Standing Committee on Citizenship and Immigration hearings
on Bill C-18, the proposed Citizenship of Canada Act
[Recorded by Electronic Apparatus]
The Acting Chair (Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.)): I call the meeting to order. Welcome. Ladies and gentlemen, we began our hearings last week, and so I would like to summarize them briefly for those who are here today and for the people of Montreal.
Mr. Kenneth Narvey (Legal Researcher and Chief Operating Officer, Coalition of Concerned Congregations on the Law relating to War Crimes and Crimes against Humanity including those of the Holocaust): Thank you, Mr. Charbonneau, and honourable members. My name is Kenneth Narvey, and I believe I know almost everyone who is here today. I have already submitted the text of my presentation.
I apologize to the francophone members; the text is mostly in English. However, these specific amendments we are suggesting are presented side by side in English and in French.
I am, as it says in your materials, legal researcher and chief operating officer of a coalition of Montreal synagogues, the Coalition of Concerned Congregations on the Law Relating to War Crimes and Crimes against Humanity. We had the privilege of appearing before this committee two years ago, at which time we made three suggestions. Two of them were adopted by the committee. The third one is, more or less, in the bill today, which is very gratifying. We were saying there shouldn't be a section that says the Federal Court trial division decision on whether a person has or has not obtained their citizenship by fraud etc. is, as it is today, non-appealable. There should appeals, with leave, to the Federal Court of Appeal and to the Supreme Court of Canada. What we see in Bill C-18 is exactly that in clause 16.
We think this is an excellent bill, but it would be even better if it were amended in rather a large number of ways. When you look at my paper, you'll see there are 18 headings, and one of them has 11 subheadings. That makes about 29 topics, which I'll try to run over very quickly. Our suggestions run from page 1 of the bill, the short title, to page 40, the oath. I found the day before yesterday, when I was typing this, that I hadn't left enough time to type it, so about half of this paper is headings followed by the words “details to follow”. I will prepare another edition of this, or several other editions, with specific draft wording in English and French for all the ones in which there is nothing yet.
The short title of the bill is Citizenship of Canada Act, in French Loi sur la citoyenneté au Canada.
In our view, the short title in French should not read “au Canada”, but perhaps “du Canada”, since, like “citizenship in Canada”, it would include citizenship in Canada from any country, Peruvian citizenship for instance, and would exclude Canadian citizenship outside Canada. So I checked the use of the word on the Internet, and I came across the European Union's Treaty of Nice, which creates a “citizenship of the European Union”. That could be a model for the citizenship of Canada.
There are other models as well. On page 37 of Bill C-18, reference is made to the “Canada Shipping Act, 2001”, and, in French, to the “Loi de 2001 sur la marine marchande du Canada”. Another possibility would be to change the short titles to “Citizenship Act, 2003”, and “Loi de 2003 sur la citoyenneté”.
On page 3 of my brief, you will note that, when the Canadian Jewish Congress appeared before you, Mr. Vernon pointed out that reference is made in subclause 21(1) to “the principles and values underlying a free and democratic society”. This is somewhat problematic, since the United States can also be said to be a free and democratic society, but they are less opposed to hate propaganda than we are. So, he suggested replacing the phrase “a free and democratic society” by the words “Canada's free and democratic society”. That would be one of our suggestions as well.
He also pointed to other alternatives, including the one suggested by Mr. Matas, of the B'nai Brith. His proposal was to drop this fairly vague wording relating to a free and democratic society, in favour of more specific wording joined from the Canadian Human Rights Act.
The Canadian Jewish Congress would be in favour of either this wording or the wording to be found in the anti-hate sections of the Criminal Code.
Our view, and my own personal view, is that it would be better still not to adopt clause 21, but to make amendments to clause 28, which would allow us to better achieve what clause 21 is intended to achieve, and to prevent Mr. Ernst Zundel from acquiring citizenship.
In clause 3, which outlines the purpose of the bill, subparagraph (g) also makes reference to the “principles and values underlying a free and democratic society”.
We would suggest that the word “Canada's” be inserted in clause 3(g) if it is inserted in clause 21. If clause 21 is deleted, clause 3(g) should also be deleted.
Let us go now to pages 5 and 6 of my brief.
There are some things about who is a citizen, including who is a citizen at birth, and exceptions to that. According to us, there are some errors in the wording, because whoever drafted this forgot that people have two parents, or at least many people have two parents. What we say is wrong with subclause 5(3) in the French only I'll skip over; you'll see it in the written materials. Subclause 5(4) is easier to describe. This is talking about la troisième génération not being able to get citizenship, because they were born abroad to a person who was born abroad who is a citizen. We're not arguing with the concept, but the wording in the bill would make that not only not a qualification to have citizenship at birth, but a disqualification to having citizenship at birth. That leaves out the other parent. If we get to the other parent, it might be a person born in Canada or a person naturalized in Canada. So you would have the bizarre situation where, if one parent is born or naturalized in Canada and the other is not a Canadian, and you're born abroad, you're a citizen. If the other is born abroad to somebody who's a citizen because they were born abroad, you won't be a citizen. It becomes poison, rather than just a lack of qualification.
So you'll see on page 6 that we suggest that the one who shouldn't get citizenship at birth is a “person if the citizenship of both their parents or the citizenship of only one one of their parents who is a citizen was acquired by being born outside Canada” of a citizen.
In French, it says:
la personne qui naît à l'étranger si la qualité de citoyen de chacun de ses parents ou du seul d'entre eux qui est citoyen n'est due qu'au fait de sa
On pages 6 and 7 we talk about some wording on humanitarian and compassionate considerations in subclauses 7(2) and 15(2) of the bill. The French and the English don't correspond. We think the French is better, and we suggest that the English be modified. The French speaks of the minister and the minister's discretion in exempting a person from certain requirements on compassionate or humanitarian grounds; in English it says “If the Minister believes....” Jurisprudence says discretion doesn't give you the power to be arbitrary. The courts can supervise you. You have to behave fairly, you have to follow all the rules of natural justice. The word opinion gives the minister more of a right to be wrong. We think supervision by the courts of you, me, and everybody, including the minister, is a good idea.
On page 8 I come to clause 16, which is really the heart of what I want to say to you today. This is the new system for the removal of citizenship, or not. We say it's very good, a great improvement, but it could use further improvement. For us the two most important clauses are 16 and 56, which says to what extent the new system will apply to existing cases. We've spoken with some bureaucrats about this, and they said they liked a lot of our changes to clause 16, but they didn't want to apply it to existing cases. I thought about it and decided the problem is that the new system is still imperfect. If the new system could be improved to the point of being excellent, so that everybody would wish to be under it, both prosecutors and defence counsel, then we can also amend clause 56 to make the new system apply to existing cases. The reaon we're setting up a new system is that the old one wasn't working very well for anybody. It was unfair to everybody, it took forever, and it should be improved.
On page 8, 5(a) in my headings, I address the fact that the minister may commence an action. That could accidentally -- and I'm sure this wasn't intended -- create a statute of limitations. There are two pieces of legislation that are in effect, the Federal Court Act, section 39, and the Crown Liability and Proceedings Act, section 32. They both say the law relating to limitation of actions in a province applies, unless another law says otherwise, to everything in front of the Federal Court, in particular if the cause of action arises otherwise than in a province, for instance abroad, and the action should be taken within six years.
The wording in French is: “... la procédure se prescrit par six ans”.
This has been raised with you by the Canadian Jewish Congress, and I'm saying the same thing in a little more detail. On pages 9 and 10 you'll see my specific draft wording. Instead of saying “The Minister may commence an action”, say “The Minister may at any time commence an action”.
We suggest replacing “Le ministre peut intenter une action” by “Le ministre peut en tout temps intenter une action”.
On page 10 you'll see draft wording for a subclause 16.(1.1) that would make this totally clear, with no prescription or limitation on action. It always helps to be clear on what it is you want.
The Acting Chair (Mr. Yvon Charbonneau): Mr. Narvey, could I interrupt you? You have been talking for almost 13 minutes now. Try to summarize what's left.
Mr. Kenneth Narvey: Okay. From page 10 on you will see only headings, each one followed by “details to follow”, and details will follow in writing as soon as I can write them. I will just say what I think the most important of these is.
It's on page 11, paragraph (f). It says:
Clauses 16(2) and 16(4) should be amended to provide as exceptions that the Court may, on humanitarian and compassionate grounds, refrain from revoking a person's citizenship or from ordering the person's removal.
So it would say say a finding of fraud is an order removing citizenship unless the court decides on humanitarian and compassionate grounds that the citizenship ought not to be removed, the same thing going for “removal” in subclause 16(4). We're building on what was said by both the Barreau du Québec and the Canadian Bar Association: there should be a humanitarian and compassionate phase and there should be an independent adjudicator, not the minister. We think this will work.
A member of the minister's staff said to me, but the courts have no experience with humanitarian and compassionate grounds, and I have two answers for that. One is that they have no experience issuing removal orders either, but the bill has that, giving the courts new tasks. This is something the bill is already doing, this will be another new task. Also, they do have experience in this. The courts have been supervising both the minister and the immigration appeal division in their action on humanitarian grounds. You can seek and get leave to judicially review, and in the course of supervising, the courts come to have a lot of knowledge and to have laid down a lot of rules as to the way to deal with humanitarian and compassionate grounds.
I should mention that another thing about this bill we like very much is that it consolidates, instead of everything taking forever because first you have to be in this court, then you have to be before that board, and there are appeals to the Supreme Court of Canada for both of them. It puts humanitarian and compassionate into clause 16 and gives it to the courts and, I say later, makes it clear that everything that happens in court is appealable: whether you've committed fraud, whether you should keep your citizenship anyway, whether you are inadmissible, and whether you should be allowed to stay anyway would all be appealable together.
Those are the main points, but I look forward to your questions. I will also be writing to you again.
Mr. David Chalk (Lawyer, Association québécoise des avocats et avocates en droit de l'immigration): Thank you very much.
Allow me a preliminary observation. You will notice that our submissions are fairly brief. We have read the testimony given by the various other groups and we felt it would be useless to repeat what some of our colleagues have already eloquently expressed. We support most of what they have said to you.
Today, we would like to address two aspects with regard to the loss of citizenship. The AQAADI welcomes sections 16 and 18 of Bill C-18 which should lead to the preservation and the integrity of the system for the granting of citizenship. All the same, we believe that reflection is required with regard to the procedural rights granted to parties under the above mentioned clauses in order to ensure that citizens who are subjected to their procedures are able to know the accusations against them and to respond adequately and that any decision rendered regarding their citizenship may be reviewed by an independent body.
Many of our members have heard stories about Canadian citizenship obtained via false declarations made by the applicant regarding his days of physical presence in Canada. Unfortunately, some have obtained citizenship having set foot in Canada for a few days.
As Canada does not control exit through its borders, it is virtually impossible for the State to verify with exactness the declarations of an applicant through a data base.
In addition, the resources allowing for an inquiry by Immigration Canada to verify such declarations are very slim.
These serious deficiencies result in the denigration of the Canadian immigration program and, more seriously, of the foundations of Canadian society.
The AQAADI believes that it would be advisable for the Canadian government to increase the resources to verifications of the declarations of applicants for citizenship, though we recognize that this forum is not ideal for such a proposition. The present resources are insufficient and make significant abuses possible.
While we recognize the importance of program integrity in the granting of citizenship, the AQAADI must also express its disagreement with the tendency—already noted in RRPA—to eliminate the submission of the law to humanitarian considerations. The example of a refugee claimant who has been accused or convicted of a penal infraction abroad has been raised by several witnesses. It would be more than ironic if a person could be recognized as a Convention refugee for having been the victim of a false prosecution, on the one hand, only to be forbidden the granting of Canadian citizenship due to the same conviction—perhaps notwithstanding the granting of a pardon in the country in which the conviction occurred. The recognition by the Protection Division of the false and persecutory nature of an accusation or a conviction abroad is only one example among many where it is necessary to blunt the effects of the law with compassion and common sense.
Presently, the only tool that the law provides to soften its application is section 10, which allows the Governor in Council -- at the instigation of the minister -- to order the granting of citizenship “in order to alleviate a situation of special and unusual hardship or to reward services of an exceptional value to Canada.” No procedure is specified to bring such cases to the attention of the minister. This procedure will remain opaque and incomprehensible to the majority of people.
Given the rigid nature of certain rules established by the bill, it is foreseeable that a significant number of meritorious applications should be made to the minister to exercise his discretion and to bring these applications to the attention of the Governor in Council. Such a volume appears to us to be incompatible with the normal functions of the minister and of the Governor in Council. Such a volume appears better suited to the exercise of a discretionary power by an immigration officer or by an independent tribunal, such as the Appeal Division of the IRB.
[... Patrick Apikan, As Individual on Aboriginal viewpoint ...]
Mrs. Diane Ablonczy (Calgary—Nose Hill, Canadian Alliance): Thank you, Mr. Chairman.
We appreciate the presentations today. Some of you make the drafters look bad -- I don't know if this is good or not. Not being any kind of expert in French -- and that's an understatement -- I leave it to some of my colleagues to comment on Mr. Narvey's suggestions for better congruence between the French and English in the act.
There are so many recommendations here, Mr. Narvey. I know you did highlight the one on page 11, and we'll be looking at the changes you recommended, but if you had to emphasize to us just one or two, what would they be? What are the most important ones, in your view?
Mr. Kenneth Narvey: I think I can say there are four things that are most important. It should be clearly stated that there is no time bar, statute of limitations, or, as is said in French and in English in Quebec, “prescription”. Second, the courts should have the power, after having found that you can lose your citizenship, to find on humanitarian and compassionate grounds that you won't. Likewise with removal. It should be clear that everything is appealable; though we would prefer that it be with the leave of the Federal Court of Appeal, we can live with its being as a right. And the new system should apply to the existing cases. For instance, there are three people today whose citizenship the courts have found the Governor in Council can remove, but years later, the Governor in Council has neither removed nor announced that it will not remove. Also, these people have no appeal from the decision that they're removable. We say it should be in clause 56, the transitional provision, that they will lose their citizenship unless the court says they shouldn't. If the court doesn't say they shouldn't, they can appeal that. If the court says they shouldn't, the Crown can appeal that. We tried to bring everything together into a fair system that doesn't take forever. The government can appeal when it loses, and the person can appeal when they lose.
I don't know if I've done more than four, but those, I think, are the most important. I will try to give you specific draft wording for all the others by getting the name of the court right and so on.
Mrs. Diane Ablonczy: It is helpful to have your sense of what we need to concentrate on the most if we have a limited ability to suggest amendments.
I noticed that Mr. Chalk and Mr. Brunet made similar representations. We have heard other concerns about the lack of procedural fairness, sometimes called due process, in this whole matter of refusal of citizenship.
Mr. Jerry Pickard (Chatham—Kent Essex, Lib.): Thank you very much, Yvon.
Mr. Narvey, you have presented a lot of detail, which I think someone has to look very carefully at and make some decisions on. Much of it is wording change, much of it will create a difference, obviously, but at this point in time we need to study what those wording changes will alter in the bill and how they will affect the ultimate outcome. We do appreciate everything you have put forward, but I think we need more time to look at those recommendations. As you said, you're going to expand from page 10 on, and we will look forward to getting that from you. Thank you.
Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you Mr. Chair.
First of all I would like to thank all three of you for the work you have done.
Mr. Narvey, I have been a member of Parliament for 10 years and I have on occasion taken part in the clause by clause study of a bill. Since the laws are in both languages, one of the things I had to do was to check whether the French and English versions were in agreement. Generally speaking, I can tell you that the government would easily accept such amendments. When contradictory statements are made in the two versions, it is rather awkward. I would like to thank you then for the work that you have done on this point. That means there will be a little bit less for me to do. But taking into account all the points you have made, it will add up to a lot of work for us.
Mr. David Chalk: I think it would be fair to talk about a two-tier system. Is there any justification for court intervention? In my opinion, the matter is not yet clear. However, as a lawyer who looks after immigrants and as someone who became a Canadian citizen at the age of 24, it is a cause for concern to me. Why would we have two rules for people who have acquired citizenship in different ways? It seems to us that a citizen is a citizen.
Mr. David Chalk: May I add something to what my colleague was saying?
Mr. Paul Yurack, from the Citizenship and Immigration Canada legal department, appeared before you and, more or less summarized our concerns when he said:
If somebody acquired citizenship by fraud, misrepresentation, or knowingly concealing material circumstances, the government has an absolute right and duty to take that away in accordance with the law.
This is very harsh. We do not see enough flexibility in this to account for flaws, even if they are technical in nature. The only recourse is judicial review, and there is only one way to mitigate the effects of the legislation, namely the appeal under clause 10 of the bill and direct intervention by the Governor in Council.
Mr. William Sloan (“Association américaine des juristes, section canadienne”): I will not quote an old poem written by an American poet, in which he refers to parliamentary seats.
In 1941, in England, a man was suspected, under the special rules which were enforced during the Second World War, of being too close to certain groups, Nazis, Germans, it was not quite clear. Under the law, the Secretary of State had the right to issue a warrant ordering the detention of this person for security reasons. He had to indicate in the warrant his belief that the person in question had links with suspicious associations. But under the law, it was also possible to conduct a review. The review was based on habeas corpus and went all the way to the House of Lords, to the Judicial Committee of the Privy Council, where five lords studied the case. Four lords felt that the mere opinion of the minister, the Secretary of State, was reason enough to authorize the Crown to detain this person.
The fifth judge, Lord Atkin, in what is possibly the most famous dissenting opinion in English case law, said that the idea that the warrant and the minister's opinion were valid per se, without further investigation, as stated in the law, could only find legitimacy in Through the Looking Glass by Lewis Carroll, in which Humpty Dumpty said that the question was to know who the master was. Which had precedence: the word or the man? Later on, English case law ruled that the four lords were wrong. However, there was consensus that the ruling came as a result of the circumstances of war.
This was the House of Lords; only one of the five judges had had the temerity to disagree. He found his colleagues' conclusion so horrible that he called them Humpty Dumpties.
What would happen if such a situation arose if this bill is passed?
I will not repeat what other legal groups have said before this committee, but would simply like to draw your attention to the following sentence: “It cannot happen here.”
Briefly, let us go back to 1919, just after World War One. There were major social upheavals in Canada, beginning with the events that took place in Winnipeg. The Winnipeg general strike quickly spread throughout the country. There were strikes everywhere. Fifty thousand people even went on strike in Quebec.
What is interesting is that when it all was over, many Canadian citizens born in the United Kingdom were deported. They lost their Canadian citizenship after the Winnipeg general strike and they were kicked out of the country. It was done for purely political motives.
During World War Two, the Communist Party of Canada managed to elect a member of Parliament only once. Of course, this person did not run under the banner of the Communist Party, since it was illegal, but under another party name. He was Fred Rose, a Polish Jew from Montreal. He was running against many high profile opponents in his first by-election, one of whom came to lead the NDP. He was re-elected during the general election which followed the war. But what happened to him?
He was declared guilty of passing information to the Soviet Union, information which, it seems, was available in scientific journals. But because it was wartime, his actions were illegal. He was stripped of his parliamentary status and jailed; he was stripped of his citizenship and deported. I imagine there was no doubt that no one wanted a man of his ilk to sit in Parliament.
How did this play out at the time? A man appeared before the courts wearing a pillow case over his head, with holes for the eyes. It was Gouzenko. He was testifying against several people wearing a pillow case over his head because he apparently had had plastic surgery to protect his identity.
Today, with what is being proposed, you won't need a bag. You won't need hearings. It will all happen behind close doors, without the benefit of an attorney and without hearing from the accusing party; even the judge would probably not know who is laying the charges. It may be an RCMP officer who may or may not appear in person, or may simply submit something in writing to inform the judge of what is perceived to be the information. Gouzenko would not even need to wear a bag over his head.
People are talking about applying a national security doctrine. If you want to see how far that doctrine can be taken, just look at Latin America, where all matter of dictatorships used this doctrine to justify every conceivable kind of abuse. Even today in Canada this type of abuse continues. Repression tactics are applied to excess during demonstrations, as evidenced by the mass arrests of hundred of people in Montreal. This has been started to happen in the last few years. You saw what happened in Quebec City. I not only work in the area of immigration, but I also defend demonstrators who have been jailed. I find they sometimes come across as refugees in their own country.
National security concerns are increasingly invoked by prosecutors to prevent evidence from being revealed to the accused or to withhold evidence during the trial which would follow to examine the issue of national security. I have had the honour of having Judge Hugessen say to me: it is time to hear the evidence, please leave, sir. It is strange for a lawyer to hear this, but that what is happening. And this particular case did not even involve terrorism; it just dealt with a demonstration in front of the hotel where, in October 2000, two people were charged with inciting a riot. A window was smashed. We had asked for the names of the Quebec provincial police intelligence officers who were in the crowd. They were tailing Jaggi Singh and a couple of other people. We were told in no uncertain terms that there was no way we would receive that information. And we didn't. But national security was not at stake.
I think that the interpretation of the police and of security services of the notion of national security has not—or barely—been defined. Judges who don't toe the line get into trouble, as did Judge Létourneau of the Federal Appeal Court. He lost his security clearance after the Somalia Inquiry and no one knows why. It is extremely worrying that a Federal Court judge as respected as Judge Létourneau could lose his security rating.
There are matters of judicial independence that are essential when political issues are involved. I won't attempt to tell you everything I know about Latin America. The American Association of jurists is not a US Association but one representing the Americas. The last two presidents were from Brazil and Nicaragua and the present one is from Argentina. They know what is happening in these countries. I myself I've taken part in about a dozen human rights missions in various countries. There are many things I could tell you. So these are some of my concerns.
As far as refugees go, I wish to stress once again that I have had personal experience with clients who were acknowledged to be refugees and who have links or who may be in contact with militant organizations here, sometimes in solidarity with their own countries. I'm thinking of Mexico, a particular example where SIRS actually wanted an individual to become an informer and he was given to understand that in order to obtain SIRS approval, something that was necessary for permanent residence, he would have to cooperate. With this bill, it would be possible to extend this kind of pressure upon citizens in an attempt to find new spies.
It even strikes me as being a legislative reaction to certain reprimands from the court to the police. But that does not reflect us.
Ms. Rivka Augenfeld (President, Table de concertation des organismes au service des personnes réfugiées et immigrantes):
We would also like to support the recommendation to amend clause 14 to avoid statelessness, in cases where this could be the result of removing a person's citizenship.
This morning, as others have surely done, we would like to draw your attention in particular to clauses 17, 21, 22 and 28.
Clause 17 talks about the revocation of citizenship by means of a secret certificate. This is very disturbing, Mr. Chairman, and I think that under our justice system in Canada, a person is deemed innocent until proven guilty.
Once again, a process is being proposed that we have already deplored in the case of immigrants. Now, the government wants to be able to take action against people who are already citizens, without their knowing the evidence against them. This would be done through the certificates. We must not forget that an individual who has been granted citizenship has already been checked twice. When the person applies to become a resident, there is a criminal security check. Subsequently, when they apply for citizenship, another criminal check is done.
[W.Z. ... There is some very good discussion by Patrick Apikan on aboriginal concerns and William Sloan and Rivka Augenfeld on the CIC bureaucracy, which may be read in the original transcripts archived on the parl.gc.ca website. ...]