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.)): Thank you.
I would remind you that some of the members, even though we have not heard from the NDP and the Conservatives, are travelling to Washington next week. Jerry and I will be representing our side, and there will be Diane and Madeleine. So far I haven't heard from the other two members. We'll be talking to our American friends with regard to border issues, immigration issues, and citizenship issues.
We are honoured to have Judge Salhany join us today to talk about Bill C-18, an act respecting Canadian citizenship. I take this opportunity, your honour, to thank you very much for taking the time to talk a little about your experience under old legislation. You've had an opportunity, as I understand it, to look at ours, and you can tell us what you think. We pass these laws, and you have to interpret them and work with them, so we're delighted that you can give us this insight. I think it's most important for us. Welcome, on behalf of the committee.
The Hon. R. Salhany (Retired Judge, As Individual): Thank you.
About a month ago, just as I was on my way to some holidays, I got a fax from Andrew's assistant, and Andrew was very insistent that I respond to some of these areas. I was sent clauses 16, 17, and 18 of the bill, and he asked what I thought of them. He also sent me the commentaries. I've read the commentaries, I think most of them are excellent, and I don't intend to repeat them today. What I thought I would do is touch on three areas that concern me and would probably concern judges and invite questions from you. Maybe I can be of some assistance to this committee.
Clauses 16, 17, and 18 talk about three methods of dealing with the revocation of citizenship. Clause 16 deals, as you know, with the action by the minister in the Federal Court, clause 17 deals with a certificate of the minister in the Federal Court, and clause18 deals with the limited situation for people who have only had citizenship for five years or less. I want to talk about three specific areas, first the section dealing with the kinds of conduct that will result in loss of citizenship.
The first element is well understood among lawyers and judges, and that's “false representation” -- straightforward, well defined, centuries of interpretation. The second one is “fraud” -- well defined, centuries of interpretation. The third one is something that concerns me: “by knowingly concealing material circumstances”. What does it mean? You can put 12 lawyers in a room and they'll give you 12 different answers to what that means. I cannot understand why that has been included. Fraud and false representation cover, in my view, every conceivable kind of conduct by somebody whose citizenship you would want to have revoked. I notice that some of the commentaries say it should be defined. Why define it if false representation and fraud cover every situation, and why include it?
The second concern I have is clause 17, the certificate procedure. It imposes a burden on judges. They are not equipped, by reason of the nature of their judicial process and training, to make a proper determination. To understand that, we have to understand the judicial process; you're all familiar with it, but just let me repeat it. We operate under what is called the adversary system, and the adversary system has to be contrasted with the French inquisitorial system developed under the Code Napoléon. The adversary system presumes that if you put two equal adversaries into a courtroom with a neutral judge who knows nothing about the case, who comes to the case without having any information about it, through the process of examination and cross-examination, truth will emerge. Whether it does or not may be another thing in an individual case, but that's the presumption. The European system, which I don't need to go into in detail -- and of course, it varies in Europe -- is that the judge becomes what in France is called le juge d'instruction, the examining magistrate, the investigator. That judge has the opportunity to question the witnesses, to attest to their credibility, and there are two aspects of credibility. One is reliability. We always think a witness's evidence shouldn't be believed. Why? There may be two aspects of it. First, he may be unreliable, he may not know the facts as he presents them to the court. Second, he may know the facts, but he lies about them. Under the adversary system, when you get two sides examining and cross-examining, there's a presumption that truth will emerge.
What does clause 17 say? Essentially, it says we're going to go to that judge, who by training and experience has never done any investigation and has learned that he's supposed to sit in the court room, keep his mouth shut, and listen to what each side has to say, and then at the end make a decision based on what is reasonable, after assessing the evidence, and say, now we want you to become an examiner and a cross-examiner. That arises out of subclause 17(4), particularly paragraph (d): “the judge shall examine the information and any other evidence in private”. The judge then has to determine whether the national interest is involved. How does a judge, whose training is essentially to listen to two sides present evidence and cross-examination, make that determination?
One of the things we've learned as judges is that people who are offered something have a tendency to lie. In this case, let us assume you have an informant -- and I'm dealing with a national security situation. That person has probably been accused of a terrorist activity or a national security situation. The police go to that person and say, we need more information, we need you to tell us about your activities; otherwise, we're going to charge you. That person, to save his skin, is going to suddenly spill on people and may falsely accuse people of committing an act involving national security. How is the judge supposed to test that? In the normal process the judge hears both sides present the evidence and comes to a conclusion. How is the judge supposed to make that decision?
Then the judge is supposed to make a decision under clause 17 about whether that evidence will involve national security, whether it will affect the safety of an informant, and if he comes to that conclusion, based on what one side, the Crown, has presented, all the other side gets, the person whose citizenship is subject to revocation, is a summary. How can the person test the credibility of that evidence without having a lawyer to cross-examine and to test the reliability and the honesty of the witness? Then the person is expected to defend themselves. It's simply impossible under this provision.
The final comment I have to make is on the appeal procedure. I was talking to Andrew earlier, and he said there's an appeal procedure under clause 16. I said, where is it? And he said, well, it's not there, but isn't there an automatic right of appeal? There is no automatic right of appeal. How do you appeal that decision under clause 16? Under clause 17 there's a denial of appeal. Under clause 18 there are no appeal provisions. How can we determine that the judge who heard these matters did so in accordance with principles of natural justice and due process? How can we be satisfied that the judge has reached the right conclusion? We learned a long time ago that judges are subject to error, and the Court of Appeal and the Supreme Court of Canada told me on occasion that I had been subject to error. I'm glad they told me I was subject to error, because it would have been terrible if I'd found against somebody on the basis of my error. I have some difficulty understanding why this bill wishes to deny people the right of appeal to the Federal Court, where judges can have the luxury of looking at the transcript of evidence and making a decision as to whether, on the evidence presented, the conclusion reached by the trial judge was the appropriate one in the circumstances.
Those are my comments, and I'm here to answer any questions.
The Chair: Thank you very much, your honour. It is helpful for us to get the judicial perspective on our legislation and how, in practical terms, something can work or not work. Some of the suggestions you've made we've heard before, and now we'll have an opportunity of testing the adversarial system, politically that is, in asking you some questions.
Mrs. Diane Ablonczy (Calgary—Nose Hill, Canadian Alliance): Thank you, your honour.
With respect to evidence that can be heard not according to the usual rules of evidence, I appreciate the fact that there's a concern about this. I think we all have a concern about someone being stripped of citizenship by, basically, secret evidence that has not been properly examined, and you were very eloquent on that point. I understand that similar provisions have been in the Citizenship Act before. Has a case ever come before you where that kind of evidence came forward? When I asked about this, I was told these provisions are always in there, because sometimes the Canadian government is given information from other intelligence services or other governments on condition that it not be publicly disclosed, but it is extremely important and relevant in protecting our country from a very serious terrorist or foreign criminal. I'm interested in having you discuss whether you see any circumstance where that kind of evidence, which comes with conditions to our government, should be brought into the process, even though it can't be dealt with under the normal rules of evidence, disclosure, cross examination etc?
Mr. R. Salhany: I'm always suspicious of someone who comes forward after being arrested for an offence -- I'm talking in the criminal law sense, but we can apply it to civil law -- and being told he is going to go to prison for 100 years. Let's not kid each other, that's what the police do. In this case, they are told, you are going to lose your citizenship unless you tell us all about the people you're involved with; don't worry about it, we'll protect you under this act, you can be anonymous. What's he got to lose? He'll name this person and that person and make up stories. How do you test that evidence? There is really no way of testing that person's credibility.
Canada isn't the only country that has had problems with this and is trying to deal with it. The Brits have dealt with it by swearing in defence lawyers, and they're struggling. They say, we understand that there is no right of examination and cross-examination and the only protection for a person is to have a lawyer to attack the evidence, so we will allow defence lawyers to be sworn in, and they will protect national security. They will not reveal that information to their clients, but we'll allow them to know what the information is, so they can effectively cross-examine the witnesses and the evidence. In England, apparently, there's a great deal of criticism even of that procedure.
For years we fought to create a rule called due process, and it essentially means you have the right to face your accuser in an open courtroom and say to your accuser, you tell me what I did, and let me test your credibility, reliability, and honesty. That principle was developed and the courts finally agreed that it should continue 400 years ago. Now we're in a state of panic, understandably, with 9/11 and everybody's worried about it. It's at times like this that we have to ensure that principles developed a long time ago are preserved and we just don't panic and say we've got to deal with it and take away people's rights.
Mrs. Diane Ablonczy: So in your view, the potential abuse of this provision and the need to uphold the principle of due process would override any consideration of needing to use secret evidence.
Mr. R. Salhany: No, I'm saying there has to be a better way than simply saying you're totally denied due process. That's essentially what this is doing, denying you due process. All the Crown has to do is come in and say, national security, protection of the informant. It says here the judge has to consider that. How? A judge is not equipped to examine and cross-examine, to determine whether there is any basis for this. I really haven't had an opportunity to consider another method, but there obviously has to be another method. It may be to allow defence lawyers to be sworn in. That may be the only compromise to satisfy the two sides.
Mrs. Diane Ablonczy: I notice that you are critical of the wording in clause 16 that talks about “knowingly concealing material circumstances”, as being very uncertain and not subject to a clear definition. One of the concerns I have and keep raising -- the committee will be expecting me to do this -- is in clause 21, where an individual can be denied citizenship if the cabinet has reasonable grounds to believe he or she has “demonstrated a flagrant and serious disregard for the principles and values underlying a free and democratic society”. I don't know if you have examined that clause, but given that wording, would you have similar concerns about the difficulty with certainty and definition of what it means to have demonstrated a flagrant and serious disregard for the principles and values underlying a free and democratic society?
Mr. R. Salhany: Let me put it to you very briefly. I'm always concerned when legislation uses imprecise language, because what you're saying to a judge is, you solve it. You're asking judges, who don't have experience and don't really have any background as to what Parliament is trying to do, to come up with an answer. Language should be as precise as possible. I can only tell you that after almost 40 years of having to deal with provisions, particularly the Criminal Code provisions, because that's where my expertise is supposed to lie, legislation is getting more confusing every day. One gets the impression that when the drafters don't know what to do and how to solve a problem, they just use imprecise language, hoping that someone will solve it some day, and you just encourage more litigation.
All I can say about this specific provision is that I can't imagine that fraud or false representation would not cover every situation. Why open it up to other language that is, in my view, confusing?
The Chair: If I could, our colleague Diane has asked a couple of very good questions, and I just want to inform the committee.
You asked if it was in the old citizenship act. It wasn't. It's in this one. It also resides in the old immigration act and the new one we just passed, and it now exists in the terrorism bill we just passed.
The other thing I should say is that under clause 21 the decision now resides with the minister, not even a judge, as to a flagrant violation of a Canadian value. So it's not even left to a judge to decide, it's left to the minister or the government.
Mr. R. Salhany: Would they be setting out criteria as to what it is? At least if they set out criteria, it's precise, you know how to deal with it.
Mrs. Diane Ablonczy: When I've questioned the department, the answer I get is that the values would be similar to those set out in the Oakes case. There are a number of objections to that, which I don't think I have time to get into, but the main point is that we're all left guessing about those values. Further, does every citizen have to consistently demonstrate all the values underlying a free and democratic society? Surely those values belong to the broader society, rather than having to be adhered to all the time by every single citizen. There are a number of arguments, which I wish we had time to discuss, but perhaps my colleagues would rather have time to discuss things with you themselves.
The Chair: I'm sure they will.
Mr. John Bryden: Thank you, Mr. Chairman.
I'll follow up on the line of questioning of Mrs. Ablonczy. I'd like to give you a copy of clause 21. It's only about eight or nine lines long, and it's very relevant to the discussion. I'm very concerned about the concealing of material circumstances as well, but it would appear to me that it may be a reference to clause 21 and this flagrant disregard. It would appear that one of the themes behind the changes in the legislation is the attempt to winnow out those people who are found guilty of genocide, war crimes, that kind of thing. Clause 17 is trying to winnow out these people retroactively. So instead of having “knowingly concealing material circumstances”, if we were to substitute “knowingly concealing a flagrant disregard for the principles and values of a democratic society”, would that help your concerns about the imprecise language?
Mr. R. Salhany: Not at all.
Mr. John Bryden: Then is it possible to fix the words in clause 21 by referring specifically to the law? Instead of saying “principles and values underlying a free and democratic society”, would we help you, as a judge, if that said “a flagrant and serious disregard for the principles and values underlying the Charter of Rights and Freedoms” or “the Constitution of Canada”? The charter does define some basic rights and freedoms, so would it help with clauses 21 and 17 if the wording were changed to make a direct reference to a flagrant disregard of something that is law, which is the Charter of Rights and Freedoms?
Mr. R. Salhany: You say the charter itself does define. It sets out rights, but subsection 24(2) allows evidence to be excluded, and that's also spawned a great deal of judicial interpretation. I would think what you want to do is be precise, to prevent a lot of court cases going on. I come back to my main thesis. If fraud and false representation cover everything, why expand to “knowingly concealing material circumstances”? People come into this country, we let them in, we grant them citizenship. We say, okay, you've committed a fraud, you lied when you did this, or you made a false statement; but for that, we would not have let you into this country. Isn't that enough of a reason to revoke their citizenship? Why do we have to go on and use words like “knowingly concealing material circumstances”? What is “material”?
Mr. John Bryden: The point I'm making is whether that situation can be corrected by being more specific as to disregard of the Charter of Rights and Freedoms, in other words, concealing the fact that you had conducted war crimes.
Let me give you a better example, which I've used in other situations. There are many countries in the world that are democratic societies in which extrajudicial killing is now being implemented. Currently, it would appear, because of our charter, extrajudicial killing is disallowed. It would be a flagrant disregard for the charter, but maybe not the rules and principles of a democratic society. Does it sufficiently cover it, the concealing of flagrant disregard for the Charter of Rights and Freedoms, which might involve not disclosing that you had engaged in or authorized extrajudicial killing in the homeland that you come from? That's the first question.
Second, if it is a concern to try to winnow out people who have come from states where actions are allowed by the state, but aren't allowed by Canada, because of its charter, would it not be better in clause 21 to replace “principles and values underlying a free and democratic society” with a specific citing of our Constitution or the Charter of Rights?
Mr. R. Salhany: Let me start off by saying, if you spell out something specifically, I'm in favour. But should not the screening have occurred at an earlier stage? Shouldn't the questions you're concerned about, for example, on extrajudicial killing, have been put to the applicant for citizenship at the time they applied, first of all for residency?
Mr. John Bryden: I'm sorry, I didn't mean to intervene, but I was just going to submit that people do lie before the refugee boards.
Mr. R. Salhany: And if they do, that's a false statement, that's fraud: but for the statement, they never would have got in. That's what I'm saying. Fraud is an act to someone's detriment, here the government's detriment. But for that misrepresentation, they wouldn't have been able to get into Canada. I think that's enough to cover it. That's why I say I don't know what “knowingly concealing material circumstances” means. It's going to spawn a great deal of concern and more litigation.
The Chair: Thank you.
Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you, Mr. Chairman.
Good morning, Mr. Justice, and thank you for being with us today. When discussing legislation, it's always interesting to hear from someone who will ultimately decide.
As the chairman said, many of our witnesses showed great concern with regard to sections 17 and 18. I think that most of the members sitting around this table believe that we must improve the legislation.
Do you think that the best way to improve the bill would be to tighten up the first part of the bill, which contains the definitions, more specifically the values which are referred to and which are based on the Oakes decision, which you are surely familiar with, and which clarified certain issues, since the judge based his ruling on them? Would this be a good and desirable thing? That is my first question.
Mr. R. Salhany: From the point of view of a judge, I would always welcome legislation that was precise and defined what we were supposed to do, rather than leaving it up to the judge to define, because then you get different judges having to define it and you have different interpretations. Then you need to go to the Court of Appeal for them to come up with a single definition, and from there you end up going to the Supreme Court of Canada, which may disagree with the Court of Appeal. So there are many problems that you create when you're not specific. I agree, definitions are very important, as is to be as precise as possible. Again, the problem that always arises, in my experience, is that the draftsmen try to avoid being precise, because it's very difficult to define such terms as, in this case, “knowingly concealing material circumstances”. I agree with you fully that it's important to have a definition section at the very outset.
Ms. Madeleine Dalphond-Guiral: I have a second question, which has not yet been raised today and which gives me great concern. It is with respect to the probation period for all new Canadian citizens, who will be in an indeterminate situation for up to five years.
I admit that I have a problem with that. It's as if after my nursing studies, I had not really been recognized as a professional until five years later. I have a lot of problems with that.
Some time ago, you had to wait five years before becoming a Canadian citizen. Today, it is three years. Would it not be wiser to extend the period before Canadian citizenship can be obtained, to allow time for the necessary investigations, so as to find out whether the applicant is the kind of person Canada wants or not? Would this not be preferable to granting citizenship only to withdraw it two and a half years later, for various reasons?
I would like to know what you think about that, because this measure would affect every new Canadian citizen, of whom there are many.
Mr. R. Salhany: I agree fully with you. I think the investigation has to be done at the residency stage. Once a person acquires citizenship, they go into a different class. It's important that due process be extended to the citizen, it is not necessary at the residency stage, because that person has not really acquired the special status only citizenship can give. But I must comment that the Supreme Court of Canada has interpreted the charter to extend not only to citizens, but also to people who are passing through. There is another problem. But I agree that we should have a long period of investigation. At that stage, once we make that decision, it should be very hard to remove somebody.
The Chair: Okay.
Ms. Libby Davies (Vancouver East, NDP): Thank you very much for coming today. I'm sorry that I didn't get to hear all of your testimony, but I did pick up on some of what you were saying in the last few minutes.
Looking at this summary we have before us of all the organizations and individuals who thus far have come before the committee, I would say there's very strong opposition overall to this bill. I think many of the groups and individuals were expressing the same kinds of concerns you have.
I just wanted to pick up again on clause 17, loss of citizenship through revocation because of the security certificate process. One of the problems with this is that the revocation can take place without people seeing all the evidence and without an appeal process. I don't even know how that's constitutionally to be upheld. I would imagine that would be challenged if it were approved in law.
Mr. R. Salhany: It may be challenged, but not necessarily successfully, because I think the courts are saying, Parliament speaks, we have to obey. There's no constitutional right to an appeal. There's nothing in the charter that gives you a constitutional right to appeal. That's why I'm concerned that there's nothing in this act. Clause 17 denies the right of appeal. There's nothing in the act that gives you the right of appeal.
Ms. Libby Davies: How far does this kind of provision extend in other kinds of processes or legislation? As a non-lawyer, I have a general sense when we talk about democratic values underlying Canadian society. One of those values for me, though I don't know if it's spelled out anywhere, is the right to an appeal, the right to know what's being said against me, if it's being used against me in a judicial process. It's sort of a contradiction. We don't spell out what those values are, yet that's something I would think about. If I am being faced with something, I have a right to know what's going on. With regard to other laws, is it generally accepted that you have the right of appeal, the right to know what you're being charged with, what's being alleged against you?
Mr. R. Salhany: Clearly, under the criminal law one has a right to know, to face the accuser, and to have the accuser say in open court what one has done. There has developed judicial interpretation involving informants. For example, there are many crimes where it is very difficult for the police to infiltrate, so they have informants. These informants will come forward and provide evidence to the police, and they want some protection. The courts have said, we're not going to necessarily order disclosure of the informant's name and background unless the person can't protect themselves, unless the person can't defend themselves. Invariably, the courts will simply say, you have to disclose who the person is and that person has to face the accused in court. Invariably, in those cases the Crown has withdrawn the case. We do accept, at least as far as the criminal courts are concerned, that it is important that a person go through the process of being allowed to examine and cross-examine to test the credibility of the witness.
Ms. Libby Davies: So if this provision were approved as part of this bill, theoretically, if it went before a judicial process, even that discretion you're describing in other processes would not be available in this case. Is that right?
Mr. R. Salhany: Subclause 17(4)(b) says, “if, in the judge's opinion, its disclosure would be injurious to national security or to the safety of any person”, he must keep it confidential. How does the judge make that decision? Who does he rely on? He relies on the Crown. The Crown comes in and says, look, we've got this witness who has said this person is involved in national security issues. The judge says, how do I know that? Well, you have to rely on us, Judge, because we know, we've done a complete investigation. The judge is not equipped to test the truthfulness. I'm not suggesting that the officer of the Crown may be lying, but they may be fooled.
Let me give you a simple example. Let us assume you're sitting at home one day and the police come in and say, we have information that you're involved in national security issues. Who told you? We can't tell you. Well, what did they say against me? You'll find out later, they'll give you a summary. How do I fight the summary? Well, it's national security. Let us assume somebody down the street is involved. Let us assume somebody down the street, for some reason, has a grudge against you. Let us assume that person, for some reason, wants to get some immunity from the Crown. They're going to name everybody they can, and they're going to gain, under this, anonymity. How can you fight that? You can't.
The Chair: And we all know Libby Davies is not a national security concern whatsoever -- at least, some of us are prepared to vouch for that.
Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Thank you very much, Mr. Chair.
Welcome to the committee. It's good having you here. I know you have given the issue of not having appeal rights a great deal of consideration. Section 7 of the charter talks about the right to life, liberty, security of the person, and to me, very few things are more involved in citizenship than security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice.
What I hear you saying to us is, be precise in the bill, spell things out, and one of the things you said we should spell out is the appeal mechanism. Quite frankly, if the government is going to charge fraud, they should prove fraud. Then you had trouble with the wording “knowingly concealing material circumstances”. In previous proposals for this bill the people who drafted the bill were going to drop the word “knowingly” and just say “concealing material circumstances”, which makes it even more confusing.
So if we put in the normal judicial process, if we are going to have revocation on the basis of fraud, because fraud is something the courts understand -- they deal with thousands of cases each and every year, and maybe they should be dealing with some more in light of Enron, what have you -- if you're going to be charged with fraud, and if you're going to do something as Draconian as revoke someone's citizenship, surely the criminal standard should apply, and that's what has been coming through loud and clear from all the witnesses. I just want your response to that, but also give us a response as to how satisfactory you find the current legislation? Obviously, we don't want to repeat the same mistakes in the future act.
Mr. R. Salhany: First, section 7 means everybody has a right to due process, and due process means the right to examine and cross-examine witnesses, to face the person who is accusing you. I think that is so fundamental to our system that any attempt to take it away is -- I hate to use the word -- Draconian. We're living in a time of fear, and that's the time we have to be strong in protecting individual rights, stronger than at any other time.
You want me to talk about the presumption. As you know, there are two presumptions in law, “on balance” and “beyond a reasonable doubt”. The provision for proof beyond a reasonable doubt has been in our history since the Wilmington case at the turn of the century, and for juries it's a heavy onus. I don't think it's that heavy for judges. I think judges use a little more common sense when it comes to that. But proof on balance, if you ask me personally, I think is sufficient in cases like this. I know some judges at the Federal Court have interpreted it as somewhere between proof beyond a reasonable doubt and proof on balance, and where that lies I don't know. I think they've said something like “very strong evidence”, “very persuasive evidence”. Judges have struggled themselves with the onuses of proof, and they've tried to set a middle ground.
In one of the citizenship cases I'm familiar with, where the judge dismissed a proceeding against somebody who was charged with a war crime offence and they sought to revoke citizenship, the judge used “very strong proof”. Most of the judges use proof on balance of probabilities. With the scales of justice, if you put a little more on this side, that's proof on a balance of probabilities. If there is some concern with the onus of proof and the government doesn't want to go so far as to have proof beyond a reasonable doubt, surely you could come up with language that would be a middle ground in something like this.
As to the third question, I've only had one experience, and that was some years ago, when I was asked to comment on a decision that had been rendered by a judge of the Federal Court. I came to the conclusion that the judge came to the wrong decision. That was my own opinion. I'm sure the judge thought I didn't know what I was talking about, but I was simply asked for an opinion on the basis of the evidence that had been presented. I am satisfied in my own mind that had that gone to appeal, it would have been reversed, but there was no appeal procedure, and there has been no appeal procedure.
I'm sure the judges of the Federal Court themselves have had difficulty with the existing legislation and would welcome the legislation being spelled out more specifically.
The Chair: Thank you.
Mr. Sarkis Assadourian: Thank you, Mr. Chair.
It's good to have you on the other side of the bench for a change.
When a certificate is issued that will be signed by two ministers, before they sign the certificate, it will go through the system within their own departments, where they will have to approve it and everything else. So basically, by the time it comes to the judge, it has gone through a screening system within the system with two ministers. Am I right or wrong?
Mr. R. Salhany: Well, you're presuming that the ministers screen it, but do they screen? You know more about that than I do. Aren't they relying on the people who are instructing them? I was a Crown prosecutor and a defence lawyer. I didn't do my own investigation, I relied on what the police told me. I didn't do any screening.
Mr. Sarkis Assadourian: I assume the judge will have the right or obligation to ask questions of the ministry if he or she feels there are some irregularities in this certificate. That's my first point.
Mr. R. Salhany: The judge will have the right to question the lawyer for the Crown about the evidence that's being presented.
Mr. Sarkis Assadourian: The point I want to get to is that there's a possibility of error on the part of the judge. We're all human, we all make mistakes. So what if, rather than one judge making a decision, a panel of three judges get together to decide if a certificate is appropriate or not? This could eliminate any injustice to a person and reduce the chances of being unfair to a Canadian citizen. Would you go for it?
Mr. R. Salhany: I'd like to see a process where a single judge gets the certificate and then has some method whereby both sides scrutinize the evidence through examination and cross-examination. The judge is not trained to be an investigator, the judge is not trained to examine or cross-examine. He or she may have been a wonderful trial lawyer--sometimes, when I sat as a judge, I used to think I could do a better job cross-examining than the lawyers in front of me, but I had to learn to keep my mouth shut. That's not the function of the judge. We, by training and experience and by the nature of the process, are supposed to sit there and listen to what both sides have to say. I don't know how we could do the job of investigating the matter. As I said in my opening remarks, under the French system the examining magistrate, the juge d'instruction, works up the case. He investigates, he questions everybody, he does everything, and then he presents it to the court. He's in a better position to do it, but it's not so under our system, where the judge is supposed to sit there and listen to both sides.
The Chair: Your honour, we are talking about some groundbreaking possibilities with process under clause 17. Sarkis has just mentioned a three-judge panel. You indicated, surely, that the French model might be something we could look at. I think there's an appetite in this committee to ensure due process, even on the certificate issue. As you know, that certificate issue is before the public now in certain cases of terrorism and so on. You might, if you could, after giving it some thought, show us a process that might work, so that we might consider and test it for ourselves with our ministers, and even with judicial officials. If you could take that on, think about it, and forward it to us in the future, that would be most welcome.
Second, I think your testimony has been very instructive and very important to us. You said perhaps a lot of this stuff can be avoided, that we needed to be precise in clause 21 and other clauses, and I agree with you. Once you become a citizen, I think you have the right of citizenship, but the privilege of becoming a Canadian citizen, as a permanent resident, is different. There is a quasi-judicial system at the front end, the citizenship judge, who has eye contact with the person and has an interview: they must have a knowledge of Canada, they must have a knowledge of our language, and they must also prove certain things, residency and so on, and look at the application that's been submitted. This bill talks about getting rid of citizenship judges and replacing them with commissioners, who, in fact, will have ceremonial functions, and the administration of the bureaucracy will have the discretion that is now in the hands of a citizenship judge. As you said, perhaps we ought to take a little time at the front end to make sure everything is all right, and perhaps you need that interaction or the discretion of some independent person, not the administration, in making that evaluation on a potential Canadian citizen.
Mr. R. Salhany: I agree with you 100%. I think it's important at the front end to get somebody to carefully scrutinize the applicants for residency and from there on.
I'll think about the matter of process.
The Chair: It's been a pleasure and a real honour for us, Judge, to have you here. Thank you very much.
Mr. R. Salhany: Thank you for inviting me. Thank you very much.
[ ... George Radwanski, Privacy Commissioner testifies on the proposed National Identity Card ...]