Standing Committee on Citizenship and Immigration hearings
on Bill C-18, the proposed Citizenship of Canada Act
Members of the Committee present: Diane Ablonczy, Sarkis Assadourian, John Bryden, Yvon Charbonneau, Madeleine Dalphond-Guiral, Joe Fontana, Sophia Leung, Massimo Pacetti, Jerry Pickard, Lynne Yelich.
Acting Members present: Janko Peric for John O’Reilly, Raymonde Folco for David Price.
Other Member present: Andrew Telegdi.
In attendance from the Library of Parliament: Benjamin Dolin; analyst, Law and Government Division.
Witnesses from the Department of Citizenship and Immigration: Daniel Jean, Acting Assistant Deputy Minister, Policy and Program Development; Rosaline Frith, Director General, Integration; Patricia Birkett, Citizenship Registrar; Paul Yurack, Counsel, Legal Services.
[W.Z. Clause-by-clause consideration of Bill C-18 commenced with meetings 66 and 67. However, we shall only consider Clauses 12 and 13, and the discussions thereto. Once again, we highlight the commentary of Andrew Telegdi.]
"12. All citizens have the same rights, powers, privileges, obligations, duties, responsibilities and status without regard to the manner in which their citizenship was acquired."
- CARRIED -
[W.Z. Immediately after Bill C-18 was tabled on Oct. 31, 2002, Inky Mark (PC Dauphin-Swan River, formerly CA) came out strongly against the concept that the citizenship of naturalized Canadians can be revoked. Since Mr. Mark was recovering from cancer surgery and could not attend, Jerry Pickard moved the ammendment reproduced below on his behalf. It was defeated and the original Clause 12 reproduced above stands.]
"12. (1) A citizen, whether or not born in Canada, is entitled to all the rights, powers and privileges, and is subject to all the responsibilities, duties and liabilities, to which a person who is a citizen at birth is entitled or subject and has the same status as that person.
(2) A citizen has the rights granted and the responsibilities set out in the Canadian Charter of Rights and Freedoms and Canadian law, and is entitled to enjoy the peace and prosperity that prevails in Canada and to participate in its growth.
(3) Every citizen shall recognize and respect the application of the rights and responsibilities mentioned in subsection (2) to other citizens.”
- DEFEATED -
[W.Z. The comments of Andrew Telegdi during debate on Clause 12 are reproduced below. ]
Mr. Andrew Telegdi: I think Inky does express a fairly profound concern. And I do believe, going through our travels, there's a fair amount of uncertainty about rights. Yes, the charter should apply to all of the people all of the time. If we want to make it more inclusive, we can certainly do that.
But I feel pretty good about those two paragraphs that Inky put forth. I think it will give more comfort, if you will, to new citizens who are part of our country. I think those are two good paragraphs to add, and I think they would enhance the bill.
"13. A citizen continues to be a citizen unless they lose their citizenship in accordance with this Part."
- AMENDED -
[W.Z. Once again on behalf of Inky Mark, Jerry Pickard moved an amendment, but it was withdrawn. However, the amendment of Joe Fontana was carried.]
Inky Mark amendment:
“13. The right of citizenship may be revoked only by due process of law and on the grounds prescribed by law.”
- WITHDRAWN -
Joe Fontana amendment:
“13. The right of citizenship may be lost only by due process of law and in accordance with this Part.”
- CARRIED -
[W.Z. The commentary of Andrew Telegdi reproduced below is very important. He maintains that there is "no presumption of innocence" in the civil revocation processes proposed in Bill C-18. After much discussion and obfuscation by the CIC bureaucrats, Mr. Telegdi forces Paul Yurack to admit it.]
Mr. Andrew Telegdi: Well, maybe the officials can help on how the wording might be accommodated. This is clearly one issue Inky identified that is of great concern across this country. As a matter of fact, I'll be speaking at the civil liberties meeting in Ottawa this evening about citizenship and second-class citizenship.
I think there should be a way for us to work it so that, yes, if someone wants to give up citizenship, they can, if they want to take on citizenship in terms of another country. But if citizenship is going to be revoked, I think Inky has the right wording, except he might even have said “in accordance with the legal sections of the Canadian Charter of Rights and Freedoms”.
I think that is very important. I think it would give a great deal of comfort, particularly in terms of what has happened over the last number of years where this question has very much been raised. It's a topic of great discussion out there.
Mr. Andrew Telegdi: Thank you very much, Mr. Chair.
I think you raised a very important question. I think the committee at some point is going to have to get its head around this issue. In the question you raised, you assumed there was a presumption of innocence. You asked the question, and it wasn't responded to.
The fact of the matter is that in the revocation of citizenship there is no presumption of innocence, no presumption at all. As it is set out in the legal rights section of the Charter of Rights and Freedoms, the presumption of innocence does not apply. It's a real problem.
The reason is that you basically have the civil standard and the criminal standard in law. If you are charged with a criminal offence and you are an official, we dealt with that the last time we dealt with the Citizenship Act. We were talking about the penalties to be given to officials who are in a position of trust. If they are charged with fraud they are given the presumption of innocence, because the proceeding against them is done in a criminal court according to criminal procedure. It's done by giving them the presumption of innocence. That's a very important point.
When you go to the civil section, you're dealing with a balance of probabilities. What's a balance of probabilities? It's 51% or 49%. That's a balance of probabilities. In that area, the whole presumption of innocence doesn't apply. This is a huge problem that was identified as we went through the country.
Let me say, Mr. Chairman, that I don't think there's one person, or very few people -- and they would be people who are guilty, most likely, of crimes -- who would not want to get rid of anyone who was a criminal, a terrorist, a war criminal, or committed fraud to get citizenship. The problem is in the way the decision is made. It is made on a balance of probabilities and, under the present act, with absolutely no appeal.
Wrong decisions are being made. People are upset about it because they figure that the criminal standards should apply. They also believe that people whose citizenship is at stake should have the right to a presumption of innocence, as does a person who is picked up for fraud for trying to pass a bad cheque for $200 in a store. They get the benefit of the presumption of innocence.
In this act, the existing act, the presumption of innocence isn't there. If the presumption of innocence were there, I dare say that there'd be virtually no complaints. I think a lot of people would feel a lot better about citizenship. As we've said, citizenship is about a sense of belonging.
I felt it in my gut. I never wanted to get into the immigration and citizenship committee in the first instance, because I lived through it. I came to this country as a refugee. When I found out that the presumption of innocence did not apply to me, I found it really shocking.
Here I am, in my mid-fifties, really caught up in human rights issues and civil liberties issues because the place that I left was a communist dictatorship, a totalitarian regime, where citizenship rights were not respected. I came to the realization that although I am a member of Parliament and a parliamentary secretary, I am a second-class citizen, because I do not get the presumption of innocence if someone wants to take my citizenship away.
The presumption of innocence is very important and fundamental. If you want to deal with some of the anxiety out there, there are reasons for the anxiety.
If you go through the history of this country and look at what has happened in the past, there are a lot of things we are sorry for as a nation, as we should be. In 1982, on April 17, this country embraced the Charter of Rights and Freedoms. It was to answer to past transgressions, if you will, with the recognition that what happened in the past was wrong. It was a promise not to go there again, and to have our fundamental human rights laws reflect the charter as we move forward as a society.
I dare say that this act, which has been in place since 1977, never had the benefit of the charter. It's important that the right to citizenship should have the protection of the Charter of Rights and Freedoms. If we are an inclusive nation and we're not going to repeat the problems of the past, it is such a fundamental principle that we have to deal with it.
Mr. Andrew Telegdi: I happen to know something about the law, having worked in it for quite a number of years, in fact since 1976. I was so impressed with the way our legal system operated, particularly the presumption of innocence. I worked with the criminal courts. In April we completed our 25th justice dinner in the Waterloo region. Since I've been a member of Parliament, it has been taken over by a community group.
The due process of law does not guarantee presumption of innocence. You see, we have a very unfair piece of legislation right now in terms of citizenship revocation. It was the issue I resigned over as parliamentary secretary. I could not face letting this thing go while I was parliamentary secretary. I could not accept the fact that I and people like me would not have the benefit of the legal section of the Charter of Rights and Freedoms. I didn't go as far as my colleague Janko -- he wants to hit a home run. I'm quite happy to get a double, and let the legislation.... But I think we need to make improvements.
I don't disagree with Sarkis. We don't have a disagreement on that. But the fact of the matter is if somebody comes along and says to Sarkis, “You committed fraud; you gave a bum cheque knowingly for $500 -- you tried to defraud a store”, guess what? The Charter of Rights and Freedoms applies to Sarkis, so he can defend himself against the charge of fraud, even though in all probability he's guilty, because there's so much evidence around it.
I'm just saying the presumption of innocence is there. A person can be caught red-handed, committing a crime, captured on camera, and until that individual pleads guilty or is found guilty, the presumption of innocence is there.
Now, let's suppose somebody says to Sarkis -- under the present act -- “Sarkis, before you came to this country, you knew some people in the Middle East, and some of those people turned out to be terrorists. You know, when you came to this country you knowingly concealed material circumstances”. Surely to God we would want to know if you were in touch with terrorists.
Now, it's important when you look at this legislation, because this government wasn't satisfied with the present inadequate act under Bill C-29. When they tried to change the act in Bill C-63, they tried to remove “knowingly”. It's in the record. It's in one of these explanation books, where they talk about it -- well, if we're only doing a civil case, we don't have to have “knowingly” in there; we can take it out.
That previous act also had a section in there...not only are we not satisfied with the present flawed process; what we're going to do is remove “knowingly”. But heaven forbid, not only are we going to get that evil person who we caught in the scrap, but if he or she happens to have a dependent child who came in with them, we're going to be able to take his or her citizenship away, as well.
Well, here I was, 55 years old, thinking to myself, my God, if they found something on my mother or my father under this what I consider very fraudulent process, they would propose to come and take my citizenship away. This came out from our officials. This came from our people in our citizenship department. There was no due process. It was becoming more and more draconian.
So if you wonder why I have a little concern with this issue, that's why.
Unless you put in under due process that it be in accordance with the legal sections of the charter -- because there are a number of them, including presumption of innocence -- then the due process doesn't mean anything. You can have a bad due process. I think it's important to understand this.
As long as we are all agreed that if someone tries to take my citizenship away, I have the same right to defend it as I have if somebody accuses me of stealing $500.... My citizenship is a hell of a lot more important to me than $500.
To put it in another context, Clifford Olson committed a heinous crime; so did Paul Bernardo. They could never have their citizenship revoked, if they had citizenship in this sense, because they committed their crimes afterwards -- heinous criminals.
Mrs. Lynne Yelich: Does the presumption of innocence apply? Some have said it doesn't.
Mr. Andrew Telegdi: Mr. Chairman, I'm sitting here and listening, and we must be very clear: it doesn't apply. I think you know it doesn't apply.
The Chair: It doesn't apply to what?
Mr. Andrew Telegdi: Presumption of innocence does not apply in this case the way it's set up. It doesn't apply. Ask the lawyer, and he'll tell you it doesn't apply.
Mr. Sarkis Assadourian: We're not there yet. We're talking about clause 13.
Ms. Rosaline Frith: If we're talking --
Mr. Andrew Telegdi: No, that question has been asked repeatedly, and you did not give a straight answer. Just tell this committee, does the presumption of innocence apply, or does it not apply?
Ms. Rosaline Frith: If you're asking me --
Mr. Andrew Telegdi: Every prosecutor believes the person they're charging is guilty, and that's how our system works. I understand that. But answer the question: does the presumption of innocence apply, yes or no, either in front of you or in front of the court in this, the way this is set up?
Ms. Rosaline Frith: This is not a criminal case we're talking about.
Mr. Andrew Telegdi: So it doesn't apply. So just say it doesn't apply. Don't talk around it, just say it doesn't apply.
Mr. Andrew Telegdi: No, but what I'm saying to you, Mr. Chairman, is under the process, when you proceed in a civil action, the presumption of innocence never applies. It doesn't apply before the judge.
The Chair: Let me ask the question, then. You asked for me to ask the question of Rosaline or Paul, because it has to be a lawyer, right?
Answer Mr. Telegdi's question. Is the presumption of innocence embedded in clause 13?
Mr. Paul Yurack (Counsel, Legal Services, Department of Citizenship and Immigration): You've asked two different questions.
The Chair: He's a good lawyer.
Mr. Paul Yurack: Thanks, Mr. Chairman.
To answer Mr. Telegdi's question directly, the presumption of innocence as set out in the charter applies to a person who has been charged with an offence -- and that is, in my understanding, a criminal offence. We're not talking about criminal offences in the Citizenship Act; we're talking about a civil proceeding in a civil court of law. Hence, Mr. Telegdi's point is accurate that a person would not “benefit from the presumption of innocence”.
[W.Z. As Andrew Telegdi so very eloquently points out "the presumption of innocence is very important and fundamental" in the administration of justice in a democratic society. The presumption of innocence applies only in criminal cases and not in civil cases. Paul Yurack finally admits that there is no presumption of innocence in the civil revocation processes proposed in Bill C-18.
So let us examine how the bureaucrats from the World War II section of Canada's War Crimes Unit, (associated with CIC, DOJ and the RCMP) operate. First, they consult the secret list of 1673 alleged war criminals supplied by the Holocaust Industry to pick the most promising victim. Then, to appropriately condition the Canadian public, there is a media blitz alleging that their victim is a war criminal, who perpetrated monstrous atrocities. But at the trial they do not even attempt to prove war criminality. They simply claim that their victim must have obtained landed immigrant status (and subsequently citizenship) by fraud. And they do not even have to prove the fraud, because in a civil process, the victim is PRESUMED GUILTY. The onus is on the victim to try to prove his INNOCENCE -- a task that in the World War II context is extremely difficult, if not impossible.
That is the cruel process that people like Wasyl Odynsky, Helmut Oberlander and Vladimir Katriuk have had to endure. They were PRESUMED GUILTY and have to try to prove their INNOCENCE. In my opinion, that such a fraudulent system is allowed to operate in Canada is simply unconscionable.]