Standing Committee on Citizenship and Immigration hearings
on Bill C-18, the proposed Citizenship of Canada Act
[Recorded by Electronic Apparatus]
Mr. Nick Summers (As Individual): Thank you.
As to my credentials, first off I suppose I should mention I've been, as you said, a lawyer. I've been doing immigration and refugee cases here in Newfoundland for 13 years under various acts, regulations, etc. I'm also at the current time national vice-president of the Canadian Council for Refugees.
By far the biggest issue with regard to the new act is the lack of due process for people who are at danger of losing their citizenship. There are a number of sections. There's the fact that citizenship can be taken from someone because of misrepresentation. There is the fact that somebody can have their citizenship annulled by the minister if it's within five years of it being granted. And there is the issue of citizenship not being granted to somebody.
In each case there are problems with the due process. In the case of annulment of a person's citizenship, the test is simply that the minister is satisfied that there has been misrepresentation or some other misconduct. Well, what does “satisfied” mean? What level of proof is there? The act says you can ask for judicial review of this, but the case law on the issue of what satisfaction means indicates it's a very low threshold.
We're saying we are treating different citizens with different rights. A Canadian born in Canada has the right to due process and to have a proper judicial decision made with regard to their rights. Yet we're saying this person who is a citizen -- we've accepted them as a citizen -- can have his citizenship annulled simply on the satisfaction of the minister.
The minister is the decision-maker. It's the minister's officials who bring forward the case. The person is given a summary of the allegations about them, and they're given a chance to respond. But it's the minister who decides. So in effect the minister is both prosecutor and judge. We feel this is an unfair process. There should be at least some quasi-judicial process put in place so that there's not that conflict of interest.
Mr. Nick Summers: I'm not sure if I know of any other state. I don't claim to know the citizenship laws of every country. I have reviewed a number of other countries' citizenship laws for one reason or another over the course of my legal career and working with immigrants and refugees. I cannot call to mind any instance where there is that sort of executive power to revoke citizenship. I'm not saying there isn't, but I'm not aware of one.
I do thank you for raising one important aspect of all this that I didn't mention. It's not just an issue of somebody's citizenship being revoked, because this often leads to them being removed from the country as well. Very often the revocation of citizenship is one step toward deportation. Therefore we're not simply dealing with some ethereal rights of citizenship and whatever that means. We're talking about real consequences to these people. They could be removed from the country and sent back to wherever they originally came from or where their ancestors came from without any thought as to whether there is anything there for them or what they face going back there. Many of these could be refugees or former immigrants who escaped from oppression of one sort or another.
That comes down to the fact that we value rights here in Canada. Most Canadians have ingrained rights that can't be taken from us. Once you're a citizen, you're a citizen. Therefore to have a law that says we can take it away, you have to put really strong structures in place to make sure mistakes are not made.
As you said, in the atmosphere of security and concerns this is probably not the best time to be drafting this sort of law, because it brings with it a certain paranoia, a desire to get them out of Canada as quickly as possible -- let's not give the terrorists more than they...let's not help them. But you can't think that way when you're dealing with citizenship. You have to think about a citizen being a citizen.
Mr. Nick Summers: As a lawyer who does a lot of administrative law, I guess I'm used to the idea that sometimes these strict rules of evidence can be and are bent for purposes of justice or expediency. I don't always agree with that, but I can appreciate that sometimes strict rules of evidence aren't the proper way to go.
However, as we said in our brief, it is unacceptable that the subject of all of this is not even entitled to know what the evidence is against them. It's bad enough that evidence that would not be acceptable in a court is acceptable to the decision-makers under this act, but all the person who is about to lose their citizenship is given is a summary of the evidence. They have no right to see the actual evidence, to hear their accusers, and to challenge, other than in a general sense, the allegations being made. To me a very fundamental part of the Canadian system is to have the right to directly respond to the evidence against you and to hear that evidence.
Mr. Nick Summers: Yes, I will respond to a couple of points you made.
First off, we're not taking the position that nobody should ever have his or her citizenship revoked. You're quite right, there are people who have obtained Canadian citizenship fraudulently who don't deserve Canadian citizenship.
What we are saying is that there is a value to all Canadian citizens in ensuring that if you are going to revoke citizenship you do it properly, with due process. We may say that this case or that one is an obvious one, so why waste millions of dollars to take it through the process? I'm not saying every case would take a million dollars, but what do we do when somewhere down the road a less obvious series of cases comes forward?
To stray out of immigration, because of course at the moment we don't have this process, and to look at criminal law, everybody thought Guy Paul Morin was guilty. But mistakes were made. If we didn't have checks and balances in the system -- proper appeals and proper judicial consideration of facts -- he and many others in similar situations would still be in jail. Injustices happen.
The Canadian way of dealing with that as best we can is to make sure there is a process in place that does its best to make sure those mistakes are caught. What we are saying is that in this Citizenship Act none of those checks and balances are there. Citizenship can be revoked simply on the basis of the minister being satisfied, based on evidence that is not revealed to the person who is about to lose his or her citizenship. That evidence is presented to the minister by his own officials, and he makes the decision. His decision, while reviewable by the courts, is not appealable to the courts; the judge can't put his own decision in place. He can merely make a decision on whether or not the minister made his decision in good faith and whether or not he was properly satisfied on the evidence.
That is not, I would submit, sufficient. We are dealing with fundamental rights here -- citizenship rights -- and it is a very serious thing to take them away from somebody. They must have some protection.
To give another example, it might seem that somebody is denied citizenship by the cabinet because of his or her supposed criminal convictions in the past, which is one of the grounds for which it can be refused. However, I know, because I've had many clients, that in some countries the criminal justice system is used as a tool of persecution. People are accused of murder, they're convicted of murder, they're convicted of serious property crimes or sexual assaults that are completely made up. Yet these people are never given the opportunity to have a hearing about this, to have it determined that yes, they have a conviction, but despite that they are eligible for Canadian citizenship.
Not to drag out the old cliché, but Nelson Mandela spent twenty years in jail for crimes, yet we have made him an honorary citizen because we recognized that the crimes he was accused of and imprisoned for were trumped up as a method of persecution. There's nothing in this proposed act that protects a person from that sort of process—or not sufficient protection.
I wish I could agree with you that the government, the cabinet, and the minister never make mistakes.
Mr. Nick Summers: Courts make mistakes too.
I'm saying that unfortunately everyone makes mistakes. Every agency makes mistakes. Sometimes, from my experience, decisions are made that knowingly cause harm, for reasons of policy or expedience.
To give a very recent example, I don't know how much this committee knows about the issue of directing people back from the American border, but the minister and his officials just three weeks ago made a decision that is already causing hundreds of people to be spending time in jail in America, indefinite imprisonment in America, because they came to the Canadian border to make a claim for refugee status. They were turned back at the border, told to come back in three days or ten days, and when they came back to the American border post, the Americans said no, we're putting you in detention, and they're still there.
So I'm sorry, but the minister unfortunately does make decisions, sometimes for policy reasons, that don't necessarily match what is, to my mind, fundamental justice. I and my organization have a problem with the minister being the judge in cases where these fundamental rights are at risk without some checks and balances, some judicial process.