Standing Committee on Citizenship and Immigration hearings
on Bill C-18, the proposed Citizenship of Canada Act

(0905) [English]

The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Good morning, colleagues.

We're resuming our briefing from the department, and we're at the revocation of citizenship.

I have a couple of things before we move on. Thank you very much for the new chart, Joan and Rosaline, with regard to what we asked as to the allegations and the trigger of the process, as well as the relevant sections and the appeal section. Ben did prepare for us something on the annulment section in the Federal Court Act, section 18.1. I think that was sent to you. Ben also gave us a flow chart on the citizenship denial, annulment, and revocation process--a picture is worth a thousand words. I don't know if the department saw it or not, and if not, we'll give it to you.

This is a history-making day, because it's Joan's last meeting before this committee. I know you're going to Aboriginal Affairs, Joan, but you're going to wish you could come back to citizenship after that. Let me thank you, on behalf of this committee and previous committees, for your wonderful work and your total dedication to this job and its ministry. I think an awful lot of the stuff this government has done and this committee has worked on you've had a part to play in. I want to thank you, on behalf of everyone, for doing such a splendid job and being always available to this committee and being frank and honest and open with us. I think that's the kind of interaction we need, so that we can get the best possible legislation for the people of Canada. So thank you again for your wonderful work on behalf Canada Immigration and Citizenship.

Let's continue with revocation. Do you want to take us through this, Joan?

Ms. Joan Atkinson (Assistant Deputy Minister, Policy and Program Development, Department of Citizenship and Immigration): Thank you very much, Mr. Chairman, for your very kind words this morning.

To put it into context, we have in Bill C-18 three new elements in the revocation process. First, there's a fully judicial model, as you know, where the Federal Court trial division makes the finding about misrepresentation in the citizenship acquisition and issues the revocation order. The minister or the person may appeal the decision to the Federal Court of Appeal and, with leave, to the Supreme Court. So the first difference is that the Governor in Council no longer plays a role in the process.

The second new element is for those persons who are accused of being involved in terrorism, war crimes, or organized crime only, not just regular misrepresentation, but in addition, for those who are accused of being involved in those activities as defined in the Immigration and Refugee Protection Act, there is an accelerated removal process. The revocation order becomes a removal order.

The third new component is the use of protected information, a certificate, which again is something we have borrowed from the Immigration and Refugee Protection Act to assist us in presenting cases where we're dealing with individuals who are accused of being involved in terrorism, organized crime, and other activities, where the information is sensitive and protected, having come from a third party, and where we need to protect that information in order to present the evidence to the Federal Court judge who will make the decision and do the deliberations.

So those are the three new elements of the revocation process you have in Bill C-18. Maybe I could turn it over to Ros, who will walk you through the new chart and try to position those new elements and take you through what the process will be.

(0910)

Ms. Rosaline Frith (Director General, Integration, Department of Citizenship and Immigration): Good morning.

Essentially, we've divided this within a simple case, one where we do not believe the person is inadmissible because of war crimes, organized crime, or terrorism. In a simple case the person acquired citizenship through false representation, fraud, or knowingly concealing circumstances. The information came to us on possible fraud and it was investigated and verified. The person was served with a statement of claim, and the normal court rules on representation would then apply.

The minister would commence the civil action in the Federal Court. The court issues a judgment finding that false representation occurred or did not occur. If the court rules that it did occur, citizenship is effectively revoked. In that case, either party may file an appeal of the judgment to the Federal Court of Appeal, and then, with leave, to the Supreme Court of Canada. If the judge decides that the person concerned did not acquire citizenship by fraud, the person remains a citizen. If false representation occurred when the person applied for permanent residence, the person loses the permanent residence status along with their citizenship status. This is the same as the present revocation process. If the false representation occurred during the citizenship process only, the person becomes a permanent resident again.

The Chair: The distinction between revocation and annulment, is it the five-year term? We've got the annulment for misrepresentation within that five-year period. Are you saying, if for some reason it goes beyond the five-year period, you would use the revocation section?

Ms. Rosaline Frith: That is correct, and also if the case were somewhat more complex and applied to something other than the small number of cases under annulment. Annulment only applies to those people who have obtained their citizenship using a false identity or while prohibited. It does not apply in the case of someone who misrepresented the time they had spent in Canada, a residency case, for instance. In that case we would have to do it under revocation, we would not be annulling, and the person would have a chance to be heard in the courts on their version of the residency issue. So annulment is limited to straightforward cases where we have the documentary evidence before us, it does not deal with cases that would require a full hearing and the weighing of evidence. There we would go with the simple case to the Federal Court.

The Chair: So if it was only a simple case of misrepresentation, as opposed to false identity under annulment, they would lose their citizenship, but they wouldn't lose their permanent residence.

Ms. Rosaline Frith: That is correct.

Ms. Joan Atkinson: Assuming that misrepresentation was in the citizenship process. If the evidence was that they had misrepresented themselves in the context of getting permanent residence status, then you would effectively revoke both.

Ms. Rosaline Frith: It would be a simple case, a simple revocation of citizenship. However, if there were any further actions to be taken because of something that happened under the Immigration Act, that would follow through Immigration.

The second level of complexity would be the revocation combined with an expedited removal process. Again, the person acquired citizenship through false representation, fraud, or knowingly concealing circumstances, and the person is also inadmissible because of war crimes, organized crime, or terrorism. Information on possible fraud is investigated and verified, and information on possible war crimes, organized crime, or terrorism is also investigated and verified. Based on that information, the minister would decide to go forward. The person is served with a statement of claim, and for revocation proceedings, again, normal court rules on representation apply. For the inadmissibility proceedings, the same rules would apply as in a quasi-judicial tribunal under the immigration legislation. The revocation proceedings would take place in the same way as in the simple case: the minister would commence the proceeding and the court would issue a judgment. During the second part of the trial the judge would then consider whether the person is inadmissible because of war crimes, organized crime, or terrorism. The judge who conducted the trial on the false representation would be able to use the same relevant evidence that has already been established, which would avoid the need to repeat everything, and then the judgment would be issued that the person is inadmissible on the specified grounds, and that judgment would be a removal order. At that point either party may file an appeal of the judgment to the Federal Court of Appeal, and then, with leave, to the Supreme Court of Canada.

No person who is found to be inadmissible for war crimes, terrorism, or organized crime is eligible to have a claim for refugee protection heard by the Immigration and Refugee Board. However, the person concerned may ask the minister for protection via a pre-removal risk assessment or for humanitarian and compassionate relief under the Immigration and Refugee Protection Act. If the judge decides that the person concerned did not acquire citizenship by fraud, the person will remain a citizen--case dropped. If the judge decides that the person did acquire citizenship by fraud, the person's citizenship is revoked, and in those cases involving war crimes, terrorism, or organized crime, if the court then finds that the person is inadmissible, the decision is deemed a removal order and the government proceeds with removing the person.

The third approach is essentially one we would use where all the situations that previously applied are the same, but we know the disclosure of certain information might endanger national security or a person's safety, thus only in a case where we're dealing with war crimes, organized crime, or terrorism and with an issue of security of the information. Then the person is provided with a summary of the case, to allow them to be as fully informed as possible of the circumstances giving rise to the certificate, but excluding the information that needs to be protected, in the opinion of the judge. The person named in the certificate has an opportunity to be heard on matters relevant to the determination.

(0915)

A certificate is issued when, because of the nature of evidence, the allegations cannot be proved without recourse to protected information. That certificate is signed by both the Minister of Citizenship and Immigration and the Solicitor General of Canada, as long as both ministers are of the opinion that the person has acquired citizenship by false representation and if this person were not a citizen, he or she would be inadmissible under the terms of the Immigration and Refugee Protection Act on security grounds, on grounds of violating human or international rights, or on grounds of organized crime. In that case, the certificate being issued, it is brought to a Federal Court judge.

The Federal Court judge reviews all the evidence and decides whether or not the certificate information should be protected. The judge decides if the person engaged in false representation and, if so, whether the certificate is reasonable with respect to the issue of inadmissibility. As with all other legislation regarding protected evidence, the finding is final and cannot be appealed or reviewed. Any removal order would be enforceable immediately, but the person would be able to apply for humanitarian and compassionate relief or a pre-removal risk assessment under the Immigration and Refugee Protection Act. If the judge decides that the person concerned did not acquire citizenship by fraud -- remember that's the very first step -- the certificate is quashed and the person remains a citizen. If the judge decides that the person did acquire citizenship by fraud, the person's citizenship is revoked. If the judge then also determines that the person concerned is inadmissible, that certificate is deemed a removal order.

(0920)

The Chair: Okay, there you have it. I'm sure we have some questions. As before on both denial and annulment, how many cases, even under the existing legislation, of revocation have we processed or are in the midst of processing?

Ms. Rosaline Frith: A total of 50 revocation cases have gone through the system over the last 25 years. Of those only 6 would have been with respect to World War II war criminals, 21 would have been with respect to misrepresentation on residence, time spent in Canada, 11 would have been immigration misrepresentation to get landed status. I spoke about criminal misrepresentation and identity misrepresentation, and we have there about 12 cases that might have been able to be treated under the annulment procedure.

The Chair: That gives us a good snapshot, and I'm sure there are other questions on that.
Diane.

Mrs. Diane Ablonczy (Calgary-Nose Hill, Canadian Alliance): I want to get back to the concern we were discussing earlier, the fact that annulment or refusal could hinge on what individuals believe rather than actual conduct. The concern, of course, is that honestly held views by individuals should not trigger the kind of sanctions or denials this bill would trigger, particularly when there is no judicial process involved. Does clause 18 also deal with revocation or just annulment?

Ms. Rosaline Frith: Just annulment. An annulment is based on documentary evidence, not a person's beliefs. Annulment is strictly for false identity or the person's being prohibited. In the cases where the person is prohibited we would have documentary evidence to show that the person was prohibited at the time they applied for citizenship.

Mrs. Diane Ablonczy: The problem I have is that if we suggest that citizenship can be refused or annulled because of honestly held views, not conduct that can be objectively observed, if you take the clauses we're dealing with in respect of refusal, annulment, and revocation all together, although it doesn't expressly say so, there's certainly, shall we say, a logical importation of the language and text in clause 21 into the revocation process. If that were so, I think it would concern members of the committee a great deal. If you can refuse or annul on grounds of honestly held beliefs, what is preventing the process, if you read all the clauses together, of it not being imported into the revocation process?

(0925)

Ms. Joan Atkinson: I think we have three very separate sections in the act. We have clause 16 on revocation, as Rosaline has described it to you, which deals in facts with regard to fraud and misrepresentation. If there are any areas of grey as to whether there was misrepresentation or fraud, that's for the Federal Court judge to decide in the judicial proceeding, where the person has the opportunity to be heard and present their evidence. In the case of annulment, as Rosaline has said, in clause 18, it's factual evidence that the person presented false documents, and therefore a false identification, or factual evidence that we should not have provided citizenship to that person in the first case, because they were prohibited. That's based on facts and hard evidence.

Finally, there's clause 21, where it's based not simply on a belief the person holds, but where the person has demonstrated a flagrant disregard and the minister is satisfied that there are reasonable grounds to believe the person demonstrated that disregard. That has to be based on some factual evidence that the person has demonstrated a flagrant disregard. It's not a matter of what the person believes -- people may believe all sorts of things -- it's how they act on those beliefs. In clause 21 we are talking about situations where there are reasonable grounds to believe the person has so demonstrated this flagrant disregard, regardless of what their beliefs are.

Mrs. Diane Ablonczy: In spite of what you're saying, I go back to the fact that clause 18 does not include any of the reassuring words you're giving the committee. It doesn't talk about factual basis, it doesn't talk about documentation, all it says is that the minister has to be satisfied. It does not say upon what grounds the minister must be satisfied, it does not say what evidence the minister must be presented with, it doesn't say any of those things. Not only is the minister merely to be satisfied, but the individual involved cannot make any representation, except a written one, and the minister's decision is subject to no judicial process.

The Chair: I know we started that issue last week, but I'd like very much to stick to the revocation stuff. It's proper to ask about the comparison between annulment and revocation, and I have some of the same questions you have. I know you're trying to compare annulment and revocation, but I wonder if you could get to the revocation part of it.

Mrs. Diane Ablonczy: Let me say this then, Mr. Chairman. I think it's important to underline the concern. Paragraph 28(l) is incorporated into clause 18, and that talks about people subject to an order under section 22. If you go back to clause 22, it talks about the order of the minister under clause 18 being conclusive. So it seems to me that we're now incorporating elements of this violation phrase into these other clauses, if you read them all together. It just troubles me that with such imprecise language in the legislation, revocation of citizenship could, in fact, be hung on the grounds that are causing me, and I think others, this concern. Some of us are lawyers, but we don't have the expertise in drafting the witnesses do. What assurance can you give me that revocation will not be premised on these honestly held views, if you read the clauses taken together?

(0930)

The Chair: I wonder if you could help us, Joan, because I think Diane raises a very good question. At least revocation is under a judicial system, and so evidence has to be proved and there's a process by which one can counter that. Clauses 16 and 17 deal with revocations, but they lead to other clauses, such as 22 or 28 or 23. Maybe the flow chart shows it a heck of a lot better. So perhaps you can take the committee through the relevant clauses and how clauses 16 to 17 relate to the other clauses Diane has covered, I think might be helpful.

Ms. Rosaline Frith: I think I will ask Patricia to speak specifically to how the different clauses are interconnected, because very clearly, when we have dealt with this with our drafters, there has been no connection between clause 21, which is speaking to the refusal of citizenship, and the other clauses, which are other parts of the prohibitions that apply in the case of annulment or revocation. Perhaps you could speak to that, Patricia.

Mrs. Patricia Birkett (Registrar, Citizenship, Department of Citizenship and Immigration): Okay.
I understand the question you're asking, and I can understand how people are making that connection. Denial under clause 21 is a process. It starts with the minister seeking that order. The order is made by the Governor in Council. The person can't be denied or considered to be prohibited until the Governor in Council has made that order. So it would be impossible to go back later and say, you were prohibited at the time we granted you citizenship, because it was an order of the Governor in Council. I suppose there is an outside possibility that the Governor in Council has issued the order and the person who granted citizenship doesn't know that, but I find it hard to imagine, seeing that you're dealing with an exceptional case. If there is going to be a case where denial under clause 21 is being considered, this would be dealt with centrally. These are very important authorities, which are limited to the minister, who has to go to Governor in Council. So this isn't a case where there's an accident going on. This is a case where there's a long investigation, where the minister would have to be satisfied that there are grounds to go to the Governor in Council, and the person is only prohibited and denied after the Governor in Council makes that order.

When we talk about annulment in clause 18, the intention is to talk about things that don't need an independent decision-maker, like the court, to weigh conflicting evidence and to make a decision as to whether something is hearsay, whether something is third-hand evidence, whether something is credible. The courts do revocation. Annulment, because it's a ministerial power, still requires the minister to be satisfied, which has a legal meaning. The minister can't just suspect or have an idea, but has to be satisfied on reasonable grounds. If the minister is satisfied, that will be based on documentary evidence, because the prohibitions in clause 28 are factual. The prohibition in clause 28, which refers to a person being described in clause 21, is after the Governor in Council's made that finding. There's no retrospective consideration under clause 18. I understand how, because of the number system, it looks that way, but it's impossible, because it will need to have gone all the way to Governor in Council for a finding that the person has engaged in flagrant serious disregard. Only then does the person become prohibited.

Annulment contemplates the person who's sneaked through the system, because we asked them specifically on the day they were granted, have you had any trouble with the law since you applied for citizenship? The person says no. We find out after that there are charges pending, there's a conviction. That's when we would go to annulment, because there's a document that shows the person was prohibited when they were granted citizenship. A person isn't going to be prohibited under clause 22 unless it's been to the Governor in Council. I find it hard to believe we wouldn't know.

(0935)

The Chair: Okay. Just hold on that thought for a moment, Diane, and we'll get back to you.
Jerry.

Mr. Jerry Pickard (Chatham-Kent Essex, Lib.): Thank you, Mr. Chairman. I want to say first that I appreciate all the work that has been done to very clearly explain the differences.

One of the problems people like myself, and most of the public, have is, on a broad scale, understanding why we move in directions to put special regulations in for cases that occurred once in several years, for cases that occurred twice in several years, 50 cases, you mentioned, over 25 years. With the first couple I mentioned, we're talking three or four cases in say 10 or 12 twelve years, and everyone here around the table seems to have concern that you've moved those cases out of the courts. It would appear that if the system were not altered, you could still achieve what you're trying to achieve in the courts, and there are so few examples that you've given us to deal with. Why are we going through this process? Why are we trying to push one or two or three cases in 10 years out of the courts when they're so clear-cut and clearly designed? And why are we complicating the understanding of the process so that it makes it more and more difficult? We move into, again, people who have to specialize in certain fields to understand what is going on. It's not just a simple process of our passing a law. We've been sitting here for three or four days trying to understand what's going on. People who are dealing with the system have to do the same thing, and it drives the system crazy, in my view. So are we achieving something good by dealing with those few cases, or are we creating a more difficult system for average Canadians to understand?

Ms. Joan Atkinson: As always, we're trying to balance fairness and efficiency. We're trying to ensure that when we deny someone citizenship or take citizenship away from someone, we are doing it with appropriate checks and balances in the system, so that the individual is entitled to due process and fairness, bu in a way that is also efficient. That's one of the primary reasons we made a distinction in this act between annulment and revocation.

Revocation, which is now a fully judicial model in this act, is also an expensive model. When we take someone to Federal Court in order to have their citizenship taken away, we need to engage with the Department of Justice. We do a lot of investigation within the department to ensure that we put together all the evidence and that we have a case. It's an expensive process. It needs to be an expensive process, because we are taking someone's citizenship away. In some cases the evidence is quite clear. Someone was inadmissible at the time we granted citizenship and should not have been granted citizenship, but they were, we have clear documents, someone presented false documents, there are no areas of grey, it's black and white. The decision we made was to have a more efficient process that allows us to annul someone's citizenship. This is different from revoking, because when you annul someone's citizenship, you're essentially putting them in a box for five years and you're saying, you shouldn't have got citizenship in the first place; we are going to put you back in permanent resident status for five years, and you can make an application again after five years. You still have access to the Federal Court, but in cases where there's no contest, annulment offers us a more efficient process, while still being fair.

The denial of citizenship under clause 21 is for rare cases. Indeed, they are very rare, but we felt strongly that citizenship is a privilege, and part of our objective in this whole piece of legislation is to enhance the value of Canadian citizenship, to underline the importance of Canadian citizenship and what it means, not just to newcomers to our country, but to all Canadians. We felt we lacked a very important tool to be able to say, in very rare cases, you are engaging in activities that undermine the value of Canadian citizenship, to an individual who meets all the other requirements. We have no way of denying citizenship to that person, yet they are demonstrating such a flagrant disregard for values that are dear to Canadians. We wanted to have a tool to allow us to say, no, we're not going to give citizenship to this individual.

(0940)

Mr. Jerry Pickard: I certainly understand the purpose, and I believe the purpose is an admirable one. The process is what I raise, not the purpose. The process of eliminating two or three cases from the court system seems to me to have struck a note with most of the people around this table. It may be accurate, it may be inaccurate. What you're trying to achieve all of us, I believe, agree with, but the process is the problem, taking a few out of the court system. I guess you could have a balance such that eventually, they could go to the court system anyway. If that were there, I think you'd solve your problems with much of the questioning around the table.

Ms. Rosaline Frith: In fact, those annulment cases could go through the court system. I think what you're raising is very interesting, because we came at this from our perspective of working with the cases, even though it might be a very small number of cases. We said, okay, what's the most effective way of dealing with it that is still completely fair to the person? That's why, when we designed it, we excluded specifically the residency cases; because there's a balancing, there's someone making a judgment, it is not black and white, leave that to the fully judicial process. We consciously made that decision. We thought we were keeping it very simple by having a very straightforward annulment that would only click in where there was the documentary evidence, and we would restrict it to five years. It could be done the other way. Our concern was with trying to be as effective and cost-efficient as possible, while respecting a person's rights.

The Chair: As a supplementary, if I could, I think you indicated that there were 50 cases of revocation. Can you tell us how many have been successful? Further, now that the Auditor General expects us to ask the very tough questions, and, Joan, you said it's a very expensive process, can you tell us how much money we've spent on the revocation process? Maybe Daniel knows. I've heard this $100 million figure bandied about.

Ms. Rosaline Frith: Daniel can speak to the issue of the war crimes cases, which are the most expensive cases. I'm afraid I don't have with me figures on all the other cases.

Mr. Daniel Poulin (Counsel, War Crime Section, Department of Citizenship and Immigration): I can only address the so-called war crimes cases, the few that have gone through the system.

The Chair: Of which there were six?

Mr. Daniel Poulin: Yes, three in favour of the minister and three not in favour of the minister.

The Chair: So we're batting .500.

Mr. Daniel Poulin: Well, there are more cases. Some were contested and some went a different way.

Your question is on costs. There are multiple costs involved. There are costs that precede the actual trial phase, to do with investigations, sending people to eastern Europe, for example, to investigate archives, to look at documentary evidence, to meet witnesses. These involve variable sums of money. It could be three or four trips, each of them costing between $10,000 and $20,000.

(0945)

The Chair: I'm not going to ask for the per diem amount and everything else. Globally, how much are we talking about?

Mr. Daniel Poulin: Globally, $3 million to $4 million.

The Chair: Per case?

Mr. Daniel Poulin: Not per case.

The Chair: Total?

Mr. Daniel Poulin: Yes.

The Chair: All right. That's for what we've spent so far on the war crimes aspect of it?

Mr. Daniel Poulin: We're talking about the Federal Court ones, the six revocation cases.

The Chair: Okay.

Mr. Daniel Poulin: If you want, I can address some of these costs.

The Chair: Perhaps. In fact, you could provide us with that information. If we're looking at an expedited system or a system that can be very expensive, that might be very helpful for the committee.

Ms. Joan Atkinson: We have some other statistics here as well, Mr. Chairman, that might be interesting.

Ms. Rosaline Frith: I don't like pretending something will happen if it hasn't happened, but we've estimated the future possible annulment cases out of the revocation cases that are under review, and 30% of all the cases under review right now could be done through annulment. They're all straightforward. We have documentary evidence. We can just use annulment -- in, out -- and we don't have to go through the court system. And that's talking about something like 45 of 151 cases. Those are future cases. That's where our thinking came from in having a separate procedure for annulment.

The Chair: That helps and answers, I think, where Jerry was coming from.

Joan, did you have something?

Ms. Joan Atkinson: Paul, do you want to add something?

The Chair: Okay, Paul.

Mr. Paul Yurack (Counsel, Department of Citizenship and Immigration): I think there's maybe some confusion that I can clear up. Clause 21 only deals with permanent residents, so we're not talking about citizens. Clauses 16, 17, and 18 are reserved for people who have the status of citizen in this country. Mr. Pickard, you raised an important point about why we would proceed with annulment, and there are two points I want to make. This is a precondition to the grant of citizenship, so if the officer had the information, that person would never have been granted citizenship in the first place. It's a relatively straightforward decision-making process, and so the procedures could be more streamlined. And again, we're looking at judicial economy and trying to avoid having to go to court where it's not necessary, balancing the fairness in the process against the rights of the state, to try to proceed efficiently.

The Chair: Madeleine.
[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you, Mr. Chairman.

I'd like to focus on the beginning of the bill, specifically on clause 3 which sets outs the values underlying the Act. I'd also like us to take a closer look at 3(d) and 3(g). The following is noted in 3(d):

3. The purpose of this Act is

(d) to reaffirm that all citizens, no matter how they became citizens, have the same status;

3. The purpose of this Act is:

(g) to promote respect for the principles and values underlying a free and democratic society.

A voice: Yes.

Ms. Madeleine Dalphond-Guiral: How do you reconcile paragraph 3(d), which states that all citizens enjoy equal status, with paragraph 3(g), which refers to the values underlying a free and democratic society? I was born in Quebec in 1938 and, if branded a terrorist, I could take my case all the way to the Supreme Court. Another person who applied for citizenship and who is labelled a terrorist wouldn't be so lucky and would be rejected by the system. I have a bit of a problem with that. I can appreciate the cost involved, but with everything going on these days, for the sake of democracy and justice, I won't be having any nightmares over a few million dollars. Other things give me nightmares, but not that.

That's my first question. I will have another for you later.

(0950)

Ms. Rosaline Frith: If a person chose to become a Canadian citizen and moved through the various stages of the system honestly and acquired Canadian citizenship, then that person enjoys the same status as a person born in Canada. That person has the same rights and will be treated the same way. If a naturalized citizen of Canada becomes a terrorist after acquiring Canadian citizenship, that person will be treated exactly as you would be treated.

Ms. Madeleine Dalphond-Guiral: We'll share the cell.

Ms. Rosaline Frith: Exactly. That person would be prosecuted under Canadian law. If that person is found to have obtained his citizenship or permanent residence status illegally or fraudulently, the first step is to revoke his citizenship. The person is then prosecuted like any other terrorist attempting to enter Canada. The same rules apply, but the person is no longer deemed to be a Canadian citizen. That's very important, because citizens who are Canadian by birth and those who acquire Canadian citizenship through legitimate means have equal status.

Ms. Madeleine Dalphond-Guiral: I understand what you're saying, but that doesn't mean I agree with you.

Could you give me some examples of evidence that would qualify under clause 17(4)(j)? Everyone supposedly has equal status. Certain evidence is admissible in a court of law, while some is not. I would imagine that before revoking a person's citizenship, only evidence deemed admissible in a court of law should be considered. However, this particular provision notes that the judge "may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence."

Could you give me some examples and could you explain to me the rational behind this provision and how it ties in with the value of a free, just and democratic society in which all citizens enjoy equal status? I admit that I'm somewhat disturbed by this provision. Fortunately, Christmas is just around the corner. Perhaps I'll have time to adjust to the idea.
[English]

Ms. Joan Atkinson: Maybe I could start on this one. This is the certificate process, which is the same that we see in other pieces of legislation, including the Immigration and Refugee Protection Act, where we are dealing with seriously inadmissible individuals, often in situations where it's intelligence, it's sensitive information that has come from a third party, from another country's intelligence service, and where, in order to protect the national security of Canada, we need to treat that information extremely carefully.

I go back to Rosaline's point. If an individual has committed these acts after becoming a citizen, they're treated in the same way as a person who was born here in Canada. This is a retrospective view of someone's activities before they became citizens that would lead us to draw the conclusion that we should not have granted them citizenship in the first place, just as, if a terrorist were seeking entry to Canada, we would seek to deny the entry of that individual.

We need to have this tool for those cases where the information we have is so sensitive that we need to protect it very carefully. But at the same time, we must ensure that it is an impartial third party, the judge in the Federal Court, who is looking at that evidence and is determining whether or not it should be protected, whether or not it would be injurious to national security if it were released and made public. This is a process we use, as I said, in the immigration context and in the context of other pieces of legislation in the Canadian judicial system. It is a process that has a well-known structure, and Federal Court judges have experience with it as well. There are judges in the Federal Court system who have dealt with these sorts of security certificates in other contexts and have the experience in weighing all that evidence. It's a necessary tool for us when we're dealing with cases of national security.

(0955)
[Translation]

Ms. Madeleine Dalphond-Guiral: However, you haven't given me any specific examples of evidence that would be considered inadmissible in a court of law, but admissible in the case of the certificate. Surely you can give me some concrete examples. [English]

Ms. Joan Atkinson: The best example I could give would be an individual who was involved in terrorist activity before coming to Canada, or perhaps even while they were in Canada as a permanent resident, but before they applied for citizenship, and this information was not available to us at the time they made an application for citizenship. This information becomes available after the fact. How would that information become available to us? It could become available through public means. There could be published reports of this individual's activity in terrorist organizations. It could be information that became available to us through either our own or other intelligence services, and the nature of the information is such that we gauge that it needs to be protected.

If we gauge that the information needs to be protected -- and when I'm talking about "we", I'm talking about CIC and our law enforcement and security and intelligence partners -- we take that information to the two ministers responsible, the Minister of Citizenship and Immigration and the Solicitor General. We present the evidence and the information we have to those two ministers and recommend that they issue the certificate.

If we have individuals who have come forward and indicated they have information, we will seek a statutory declaration from that individual and get them to swear to it, so we have their sworn statement to the effect that they know this individual to have been involved and engaged in those activities. That would not be the only evidence we would take. If an individual came forward with this sort of information, we would do further investigation to try to verify that information by seeking other sourcess.

With all that information together, we would make an assessment, along with our security, intelligence, and law enforcement partners, on whether the information is sufficient to determine that a person would be prohibited under terrorism, war crimes, crimes against humanity, organized crime. We would take that information, as I said, to the two ministers and ask them to issue a security certificate. Then that same information and the security certificate would go to the Federal Court judge for review, and the judge would make a determination on whether the evidence we've collected in the process of our investigation is reasonable and whether it justifies protection through this security certificate process. If the judge determines that the evidence is not valid or that even if the evidence is valid, it doesn't justify this kind of protection, the judge returns the information to the two ministers and does not accept the certificate. Then the ministers have to decide whether they proceed with the revocation proceedings, knowing the evidence they have to justify the revocation will be open and available, because the person then, of course, will challenge that information and it will all become public.

(1000)

The Chair: Joan, I think you indicated that you needed to go by 10, and I know we have Rosaline and everybody else until 10:30, so I want to be respectful of your request.

Before you go, as your last role as ADM for Immigration here, I wonder if you could tell the people over there who you're going to see a little later on today that the committee would like the information on the proposed detention facility. Also, in talking about our safe third country agreements, we needed some up-to-date numbers on detention, as well as how many spaces the whole system has to detain people. So if you could pass those things on for us, I would appreciate it.

Ms. Joan Atkinson: I'd be happy to.

The Chair: Thank you very much.

Ms. Joan Atkinson: I'll leave you in Rosaline's and the team's very capable hands, Mr. Chairman.

The Chair: John.

Mr. John Bryden (Ancaster-Dundas-Flamborough-Aldershot, Lib.): First let me say, I think you've moved along enormously from the previous citizenship bill, particularly in the area of revocation and annulment. On clause 17, the one thing that concerns me is that there is no timeline on the issuing of a certificate. In Canada and many other countries security services, intelligence services, have the right, or privilege if you will, to keep secrets indefinitely. Given that there's no timeline in the certificate process, is there some risk that you could have somebody facing revocation for a war crime of some 50 years ago and a certificate might be issued based on intelligence received from, say, the former Soviet Union or one of the other countries that might still regard that type of information as secure?

Ms. Rosaline Frith: Before I turn to the experts on that, I would say it is highly unlikely that there's still going to be such information of danger to national security or an individual on something that occurred 50 years ago.
Paul.

Mr. Paul Yurack: I would just echo Rosaline's point. In that hypothetical you're talking about 50 years. The type of information we're protecting is going to be relevant information, up-to-date information, from security sources that will want to protect. That's going to be very recent information on world events, rather than historical information, on which we would normally proceed by way of a full judicial and open court system.

Mr. John Bryden: Romania is a case in point, where animosities in the secret services go back many years. I won't pursue this point, but I just caution you that it's very dangerous, I think, to have a certificate process that has no timeline on it. I would feel much more comfortable if there were, say, a 50-year timeline on it. While I agree that the cases are very unlikely, with the bitterness that exists in some countries and the iron fist of the security services of those countries, I think some caution is merited when you approach that particular question.

On another point, can I get your opinion? Would you consider state-sanctioned, extrajudicial killing a violation of human rights? Would a state-sanctioned, extrajudicial assassination be a violation of human rights, in your view?

Ms. Rosaline Frith: I can't answer that from a legal perspective. Paul, can you answer?

Mr. Paul Yurack: Daniel has the expertise in the Crimes Against Humanity and War Crimes Act. Daniel, do you know if that has been defined?

Mr. Daniel Poulin: It's difficult to look at it without a context.

Mr. John Bryden: It's killing people without giving them due process of law.

Mr. Daniel Poulin: Hypothetical questions are difficult to answer in international human rights law. Ultimately, it all depends on context, but in general circumstances, extrajudicial executions are considered human rights violations. There are circumstances where it varies quite dramatically.

(1005)

Mr. John Bryden: What if the extrajudicial killing is sanctioned by a free and democratic society?

Ms. Rosaline Frith: We're talking about our society when we're talking about a free and democratic society in relation to denial of citizenship. I think we're being very clear that it's our standards as Canadians, it's what we believe in as Canadians. Canadians do not believe in executing people who have committed murder. We have things that we do not believe in. I would tend to say we should not be commenting on another country's beliefs.

Mr. John Bryden: Then I have difficulty, because a person coming in under clause 21 is coming from another country. That country may be a dictatorship, like Iraq, or it may be a free and democratic society, like Israel. Both countries engage from time to time in extrajudicial killing. Isn't that action in the eye of the beholder of the particular society that is doing it? In other words, when you say "a flagrant and serious disregard for the principles and values underlying a free and democratic society", I would suggest to you that somebody working for the Israeli defence forces who might be engaged in this, be required to do it, indeed, by the state, would argue that they are acting on behalf of a free and democratic society. So what good is your clause 21 as defined?

Ms. Rosaline Frith: As I've said before, it would be a judgment on the part of Canadians. It would be our Governor in Council's decision whether or not we felt that a person had demonstrated a serious and flagrant disregard for the values of a free and democratic society, being those of Canada. And I do not think at this point in Canada we believe in any kind of murder.

Mr. John Bryden: What if there were a future government in Canada that decided that this was an appropriate thing? Would you still say this is a principle of a free and democratic society, as described in paragraph 3(g)? It's not just clause 21 we're taking about.

Mr. Paul Yurack: But you would say they wouldn't invoke clause 21, so it would never arise. If I understand your point correctly, you're saying, if they believe in this extrajudicial killing, they won't be invoking against the person.

Mr. John Bryden: That's absolutely correct. If the Canadian government changed and decided to embark on extrajudicial killing, this wouldn't be a barrier to people coming into the country.

Mr. Paul Yurack: I guess it gets back to Mr. Pickard's point that it is a limited discretion. We've carved out a very limited discretionary decision-making power and given it to the Governor in Council to exercise judiciously. That's why it's not subject to court review, because it's just inappropriate to allow a discretion to be reviewed.

The Chair: I think there is a debate as to whether "principles of a free and democratic society" is too broad or too narrow. I think you're arguing on the basis that you think it's too narrow. A lot of people around this table thought it's too wide and too broad. And John is asking a very good question. As I understand it, a free and democratic society in Canada doesn't believe in state-sponsored murder or execution. I would hope so. But whether or not future governments will accept that free and democratic principle and that will be acceptable, I don't know.

Mr. John Bryden: The point I'm driving at is that in clause 21, by giving the minister an enormous discretion based on his or her interpretation of "a free and democratic society", you offer an unlimited opportunity to future governments. We could have a problem in this country. We could have a government that closes down on human rights. If you're going to have a clause 21, wouldn't you be better to define what you mean by a free and democratic society? I would submit to you, that surely is the Charter of Rights and Freedoms.

(1010)

Ms. Rosaline Frith: I believe the terminology we have used has been defined, to a certain degree, by the Supreme Court of Canada. That is the reference we would be using at all times. It is not just the minister who would be making a decision. The minister would simply be bringing forward the case, and there would be a decision taken to have a Governor in Council order by many ministers. They would, in effect, be reflecting the people of Canada who elected them. So it is not a single person who is making this decision, it is a reflection of our form of governance.

Mr. John Bryden: Don't you think it should be Parliament, not the courts, that defines the free and democratic society? Surely it's legislation that determines the free and democratic society? Surely the charter comes before the Supreme Court?

Ms. Rosaline Frith: I believe it is the Parliament of Canada that has over time defined a free and democratic society through the creation of our charter, through the creation of all of the laws and systems we have in place.

Mr. John Bryden: Could we not say, just for example, in paragraph 3(g) and clause 21, "a flagrant and serious disregard for the principles of basic human rights". Isn't that what we believe, that the inadmissibility of a person is based on a denial of basic human rights? Then you don't have this problem whether a foreign state sanctions a denial of human rights in a particular instance. Canada has already instructed the minister that what he or she should be considering is somebody who shows a flagrant abuse of the rule of law. These are things we could actually define in clause 21, and I don't understand why we don't do so, because they are in the charter, we know them as Canadians, we know them in our heart of hearts, and we don't need the Supreme Court to tell us.

I do feel -- and I'll stop, Mr. Chairman -- that simply saying "a free and democratic society" is a catch-all that could be interpreted by future governments according to the pressures of the moment. And there's a case in point with respect to Quebec. If there were a situation where Quebec separated and Canada entered into a very difficult time, both the federalists and the sovereigntists, or the separatists, would want a proper protection. That is the defining of our obligation to uphold basic human rights and the rule of law.

Thank you, Mr. Chairman.

The Chair: All those hypotheses --

Mr. John Bryden: It's not a hypothesis, it's a darned practical measure.

The Chair: It's amazing how one person could think of so many hypotheses, but I appreciate all the questions you've asked.
Diane.

Mrs. Diane Ablonczy: It's a certain brilliance, Mr. Chair.

The Chair: John is very brilliant.

Mrs. Diane Ablonczy: We really appreciate the witnesses being here. This puts me in mind of my trying to get a position statement or a legislative position through caucus. It's much the same process, where everyone thinks of everything that wasn't done correctly and is quite happy to say so. But I wonder if you considered the fact that the clauses John was talking about and I've been talking about are designed to meet the terrorist threat and to make sure our country doesn't have citizens who advocate and support terrorism. Would it not be better to use words something like "flagrantly and openly advocates terrorism or supports terrorist organizations or groups", and then have a careful definition of terrorism, as there was in Bill C-36, for example, so that we have the precision some of us feel is necessary? We're still dealing with the evil that concerns the department and our whole country, but it doesn't have these huge, pretty much unspecified grounds for denial, and possibly revocation.

(1015)

Ms. Rosaline Frith: The denial of citizenship is not designed specifically to deal with terrorism. If that were the case, we have other areas of the act where we're dealing with people who may be terrorists. In the case of those demonstrating a serious and flagrant disregard for the values of a free and democratic society we're looking more at things along the lines of hate-mongering or some other activity that would in no way prohibit them under the other requirements for citizenship. They would have met all the criteria for citizenship and there would be no legal impediment to granting of citizenship, but they would be doing something felt by the Canadian public and the Government of Canada to be so heinous that we would not want that person to receive citizenship. And it's restricted to a period of time, because that person might change their ways. They might no longer continue to demonstrate that kind of behaviour after having been refused citizenship. There is always that possibility. And after the five-year period they could apply again for citizenship, and they would be then considered on the merits of that moment.

Mrs. Diane Ablonczy: I think we have to be clear. This wouldn't have anything to do with the Canadian people, it would have to do with the cabinet, and that's a pretty closely held group, if our experience is correct. If it's hate-mongering, let's say so, let's be clear about it. I just think having a big pool that can be fished in is very troubling. I don't think we should belabour the point.

I have another point, about subparagraph 16(6)(b)(ii), the revocation process "with respect to any additional evidence is not bound by legal or technical rules of evidence". Clause 17 goes on to outline that process. Could you tell us what was the practical regime behind these provisions, so that we can better judge what we're trying to cure here?

Ms. Rosaline Frith: In the revocation process, again, we had the different ways of dealing with the more and more complex cases. Specifically, in clause 16, where we're speaking of the type of evidence, it comes back to a need to use, in some cases, evidence that is not .... I would turn to Patricia to speak to this one.

Mrs. Patricia Birkett: Subparagraph 16(6)(b)(i) is to make sure the judge who is hearing the case in the civil trial considers all the evidence in both parts of the trial, so that if, during the time the judge was deciding if the person engaged in misrepresentation, he hears certain kinds of evidence, in the second part of the trial, when he's hearing about whether the person is inadmissible, he can take into account that evidence. It's just a very technical rule.

(1020)

Mr. Paul Yurack: You like to deal with principle, Ms. Ablonczy, and I think that's a good way of proceeding. It's essentially to avoid duplication. If we didn't have this mechanism, the person concerned would have to go through the citizen revocation process, and then they would have to be referred to Immigration, and they would essentially run the same type of process before the IRB, and then they would have a right of appeal. To make this system more efficient, when we have these allegations, the Federal Court judge can hear both allegations during the same trial. It avoids having duplication, it avoids having to invest the same resources twice in the same case.

Mrs. Diane Ablonczy: I may not have been clear in my question, or maybe I'm not understanding you. Obviously, a court's not being bound by legal or technical rules of evidence is pretty Draconian. The whole reason for a court is that we do have due process. If we're going to remove due process from a particular segment of the court's findings, there has to be a reason. I need the reason.

Mrs. Patricia Birkett: The reason for the second rule in clause 16 is that when the court gets to the second part of the trial, it is essentially replacing the normal proceedings of the Immigration and Refugee Board. That rule of evidence you find in subparagraph 16(6)(b)(ii) is exactly the same rule of evidence that is used in an immigration inquiry under the Immigration and Refugee Protection Act. In other words, it's a quasi-judicial tribunal, that's what they're acting as when they are under that particular provision, as opposed to acting as a court with the normal rules of evidence of a higher court. So the second rule is simply to make it clear that it's the same rules of evidence as at an immigration inquiry.

The Chair: Diane, you should have been here for the discussion about whether or not that was appealable. We went through that stuff. But you raise a very good question. In fact, if I could, I have a supplementary.

There is a hierarchy of seriousness here, from annulment to revocation of a simple case to revocation and removal. Once there is a finding that revocation should occur, it then is kicked into the inadmissibility area. Now the person has lost their citizenship and you're thinking about kicking him out of the country, in other words, getting rid of him as a permanent resident.

Therefore, they revert to the Immigration and Refugee Act for that purpose. So the judge acts as the IRB. Aren't they able to do that? You've revoked their citizenship and kicked them down to another level. Shouldn't that process continue at another level, not at the same trial, where certain other evidence may in fact come up? The person may have lost their citizenship, but shouldn't lose their permanent residence.

Mrs. Patricia Birkett: But that's why the process for subclause 16(6) is limited to those very serious three allegations, where you're talking about war crimes, organized crime, or security concerns. Those are the only cases where you would go into that inadmissibility.

The Chair: So when you're trying to argue for revocation, you're trying to do so on the basis of organized crime, terrorism, or war crimes.

Mrs. Patricia Birkett: No, I'm sorry --

The Chair: Or misrepresentation for citizenship. Then, if other information on terrorism, war crimes, and all that comes out and you have the evidence, you immediately move for removal.

Mrs. Patricia Birkett: Right. It should be pointed out that the person knows this, because the way the system is structured, the person has to know right up front we are going to seek to prove that they misrepresented to get citizenship, and if the court finds that they got citizenship by fraud, we're going to seek to have the court make a second judgment that finds them inadmissible. The fairness is in the fact that the person knows up front exactly what is the case he has to meet.

The Chair: But the removal order is not appealable to any court.

Mrs. Patricia Birkett: That's right, because the removal order, if it were made under IRPA, would not be appealable to the Immigration and Refugee Board. However, we should recall that cases under clause 16, as opposed to clause 17, can be reviewed by the Federal Court of Appeal. The person is not excluded from going to the Federal Court of Appeal. The person is in Federal Court trial division anyway, so if the reviewing board of the Federal Court trial division is the Federal Court of Appeal and the person has access to that as of right, there is no limit, such as leave to appeal. The Supreme Court doesn't hear anything without leave to appeal.

(1025)

The Chair: We'll get into those kinds of details as we follow through. With regard to clause 17 and this certificate case, I share the concern as to whether there ought to be a time limit, and 50 years sounds an extremely long time. Once a determination is made, according to subclause 17(9), that determination is final and not appealable anywhere. With revocation, as John has said and others, including Mr. Telegdi, we have a great improvement since the last bill. We've got a full judicial system for revocation, because we treat those as very serious cases, but then we've sort of contradicted ourselves by taking away a right of appeal to a judicial system. I'm trying to understand how we can put it into a judicial system and then take it away by saying, with a certificate case, it is a final determination and not appealable anywhere, except I guess if you want to go to PRRA and so on with the removal order. Can you let me understand why there wouldn't be an appeal of the final determination on a certificate order?

Ms. Rosaline Frith: We have gone through the different forms of legislation that are currently in place, and we are using the system that already exists under different acts in order to be consistent with the courts and with any other decisions that have been taken. We looked very carefully at the kinds of situations where we would likely need to use the non-disclosure of information for public security and for national security and to protect a person, and we felt very strongly that both the person going through the case and the people we are trying to protect are clearly being equitably treated. It takes two ministers to decide in the first place to use this system to make a decision on whether or not a certificate is necessary. Then the judge reviews all of that one more time and decides whether or not this is the way to go. There is a very clear level of protection for the person before we even enter into the process.

The Chair: With a clause 16 case of revocation, there's an appeal. Why would that be different from a case under IRPA, where the Federal Court trial division must certify a question of general importance before you can get into the Federal Court of Appeal? In clause 16 it fits fairly clearly, but once you then move into the other IRPA system, the bar is actually higher in order to secure that appeal mechanism.

Mr. Paul Yurack: That's a good point. In immigration litigation there are thousands of cases, and what we're talking about with this revocation model is simply a number of cases. We said approximately 30 a year. So you can afford to allow the person to appeal as a right.

The Chair: John, you have one final question.

Mr. John Bryden: Ms. Frith, you observed in my earlier line of questioning that the free and democratic society would be the Canadian version, not another version. Isn't that free and democratic society already defined in our constitution? Our constitution includes the Charter of Rights and Freedoms. Why don't we simply say in paragraph 3(g) and clause 21 that the purpose of this act is to promote respect for the principles and values underlying the Charter of Rights and Freedoms? Why do we have to prevaricate when we have it in legislation? We know what it is, it's the charter. Mr. Yurack, I think you, as legal counsel, would be interested in legal tidiness. Would you like to comment on that?

(1030)

Mr. Paul Yurack: Certainly. It's because Canada, as well as having an entrenched Charter of Rights and Freedoms, is also party, as a government, to many international documents that spell out the international obligations we uphold. That would also include those types of rights and instruments we've ratified.

Mr. John Bryden: I would just point out that this is the Canadian citizenship legislation. It pertains to Canadian legislation, not to international accords. I have to correct you on that. It would be our constitution and our charter that apply, not international accords.
Ms. Frith.

Ms. Rosaline Frith: As a country, we continually evolve. We have the Charter of Rights and Freedoms, we have our constitution. We have our way of dealing with things, but we also have become signatory to many international agreements that reflect our views as a society. I think, when you take all that into account, it perhaps goes, to some extent, beyond the Charter of Rights and Freedoms, because it is a reflection of values that are inherent in our charter.

I would not argue with you, Mr. Bryden, on this at all. I think there are many different ways we could approach the wording. We chose wording we felt had a certain definition within Canada, that had been clearly interpreted by the courts, and that gave us enough latitude for the different types of cases that might come forward. I referred earlier to hate-mongering, but there are other types of things that might happen where someone has committed a crime abroad that is not viewed as a crime in that country, but Canadians would view as a crime. That too is something we would want to be able to consider when we're saying we do not want a person to become a Canadian citizen.

Mr. John Bryden: I'll only say, Mr. Chairman, what we do internationally with respect to human rights -- and we have a wonderful record -- I would suggest to you is a projection of our charter values. And if I may say so, I think we understate ourselves terribly when we, in our own citizenship legislation, are afraid to proudly point out that we were one of the first countries to have a charter and we have one of the finest charters. These people are coming to Canada, they're not coming to another country in the world. With greatest respect, I do not understand why, in legislation of this sensitivity that will be studied all across the world, we don't proudly declare that we want people to respect our constitution and the Charter of Rights and Freedoms. This is what we expect of newcomers to this country.
Thank you.

The Chair: Rosaline, Paul, Patricia, and Daniel, thank you very much. We're obviously going to call you back once we've heard witnesses, but I want to thank you for your information now.

Committee members, of course, we're continuing our discussions this afternoon. We're having a working lunch. You should know that after the break we're not necessarily coming back to Ottawa. You're all going to your respective cities, where we're going to be starting our public hearings, not only on citizenship, but on provincial nominee agreements and asking the Canadian public about the national identity cards. So we've got a long schedule ahead of us in the last week in January and February. We'll be asking you back, hopefully, witnesses, towards the end of February, so we can test your resolve on some of the tough questions that are going to be asked of this committee by witnesses who have appeared and will appear. So thank you again, and have a good holiday season.

We reconvene at 12:30.