I.
EXECUTIVE SUMMARY
II.
RECOMMENDED LEGISLATIVE AMENDMENTS
III.
PREFACE
IV.
INTRODUCTION
V.
LOSS OF CITIZENSHIP
VI.
SUMMARY OF RECOMMENDATIONS
VII.
CONCLUSION
I. EXECUTIVE SUMMARY
The Ukrainian Canadian Congress - British Columbia Provincial Council ("UCC-BC") welcomes the opportunity to comment on Bill C-18, the Citizenship of Canada Act to the House of Commons Standing Committee on Citizenship and Immigration (the "Standing Committee"). As representatives of a community that began settling in Canada well over 100 years ago, the UCC-BC has surveyed its community and would like to share with you some of their concerns and recommendations as they relates to Bill C-18.
The UCC-BC submits that the proposed changes to the Citizenship Act will have an adverse effect Canadian identity because immigrants will never have the same rights and privileges as citizens born in Canada, essentially creating a two-tiered citizenship system.
The UCC-BC submits that the Standing Committee should categorically reject any legislation or policy recommendation that utilizes revocation of citizenship and removal from Canada (also referred to as "denaturalization and deportation") of individuals alleged to have committed or been complicit in war crimes or crimes against humanity some fifty years ago. It is only when there is sufficient evidence that such a crime was committed that an individual should be tried in a Canadian court of criminal jurisdiction.
II. RECOMMENDED LEGISLATIVE AMENDMENTS
In this Submission, the UCC-BC recommends that:
1. Sections 16, 17, and 18 should be struck from Bill C-18.
2. In the alternative, should any or all of sections 16, 17 or 18 be kept:
A. add to Subsection 16(1) "The Minister may not commence and action in the Federal Court for a declaration that a person has acquired, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances more than five years after the day on which the citizenship was granted, retained, renounced or resumed, as the case may be".
B. add the following subsection to section 16: "The judge shall, on the basis of the information and evidence available, determine whether, beyond a reasonable doubt, the person named in the certificate has acquired or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances;"
C. add the following subsection to section 16 "A determination under subsection (1) may be appealed or judicially reviewed based on humanitarian and compassionate grounds."
D. strike out the words in section 16(2) "A judgment declaring that a person has so acquired, retained, renounced or resumed citizenship has the effect of revoking their citizenship or renunciation of citizenship" and replace them with the words "A judgment declaring that a person has so acquired, retained, renounced or resumed citizenship has the effect of revoking their citizenship or renunciation of citizenship and shall be determined in the context of humanitarian and compassionate circumstances."
E. strike out the words in section 16(6)(b)(ii) "with respect to any additional evidence, is not bound by any legal or technical rules of evidence and may receive and base a decision on any evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances" and replace them with the words "with respect to any evidence, is not bound by the [rules of evidence]"
F. add to subsection 16(6)(a) " and shall take into account any humanitarian and compassionate circumstances relating to the declaration requested under subsection (1);"
G. strike out the words "on the balance of probabilities" in subsection 17(5)(a)and replace them with the words "beyond a reasonable doubt";
H. strike out the words "A determination under subsection (5) is final and may not be appealed or judicially reviewed" in subsection 17(9) and replace them with the words "A determination under subsection (5) is may be appealed or judicially reviewed"; and
I. strike out the words "A determination under paragraph (5)(a) that a person has so acquired or resumed citizenship has the effect of revoking the citizenship of the person" in subsection 17(6). [delete this subsection]
J. strike the words "or by using false identity" in subsection 18(1)
III. PREFACE
UKRAINIAN CANADIAN CONGRESS - BRITISH COLUMBIA PROVINCIAL COUNCIL
The UCC-BC is the provincial coordinating body of the Ukrainian Canadian community in British Columbia.
The UCC-BC welcomes the decision of the Minister of Citizenship and Immigration, to allow the Standing Committee to conduct consultations and to listen to various stakeholders prior to making any final decisions. The UCC-BC believes that stakeholders need to be involved in the formulation of policy and that the legislation be reflective of such policy.
IV. INTRODUCTION
The UCC-BC welcomes the opportunity to comment on Bill C-18, the Citizenship of Canada Act (the "Citizenship Act").
Since the Government of Canada introduced Bill C-16 [Second Session, Thirty-sixth Parliament] and its predecessor Bill C-63 [First Session, Thirty-sixth Parliament], the UCC-BC has monitored the progress of proposed Citizenship Act amendments. The UCC-BC recently has gathered information and feedback concerning the proposed Citizenship Act, Bill C-18 in order to communicate effectively the views of the Ukrainian Canadian community concerning Bill C-18 to members of Parliament and to the Standing Committee on Citizenship and Immigration.
Bill C-18 is a significant departure from the current Citizenship Act. Our submission addresses the continuing concerns of Canadians with provisions respecting obtaining of citizenship and loss of citizenship.
Particularly, we have concerns with revocation proceedings in Federal Court for misrepresentation.
V. LOSS OF CITIZENSHIP
1. Standard of Review - Burden of Proof
Revocation or annulment of citizenship are amongst the most serious penalties that any state may invoke against its citizens. The consequence for the citizen is immediate loss of all rights of citizenship, and can include direct or indirect loss of any status whatsoever and removal from Canada. These consequences are obviously severe and require strict adherence to due process, procedural fairness, appropriate appeal rights and a limitation period. Canada must not allow for a system that creates two classes of citizen - those born in Canada and those naturalized Canadians. Furthermore, naturalized Canadians must not live in fear that one day (be it 10 years or 50 years after coming to Canada) they may have to defend against themselves allegations of misrepresentation.
The UCC-BC is concerned with the inherent procedural flaws in the citizenship revocation proceedings, and the loss of citizenship provisions in Bill C-18 have been considerably expanded rather than refined to protect against the abuse of process as encountered under the current Act.
The UCC-BC strongly recommends that the Standing Committee categorically reject any legislation or policy recommendation that allows for the of revocation of citizenship (also referred to as "denaturalization and deportation") to be used as a remedy to deal with the possibility that WW2-era war criminals may be resident in Canada. Unlike extradition, deportation and denaturalization are remedies which do not contemplate a full trial being held on the issue of the guilt or innocence of the accused. Unless a virtual criminal standard of proof were applied, this "solution" runs the serious risk of unjustly destroying the life of a presumably innocent person, without providing him or her with an adequate means of defending themselves. An order of deportation and denaturalization is made in a non-criminal context. A deported person would be barred from returning to Canada, and would not be provided with a full trial of the issue of his guilt or innocence of the crime alleged. The UCC-BC submits that this is an unacceptable option.
The UCC-BC believes that there are a number of flaws inherent in the denaturalization and deportation proceedings. It is only when the criminal responsibility of the individual has been established by a criminal standard of justice that such drastic measures begin to acquire a semblance of justice.
There are numerous problems with the application of immigration law to the specific situation of alleged World War 2 war criminals.
A. Firstly, there is insufficient evidence in Canadian immigration records (which were destroyed by the government) to permit proof of such misrepresentations. With respect to those who have propounded a differing view, this is not an obstacle which can be overcome by the presumption of regularity in the execution of official tasks. The maxim is a presumption of validity of official acts until the contrary is proven. A landed immigrant or citizen need not prove the validity of the official acts which granted him that status. It is another thing entirely to state, in effect, that the citizen who is suspected of being a war criminal is presumed to have entered irregularly. This would place an impossible burden on the defendant.
B. Secondly, even assuming that evidence of misleading or false declarations could be found or assumed, there remains the problem of innocent, and in some cases desperately necessary, misrepresentations. At the end of WW2, between 1 and 2 million Ukrainian people were in displaced persons camps throughout Europe. As a result of the Yalta accords, hundreds of thousands of these were forcibly repatriated to the Soviet Union, only to be liquidated or deported to Siberia. The only hope of those designated for "repatriation" was to prove their origin from outside the borders of pre-1939 Soviet Union. For many Ukrainians this meant assuming new identities either as Poles or ethnic Ukrainians from the former Polish territory of Galicia. The alternative chosen by many that could not, was suicide. It would be simply monstrous to institute deportation proceedings against such persons merely because of such misrepresentation before tribunals in D.P. camps in Europe and thus in subsequent documentation.
C. Thirdly, deportation and denaturalization proceedings are clumsy and involve administrative proceedings ill-suited to the determination of a person's guilt or innocence as a criminal.
D. Fourthly, any deportation and denaturalization proceedings involving Ukrainians would likely involve a consideration of Soviet evidence. The same problems which have been referred to elsewhere in accepting Soviet evidence would arise in such proceedings. However, unlike in criminal proceedings, the evidence would be considered in essentially administrative proceedings with a lower standard of proof and fewer procedural safeguards than afforded under criminal law.
We submit that, with specific reference to cases of alleged World War 2 criminality, it is cruel and inhuman to uproot an individual from his family and whatever life he has built in 50 or more years as a productive Canadian on the suspicion that he might have been a war criminal. It is precisely because of the "evidentiary advantage" in deportation and denaturalization proceedings that the UCC-BC submits that the Standing Committee should reject such proceedings as a means of bringing alleged war criminals to justice. No punishment should be inflicted upon an accused unless his or her guilt is fairly established by Canadian standards of justice. There continue to be grounds for concern regarding criteria and process for loss of citizenship for misrepresentation, the Minister's authority to annul citizenship, the expanded s.28 "other prohibitions" against citizenship, and the new provisions for facilitating Federal Court proceedings without disclosure of evidence or information to the citizen concerned.
Recommendation:
1. Where the current revocation of citizenship proceeding requires a
civil standard - proof on a balance of probabilities, since the loss of
citizenship is tantamount to a loss of liberty, the Minister should be
required to prove guilt beyond a reasonable doubt.
2. Section 16 Misrepresentation proceedings in Federal Court - Humanitarian and Compassionate Considerations
Under the current Act and Bill C-18:
A. persons who engage in misrepresentation (including false representation, fraud or knowingly concealing material facts) to obtain, retain, renounce or resume their citizenship can have their citizenship (or renunciation) revoked;
B. a Federal Court proceeding determines the factual issue of misrepresentation; and
C. misrepresentation in obtaining permanent resident status is deemed to be misrepresentation in a subsequent citizenship application.
When the Federal Court determines that there has been misrepresentation in obtaining citizenship, the result is that citizenship is revoked. If the misrepresentation was in obtaining permanent resident status, then permanent resident status is lost as well (s.67). The person concerned ceases to be a citizen or a permanent resident, and they are removable from Canada.
There exists an inconsistency between enforcement proceedings against permanent residents for misrepresentation and enforcement proceedings for the same misrepresentation taken against the same person after they become a citizen. When enforcement action is taken against a permanent resident for misrepresentation, there is a right of appeal to the Immigration Appeal Division (the "IAD"), and allowance for humanitarian and compassionate considerations, before the removal order becomes enforceable. This is appropriate. But when the same misrepresentation in obtaining permanent resident status is taken against a citizen under the Citizenship Act, there is a complete loss of all status (both citizenship and permanent residency) without any review of humanitarian circumstances.
It is illogical that a person whose misrepresentation is found out after years of residence and acquisition of citizenship be in a less favourable position than one whose misrepresentation is discovered during their permanent resident status. Bill C-18 removes the prohibition against any appeal of a Federal Court finding of misrepresentation, but any appeal to the Federal Court of Appeal or the Supreme Court of Canada is strictly on the factual and legal finding of misrepresentation and does not consider any humanitarian or compassionate circumstances. It is more logical and efficient to provide for a proper review of humanitarian circumstances than to provide layers of appeal on the factual issue of misrepresentation.
The UCC-BC shares the concerns expressed by the Canadian Bar Association that nothing in the proposed law provides for the consideration of humanitarian factors before undertaking revocation procedures, or at any other stage in the process, including during the removal process. There is no forum and no application process for consideration of the citizen's circumstances. Permanent residents do not look to the Minister for consideration of humanitarian factors. After all, the Minister prosecutes them for loss of status. Permanent residents look to the IAD, an independent tribunal, in open hearing. So should citizens facing loss of all status and removal from Canada for precisely the same misrepresentation.
Moreover, in the case of World War II related misrepresentations, the government of Canada announced [January 31, 1995 in a news release entitled "Federal Government Announces WWII War Crimes Strategy"] "a strategy aimed at deporting alleged WWII war criminals living in Canada" and stated therein that "The key criterion in all these proceedings is the existence of some evidence of individual criminality. If that cannot be proven, no proceedings will be considered." Despite this policy, and in cases where the government had no evidence that an individual committed any war crimes or crimes against humanity, the Minister of Citizenship, nonetheless proceeded against these individuals using this section of the Citizenship Act.
The Citizenship Act should not be available for the fulfillment of a political agenda and it is of paramount importance that the Parliament of Canada legislate the appropriate safeguards to ensure that the Citizenship revocation process is not abused. Furthermore, the Citizenship Act is not the appropriate forum to address someone's guilt or innocence.
Recommendation:
2. The right of judicial [Note: or Ministerial] review should among
other things be based upon humanitarian and compassionate
circumstances which should be entrenched in Bill C-18, with provision for a stay of final determination of the review.
3. Inappropriate Forum for WWII "War Crimes" Cases
An immigration proceeding is an inappropriate forum for addressing WWII war crimes allegations. Misrepresentation hearings are remedies which do not contemplate a full trial being held on the issue of the guilt or innocence of the accused. Unless a virtual criminal standard of proof were applied, this "solution" runs the serious risk of unjustly destroying the life of a presumably innocent person, without providing him or her with an adequate means of defending themselves. An order of deportation and denaturalization is made in a non-criminal context. A deported person would be barred from returning to Canada, and would not be provided with a full trial of the issue of his guilt or innocence of the crime alleged. The UCC-BC submits that this is an unacceptable option.
It has been suggested that a naturalized Canadian suspected of being a war criminal could be denaturalized and subsequently deported if he or she obtained citizenship, permanent residence or refugee status by means of false pretences. A citizenship applicant who fails to admit war crimes involvement could be said to have falsely represented himself as being of good character. An applicant for permanent residence status who was a war criminal could be said to have concealed his guilt of a crime of moral turpitude or his undesirability. In addition, an applicant for permanent residence status may have concealed his enemy alien status, interned enemy alien status or his membership in a subversive organization.
There are numerous problems with the application of immigration law to the situation of alleged war criminals. Firstly, there is insufficient evidence in Canadian immigration records that exist to permit proof of such misrepresentation. With full respect to those who have propounded a differing view, this is not an obstacle which can be overcome by the presumption of regularity in the execution of official tasks. The maxim that has been used in prior citizenship cases is a presumption of validity of official acts until the contrary is proven. In effect, that the citizen who is suspected of being a war criminal is presumed to have entered irregularly. This would place an impossible burden on the defendant.
Secondly, even assuming that evidence of misleading or false declarations could be found or assumed, there remains the problem of innocent, and in some cases desperately necessary, misrepresentations. At the end of WW2, between 1 and 2 million Ukrainian people were in displaced persons camps throughout Europe. As a result of the Yalta accords, hundreds of thousands of these were forcibly repatriated to the Soviet Union, only to be liquidated or deported to Siberia. The only hope of those designated for "repatriation" was to prove their origin from outside the borders of pre-1939 Soviet Union. For many Ukrainians this meant assuming new identities either as Poles or ethnic Ukrainians from the former Polish territory of Galicia. The alternative chosen by many that could not, was suicide. It would be simply monstrous to institute deportation proceedings against such persons merely because of such misrepresentation before tribunals in D.P. camps in Europe and thus in subsequent documentation.
Another problem with deportation and denaturalization proceedings is that they are clumsy and involve administrative proceedings ill-suited to the determination of a person's guilt or innocence as a criminal.
Any deportation and denaturalization proceedings involving Ukrainians involves consideration of Soviet evidence. The same problems which have been referred to elsewhere in accepting Soviet evidence would arise in such proceedings. However, unlike criminal proceedings, the evidence would be considered in essentially administrative proceedings with a lower standard of proof and fewer procedural safeguards than a criminal prosecution.
Recommendation:
3. It is, cruel and inhuman to uproot an individual from his family and
whatever life he has built in 50 or more years as a productive
Canadian on the suspicion that he might have been a war criminal. It
is precisely because of the "evidentiary advantage" in deportation
and denaturalization proceedings that this Committee should reject
such proceedings as a means of bringing war criminals to justice.
No punishment should be inflicted upon a suspected war criminal
unless his or her guilt is fairly established by Canadian standards of
justice.
4. Two-tiered Citizenship Status: Requirement for a Limitation Period
Although section 12 of Bill C-18 affirms the equal rights and obligations of all citizens, without regard to the manner in which they acquired citizenship, the provisions of the Bill do not fully reflect the principle that all citizens are equal. Some of the proposed ways in which citizenship could be annulled or revoked do not respect the right to fair process, meaning that some citizens, but not others, face the prospect of being unjustly deprived of their citizenship.
Under Bill C-18 the citizenship of a naturalized Canadian never becomes crystallized meaning that at any time a naturalized Canadian can be called upon to give full answer and defence for an alleged misrepresentation over half a century ago. A time limit or limitation period must be instated to protect the value of Canadian citizenship. The Minister must be limited to filing a complaint within a particular period of time after a person has become a Canadian citizen. Public policy has always required some boundaries on the right to commence legal proceedings. There are time limitation periods for most kinds of actions that prevent a person from suing another after a specific amount of time.
There are four main policy reasons behind the use of limitation periods:
A. Peace and repose -- some time after the commission of an act, a defendant is entitled to peace of mind
B. Evidentiary concerns -- the diminishing quality and availability of evidence over time
C. Economic considerations -- the cost to business both in uncertainty of future litigation and the maintenance of records over an extended time frame
D. Judgmental reasons -- cultural values, scientific knowledge, and societal interests vary over time (we need only think of the "reasonable person" standard) and defendants are entitled to the standard of the time at which their acts are committed.
According to the 2001 Census, approximately 5.5 million Canadians were born outside of Canada. Under the current regime, any of these Canadians could potentially be stripped of their citizenship and deported from Canada if the Minister is able to show that based on a balance of probabilities they had misrepresented themselves when immigrating to Canada, regardless of how long ago that was, the significance of that misrepresentation (even if that disclosure would not have in itself prevented them from immigrating to Canada) or the lives and families they have built for themselves in Canada. At some point Canadians who have immigrated to Canada must feel that their citizenship has crystallized and they do not have to live in fear that one day their citizenship may be revoked in a civil proceeding which even if they won would likely cost more than any Canadian could ever afford.
Recommendation:
4. The Minister may not commence an action in the Federal Court for a
declaration that a person has acquired, retained, renounced or
resumed citizenship by false representation or fraud or by knowingly
concealing material circumstances more than five years after the day
on which the citizenship was granted, retained, renounced or
resumed, as the case may be.
VI. SUMMARY OF RECOMMENDATIONS
1. Where the current revocation of citizenship proceeding requires a civil standard - proof on a balance of probabilities, since the loss of citizenship is tantamount to a loss of liberty, the Minister should be required to prove guilt beyond a reasonable doubt.
2. The right of judicial [Note: or Ministerial] review should among other things be based upon humanitarian and compassionate circumstances which should be entrenched in Bill C-18, with provision for a stay of final determination of the review.
3. It is, cruel and inhuman to uproot an individual from his family and whatever life he has built in 50 or more years as a productive Canadian on the suspicion that he might have been a war criminal. It is precisely because of the "evidentiary advantage" in deportation and denaturalization proceedings that this Committee should reject such proceedings as a means of bringing war criminals to justice. No punishment should be inflicted upon a suspected war criminal unless his or her guilt is fairly established by Canadian standards of justice.
4. The Minister may not commence an action in the Federal Court for a declaration that a person has acquired, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances more than five years after the day on which the citizenship was granted, retained, renounced or resumed, as the case may be.
VII. CONCLUSION
Citizenship is one of the fundamental tenants of any country.
Throughout our history, Canada has opened its doors to the people of the world who were looking for a tolerant and free society, based on democratic principles. As a result, Canada stands proudly on the world stage as the best place to live, work and raise a family.
Therefore, legislation dealing with citizenship, and especially proposed legislative provisions concerning the revocation or annulment of this right and responsibility, should also reflect the core fabric of our democratic system. This legislation should never be considered as a lower standard of proof alternative to criminal prosecution of ant Canadian Citizen.
The proposals that the UCC-BC is recommending attempt to strengthen the legislation, preserve the value of Canadian citizenship and ensure that the core values of our justice system are respected to guarantee fairness and justice for all Canadians.