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

… [omitted] …

Mr. Jack Silverstone (Executive Vice-President and General Counsel, Canadian Jewish Congress): Thank you very much, Mr. Chairman.

[Translation]
First of all, I apologize for the fact that our written submission is in English only. We ran out of time this morning. We made changes up until the last minute and we didn't have enough time to get the text translated into French. I ask for your understanding, and again, we apologize. Thank you.

[English]
The Canadian Jewish Congress, Mr. Chairman, is the national organizational voice of the Jewish community of Canada. It was founded in 1919. Its head office is in Montreal. Its national office is here in Ottawa. We have regional offices throughout the country.

Our organization's mandate extends to combating all forms of racism, anti-Semitism, discrimination, and intolerance in this country, and working with our fellow Canadians toward building Canadian values, multiculturalism, and opportunity for all in this country.

Our nexus with the issue of citizenship and citizenship legislation primarily, but not exclusively, revolves around the issue of suspected war criminals in Canada. This is an issue that has been on our agenda since the 1950s, and unfortunately it is still on the agenda today.

A further point of connection to the issue of citizenship now, certainly post-9/11, but on our agenda prior to 9/11, is the issue of terrorism and the desirability of Canada for terrorists seeking haven and a base of operations, and I suspect seeking citizenship from time to time.

On the issue of suspected war criminals, suspected Nazi war criminals, and suspected war criminals from contemporary conflicts, the landmark piece of work in this field was the report of the Commission of Inquiry on Nazi War Criminals, presided over by the former Chief Justice of Quebec, the late Mr. Justice Jules Deschênes, who in 1987 submitted his very comprehensive report. I suspect there are not too many copies available any more. We guard ours jealously.

[Translation]
The report was also translated into French and copies are available in French. I have one such copy, but they are hard to come by.

[English]
In that report Mr. Justice Deschênes made a number of important recommendations dealing with the issue of suspected Nazi war criminals in Canada. One of the most important recommendations, which unfortunately was not implemented by the government at the time, was that the procedures for revocation of citizenship and deportation be consolidated, so as to prevent an endless number of appeals and court proceedings that would drag a matter out to the point where it would become an issue of justice delayed being justice denied. Unfortunately, that recommendation in the made-in-Canada solution that was adopted by the government in 1987 was not implemented. We have seen, I fear, the unfortunate results of that, as now we're here some 15 or 16 years after the report having not really been successful in dealing with suspected Nazi war criminals via the criminal route, for other reasons, and via the denaturalization and deportation route. There are cases extant as we speak. I will avoid addressing specific cases, because they are, in certain instances, before the courts, but it has been a frustrating and disturbing process. We have had minimal results, and I am confident that one of the reasons is that the procedures for revocation of citizenship and subsequent deportation were not consolidated in the first place. We have in fact changed our policy and our position over the past couple of years. We are here today to support judicializing the system.

As you know, the revocation of citizenship procedure rests with the Governor in Council, predicated upon a notice being sent to the suspected individual, who then applies to the Federal Court. Once the Federal Court makes a determination as to the fact that citizenship was obtained by misrepresentation, it's then up to the Governor in Council to remove that citizenship. We believe there are cases pending that require urgent attention by the government. They have been on the docket for too long. There have been interminable court proceedings. I am a lawyer by profession, and I have the highest respect for the court structure, but as I said, justice delayed can be justice denied. We urge the government, in the context of this legislation, to discharge its responsibilities with existing cases. Given the fact that the situation has been so unsatisfactory for so long, the current legislation, which goes some way towards implementing Mr. Justice Deschêne's recommendation in consolidating the system for revocation of citizenship and deportation, would be useful in cases in future for suspected war criminals who may have reached our shores from contemporary conflicts, of which there have been numerous reports.

(1225)

Currently, we believe it requires a two-step solution. The cases that are extant now need to be dealt with by the current system. The legislation you have before you and are considering now is the correct step, given the experience we've had over the past fifteen or more years. In the interest of time, I would like, with your permission, Mr. Chairman, to call on my colleague Mr. Vernon to highlight a few of the more trenchant provisions in our recommendations, and we would then be very pleased to accept questions.

(1230)

The Vice-Chair (Mr. Jerry Pickard): If you could keep it as concise as possible, it would help.

Mr. Eric Vernon (Director of Government Relations, Canadian Jewish Congress): Thank you, Mr. Chair. I certainly will do that. In fact, you have the summary of our recommendations before you, at the back of our brief. I just want to highlight a couple of things.

During the testimony of the previous witnesses the questions were asked, what is so special about being Canadian and why are they making that effort to make sure their Canadian citizenship is on solid footing? We've suggested that one thing to do is include a preamble. There is a very useful purpose clause in this legislation, but it might be beneficial to elaborate on some of the things that do make Canada special. We are, after all, working on legislation designed to protect Canadian citizenship, but also to celebrate it, and it would be useful up front if there were a statement by the Parliament of Canada indicating what it is that is so precious about Canada. We've offered some draft wording. We acknowledge the effort of Senator Noel Kinsella, who included something along these lines in a draft bill he put forward in the Senate a little while ago. So that's one thing we bring to your attention for consideration.

We also would draw to your attention that it would be helpful to have the legislation indicate that the minister has the discretion to consider humanitarian and compassionate factors. It was indicated in the briefing material from the minister that this was in place, but it might be important to put that into the statute, so that it's there for sure.

We would like also, in clause 16, to have used the language we've put in there under our third bullet in the summary recommendations, to make sure there are no time bars or statutes of limitations that apply to any of these cases. There have been a number of briefs working their way through the NGO community -- I imagine you'll be hearing from some of them, if you haven't already -- that have some concerns about clauses 17 and 18. We don't necessarily share all those concerns, but out of respect for their perspectives, we've suggested that perhaps there be a five-year review of those sections, to see if their concerns are borne out or not.

The last recommendation I'll draw to your attention deals with clause 21. Under the last round of legislation there was an attempt to use the phrase "in the public interest" as the main criterion for the ministerial authority to keep people out. There was a lot of concern expressed about that phrase being too vague. The legislative drafters in this case have used the term "principles and values underlying a free and democratic society". Our view is that for greater clarity it should say "principles and values underlying Canada's free and democratic society", because although we certainly share values and principles with our sister democracies, they don't all play out in exactly the same way. We've given the example of free speech laws as one where we differ dramatically from the United States. This is one important example. With that, Mr. Chair, I'll conclude my remarks, and we invite questions.

The Vice-Chair (Mr. Jerry Pickard): Thank you, Eric. Diane.

Mrs. Diane Ablonczy: Thank you for this, and particularly for being so specific. That's very helpful to us. I wonder if you could just summarize what your main concern is, what the problem or the issue is you would like to have addressed, and why you would like us to address it.

Mr. Jack Silverstone: As my colleague has pointed out, and if you look at the preamble we had proposed, for us, Canadian citizenship is a very precious and very valuable thing.

In the late forties and throughout the fifties, for a variety of reasons, which we really don't have time to go into here -- historical reasons, cold war reasons -- a number of individuals who participated in war crimes and crimes against humanity during the Second World War came to this country. When the Commission of Inquiry on War Criminals was established in 1985 under the chairmanship of Justice Deschênes, very extensive hearings were conducted. The members of his counsel were Mr. Yves Fortier and Senator Michael Meighen. At the end of the procedure he produced this report in which he suggested a number of remedies for dealing with suspected Nazi war criminals in Canada. One of those remedies was the removal of citizenship and then deportation. That was not the only remedy. At the time the government of the day said, no, we prefer criminal prosecution, but they never said they weren't going to consider extradition or denaturalization.

For a variety of reasons up until the mid-nineties, successive governments held to that policy. Some time toward the latter part of the nineties they decided that in fact Mr. Justice Deschênes had some very good ideas with regard to denaturalization being a useful remedy in terms of removing people who should not have had the citizenship in the first place...first removing their citizenship and then deporting them.

The problem is that the process is a two-step process, and it becomes a very lengthy process, with each procedure having a certain number of statutory or by-leave appeals to various levels of court. The end result has been that effectively nobody has yet been removed from this country, even though there have been findings by the Federal Court that they did obtain their citizenship under false pretences or by misrepresentation or by fraud, relating primarily to their history during the Second World War.

We had always taken the position that the removal of citizenship would correctly be within the hands of the cabinet, after a finding by the Federal Court. Our experience over the past several years has been -- for reasons that I suggest persons other than myself would be best able to answer -- that they have not discharged that responsibility with alacrity and with the speed that's necessary, given the fact that these criminal events and the individuals who perpetrated them and the victims are getting very old now and already many years have been lost.

Consequently, we believe that the current legislation, which is proposing in a way to amalgamate the procedures, is appropriate at this point in time. That marks a change in our policy, and we believe it is the correct thing to do to proceed with having this in the hands of the courts rather than in the hands of the cabinet.

I should correct something. I indicated that nobody was removed from Canada. That's not correct. I apologize. There was one removal from this country that preceded the criminal procedures. It goes back to the late eighties, and that's the case of Luitjens in Vancouver who was removed from Canada and deported to Holland where he served a sentence for collaboration during the war.

So that's the essence of it.

Mrs. Diane Ablonczy: Thank you, Mr. Chairman. In the interest of time, I think I had better defer to other members.

The Vice-Chair (Mr. Jerry Pickard): I appreciate that.
John.

Mr. John Bryden: Mr. Silverstone, isn't it true that the courts, when they come to consider legislation, are not obligated to consider a preamble? I like your preamble, but my problem with your preamble is that while it has been a habit of this government to create nicely worded preambles, you will agree that the courts can ignore preambles, and they usually do.

Mr. Jack Silverstone: Nevertheless, preambles do have weight in terms of interpreting statutes, certainly, as do the records of proceedings in terms of adopting statutes. While courts are not obliged to consider them as part of the legislation, they sometimes do have a persuasive effect, and they certainly have a salutary effect on general Canadians who may want to have a better understanding of the purpose of the legislation.

(1235)

Mr. John Bryden: The point is, however, that they're not part of the actual law.

Mr. Jack Silverstone: No, they're not.

Mr. John Bryden: Okay.

Mr. Vernon, I really like the point you made about how the expression "free and democratic society" in clause 21 is inadequate. I think you've given a perfect example of it, and there are many other examples that could be brought forward.

However, your suggestion changes the wording so that it says "the principles and values underlying Canada's free and democratic society". Wouldn't it be more effective simply to change those words to the "principles and values of Canada's Constitution, which includes the Charter of Rights and Freedoms"? Why shouldn't we just mention the Charter of Rights and Freedoms, which contains, of course, Canada's principal values underlying our democratic society?

Mr. Eric Vernon: There is merit to that, Mr. Bryden, but I think this phrasing goes beyond that. I think it certainly captures that, but it talks about...at least in our minds, it also deals with certain Canadian values of decency, civility, tolerance, and multiculturalism. Maybe these things are captured by the Constitution and by the charter in a legal way, but if we restrict it only to that, then I think we're perhaps doing a little bit of a disservice.

Mr. John Bryden: But, Mr. Vernon, I point out that clause 21 is a powerful section that gives the minister the opportunity to refuse a person who wishes to take an oath of citizenship. Surely, then, we want to be specific in the law in terms of what it is we're instructing the minister to be guided by. I therefore come back to the point about the Canadian Charter of Rights and Freedoms.

Mr. Silverstone, would you like to get in on that, as a lawyer?

Mr. Jack Silverstone: I think your point is well taken, but I think our point is well taken as well. Frankly, I'm not sure what the best way to do it is. What we are trying to capture here is that the United States of America, Great Britain, France, and many other countries are free and democratic societies, but they have different ways of interpreting what the extent of freedom and democracy mean, not necessarily better and not necessarily worse. My colleague endeavoured to give the obvious example, that being that we have laws against hate speech in Canada. They do not have them in the United States, but that does not make the U.S. less free and democratic. We simply believe these represent fundamental Canadian values.

The Constitution and the charter as part of it are documents that reflect those values, certainly. In a way, I suspect the words "free and democratic society" are more emotive, if you will, than "charter", but I don't-

Mr. John Bryden: I want to say that you are lawyers, and surely you would want to instruct ministers to obey laws, to be guided by laws, rather than to be guided by gut feelings or senses of decency. Again, then, I come back to the point, because it's a very important point. Surely what defines us as Canadians in law, in terms of the principles and values and rule of law and all the rest of it, is the Constitution, and specifically the Charter of Rights and Freedoms, which I don't think even the United Kingdom has at this time.

The Vice-Chair (Mr. Jerry Pickard): Thanks, John. It's a very good point, but I'm not going to belabour it. I think everybody has had an opportunity. Madeleine.

[Translation]
Ms. Madeleine Dalphond-Guiral: Good morning, sirs.
I agree with you that justice delayed is ultimately justice denied. However, when the justice process moves too quickly, this can also result in justice denied. With respect to Bill C-18, my party and I agree in so far as the principle is concerned. However, we are concerned about certain provisions, specifically the elimination of the appeals process every time a matter of State security is involved.

I can appreciate that when it comes to war crimes -- and obviously, war crimes affect State security since they affect personal security as well -- it's abundantly clear that Bill C-18 needs to be amended to formally acknowledge that Canada is a constitutional state, because miscarriages of justice do occur. You've been around long enough to know that.

I realize that as time passes, horrific crimes that have been committed could...Sometimes, there's no one left to continue the fight! I understand that, but I maintain that even so -- and I'm not a lawyer, thank God -- the first rule must be to proceed with caution and with an eye to justice. I haven't had time yet to go over your appended proposals thoroughly. What I have seen...I have no problem with certain provisions that I can very well see enforced in Canada. When I glanced at the appended proposals, I asked myself if I would like to see some of these elements incorporated in a Quebec bill respecting citizenship and citizenship revocation. Naturally, I'd make some changes, but I do find the proposals rather interesting. There's nothing further to say. To maintain that it was perfect...

(1240)
[English]

The Vice-Chair (Mr. Jerry Pickard): Thank you, Madeleine. I think that was more a general statement you were making, and that's fine. If you care to try to respond, that's fine too.

[Translation]
Mr. Jack Silverstone: After listening to Ms. Dalphond-Guiral, what more could I say? Nothing at all.
[English]

The Vice-Chair (Mr. Jerry Pickard): Thank you.
Judy, then Andrew.

Ms. Judy Wasylycia-Leis: Well, I'll say ditto to Madeleine's comments. I think she made a very eloquent statement, and it reflects the general feelings of people at this committee. I particularly appreciate the recommended wording with respect to the preamble, and I think even Mr. Bryden, although he posed a tough question to you, appreciates that words matter, and that's precisely why he's suggesting new wording for the oath of citizenship. I think both proposals need to be looked at carefully in view of the reality of Canadian life and our history and commitment to recognizing the need for integration, not assimilation, and to fight on every turn against any intolerance or signs of hatred and racism.

That's my general statement. My question, though, is this--I think I know the answer, but I want to check. We had a presentation from David Matas, and he basically said he thinks Bill C-18 is an improvement on the existing act, but he sees two problems: the fact that the power to deport doesn't match the power to revoke, and also that you go through the Federal Court trial division to get to the Court of Appeal on an automatic basis, rather than on the basis of written permission. I think you've dealt with that through points three and four in your summary list, and then down further in relation to clause 21, but I'd like to hear from you if that's an adequate summary of the outstanding major concerns with respect to this whole area, and if you can point out to me where you're addressing those issues in the summary.

Mr. Jack Silverstone: To begin, I would say that we were dealing with this piece of legislation primarily from a citizenship perspective. I concur with the view that the power to deport is not precisely equivalent to the revocation issue, but it's a complicated issue.

The value of revocation lies not only in the fact that it's a preamble to deportation. It's also a statement, a very strong statement, to people who obtain citizenship improperly in the first place that this is not acceptable in this country.

The deportation issue is a very complicated procedure that involves other legislation and other legal challenges and legal channels. The problem is real, but it's not necessarily going to be resolved by this legislation. It is an issue.

(1245)

Ms. Judy Wasylycia-Leis: Yes. I think you deal with it under the Federal Court of Appeal. It's your point five, I think.

Mr. Jack Silverstone: We believe it is preferable to have the appeal by leave, not automatically. We have always called for due process to be available to everyone in this country, regardless of what they're accused of. Due process, when it becomes an interminable series of appeals, tends to demean or devalue the process ultimately.

We have the results of the situation now. We have individuals who have been found to have lied about their war records and obtained Canadian citizenship. They are still here, even though courts have produced extensive judgments indicating that the weight of evidence indicates that they did lie. Had the information been available, they never would have been admissible in the first place.

The Vice-Chair (Mr. Jerry Pickard): Thank you. It's a matter of time.
Andrew, you're up next.

Mr. Andrew Telegdi: Yes. Thank you, Mr. Chairman.
Thank you for your presentation and for coming to this committee. I'm very pleased to see, and I applaud, your switch in policy to now favour a judicial process versus the one where the politicians are improperly involved.

I think the Jewish Congress and I will continue to disagree in terms of how we do the citizenship revocation process and on the standards we apply.

I happen to believe in section 7 of the charter. It talks about the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

I can appreciate the urgency that you might be coming at it from as an organization. I can also appreciate that there are almost six million Canadians who are citizens by choice, not by birth. As we heard, there was some very dramatic testimony on citizenship from people here previous to you. I think it's very much an emotional issue to those of us who are not born in this country, including the new parliamentary secretary. That's where we will disagree.

Quite genuinely, I applaud your position to come back to a judicial process that is preferable to the one where we have politicians making decisions they're not qualified to make.

That's all, Mr. Chairman.

Mr. Jack Silverstone: May I, Mr. Chair?

The Vice-Chair (Mr. Jerry Pickard): Yes.

Mr. Jack Silverstone: Thank you for your comments. I only want to clarify that we favour the change going forward, but not for existing cases. I want to clarify that there's not going to be a retroactive change. The cases that are before your governor in council now are before the governor in council. We don't expect that they will be altered.

I do want to also indicate to you that we have the utmost regard for the six million Canadians who are Canadians by choice. My grandparents and great grandparents are among people who came to this country by choice. We have the utmost regard for that.

Obviously, it's the exceptions that need to be dealt with, not the overwhelming majority of individuals who choose this country to make a home and to make a life. It's those who abuse the privilege that we are interested in.

Mr. Andrew Telegdi: I wouldn't disagree with you on that, except that if we're going to revoke citizenship, I want to make sure we don't make any mistake in the process, just as Madeleine has mentioned. I think its very important, because, yes, in some cases, the guilty will go free because we don't want to execute an innocent person. This has always been the fundamental basis of our judicial system.

It's an issue, and I'm sure we will continue to disagree on it. I know where your position is, and you know my position. But I appreciate the fact that you recognize that eliminating the politician, or the political involvement, in the process is a welcome thing and better conforms to the charter than the present situation does. That's all.

(1250)

The Vice-Chair (Mr. Jerry Pickard): Thank you.

Mr. Eric Vernon: Mr. Chair, if I may make one quick comment, I think it's important to keep in mind that accelerating the process doesn't necessarily mean that shortcuts are going to be made or that due process is going to be denied in any significant way. In fact, if you go through the way the system is designed, there is eminent due process available with layers of appeal. So we're not talking about doing anything that would fundamentally betray our commitment to due process and to the rule of law.

All we're asking is that the extraneous elements and duplication of processes be removed, that the processes be streamlined, and that where there is some discretion at the judicial level for continuances and hearing defence motions, the time factor be taken into account.

The Vice-Chair (Mr. Jerry Pickard): Thank you.
Does anybody else have any further comments?

I would say to you, Jack and Eric, thank you very much for coming forward and presenting your views. They will be dealt with appropriately by the committee, and we thank you for your time.

Mr. Eric Vernon: Thanks for having us.

The Vice-Chair (Mr. Jerry Pickard): To the rest of the committee members, before you slide away, I've got a question.

I raised three issues at the beginning of the meeting. It's fine to go ahead on February 6 with the meeting on identity cards with the minister. The second issue I raised was about the meeting with Australian minister, tentatively scheduled at this point in time for February 25. We'll plan this.

The third issue was the report on Inky Mark's presentation. We have the parliamentary secretary here today. There could have been a lot of reasons why the time period lapsed; the minister could have been away. Sarkis, could you check why and give us the reasoning at 1 p.m. on Thursday? There hasn't been a response up to this point in time. If Sarkis came back with the answer, it may be a pretty simple answer rather than having a major discussion. Would this be adequate for the committee?

Ms. Madeleine Dalphond-Guiral: When was it due?

Mr. Sarkis Assadourian: You mentioned the response was due when?

The Vice-Chair (Mr. Jerry Pickard): The timeline was that it be due yesterday. As I understand it, the minister was going to.... There was the potential for clarification today, but this did not happen -

Mr. Sarkis Assadourian: It was basically due yesterday and we didn't get it.

The Vice-Chair (Mr. Jerry Pickard): Therefore, we as a committee are obliged to ask for the reasoning. Okay?

Mr. Sarkis Assadourian: Okay. Thank you.
That's my question as the PS.

The Vice-Chair (Mr. Jerry Pickard): We're adjourned, ladies and gentlemen.