministers, “I disagree. I don't think you have a good case. I don't think this information should be kept secret.” In this case the ministers likely would not go forward if they truly believed what they had put forward in the first place.
You have three ways of dealing with people, but in every case you are dealing with people who have acquired citizenship fraudulently, and you are going through a system of trying to deal with that before you proceed to any further steps.
We have many people, for many different reasons.... Some, through the immigration process, acquire their entry into Canada fraudulently, and subsequently their citizenship. And there are others, where it is simply a matter of they're in Canada legally as immigrants. They've acquired citizenship fraudulently because they were either prohibited because of criminality or because they lied about their residence time.
We deal with those cases as well, through the simple revocation process.
Mr. Andrew Telegdi: Mr. Chairman, we're not getting anywhere in this. The question is, if it's fraud -- and that's what we're proving, fraud -- go through the normal process instead of a politicized process that doesn't allow for a citizen's rights.
We're not talking about refugees. We're not talking about immigrants. We're talking about citizens. And citizens have rights. Clause 12 doesn't talk about privileges, it talks about rights. So until it is shown that the citizen obtained it fraudulently, with all the due process of law to defend themselves, like Clifford Olson is able to do, like Paul Bernardo is able to do.... And we make the process for them, because for every one of those, we have a Guy Paul Morin, we have a Donald Marshall, we have a David Milgaard. And the list goes on and on. That's why we have the process that we as a society decided on. This is the fairest way of dealing with it.
In clause 17, Mr. Chairperson, we're talking about dangerous individuals, possible terrorists, what have you. I try to think of the worst possible terrorist we have in terms of a public policy perspective. Let's suppose Osama bin Laden came to Canada and acquired citizenship. Well, are we going to deal with that kind of an individual by taking away his citizenship, by kicking him out of the country? What would that do for our security and for that of the rest of the world? It would mean very poor security.
We had a recent case where we had someone going through the normal judicial process who pleaded guilty in the Air India bombing. This person was not born in this country. He became an immigrant. And how are we dealing with that individual? We put him through the normal court process. He was a danger, certainly, so the courts found out. What did we do? We put him in jail.
Paul Bernardo is a dangerous individual. We put him in jail.
Guy Paul Morin was wrongfully convicted and he finally was cleared.
I'm saying that even with that standard, we make mistakes. When you lower the standard you lower the bar. To the extent the bar has been lowered, you are inviting many mistakes.
My question is, given the small number of cases we're dealing with, why would we ever want to make second-class and third-class citizens of six million Canadians who were not born in this country? Because that's what the effect of this legislation is.
We heard from Olya Odynsky and what happened to her father and what kind of a cost it was to the family. And these people were not security risks.
As a matter of fact, since 1995 we had 21 cases. We have gotten none of them out of the country through the process. Quite frankly, I think most of them were not guilty of what they were charged with. They were put through a standard that was very low, and it dropped. I think it brings justice in this country into disrepute.
I would like to get back to the question. For these very few cases, if you are really worried about security, why would we want to make six million Canadians in this country second-class citizens and third-class citizens? Because that's essentially what we're doing.
Mr. Daniel Jean: I think what we are trying to say, Mr. Telegdi, is this. If somebody like bin Laden is coming to the border, first of all, if he comes under his own identity, he is not going to be approved immigration-wise and he is not going to get the citizenship. If he comes under a false identity and we are able to deny him, fine. If we find it out afterwards, then we may have to go through a process.
Now, in the case of bin Laden, we may not have to use a security certificate because a lot of the information about him is public knowledge. We are talking about using the certificate in these cases where the intelligence that you have may be from sources and then it would be sensitive to use it in a public court.
As you've seen from the immigration process, we haven't used that very often. We use it in a very parsimonious way and it goes through a court system. It goes through the Federal Court system and the person gets a summary of the allegations that are made against them so they can defend themselves.
So in the three areas where you can lose citizenship, which Rosaline has described, the only one that doesn't go to the court system is the annulment, and that's because the evidence would be so crystal clear. It would be someone who has been convicted of murder, let's say, in the United States, who somehow gets citizenship. And then, six months later, you have the criminal evidence before you that this person was convicted of murder in the United States. A question that's fair to ask is why would we wish to push that case through the court system where the evidence is crystal clear that this person was not entitled to citizenship?
Ms. Rosaline Frith: I would add that the security certificate would only be used where there was truly a reason to be protecting the security of the country or an individual. It is highly unlikely that a past case from fifty years ago would raise any of those considerations. There would be no reason to be using a security certificate.
You are going to be using a security certificate for the most recent cases of war criminals or organized criminals that we have to deal with in the future.
The Chair: Can I follow this up?
There is no doubt that every witness who talked to us said that clause 17 is bad and to get rid of it. Again, it's like we're using a cannon to kill a fly.
Now, I understand where you are coming from in the explanation, and that's why we are asking it. If you want to get rid of a bin Laden or in fact that guy who came here from the United States who committed murder, you use extradition and other instruments of law that we have in this particular country.
I think what Andrew and this committee have heard from all the witnesses, and so far we have reflected what the witnesses have said, is that because there have been only fifty cases, two cases a year, why would you subject this.... Most citizens have in fact acquired citizenship with no fraud and so on. This cloud could potentially be taken away.
We'll get into annulment later.
On the revocation, by virtue of a security certificate, and we heard again that the system isn't transparent, there is no opportunity for a true judicial system, as we understand it, where a person can actually go in and listen to the evidence that is being presented against them. In fact, we had a Federal Court judge here that told us that this would be dangerous.
It's problematic. We should be able to come up with a system, surely. If we believe in the true and democratic values that we want to put in this bill, we are going to take them away in some....
What are we afraid of, if in fact we are only trying to get rid of potentially two cases? I understand the intent of this clause. It's to get rid of a bad apple. Well, to get rid of perhaps two cases a year we are going to subject.... And as the witnesses said, you are going to use such a blunt instrument or a cannon to kill a fly. And that's the question Andrew has posed. That's why we are asking, is there a better way of being able to do it without in fact subjecting all potential citizens to this?
Ms. Rosaline Frith: I have only one example that comes to mind I can bring to you. That's in the case of organized crime, where we cannot even deal with removal of the person's citizenship because the witnesses would be put in danger of their lives if we were to release the information; yet we have no way of dealing with the case within Canada, other than trying to remove the person. But as long as the person is still a Canadian citizen, we can't remove him or her.
We need to be able to hear the information to remove citizenship from these people in order to deal with them under the Immigration Act, to remove them from the country so they can be dealt with in terms of the organized crime offences they've committed elsewhere.
You're perfectly correct when you say that this may be for a very, very small number of cases, because that's exactly what we've envisaged. It would be for a very small number of cases where we would be dealing with some very terrible people. We have no other way we can envisage removing them from Canada or dealing with them in Canada.
Mr. Daniel Jean: To put the assessment, as you're trying to, Mr. Chairman, you also need to look at it in terms of how the public would feel if they knew that we have intelligence, evidence, but from sources we cannot make public, from witnesses who are afraid of testifying publicly. How would the public feel if they knew that these people have become citizens through fraud, that they are bad people involved in dangerous activities, but the only way we can make the case is by presenting this evidence in the context of the security certificate?
What we've created -- and I've been in several countries in the world where the system we have for immigration has been presented as a model -- is a balancing act of trying to protect the public good but at the same time give a chance to people to defend themselves against allegations.
The Chair: Some people have indicated that the appeal mechanisms are even better than citizenship. I think Madeleine started to talk about it. We have an IRPA. If in fact you want to strip a person's citizenship because you think you're going to be able to get rid of him more easily, or you don't want to deal with him because you're going to get rid of them, that's another point.
The problem is that, as some people have indicated, security certificates are a big issue because people aren't able to know the facts. And maybe the committee would want to ask you whether or not SIRC could be used as the vehicle by which to give this evidence, because that mechanism is at least a lot fairer. It's protected, but at least the accused person can have an opportunity of being able to hear what evidence is being held against this particular person.
Mr. Daniel Jean: But that's the role of the Federal Court. That's exactly why in the process --
The Chair: Well, we've heard, and you correct me if we're wrong -- and I'm sorry, Andrew, I'll give you the time -- that no one can get into the Federal Court. The judge is going to make the decision and an immigration officer at the court is going to say that we have all this information on an organized crime, on a terrorist and everything else. I'm not an apologist for terrorists at all, or what have you. But the only people in that Federal Court who are allowed to see that security certificate are the prosecutor and the judge, but no defence. No one can go there to find out what in fact the evidence is against those people.
What is wrong with our system of having the accused know who their accusers are and what evidence they have? How are you going to cause national security problems by allowing the accused or his or her representative into the court system?
Mr. Paul Yurack: Mr. Chairman, you've raised extremely cogent points. I just wanted to address a number of them that I think we can.
First of all, people have characterized this as a blunt instrument. I would say this is another tool at the government's disposal to use in appropriate cases. That's going to be the key. It is to be used in appropriate cases where we could not otherwise proceed against an individual because we have sensitive information.
Canada is a net importer of security information. We are not the ones coming forth with this information. We require it from other states. Other states are looking to Canada to ensure that we have proper mechanisms at our disposal to protect the information we receive.
If you look at the recently decided Ruby case, I think in fact the Supreme Court of Canada decided by and large to uphold the national security provisions in the Privacy Act, although it said there were some problems with the nature of the in camera proceedings, that they weren't discretionary enough. But I think the bill overcomes that impediment, because, as Rosaline and Daniel pointed out, there are sufficient procedural safeguards in the security certificate procedures to allows individuals, under paragraph (h), to have a summary of the information or evidence that enables them to be as fully informed as possible. It allows the judicial summary of information to get to the individuals to allow them to be as fully informed as possible about the case against them, keeping in mind the need to protect, again, national security and the security of individuals who bring forth that information -- that being the paramount concern.
At the same time, “the judge shall provide the person named in the certificate with an opportunity to be heard on matters relevant to the determination”. There you go. There is an opportunity for the person to make their case and present their case.
Initially, again, the other safeguard is that before this information on the admissibility can even be heard, the person's citizenship status would have to be revoked, according to the civil standard. The person would have to become a permanent resident because of the determination by the court that the person acquired that status through fraud or misrepresentation. Once a judge makes that determination, then the person can no longer hide behind the illegitimately acquired status of citizenship and resorts to no status if he or she acquired landing by virtue of a fraud. So again, the person is in the same position as a visitor or a person without status in Canada.
That is why we think we're providing the same procedural safeguards as the Immigration Act as a matter of parity.
The Chair: Andrew is next, and then I'll go to Madeleine.
Mr. Andrew Telegdi: Oh, you know, if it's fraud, it's fraud. We have a way of handling it. If we're to do that, you would have no argument from over here.
The fact of the matter is, we don't. So as far as I am concerned, this truly goes against section 7 of the charter and offends my sense of justice. It offends the sense of justice of the vast majority of people who find out about it. You mentioned you spoke to eighty groups about this bill. Well, let me tell you, I spoke to at least a couple of hundred, and I'll probably speak to another hundred before the year is out.
I think probably the proof is in the pudding. Since 1995 we have proceeded with 21 cases of revocation. I would like to have the committee given the information on these cases, as well as the amount of money we spent on them and the kind of success rate we had. We're talking about the government acting only in appropriate cases.
Certainly, of what I have seen of the cases that have come up since 1995 -- and we heard from one of the people, Ms. Odynsky -- I don't think they were appropriate cases. I think maybe the committee would benefit from being able to review those cases and see what happened with them. We have mountains of press reports out on those cases that I think the committee should also get. I'm in the process of collecting them because when I say it brings justice in this country into disrepute, that process does. That's what those commentaries say about it.
I would close by going back to what former Superior Court Justice Roger Salhany said about this. He said that there is absolutely no way a judge could deal with clause 17, that our system of justice, our system of making determination in the courts, was never set up for that; you have to have the test of evidence, because without the test of evidence you are totally at a loss for the judge to be able to make a decision.
This is completely unacceptable. If you actually could demonstrate through the normal court process, with the protections we gave to Paul Bernardo and Clifford Olson, that fraud was committed -- the normal process we have going on in every community, every day, handling hundreds of thousands of cases.... Once you can demonstrate that the person's citizenship was obtained by fraud, then I think you can do some of the other stuff.
But certainly if you're going to make people feel that there is only one class of citizenship in this country, when you say fraud, you have to prove fraud, not to a civil standard, but to a very straightforward criminal standard. That's what the people across this country responded to, because until that happens you will have two classes of citizens in this country.
So I would like to have that information provided for the committee.
The Chair: Thank you.
Ms. Madeleine Dalphond-Guiral: Thank you, Mr. Chairman.
Getting back to the security certificate and the enormous weight it carries in that it authorizes a judge to revoke a person's citizenship without that person really knowing all of the grounds for revocation, can you tell me if the judge decides whether or not the security certificate appears reliable, or can he verify the soundness of the evidence in the case?
I think we've all heard about Falun Gong followers who are frowned upon by the Chinese government. Obviously, Chinese officials will say that their position is the right one, but that's not at all apparent.
Suppose a person has come to this country and been granted Canadian citizenship. Suppose that suddenly, we receive extraordinary information from China to the effect that that individual is the devil incarnate and should be deported to China. Who is going to verify the accuracy of the claims against this person? How is that going to work? Oft times over the course of history, when certain persons have been targeted, all kinds of means have been employed and unverifiable claims made, or claims have not been verified in order to maintain good diplomatic relations or some such thing.
All of the questions and concerns raised focus on this one area.
Ms. Rosaline Frith: I can appreciate people's concerns. However, if a person hasn't obtained immigrant status, and subsequently citizenship, through fraudulent means, and if later, someone claims that the person in question committed a horrible act in another country, but did not lie upon arriving in Canada, this claim does not enter into the equation and an investigation will be done before any steps are taken against that individual.
A judge who isn't satisfied with the documents submitted to him by the two ministers can voice his concerns about not disclosing information. Clearly, the judge must be convinced that the evidence is reasonable and truthful. A judge who harbours some reservations will question the evidence and, if still unconvinced, will reject the security certificate.
Ms. Madeleine Dalphond-Guiral: However, if the judge is not in a position to verify the accuracy of the allegations, how can he make a decision?
Ms. Rosaline Frith: Perhaps Paul can comment further on that point, but the system is already in place. In all, 26 security certificates have been issued and the judges have rendered decisions in these cases.
Mr. Paul Yurack: Thank you.
Mr. Chair, the member has asked a very important question and a very good question.
First, I'd like to acknowledge that I'm not the expert on security certificates being a proposed provision in the bill. I'll be the first one to acknowledge I'm not an expert.
Recently I had the benefit of attending a presentation on security certificates at a Department of Justice conference. What I discovered was in fact that judges take their responsibilities for certificates hearings extremely seriously. First the judge has the opportunity to hear from government witnesses and to actually, in a sense, cross-examine those witnesses in chambers as a part of in camera proceedings, without the benefit of course of other counsel, because the evidence has to be protected for national security reasons.
However, the judge will test the evidence and the witnesses and will require additional evidence if he or she is not satisfied that the requisite standard has been met. Therefore, the judge himself or herself actually has the opportunity not only to read the documentary evidence, but also to hear witnesses and question witnesses.
The Chair: Paul, when could you invite that Department of Justice person to our committee so we can ask him exactly the same question? If you could do that at the next round, it would be perfectly helpful, I think.
Ms. Madeleine Dalphond-Guiral: The concerns that I just shared with you were clearly voiced by the representative of the Barreau du Québec.
Mr. Daniel Jean: Madam, if 26 security certificates have been issued in accordance with a well-established process that has withstood the test of the courts and that is considered a model system by other world countries grappling with these very same issues, it means we're never going to have a situation where a security certificate is issued on the basis of hearsay, rather than because of solid evidence. The only reason for issuing a security certificate is to safeguard the evidence itself. To ensure that the persons in question can mount a defence, the judge plays a neutral role and presents a sanitized version of the allegations.
This process that involves the judge playing a neutral role has been in place since 1989. It has been tested in court. It works well and, as I mentioned, 26 certificates have been issued since 1989 involving immigration matters. This means that this measure is used only when the evidence is clear-cut.
Now then, what would happen if there was no such mechanism? Some unworthy individuals would manage to secure Canadian citizenship, and that would not serve the public interest and there would be nothing we could do to counter the situation.
The Chair: Sarkis, and then we can come back.
Mr. Sarkis Assadourian (Brampton Centre, Lib.): Thank you very much.
First, I have a quick question. You mentioned that since 1989, 26 certificates have been issued. How many of them were successful?
Mr. Daniel Jean: I think most of them were successful, but if you want actual numbers, we will be happy to follow up with that.
Mr. Sarkis Assadourian: Okay, that's my first question.
Regarding my second question, I have to admit that I'm not a lawyer, and I have never been to a court except for a traffic violation maybe once or twice. But I'm going to talk in practical terms.
When the certificate is issued by the immigration minister and the Attorney General, you go to court. Assume I am the bad guy. A certificate is issued against me by two ministers, and I go to court. Standing in the court, on one side, there is a judge, and right across from me are the two representatives of the minister -- one from the immigration department, and one from the Attorney General of Canada. Am I right? They've both signed the certificate.
They open the certificate, and it says that Sarkis did A, B, C, and D, and they have the witnesses. Madeleine is the witness, or Joe, John, or whoever the case may be. These are the witnesses who testify that Sarkis did this or said this, and I am there with my defence lawyer.
The Chair: No, you're not. That's the point.
Mr. Sarkis Assadourian: Just a minute --
The Chair: No, you're not there. We were told you are not allowed in.
Ms. Rosaline Frith: Part of that is the person is there. The person can go before the judge and make a representation. The witnesses, though, will not be there.
Mr. Sarkis Assadourian: No. I am the person being accused. A certificate has been issued against me. When the judge opens and reads the certificate against me, will I be there to listen to what the judge has been told against me?
Mr. Daniel Jean: The reason we use the security certificate in these very few cases is because part of the evidence we have against the person needs to be protected, either because it is coming from foreign sources and cannot be released, or it can be a witness protection issue.
So what has to be very clear is that this is only that part that the person doesn't see. What they will see will be a sanitized version of the allegations presented to them so they can offer a defence, but we should not leave an impression here that these people are not allowed to defend themselves and don't know what some of the allegations are. They may not know who the witness is, or they may not know the source of the allegations.
Mr. Sarkis Assadourian: I think that's protection for the witness, which is fair. That's why we have this protection program, to make sure that whatever goes to the state in terms of national security, the source is protected; otherwise, we can't have dealings with other countries and nobody will come forward in the future to testify against somebody else. They'll say why should I sacrifice my life for this person?
At the end of the proceeding, when the decision has to be made against myself, my person, only one judge will make that decision, right? What's wrong with having two judges be present to consult and make a decision? One person has one chance in a million of making a mistake, and maybe two persons have one chance in ten million of making a mistake. So if it's possible to eliminate the percentage of error.... Because you are a human being. As my colleague mentioned, three or four individuals were sentenced to death and were found to be innocent.
I'm not saying the same thing as my colleague with the example of the Chinese government that she gave. They give misleading information against someone they don't like, so that guy, by mistake or whatever error in judgment, can be found guilty.
Because the person has no chance of reading who said what against him, that's fair for the protection of the individuals; I agree. But I want to make sure that person who makes a judgment against me is not by himself. It could happen that he doesn't like me, or whatever the case may be. But if there were three individuals judging me as a person for what I'm supposed to have done, I think I'd have a better chance of satisfying myself that it was truthful, honest, and fair in judgment, rather than having one person make the judgment. That's my second question.
I have one other question that has to do with another subject.
Mr. Daniel Jean: I will let Paul answer why we should trust the judges in this decision, but I just want to make sure another point that Paul made is clear.
When the security certificate process goes through, the judge also has the opportunity to say he or she doesn't think it's a fair use of the security certificate that the evidence be protected or that the witness be protected in any way. Then, at the department, we have two choices: we can decide that we're going to proceed, with the risk that this evidence is now going to become all out in the open, with the risk it may have in terms of our bilateral relationship with foreign sources or the risk it can have for the witness; or we can decide either to withdraw our case or present it on what we have that can be presented in an open forum. So that's one part of it.
On the issue of the one judge, I'll let Paul handle that.
Mr. Paul Yurack: To reiterate what Daniel said initially, the fundamental principle involved in the security process is that the person will have an opportunity to know the case against him or her and an opportunity to defend himself or herself in a more circumscribed fashion. So we'll be clear on that.
It's a different forum, and there are different protections that again balance the significant and serious allegations against a person with the need to be efficient.
Again, we have taken an opportunity to choose a Federal Court judge. In our system of democracy, we have judges who are independent arbiters, fair and at arm's length from government, to decide cases. We think this is procedurally fair and efficient. It balances the right of the individual to fairness, as well as the interests of the state in proceeding expeditiously to hear the matter. We think one judge is sufficient.
The Chair: We also had a fairly well known, reputable Superior Court judge who begs to differ on clause 17.
I should clarify that you may have used it 26 times before, but you didn't use it under the Citizenship Act, because this is a new provision under the Citizenship Act. You used it in another one.
Clause 17 is new. It didn't exist before. You used a security certificate before, but not under the Citizenship Act. You used it under the Immigration Act -- right? That's the only place you can use it.
The rules of engagement were entirely different then from now, because a person could have been a citizen. How did you strip him of his citizenship before you had clause 17? You had to do it through cabinet.
Mr. Paul Yurack: We couldn't do it. That's the point.
The Chair: Well, you could. There are ways of doing it. But was that of concern? How did you get rid of these people, if it was successful 26 times?
Mr. Paul Yurack: If I may, Mr. Chair, I think you make a valid point. My understanding is that the reason we've come forward with this new tool is because there are cases out there that could benefit from it. It hasn't been possible to proceed in certain cases.
The Chair: Paul, you'll have to give me an example then. And if we have to go in camera, because you don't want to divulge national security issues or something like that, then we will. I have to understand how a system could work 26 times before, and now you want to do it under citizenship, because you're saying that there are some extenuating circumstances where it didn't work before.
You want us to pass legislation and still have integrity and credibility. The witnesses have all universally said that clause 17 is bad. It's up to us to try to explain as to why it's good, possible, workable, and so on and so forth, especially when we have a Superior Court judge who says the function in our system is adversarial and a judge is to balance the prosecution and the defence and make a judgment as to what's right.
We hear that under the security system, yes, they can show up, but with the summary you don't get to see all of the evidence. Maybe we all need a nice session to understand how the system works or doesn't work. But that's why I say to you that this is a new section, and if we're going to get it, we want to get it right.
Some people have offered another mechanism, other than the Federal Court, as a way of being able to bring some sort of balance to the very important issues. We're talking about pretty serious issues. We're not talking about the fraudulent ones. That can be dealt with in a different way. We're talking about some pretty bad apples that have to be dealt with, and I understand that we need to, as a country, deal with it.
Mr. Sarkis Assadourian: Daniel, you mentioned that there was a case or there could be a case where the judge would say to the government, “I don't think you have case here. Go fly a kite.” And then you say, “Well, we want to decide, take a chance, challenge the judge, and take it to court and let him...”. Am I right?
Mr. Daniel Jean: Maybe I wasn't clear. What I was saying is that there may be a case where the judge says I don't think this meets the threshold of the information that should be protected. I don't think you've convinced me that this information should be protected. Then you have your choice: you either proceed with the case and the information will not be protected, with the consequences that can have, or you can just withdraw your case.
Mr. Sarkis Assadourian: What I'm saying is if you have three judges, you also have the same protection as I have in the court not to make one judge make a decision for you. So it works both sides -- fair for you and for the individual.
My other question is to do with the word “discretion”, but not for those who would become a citizen but for landed immigrants. Our offices in Brampton and many major metropolitan cities are immigration offices, basically. Like it or not, 80% to 85% of my work in my riding is immigration. I hear lots of cases. Some I sympathize with, some I don't.
Sometimes you hear a case such as this particular case. The husband and wife were here in Canada as immigrants. They stayed two, three years. Then they decided, “This is not my country, I'm going to go back where I come from” — go to Pakistan, India, Middle East, Greece, Italy, whatever the case may be. These two people went. The husband died and she is left a widow.
She doesn't speak the language. She doesn't know the ins and outs or what to do — that you have to report to the embassy, then you can have an exemption, an extension, whatever your case may be. She was staying with a young boy or daughter she had. Then he or she gets married, leaves the house, and she's by herself.
She was a landed immigrant here for year and a half, two years. Five, six years passed, she lost her status. She says “I want to come back to Canada. My other son is in Canada. What can I do?” Well, the law says you lose your status as a landed immigrant. You can reapply. Good luck.
So what happens? What can we do? Can we use an instrument like humanitarian and compassionate grounds, as we do for refugees? I know there is no such thing. There is a very small number of people this happens to. I don't know if anybody here has had a similar case, but I'm talking about the five-year waiting period not to lose your status.
The Chair: That applies to that part of the bill we're discussing, which is the three and the six. If you want to work that in....
Mr. Sarkis Assadourian: This applies to the three and the six but in reverse — the issue of not losing status for a landed immigrant. Would there be anything that can be done?
Mr. Daniel Jean: What we tried to do in the last Immigration Act was to bring some objectivity about the issue of residence. Rather than deal with intent, we've tried to bring a provision whereby you have to spend I think three years and five years in the context of the Immigration Act to maintain your residence.
In the case of the situation you've described, if she has a son in Canada, yes, he can sponsor her, and she'll be processed.
Mr. Sarkis Assadourian: Start all over again?
Mr. Daniel Jean: Yes, unless.... There may be a situation where the person is still a resident. It really is going to depend on the particulars of the case.
Mr. Sarkis Assadourian: There is discretion that you can decide.
The Chair: Under the new immigration bill, she would have been fine. Under the old one, before we changed it, that's where she was problematic, because once you've abandoned Canada for more than six months, you're finito.
The new one is two out of five not consecutive, which means that if she was only gone three or four years, she would have been.... Technically, I think you could have made a case.
Mr. Sarkis Assadourian: I made the case anyway.
The Chair: You have an awful lot of influence.
Mr. John Bryden: Thank you, Mr. Chairman.
Back to paragraph 3(g), Ms Frith, I understood you to say that you liked the expression free and democratic values because of a Supreme Court interpretation. Is that correct? Was the Supreme Court interpreting Canadian law or international law when it came up with that interpretation?
Ms. Rosaline Frith: It's a Canadian case.
Mr. John Bryden: I know, but was it Canadian law that it was interpreting?
Ms. Rosaline Frith: Yes.
Mr. John Bryden: Well, then clearly it must have been interpreting law that springs from the Constitution of Canada.
Ms. Rosaline Frith: It was the Narcotic Control Act.
Mr. John Bryden: It doesn't matter. Our laws spring ultimately from the Constitution of Canada, do they not? Surely in paragraph 3(g), “to promote respect for the principles and values underlying a free and democratic society”, all we need to say is “as set out in the Constitution of Canada”.
I point out to you that using just the definition of the Supreme Court narrows the interpretation of the legislation to precisely and only what the Supreme Court defined. However, if you put in “as set out in the Constitution of Canada”, then the next time the Supreme Court comes along with a similar case, that might be able to expand and enlarge upon a free and democratic society in the context of the Charter of Rights and the Constitution.
To go now back to clause 21, if I can get there, I'm really interested in the rationale that led you to create this section. Let me ask you a hypothetical question.
When you crafted this clause the way it is, was it your intention to prevent someone getting citizenship who -- to give you an example -- may have been a person from the former Yugoslavia who believes that Milosevic is unfairly accused of the crimes that he's accused of? Would you want to keep that person from acquiring citizenship, for that reason, even though that person deplores killing and genocide, but might in fact believe that Milosevic is innocent of the crimes of which he is accused? Is your intention to keep that person from acquiring citizenship purely because of what he believes, because he believes in Milosevic's innocence?
Ms. Rosaline Frith: I do not believe so. If that were the intention, and I look again at the definition or the interpretation that the Supreme Court gave, which was respect for the inherent dignity of the human person, well, I guess he believes that Milosevic is a good human person. That's his freedom of belief.
“Commitment to social justice and equality” -- having that kind of a belief doesn't mean you're not committed to social justice and equality. “Accommodation of a wide variety of beliefs” -- obviously that's part of a wide variety. “Respect for culture and group identity in faith and social and political institutions”....
You're asking me if someone voices an opinion that is different from my opinion, is that the reason why we put this into the legislation, and my answer would be no. I think we've been very clear. It would be something that would be a flagrant and serious disregard for the principles and values that underlie a free and democratic society. It would be somebody who was out promulgating hate.
Mr. John Bryden: Okay, I'm sorry, I don't mean to.... I get keen.
I agree that certainly we wouldn't want to let someone become a citizen who promulgates hate, but I would point out to you that the definition of promoting hate is contained in the charter. What we really want to get at is everyone who might be campaigning that we should have arbitrary imprisonment or who might be promoting unreasonable seizure, and so on and so forth.
As I point out to you, the charter in sections 8 and 9 and section 7, right to life, liberty and security of the person, these in law — in law, not the Supreme Court — in the law that we have before us define what is the standard for promoting hate. It's basically to promote a denial of the things that are set out in the charter, which I would suggest to you is much, much more powerful than that definition that you put forward of the Supreme Court.
The Chair: To add to what John was saying, I think there is a view in this committee after hearing.... And it's not they who heard 80 witnesses; we did, plus more, Andrew. Again, it was pretty clear from all of the witnesses that clause 21 is too broad; it's not specific enough.
Rosaline, you keep talking about hate. Yet if it's hate-mongers we want to get to, if it's certain specific things that we want to get to, we can get very, very specific and have a list. John's approach is one that has been tested. And people have said would you at least have some reference to the Charter of Rights and Freedoms and use that as the basis for defining what those democratic values are, because our charter tries to express them in some way, shape, or form, or this definition that you have taken from Regina v. Oakes, which is subject to someone's interpretation of what it might mean.
I will tell you right now, because we are getting to the end of this session, I want you to think about that. There is no doubt in our minds that clause 21 is way too broad. So we'd like to look at some options of how in fact we can restrict and/or even more precisely define it, or even base it on some fundamental principle such as the Charter of Rights, if you can mention that in clause 21. I will say that.
I don't need an answer right now, because we are running out of time. Believe me --
Mr. John Bryden: Mr. Chairman, I never had a chance to have a full round of questioning. I wasn't here to take part. If it's all right with the witnesses, I would like to ask the committee to indulge us for another five minutes so that I can complete the line of thought.
The Chair: It's not the witnesses you can ask; you can ask the chair.
Mr. John Bryden: With the chair's indulgence and that of my colleagues.
The Chair: For five minutes? John, I can indulge you for five minutes, but then we have to go.
Mr. John Bryden: I quite agree.
Mr. Chairman, you have elaborated on my point, and I want to finish on clause 21 by commenting that what you are requiring.... You have a Supreme Court interpretation, which would then have to be interpreted. So let's go back to basics, go back to the charter and take the opportunity to interpret from there.
I also wanted to caution you. The intention as was expressed by Mr. Yurack I think is a very, very dangerous course you are inadvertently embarking upon, because what we mustn't do is restrict citizenship because we don't agree with the ideas. We have to be very clear on what it is that has been said that we find unacceptable as a country. But the way Mr. Yurack described it filled me full of real dread, because freedom of speech is a fundamental thing, and we must be prepared to receive people who differ from the views we have.
The Chair: Mr. Yurack.
Mr. Paul Yurack: Mr. Chairman, I only wish to say that I'm always concerned when a member of Parliament suggests I am embarked on a dangerous course of action. Usually my wife accuses me of that. It does cause me concern.
But I wanted to say that proposing this discretion, which is a discretion that does involve a consideration of balancing individual interests against state interests, is appropriate for the Governor in Council. I mean, it's a question about.... Again, it's always going to be a question of how comfortable Parliament is in allowing out of basically an objective act, objective criteria for the granting of citizenship covering a limited discretion to deny citizenship. What it used to say in I believe Bill C-16 was “the public interest”. We have gone further, and attempted to give some additional criteria for what we consider would be in the public interest and what goes against the fundamental values of a free and democratic society.
Now, whether we can look further at that and look to Canadian fundamental values of freedom that underlie our society is something the chair has pointed out.
The Chair: Our research person has done an awful lot of good work on not only Regina v. Oakes, which tries to define what those values are, but Keith Spicer and a whole bunch of other people have tried to define what those values are. Maybe that's where John is going to go and so on.
Mr. John Bryden: If I may pick up on Mr. Yurack's comment right now, it is precisely the Governor in Council that I want to restrain with the charter. That's exactly what we want to do. It's not good enough to give this broad mandate to make a decision under section 21. We want to fence them in by the charter.
Did you have something to say, Ms Frith?
Ms. Rosaline Frith: Yes. I'm seeking a wee bit of clarification, because you are asking for us to refer specifically to the charter, and I have given you the reasons -- or at least Paul has given you the reasons, which were given to me -- why we cannot refer specifically to the charter. But would you agree that the charter in fact reflects the principles and values upon which Canada bases its free and democratic society? That is exactly what the charter does. It sets out the principles and values upon which Canada bases its free and democratic society.
Mr. John Bryden: Exactly. You could take your words “free and democratic society”, provided that you put some reference to the Constitution. I prefer the charter; I think it's very important for new Canadians to see the word “charter” somewhere in this legislation, because this is the model for the world.
I'll leave that, if I may, Mr. Chairman.
One more point, very quickly --
A voice: I thought you'd want to leave on at least a winning note.
Mr. John Bryden: No, no, this is a good note. This is another suggestion.
I want to make a very quick comment on clause 18, to follow up on the comments of my colleague. I do point out that one of the problems of interpretation or perception of clause 18 is the fact that you make it a five-year period.
As everyone is saying -- as you yourselves have said -- fraud is fraud. Because you make a term, that's where you're suggesting there are two types of citizens, that you have to wait until five years.
The final point I would make and my other concern is that in subclause 18.(1) you say “If the minister is satisfied” that the person has done this. I'd rather see “If a judge is satisfied...”.
The Chair: I want you to think about that, because that is one of the main questions with regard to annulment or denial, as to whether or not it's a judicial-based system or whether or not it's an administrative system and whether or not that five-year probation for the administration to do its work is creating a different class.
Obviously we're going to deal with all of those issues, and we'll probably be seeing an awful lot of each other in the next.... I don't know; I tell you, we have such a full schedule with the Auditor General and reports that we're doing and estimates. By the looks of it, the next day is probably May 27 that we can reconvene on Bill C-18.
May I leave you with a couple of things that I think you can help us with in the next round? Paul, could you bring those learned people from the justice department so that we can ask a little bit about the security certificates and some of these justice issues that I think are fundamental to us determining what that test ought to be? I think that would be very helpful.
I think it also might be very helpful to us, in that a lot of what we're trying to do -- I'm a little concerned -- are more administrative matters. But residency.... Again, we started to talk a little bit about the three and six and IRPA's two and five. A lot of people came to us and said “Why don't you use the same definition in citizenship that you do in terms of residency that you've done in IRPA?”, which makes provisions for being away from the family, doing some important work. We live in a global community. IRPA seems to try to define that a little bit better than the residency requirements in this particular bill. Again, we will continue to deal with that.
The other thing is, can you bring some reports as to where we are in terms of backlog? I'm sorry, but unfortunately what we hear is that Ottawa has 2,000 people waiting in the backlog. London, Ontario, is nine months backed up. We hear that Toronto is backed up because of all kinds of things. The system is grinding to a halt in terms of people wanting to become citizens by virtue of the fact that there are a whole bunch of administrative problems. I can give you cases including language requirements, judges not being available, and yet they're there.
I'll give you another example: Kitchener-Waterloo. You can get into that system and out within two months or three months. But down the road in London, Ontario, you're backed up nine months. If you go to Vancouver or Montreal, Toronto or Ottawa, we are talking about nine-month delays even after you've applied.
I think if the whole system.... We're trying to make it better. I wouldn't mind getting some statistics as to where we are in terms of numbers.
Mr. John Bryden: Final point of order.
Some hon. members: Oh, oh!
Mr. John Bryden: Mr. Chairman, at the next session, if I temporarily sit on the opposition side, can I get more interventions?
The Chair: I think you've had more than your fair share today, I can tell you.
Madeleine has been very gracious, by the way, and so have you all.
Rosaline, Daniel, Patricia, and Paul, thank you so much. We'll see you next time.
The meeting is adjourned.