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

Members of the Committee present: Diane Ablonczy, Sarkis Assadourian, John Bryden, Yvon Charbonneau, Madeleine Dalphond-Guiral, Joe Fontana, Massimo Pacetti.

Other member present: Andrew Telegdi.

In attendance from the Library of Parliament: Benjamin Dolin (analyst, Law and Government Division).

Witnesses from the Department of Citizenship and Immigration: Rosaline Frith, Director General, Integration; Patricia Birkett, Citizenship Registrar; Paul Yurack, Counsel, Legal Services; Brian Foley, Senior Analyst, Security Review, Intelligence Branch.

Witnesses from the Department of Justice: Lynn Lovett, Acting Deputy Director, Senior Counsel, War Crimes Unit; Robert F. Batt, Counsel, Canadian Security Intelligence Service.

Rosaline Frith and Robert F. Batt made statements and with the other witnesses answered questions.

[W.Z. We note the two witnesses from the DOJ.

Lynn Lovett from the War Crimes Unit at DOJ testified at length on the number of WWII revocation cases. We highlight some of her exchange with Andrew Telegdi below.

(It is interesting that in correspondence from bureaucrats in the Canadian War Crimes Unit of the Dept. of Justice to the counsel for Wasyl Odynsky in late August 2003, Ms. Lovett is quoted as having demanded that any further submissions were to be delivered by July 31, 2003. Obviously, Ms. Lovett et al are proceeding with their attempt to revoke Mr. Odynsky's citizenship, despite the Standing Committee on Citizenship and Immigration clause-by-clause deliberations on Bill C-18, which are still under way.)

Robert Batt of CSIS is an expert on the application of the Security Certificate process as present in the Immigrant Refugee and Protection Act (IRPA). Similar (or perhaps identical) legislation is proposed in section 17 of Bill C-18 to revoke the citizenship of alleged terrorists, criminals, etc.

(It is ironic that recently (August 25, 2003 and following), there has been a public demand that the utilization of the secret provisions in IRPA be discontinued, since the rights of the accused are being blatantly violated.)

(It is doubly ironic that since describing in my Addendum of April 27, 2003 how CIC bureaucrats specifically wrote section 21 of Bill C-18 to handle the problem of Ernst Zundel (according to David Matas in Mtg #10 and Kenneth Narvey in Mtg #40), CSIS has now declared Mr. Zundel to be a security risk, so as to keep him incarcerated as a political prisoner in a Canadian jail.)

Mr. Batt's detailed testimony on the the Security Certificate process is available in the Full Transcript link at the top of this page. Here we will highlight the questioning of Andrew Telegdi.]

Mr. Andrew Telegdi (Kitchener�Waterloo, Lib.): Thank you, Mr. Chairman.

First of all, this is all very new in terms of applying it to citizenship and applying it to citizens. I think what former Justice Salhany said was that the way our court system works is that the judge is dependent on having the evidence presented to him tested, which means we should have a defence attorney and we should have a crown attorney. In this situation we have a crown attorney but no defence attorney.

If people are skeptical of intelligence information, part of that skepticism comes from having watched Colin Powell before the United Nations referring to intelligence reports from the British secret service, reports that were later proven to be totally fraudulent. The point is, there's no way for a justice to have that evidence tested before him.

With all due respect, our system is not set up for the prosecution to make the case on behalf of the defence. Essentially what Justice Salhany said was that the judge is in an impossible situation because he was never trained to be an investigator like they are in France. His job is what he or she has been trained to do, and that is to have the defence attorney test the evidence put forward by the witnesses for the prosecution. That's one of the most important linchpins in our criminal justice system.

You might say, it's the minister who said this or it's the two ministers who signed off, but the two ministers are not in a position to test any of the information that comes before them. Essentially it breaks all the normal rules that are in place for testing evidence, and this is where it becomes very critical.

As Justice Salhany said, it's unworkable from their perspective. We might suggest that a friend of the court who was a lawyer but was not the prosecution -- because the prosecution obviously has a belief the person is guilty or they would not be proceeding in the first place -- should be there to try to test the evidence. But basically the situation is quite unworkable in the present judicial context. Those where his comments.

The chairman mentioned that testing evidence is very important because you could have a couple of sources come forward who have a grudge against somebody. Unless you can test the evidence these folks provide, then you will never be able to mount a defence. The challenge is to make sure the defendant has the right to test that evidence as much as possible, because it's no use having a lawyer if you don't know what charges you are facing.

(1140)

[...]

We're dealing with citizens. We're not dealing with refugees and we're not dealing with immigrants, we're dealing with people who have acquired citizenship. By proposing a piece of legislation of this sort, what we end up doing is devaluing that citizenship, because your chances of making an error are dramatically increased. God knows, when we have the system at its best, you still have the Guy Paul Morins, the Milgaards, the Marshalls, and maybe the Trustcotts.

This is so fundamental in terms of human rights that we have to tread very carefully. You have to be careful that in giving out information in this kind of hothouse situation in which the security services operate, it doesn't victimize anyone. I can just see it victimizing all sorts of folks, not necessarily because anybody had any bad intent but because the system that was put in place for very important questions to be decided has been short-circuited. That's what this does. Unless you can come up with some better way of safeguarding the very basic rights of individuals, you will continue to have a great deal of opposition to this kind of legislation.

From your viewpoint -- and think about it for a minute as maybe a defence counsel or even a judge -- drawing on your legal experience, how could you try to make sure that the security needs you are concerned about are protected but at the same time that the basic rights of the individual are protected and that you get a better test of evidence in there than you have presently?

(1145)

Mr. Robert Batt: I think I can only reiterate what I've already said, that Parliament in its wisdom created this type of process under the Immigration Act to deal with immigrants and refugees, persons who are not citizens of Canada. The judges make efforts to test in camera the information they have. The individual concerned has a right to present his or her own case in public on the basis of a summary. Whether or not Parliament wants to import that process into the citizenship act is up to Parliament.

[W.Z. In the following exchange, Mr. Telegdi challenges Rosaline Frith and Lynn Lovett on the number of WWII revocation cases.]

Mr. Andrew Telegdi: Because I think it says something important, I wonder if for the committee you could perhaps provide a better breakdown in a memo to us. I think it's important, particularly when we're trying to reflect on the cost.

Now, you referred to five World War II cases, and it seems to me we had a lot more than that, so I would like to have you check on that again.

The next question I have relates to the second page of your second part, where under �Citizenship and Immigration� you refer to cases related to World War II criminals. I would like you to provide us with the names of those World War II criminals because I'm having difficulty. Justice MacKay in his rulings referred to people who had no war crimes charged against them at all, and he did not find them guilty of any war crimes. I want to know how you come to label somebody as a war criminal; I think it would be useful for the committee to have for our deliberations.

Ms. Rosaline Frith: Mr. Telegdi, I apologize. That should not have read �related to WWII criminals�. I apologize. I will have this document corrected. [W.Z. It should read "related to WWII cases"]

[...]

Mr. Andrew Telegdi: No, because you say 27 were non-World War II cases and five were World War II cases. When I add those up it comes to 32. Now, I dare to suggest that there are more than five that were World War II cases, and I want you to check that and report back to the committee.

(1250)

Ms. Lynn Lovett: I'd like to be able to clarify it now if possible, because there's really nowhere I can check.

Fifteen World War II-related citizenship revocation cases have been started since 1995.Three have had citizenship revoked following a positive Federal Court decision; two respondents did not contest and their citizenship was revoked by the governor in council; that's five.

In another three the court has made a positive decision that the citizenship was obtained by deceit, and the next steps are underway; in other words, the governor in council has not yet made a decision. Now I'm up to eight.

Then we have three that are currently before the courts, and no decision has yet been made -- I'm up to 11 -- and three where the defendants were successful. They took their cases to Federal Court and they won; it was decided that they didn't obtain their citizenship by fraud. And then there's one where the individual died while the case was before the court, so the total comes to 15.