Standing Committee on Citizenship and Immigration
- - Meetings on Canadian Citizenship - -

NUMBER 053    |    1st SESSION   |    38th PARLIAMENT

Friday, April 22, 2005

[The presentation of Kenneth Narvey is particularly relevant to revocation of citizenship. Although Flora Marlow (India), Cathal Marlow (Northern Ireland) and Marie-Claire Namroud (Lebanon) present enlightening ethnic views of Canadian citizenship, we only reproduce a small excerpt of their testimony. The testimony of Rivka Augenfeld and Glynis Williams deals with statelessness.]

[Recorded by Electronic Apparatus]

The Chair (Hon. Andrew Telegdi (Kitchener—Waterloo, Lib.)): Mesdames et messieurs, good morning.

We are ready to start. I was going to have Madame Faille say bienvenue, but since Madame Faille is not here just yet, I will ask Monsieur Clavet to welcome our appearance in the belle province.


Mr. Roger Clavet (Louis-Hébert, BQ): Good morning everyone. I am very pleased, on behalf of the Bloc Québecois, to welcome to this meeting the witnesses and all of the members of the Standing Committee on Citizenship and Immigration, in order for us to pursue our study.

Our beloved vice-chair, who is moving towards our guests' table, will continue on with this little introduction, because my intervention was just the opener.

Ms. Meili Faille (Vaudreuil-Soulanges, BQ): I am very happy because today I will not be the one to have sore ears. Indeed, it has been some weeks now that I have been using the services of the interpreters who have been accompanying us.

I would like to welcome you here to this our region. I come from a Montreal suburb where I have been working with the immigrant communities, the ethno-cultural communities of Montreal for some years now. I was elected as an MP during the last election. I am therefore very happy to welcome you here and to have this opportunity to listen to you.

You have before you a committee that is very close to communities. It is my belief that we are doing a darned good job. It is my hope that your statements will all be included in a beautiful report and that we will have the time to table the results of our consultations before the next election.

That is all, Mr. Chairman.


The Chair: Thank you very much, Madame Faille.

It's certainly a pleasure being in Montreal, and I'm really pleased with the great contribution you have been making to this committee. Let me say I'm very pleased with all the members of this committee, because I think we have managed to focus on the issue at hand in a very non-partisan fashion. It tends to be Parliament at its best.

Mr. Narvey, you have five minutes; you might have more. If somebody comes in, you have five; if nobody comes in, you have seven. How's that? Mr. Narvey and I go back a long time working on this file. We have always maintained a very good cordial relationship -- not always agreeing, but sometimes yes, sometimes no.

Mr. Narvey, your presentation.


Mr. Kenneth Narvey (Legal Researcher, Chief Operating Officer, Coalition of Concerned Congregations on the Law relating to War Crimes and Crimes against Humanity including those of the Holocaust): Bonjour, tout le monde, et bienvenue à Montréal.

My name is Kenneth Narvey. I am the legal researcher and chief operating officer of a coalition of Montreal synagogues with a long name. It's the Coalition of Concerned Congregations on the Law relating to War Crimes and Crimes against Humanity including those of the Holocaust -- for short, the Coalition of Concerned Congregations, or the coalition.


In French, it is the Coalition des Synagogues concernant le droit relatif aux crimes de guerre et aux crimes contre l'humanité y compris ceux de l'Holocauste.

I will be pleased to answer your questions in either official language.


I sent you an e-mail some time ago saying what I wanted to talk to you about. We are in favour of an improved citizenship act. One thing that means is there should no longer be a role for the Governor in Council. The government should be the prosecutor, but not the judge. The courts should be what takes care of citizenship and immigration in a consolidated manner.

Unlike some others, we think citizenship should not be irremovable. On the other hand, it should not be removed lightly. There is a... I am not sure if it is a Canadian invention, but it is part of the Canadian law, both in the Immigration Act and in the Citizenship Act -- humanitarian and compassionate considerations.

What we propose -- and we proposed this to previous editions of the committee -- is that there ....

I'm being photographed by the chairman. I think I am about to be photographed by the chairman.

We propose that, as in the previous drafts of the bill, citizenship should be challenged by an action commenced by the minister. It is important that the words “at any time” be put in that section -- “en tout temps”, because if they are not, then an action is automatically statute-barred after six years, and we are against any kind of statute bar.

If somebody comes to Canada this year, having been engaged in slaughtering people in Darfur, and lies their way into Canada and becomes a Canadian citizen, we don't believe their citizenship should be irrevocable in six years or ten years or fifty years, so it is important that the words en tout temps, at any time, be placed in that provision of the act, as they are in the Excise Tax Act, which says that if a person has defrauded the excise tax authorities, they may be proceeded against en tout temps, at any time.

We think the Federal Court should decide whether a person has obtained their citizenship by fraud. If it finds that they have, it should be pulled by the legislation to remove their citizenship, with an exception. If the court comes to the conclusion that there are valid humanitarian and compassionate reasons not to remove their citizenship, then it should not remove their citizenship. If it does decide to remove their citizenship, it should decide whether the person should be deported. If it decides that the law permits the person to be deported, it should, again, decide whether there are valid humanitarian and compassionate grounds not to remove the person.

There should be an appeal. We would prefer an appeal with leave so the courts get to decide whether you at least have a chance, but we could live with there being an appeal to the Federal Court of Appeal even without leave. An appeal to the Supreme Court of Canada, of course, would require leave.

You all have on your desks a long file of materials I brought here today. I hate to be disagreeable, but I would like to disagree with something the committee has been saying. That is on the question of statelessness.

I have here four documents. One could call them six documents. The first two, in English and French, are extracts from the November report of the committee. They are the three pages referring to statelessness. Perhaps I should look at the last page. On it, as one of the guiding principles, the committee says, “No one should be deprived of Canadian citizenship if doing so would render them stateless.” We don't agree with that. Statelessness is a misfortune, but it is not the same thing as being tortured; it is not the same thing as being cast into the outer darkness.

The citizenship acts of the world are very different from one country to another. Some countries, such as France, say that if you come to Canada and become a Canadian citizen, you are still a French citizen. Other countries, such as Holland or India, say that if you come to Canada and become a Canadian citizen, you lose your Dutch or your Indian citizenship.


We don't want to make being a Dutchman or an Indian a licence to obtain Canadian citizenship by fraud. If you come from a country that will take away your citizenship, if you can obtain Canadian citizenship by fraud, then you are obtaining Canadian citizenship à vos risques et périls.

It's your risk. If you decide to come to Canada and to lie to come to Canada, to then say you can't take away the Canadian citizenship, even though I was slaughtering people, because it would make me stateless -- then your problem is with your country of origin, which is not giving you your citizenship back. It makes no sense at all to make potential statelessness a licence to lie, and it's not required by international law.

The third document I have here is the Convention on the Reduction of Statelessness, to which Canada is a party. This is the Canada treaty series. It's in English and French on parallel pages. If you turn to pages 8 and 9, you will see article 8, which says “A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless.” It should be him or her.

But there is an exception in article 8.2, and particularly 8.2(b).


2. Notwithstanding the provisions of paragraph 1 of this Article, a person may be deprived of the nationality of a Contracting State:

(b) where the nationality has been obtained by misrepresentation or fraud.


Now, I don't have it with me here today, but I remember finding in Ottawa, at the library of the Department of External Affairs, the travaux préparatoires to this treaty; that is, the preparatory materials that in international law are used to interpret the treaties. Canada, at the conference that elaborated this treaty, specified that in Canada's view, misrepresentation or fraud includes knowingly concealing material circumstances.

So it's not just two things; it's three things. All kinds of perfectly innocent people said they were farmers when they weren't, when in fact they were construction labourers or they were tailors. We do not want all kinds of perfectly innocent people to lose their citizenship. We trust that nobody will even attempt to remove their citizenship and that the courts will say not to be silly, that humanitarian and compassionate grounds means people keep their citizenship. But should it be between two war criminals, between two persons who are arguably war criminals, between two persons who belonged to units that were committing war crimes, then to say we will remove the citizenship of one and not the other because one of them comes from a country that gives them his citizenship back, or never took it away, and the other doesn't, we think that would be a mistake.

The next document I have here is wrapped rather than stapled, because I couldn't find a stapler last night thick enough to staple it. This is from the United Nations Treaty Series, volume 360. This afternoon I will be referring to some other things in this treaty, but if you turn to pages 136-137, you have in parallel text article 1, the definition of a stateless person; article 1.2, “This Convention shall not apply:”; article 1.2(iii) “To persons with respect to whom there are serious reasons for considering that:”; article 1.2(iii)(a) “They have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes”.

That may sound familiar to you. You are all experts on citizenship law and you are all familiar with IRPA. On the back page of IRPA are sections E and F of article 1 of the refugee convention. It has exactly the same exclusion -- the provisions of the refugee convention shall not apply to persons whom there are reasonable grounds to believe... serious reasons to believe have committed war crimes.

The next two documents I have, which Mr. Matas drew to your attention in Winnipeg -- but here are the actual texts -- are the English and French of the Deschênes commission's provisions on statelessness. Mr. Justice Deschênes also refers to a third international instrument, or perhaps a first international instrument, that we are all very proud of, the Universal Declaration of Human Rights. The Universal Declaration of Human Rights says everyone has the right to a nationality. I once tried to translate that. There are over 100 ways of translating it, so one doesn't translate it; one looks at what it says. It's tout individu a droit à une nationalité, and no one shall be arbitrarily deprived of his nationality, but in Canada we don't arbitrarily deprive anybody of anything.

The chairman is suggesting I wrap it up. I can see there is a long line of other people here who want to speak.

Thank you very much. I'll be glad to answer your questions.


The Chair: The chairman gave you 12 minutes.

Mr. Kenneth Narvey: Thank you.

The Chair: Thank you.

I think we can get into a discussion on some of the points you have raised. If I may just summarize, you believe the process of citizenship revocation should be done on the balance of probabilities versus beyond a reasonable doubt. So that's one question.

The other issue you raise is that you don't have to prove war crimes; you just have to prove that you committed fraud coming into the country. You and I had this discussion. Fraud requires a criminal standard, whereas to convict people of committing fraud, and what you are proposing, is a civil standard.

Anyway, I will leave it at that, but I think those are two issues that you and I have been debating over the years.

I'm going to go first to welcome Mr. Rahim Jaffer.

Mr. Rahim Jaffer (Edmonton—Strathcona, CPC): Thanks, Mr. Chair, and thank you very much, Mr. Narvey, for your presentation.

I don't know if it's the chair or our researcher or even Mr. Narvey who is going to have to clarify this for me, but obviously we're hearing today, and maybe I misunderstood, that Canada has been a part of this agreement from the UN concerning statelessness. That's what Mr. Narvey is saying, but past witnesses whom we've heard before have said that we haven't signed to that particular agreement.

Can someone clarify that for me because obviously that's...?

Mr. Kenneth Narvey: There are two agreements.

The one we're a party to -- I've marked it here “2 E & F”, and it's the one with the Canadian stamp on it, the Canadian coat of arms -- is called the Convention on the Reduction of Statelessness. It was done in New York in 1961. It came into force in 1975. Canada joined in 1978. It's for the reduction of statelessness. This is the one that says you can remove citizenship if the person obtains it by fraud.

The other one, the big fat one in the United Nations Treaty Series with the United Nations symbol on it, is an early treaty of 1954, which came into force in 1960. Canada is not a party to it. There are people who believe that Canada should be a party to it. The Canadian Council for Refugees has recommended that Canada should be a party to it.

When I wrote to you by e-mail, inspired by the very moving presentations before you by the Vietnamese about the Vietnamese in the Philippines, I said this seemed like a good idea, but that one should not wait until one joins a treaty to help the Vietnamese in the Philippines.

There may be a bit of a problem with the.... Perhaps I could say a few things about the treaty that we're not a member of. One thing is that it's called the Treaty on the Status of Stateless Persons, so it's not about reducing statelessness. It's about how one treats stateless persons. Its general thrust is, don't treat the stateless worse than you treat other non-Canadians. You treat an Englishman different from a Canadian; you treat a Frenchman different from a Canadian; you treat a stateless person in the same general manner. Statelessness shouldn't mean that you are without status, that you are not a human being, that people can push you around.

There is a line in this treaty that says that the countries who sign onto the treaty “shall not expel a stateless person lawfully in their territory”. That's a bit of a conundrum, and there are a few countries that, when they signed that, have specified that what they understand by “lawfully in their territory” is it doesn't mean on their territory. It doesn't mean here you are, so you get to stay. I would say that in a situation in which you would deport an Englishman, you ought to be able to deport a stateless person too. If no country will take you, then we do have a problem.

But statelessness should not be able to be used as a shield: I have a right to smoke marijuana because I'm a teenager; I have a right to acquire Canadian citizenship and keep it by lying because I would become stateless. The stateless must be treated with respect, as everybody must be treated with respect. Unfortunately, some people are trying to use “Don't hit me, I'm stateless”, instead of “Don't hit me, I ought not to be hit”.

I think my organization is backing off from saying whether we ought to join this treaty. We ought to treat everybody fairly. There are odd things in this treaty. There's a document at the end of it to act as a kind of passport -- that a country that joins this treaty should provide stateless people with travel documents -- which is a good idea. I'm glad to see, when I look at it carefully, it doesn't insist that the travel documents at the end should be the actual travel document. It's just a suggestion.

It has two things in it that seem to me very out of date. One is that it asks for a description of the colour of a person, and the other is that it has the word “nose/nez”. What you're supposed to fill in about “nose”, I don't know. At that time a person's nose was something that was supposed to be described on the passport, and this is absurd.


So I would think that if we should join this treaty and if we should issue travel documents, we should not undertake to describe the colour and the nose of the person.

Seeing that there is nobody here, can I go on to what this has to do with the Philippines, or should I do that this afternoon? I'll do it right now.

There is a very moving presentation before you by the Vietnamese. They are in the situation Jews were in after the Second World War -- before, during, and after the Second World War -- of trying to open the doors of Canada, and my organization would like to do anything it can to help. I'm not sure, but perhaps somebody can tell me whether this is a solved problem. For a moment it looked like a solved problem when the Vietnamese community applauded the minister. Then, in reading your transcripts, it appeared that it's not a solved problem, that the Canadian embassy in the Philippines is making difficulties. Is it solved or is it not solved?

One of the things you will notice in the materials I've given you is that the Philippines signed the second treaty with a reservation and never ratified it. The reservation was that it wasn't so sure it could open the Philippine labour markets to the stateless, and it appears to be that it still doesn't ensure that it can open the Philippine labour market to the stateless. It would appear that the Canadian embassy in the Philippines, which is saying the Vietnamese in the Philippines have found a solution in the Philippines, is mistaken. I do hope the embassy will stop making difficulties and that these people who deserve Canada's help and protection will come here.

But I would think the principles in the second treaty are good. Some of the detail may be problematic, might require that we reserve and explain.

Next question, please.


The Chair: Thank you very much. We're going to move on to Madame Faille.

Madame Faille.


Ms. Meili Faille: I have read your documents several times. We attempted to get in touch with each other, but that proved impossible: we are both just too busy.

When we study history, we see that with regard to the definition of war crimes there are people that today we consider as being friends, but who, in a few months or a few years' time -- who knows? -- might all of a sudden become oppressive, undesirable. The problem today is that things change very quickly.

How do we go about determining with some degree of certainty who is a good person and who is a bad person?

When we work with people from Persian or Middle-eastern countries, the context changes. There are groups within the population that wish to overturn the regimes in place. There is a desire to create secular countries. How do we determine what to do in such cases?

At present, when we delve into the cases of certain individuals, we find that there have been excesses with regard to deportation measures. People are labelled as war criminals. But when we look at these files, when we look at the history and these people's involvement in the goings on, we realize that it is not obvious that these people are in fact war criminals. It often happens, with transitional governments, that documentation is hard to obtain. When we do manage to obtain it, it is the credibility of the entire content of the hearings that is thrown into question.

In our modern world of today, how can we go about avoiding the repetition of the errors of the past that we are all familiar with?

Mr. Kenneth Narvey: You have asked several very good questions. One must do his or her utmost to be as objective as possible and to not think that our friends are never guilty of war crimes and that our enemies always are.

Through the evolution of international law, society is striving to ensure that warfare be submitted to certain rules. It is not true that anything is allowed during war times or during revolutions. A person who overthrows a regime by having children killed is not a hero to my mind. There is always the issue of credibility and of false allegations. There must therefore be courts, rules with regard to evidence and the benefit of the doubt. Decisions should perhaps not be free from any doubt whatsoever, but the balance of probabilities does not mean that you simply flip a coin to determine if a person is guilty of something or not.

The courts take very seriously what is proven and what is not. Every person must be allowed to defend him or herself, to call witnesses and to cross-examine the others' witnesses. There must be levels of appeal so as to minimize judicial errors.

There are within our Canadian system many safeguards. Before a person is deported from Canada, he or she has dozens of recourse mechanisms to convince authorities to not deport. He or she also has the possibility to be deported to a country of his or her choice and not to that of his or her enemies.

For example, in the Middle East, there are people who believe that the South Lebanese army is horrible. To my mind, it is difficult to say that. These are people who were on our side. For me, membership in the Southern Lebanese army is not a crime in itself, but neither is it an excuse to commit crimes. It is the same thing in other situations.

Unfortunately, in Yugoslavia, for example, crimes were committed on all sides. It is not true that the Bosnians were innocent and that the Serbians were murderers. There were innocent people and murderers on both sides. Just like the International Criminal Tribunal for the Former Yugoslavia, the courts and the residents of this country must strive to be fair. Perfection is not possible, but one must do his or her best.



The Chair: Thank you.

Mr. Siksay.

Mr. Bill Siksay (Burnaby—Douglas, NDP): Thank you, Mr. Chair.

Thank you too, Mr. Narvey. It is good to see you again. We met many years ago when I worked for Svend Robinson and you were working on issues related to the Deschênes commission at that time, so it is great to see you again.

I wanted to come back to your statement about statelessness being a misfortune, but not something like torture. Could you expand on why you don't think it is as serious an issue as some others might?

My other question is when do we, as a society, collectively take responsibility for some of the systems we put in place? Examples are our security checks when somebody is immigrating to Canada and the security checks carried out when somebody becomes a Canadian citizen. When do we say the buck stops with us, that we put a system in place and we are going to be held accountable for the decisions we made at that time and deal with the consequences of them?

When do we take responsibility for our criminal justice system and say we have put measures in place for dealing with fraud or war crimes, and hold Canadian citizens accountable to the standards we have established there, rather than saying you committed this crime, so you need to leave -- that it's somebody else's problem, in effect?

Maybe you could comment on those things for me.

Mr. Kenneth Narvey: Thank you. If I forget anything you said, ask me again, please.

When I started in this work, my first choice was criminal prosecution. Not everybody agreed with me. At the Deschênes commission -- we have copies in English and French of the Deschênes commission report -- I spoke briefly about immigration remedies, but mainly about criminal remedies. There are still people in Canada, I believe, against whom criminal remedies would work. The evidence is sufficiently there.

One of the arguments for a citizenship and immigration remedy, as opposed to a criminal remedy, is that particularly for the Second World War, but also for more recent conflicts that are becoming quite long ago in the past, if you managed to lie your way into Canada -- not by using an innocent lie, such as saying you were a farmer when you were a shoemaker or a jeweller or a construction labourer, but by saying you were a farmer when you were a war criminal, when you were a member of a unit that went from town to town killing people -- then your lie may make it impossible... it's your lie that hides the evidence. It's always a question of what you are hiding. If you are hiding the fact that you have six children by saying you have four, that's not serious. If you are hiding the fact that you killed six children, or 600 children, that's serious.

Because of the way war crimes have been organized, and are being organized today, if you are a member of the Janjaweed militia in the Sudan, killing people in Darfur, or if you are a member of one of the rebel groups killing innocent people in Darfur, we may not be able to establish that you personally killed anybody, because the only people who are witnesses to it are the dead. They are not available, and your colleagues aren't going to rat on you, and if they did we shouldn't believe them.

One ought not to treat membership in the Interahamwe in Rwanda, membership in organizations described by the Canadian jurisprudence as being used primarily for a limited, brutal purpose, as a case of, well, we checked you out and made a mistake, so you get to stay.

The chairman mentioned fraud. Fraud is a crime, but fraud is also a civil category. If there's a dispute as to who owns this building, and somebody says he owns this building and somebody else says, no, you stole it from me -- you obtained it from me by fraud, or you lied to me about something when we were getting the building -- ownership of this building is not determined on the basis of its being beyond a reasonable doubt. It's done in the civil courts of Canada. It is called balance of probabilities, but that isn't a very low standard; that is a “convincing the judge” standard.

When you lose your citizenship, you don't go to jail for losing your citizenship. When you are deported, you don't go to jail for being deported. Unless you are going to jail, a criminal standard is not appropriate. What you call taking responsibility is that we take responsibility for not having found out that you committed a crime. I'm afraid I don't agree with that. We do our best, but we don't want to license people to fool us. We don't want to say you fooled us once, so good for you.

The expression is if you fool me once, shame on you; fool me twice, shame on me. Some witnesses have suggested that if I can fool you for five years, then I'm home free. I don't see that. If you fool us... people have said they shouldn't have to worry that somebody is going to take away their citizenship. Well, if you obtained it by fraud, you should worry. It is unfortunate that it means people who did not obtain it by fraud also have to worry. It is like the difference between inherited wealth and earning wealth.


All of us are subject to somebody coming along and asking how we got that car, saying they think we got that car by fraud. Hopefully, not too many liars are going to come and challenge what modest wealth we manage to achieve, but life is full of imperfections, and one of the imperfections is that false accusations are always possible. We do our best to not have frivolous accusations ever get to court, to get false accusations or insufficiently supported accusations defeated in court, and to have appeal processes so the first-level court error will not be a final error.

But to introduce a statute of limitations and say we only later found out who you really are, so it doesn't count, I would say no.


The Chair: Thank you very much.

Mr. Temelkovski.

Mr. Lui Temelkovski (Oak Ridges—Markham, Lib.): Thank you very much, Mr. Chair.

I am sorry I was late for the presentation, but I will read the transcripts with much interest.

Kenneth, I have a couple of items. Since this is your line of business, maybe you can tell us what happened to Mr. Milosevic and Mr. Hussein. Have they been found guilty or not yet?

Mr. Kenneth Narvey: Not.

Mr. Lui Temelkovski: Not. Okay, so --

Mr. Kenneth Narvey: Saddam Hussein's trial has not started yet, and as far as I know, Mr. Milosevic's trial is ongoing.

Mr. Lui Temelkovski: So it is I think correct to say that these types of trials are not done overnight?

Mr. Kenneth Narvey: Yes.

Mr. Lui Temelkovski: But it is also correct to say maybe that minister's signatures to remove somebody are done in a minute.

Mr. Kenneth Narvey: I would say no. The actual signature may take a minute, but it is like passing a bill in the House of Commons. One can pass a bill in the House of Commons on a Friday in a minute, but to arrange that minute takes years.

Mr. Lui Temelkovski: Okay. Just prior to that, I heard you say you would not be in favour of time limits of revocation.

Mr. Kenneth Narvey: That's right.

Mr. Lui Temelkovski: So once somebody obtains their Canadian citizenship, they should have it, unless they are war criminals and they are found guilty within the courts of law.

Mr. Kenneth Narvey: Well, that's not my point of view; that's your point of view. My point of view is that revocation, as a way of dealing with war criminality, is valid. It should not be dependent on a criminal conviction. It should not be done frivolously, and if there is the evidence.... I don't think one should use citizenship instead of the criminal courts in a case in which the specific individual evidence is available for a criminal proceeding.

If one was a member of a unit that was committing war crimes, but one's specific role is lost in the mists of time, then something like the present system is a correct system. As you know, the last page of IRPA gives the exclusion provision from the refugee convention. Hundreds of people from dozens of countries have come to Canada, sought refugee status, and been excluded from refugee status on the basis of possible war criminality or crimes against humanity.

People have been excluded for.... A lady was recently excluded who was a Chinese official in charge of enforcing the one-child policy.

Mr. Lui Temelkovski: Should citizenship be removed from somebody without deportation? Should we keep them in Canada as a landed immigrant or should they be deported?

Mr. Kenneth Narvey: They should be deported --

Mr. Lui Temelkovski: If they're found guilty, of course.

Mr. Kenneth Narvey: Well, “guilty” is a criminal concept.

In 1992 there was legislation before the House of Commons, and I appeared before... no, I didn't appear before the committee, I appeared after the committee; I distributed documents at the committee. The question asked was this: what happens when you lose your citizenship?

The way in which the law was interpreted before 1992 -- let me see if I can remember this -- was that when you lost your citizenship, you didn't get permanent resident status back. There was a proposal to change that, to get it back. I made representations, and the result appears in the law today: if you obtained citizenship by fraud that was purely citizenship fraud, such as sending somebody else to do your language exam, you do get your permanent resident status back, but if you got it by immigration fraud, by lying to your immigration officer, you don't get your permanent resident status back.

That's the present law, and I must say I agree with it.


Mr. Lui Temelkovski: Just to follow up on that, many Canadians come into the country not speaking a word of English. So I think the idea that they're lying would itself be a big lie, because even to do papers, they didn't do them themselves. You know yourself, in Canada, if I get you to sign a paper that's not in your language, it will not be found to be admissible tomorrow. That's number one.

Number two, should that be carried to the next generation? If we remove parent A, should parent B be also...?

Mr. Kenneth Narvey: Do you mean the children?

Mr. Lui Temelkovski: The children, yes.

Mr. Kenneth Narvey: Very simply, no. There was a proposal, and the chairman knows about it, that was going to take away the citizenship....

Was that of Canadian-born children?

The Chair: No, a one-day-old child coming in the country with somebody else could have their citizenship removed by fiat of cabinet.

Mr. Kenneth Narvey: First of all, the fiat of cabinet should definitely be removed from the law. The chairman and I absolutely agree on this. The role of cabinet should not be as it is in the present Citizenship Act.

As a matter of practice, for all of the persons, and there are not that many, alleged to have been war criminals or associates of war criminals in the Second World War -- it so happens that they've all been male, although they could have been female -- in no case has the government moved to remove the citizenship of the wife. They could have, but they didn't. If some of their children were born abroad and came here, in no case has the government moved to remove the citizenship of the children.

In general, people are responsible for their own acts, not for other people's acts.

Mr. Lui Temelkovski: So it was argued that if you remove the father from the children, you might as well remove the children as well. Because if you remove the father from the family, it's no longer a family unit.

Mr. Kenneth Narvey: If we're talking about 20-year-olds, it's one thing. If we're talking about 60- and 80-year-olds, it's another thing.

So far, the only person who has been deported as an alleged war criminal is Mr. Luitjens. He was deported to Holland, he went to prison in Holland, he was released from prison in Holland, and he died in Holland. His wife, as a Canadian citizen, certainly had the possibility to go to Holland with him -- or not; they had to decide that. I don't know whether she did go. I don't know what the Dutch prison regulations are for visiting.

I don't think we should treat anybody harshly, but I don't think we should treat mass murder as nothing at all either.

The Chair: Thank you very much.

Mr. Clavet.


Ms. Meili Faille: I would like to begin by adding something with regard to the Vietnamese who are presently in the Philippines, Mr. Chairman.

You have read the transcript of our meetings. The Committee tabled a motion and obtained certain guarantees from the government and namely from the minister. We are expecting something back in early May. We are to be supplied with the details on what will be done. Mr. Sam -- his last name escapes me -- , who is in charge of the follow-up in the Vietnamese file, was quoted in the papers as saying that the Vietnamese community had launched a process as soon as the minister made his announcement. However, as is often the case for anything coming from the government, the people at the embassy still had not received the department's instructions. This takes some time. We have however obtained guarantees to the effect that these 500 persons will be able to come to Canada as of the beginning of May.

Mr. Kenneth Narvey: I would like to congratulate the committee as a whole, but you in particular, Madam Faille, for having adopted this motion. It warms the heart to see that Canada is at last, with the participation of this committee, able to do what must be done for these poor people. Thank you.


Ms. Meili Faille: I will now let my colleague, Mr. Clavet, take over. He has questions for you.

Mr. Roger Clavet: Thank you very much, Meili. Thank you, Mr. Narvey. I wish to congratulate you on your presentation. You know your files in and out.

Earlier on, in the Treaty Series, I read on page 136 the definition of the term “stateless person“, which is the following: “A person who is not considered as a national by any State under the operation of its law“. This is a very broad definition and it is at the same time very narrow, because there are all sorts of conditions.

However, in your opening remarks, Mr. Narvey, you stated that statelessness was a misfortune but that it was not as bad as torture. To my mind, in a state of law, statelessness is a personal drama, because you get lost in the cracks, in the loopholes and twists and turns of the system. You seemed to be saying that it was serious, but that is was nothing compared to torture.

What is your own definition of a “stateless person“ today, in 2005, in a State of law that recognizes jurisdiction in the case of persons who legally exist? To my mind, statelessness is a tragedy. I would like you to tell us what statelessness means for you.

Mr. Kenneth Narvey: In the Canadian Charter of Rights and Freedoms, we talk of the rights of any individual. That is not aimed at certain Canadians who have the nationality of such and such a country, but to everyone. It is not just the people who are citizens of a country who are entitled to a fair and equitable trial; it is everyone's right. If in Montreal there is a person who has French citizenship and another who has no citizenship anywhere in the world, it remains that both of them have human rights. If you are the citizen of no country, you are nowhere entitled to vote and no country is required to allow you on its territory.

However, you will not be killed because you are stateless. Statelessness does not mean that you are not allowed freedom of speech. It is a misfortune to be stateless, but if everyone is treated equally and with respect and if everyone has the same rights, except for a few inconveniences ...

A stateless person is defined as a person who is not considered as a national by any state under the operation of its law. One of the problems mentioned by the United Nations High Commission is that, just as the papers of those people coming here as refugees were destroyed, if we say that statelessness is a protection, not only will we be protecting stateless people but we will be granting them more rights than we grant to others. People are therefore going to renounce their nationality in order to benefit from the rights of stateless persons if these rights are better than those of Americans or of Chinese nationals. Stateless or not, we are never to send a person to a country where he or she will be tortured.

Mr. Roger Clavet: Given that the clock is running, Mr. Narvey, I would like to add something. You stated that there should be an appeal process in the case of the removal of citizenship even if no such request is made.

How will that work?

Mr. Kenneth Narvey: I am not saying that there should be an appeal even if there is no request. The question is whether or not an authorization from the court is required. In English, we talk of leave, and in French it is an authorization. There are situations in our system in which we are fully entitled to something without asking for authorization. In other circumstances, you need leave from the court of first or of second instance. In general, in order to go before the Supreme Court of Canada, you must first obtain leave. In the other bills, we asked whether an appeal should only take place with leave or whether it should be a matter of right. We would prefer that it would be with leave, but we can also accept that it be a matter of right.


Mr. Roger Clavet: Thank you.


The Chair: Thank you very much.

I will take a round here.

As you know, Mr. Narvey is probably our biggest fan in following our proceedings, and he certainly knows a lot about this issue and has certainly helped me over the years in clarifying my thinking on it. He and I are in complete agreement that we should be dealing with war criminals.

Where we differ in our agreement, Ken, is that just because one says someone is a war criminal, it doesn't make that person a war criminal. There is a real jump from a criminal standard to civil standard, and the perceptions of some people of the cases we are dealing with are totally and completely different.

I have to say thank you to Roger, because he raised a very important point: how does one consider statelessness? To the six million Canadians who are citizens by choice, statelessness and loss of citizenship are pretty traumatic things, and it also depends on the matrix of how you lost your citizenship or how you got to this country. If you came to this country as a refugee, then you have a much bigger problem than if, say, you came as an economic immigrant from England, or what have you, because you are not quite at the same risk. I think you said -- and I think this is the key to the whole thing -- that if you obtained it by fraud, you should worry. If you were to follow through on that, then you would have to prove fraud to a criminal standard, and this is where we have a disagreement. Then you said that if you did not obtain it by fraud, you also have to worry.

The issue was crystallized for me when we were holding our hearings in Vancouver, where we had a professor from Simon Fraser University speaking on a topic not related to citizenship revocation, but who then shifted over to citizenship revocation and asked the committee, when do I become a real Canadian? I think this issue might be very cerebral to you, but it is very visceral to me, and we have had that discussion.

Having followed the cases and having heard at the committee from Olya Odynsky and Irene Rooney, whose parents have gone through this process, and whose cases you are quite familiar with, I basically have to jump to the characterization of this whole thing by Peter Worthington, a columnist for the Toronto Sun, whose take on this is that Odynsky and Oberlander, or the Ukrainian teenagers, were Nazi victims too.

If I look at the policy paper, when this whole thing started in 1995, the government started out by saying that before they would proceed with any of the cases they would have evidence of individual criminality, but the government has changed the policy over the years. They now say, if you are a member of this group, then we can proceed against you. There is a huge .... When I look at Odynsky and Oberlander, they were two 17-year-old teenagers who were conscripted on the threat of death -- at least in the case of Odynsky, who was told that if he didn't do what he was told to do he was going to be executed.

I guess that is where our disagreement lies, and I am not sure how you address the problem of having to worry if you did not obtain it by fraud -- worry that you are saying is acceptable. That's where I go back to my professor from Simon Fraser University, who essentially said it is bad public policy to deal with the very, very few and terrorize the many.


Mr. Kenneth Narvey: There are a hundred topics there. I'll try to deal with as many of them as I can. And I hesitate to give you my impression of the Odynsky and Oberlander cases, but I think I will.

Mr. Odynsky was not 17, he was 18, and his story of how he was conscripted is very believable. He was called up with all the other 18-year-olds of his village. The mayor of the village was asked to provide a list of those who would turn 18 that year. This is the common way of conscripting in Europe; it's called “the class of”. The 18-year-olds of this year are conscripted this year. In Israel today, the 18-year-olds of this year are conscripted this year.

Mr. Oberlander says that he was 17. He turned 18 on February 24 of 1941 or 1942. He was taken in February. If I were cross-examining him, I would like to know whether he celebrated his birthday before or after he was taken. But at the time, being conscripted at age 18 in Europe was something that was done on all sides.

I recently reread the judgment in the Odynsky case. I thought of bringing it here today, in English and French, and I didn't, so this is from memory, sous toute réserve. So if I'm mistaken, I apologize for being mistaken.

At the end of the judgment, Mr. Justice MacKay suggested that the minister not proceed against Mr. Odynsky, or that the Governor in Council not proceed against Mr. Odynsky. He said there was no evidence of action by Mr. Odynsky against any other individual. That's an odd way of putting it, because if you go back, the best evidence against Mr. Odynsky was Mr. Odynsky's own testimony. If a person says, “I did this”, then there is a reasonable chance that they did. If they said, “I didn't do this”, one can doubt, but doubt is not evidence.

I'll talk about the case of Mr. Rudolph, a man who is dead. He was an engineer at the factory that produced the V-2 rockets for bombing London. Bombing London is not a war crime, but using slave labour to build the rockets is a war crime. You can hire labourers to build a weapon, but if you use slave labourers you are committing a war crime. Mr. Rudolph asked the SS to bring him slave labourers, and said, “But they didn't always comply with my requests”, which he thought was exculpatory in that if they didn't comply with his requests, what were we bothering him about? However, making the request, sending out for slave labour, is itself a war crime.

Now, Mr. Odynsky -- and this is according to Mr. Odynsky, not according to me, I wasn't there -- was a guard near the Poniatowa labour camp, at a facility called the Siedlung, which means the settlement, a few kilometres from the Poniatowa labour camp. He says he was a perimeter guard. Inside the perimeter were barracks for Ukrainian guards, barracks for Germans, and an apartment block for, as he describes it, the “better off” of the Jewish slave labourers. He was guarding the perimeter.

Now, what does a perimeter guard do? The perimeter guard does two things: he keeps people in and he keeps people out. Keeping people in -- forceable or illegal confinement, in Canadian terms, being there with a gun to make sure that people don't go over the fence, or go out -- is in itself a war crime.

It's not the same war crime as committing murder. There was extensive murder committed at Poniatowa within a two-week period. The best evidence seems to be that it was the Germans who did it, not the Ukrainians. One doesn't wish to charge Mr. Odynsky with things he didn't do, but what he said he did do -- that is, carry a gun, keep people in, and watch for any potential rescuers so that nobody could break in and liberate the prisoners -- is a war crime. In my interpretation, Mr. Odynsky, on his own evidence, committed the war crime that one commits when one is a perimeter guard in a war crimes commission facility.


I'm getting a football signal to speed it up.

Mr. Oberlander -- according to Mr. Oberlander, not according to me -- was a translator for an Einsatzkommando. The Einsatzkommando was an organization whose business was murder: it murdered Jews, it murdered gypsies, it murdered mentally ill persons, it murdered communist commissars. It went from town to town filling anti-tank ditches with men, women, and children. It murdered infants. That's all it did. Its essential purpose was to commit murder.

Mr. Justice MacKay found there was no evidence that Mr. Oberlander killed anybody. He also found that Mr. Oberlander was a member of that unit.

Mr. Oberlander -- I happened to see some of the documentation in the case -- presented to the Governor in Council, as exculpatory, a document issued by the British showing that he was released from a British prison camp and that they had discharged him from the German army. He had never been a member of the German army. If it was the German army that was committing these crimes, they would still be crimes, but this particular unit was organized as a separate non-army unit for the purpose of murdering people.

Mr. Oberlander has stated that he was asked what he did during the war and he said he was a translator for the German army. That wasn't true. He was a translator for a gang of murderers. Do we want Al Capone's translator here?

I don't think I should comment any further on an individual case. I think Mr. Oberlander ought to have full rights of appeal.

I hope that answers some of your questions.

The Chair: Well, actually it doesn't. You have to read Mr. MacKay's finding; he says there was absolutely no evidence presented. My only point is -- and I think it's very important for the committee -- that you can label somebody a war criminal, but they do not become a war criminal because you call them a war criminal. They become a war criminal by proving it in a court of law.

If you go to Justice MacKay's findings, he is very clear in the cases of Oberlander and Odynsky that neither committed any acts of criminality. I can only say that in the case of Oberlander, the Federal Court of Appeal unanimously overturned the government's decision to strip him of citizenship.

So there are a lot of subtleties in the whole thing. I will end it at that, because I don't think it is fair to the committee for you and I to argue it back and forth.

Mr. Kenneth Narvey: I've been working on this as recently as yesterday, so I can tell you that the judgment of Mr. Justice Décary of the Federal Court of Appeal was not simply to overturn the revocation of citizenship, but to refer the matter back to the Governor in Council for a new determination.

The Chair: Yes, but a determination that cannot be met.

I will end it there and see if anybody has any more questions.

No questions?

Mr. Narvey, thank you very much. I hope you continue to follow our.... It's always good to know you are there watching when I'm on TV.

It really has been great knowing you over the years. Thank you very much.

Mr. Kenneth Narvey: Thank you, Mr. Chairman. I don't know if I'll be the only witness this afternoon. We can continue. Thank you.

The Chair: I think we already covered it in part. Thank you very much.

We will suspend.



Mr. Rahim Jaffer: Thank you, Mr. Chairman, and thank you to our witnesses this morning.

What I'd like to ask, which I believe both of our witnesses may want to comment on, because they both addressed it to some extent....

Flora, you mentioned the issue of the Air India bombing and the frustration of the community when it comes to people who remain in the system, who should be deported immediately, I think you said, if they are guilty of certain crimes. We are sort of dealing with this particular issue as it pertains to citizenship, and how there may be more of a case to deport people who have committed a crime and don't have Canadian citizenship.

However, if they have Canadian citizenship and have been here for a while, no matter what sorts of crimes they have committed, should they go through due process of fair treatment before they get deported or their citizenship gets revoked? I don't know if you made that clear in your presentation. Were you basically just talking about people who are in the system and are trying to stay here, or would you apply that as well to Canadian citizens who obviously haven't been here for long? What does the community feel about that, or what are your thoughts on it?

I'd like to hear from both of you on this issue of revocation of citizenship.


Ms. Flora Almeida Marlow: It's a very good question. I believe we have to do things in a democratic fashion, but also in a fair fashion and with common sense. If due process or getting justice takes 20 years, for example, then the system is flawed. We have to be able to take action right away. If we say somebody is a terrorist and say that we have to go through due process and it is taking years, we are not getting justice for those who have been harmed and have suffered. So we have to have a more efficient system. While we have to act in a fair fashion, we also have to take the timeline into consideration.

So we have to deport them. I fully agree that people who have done injustices to humanity have to be deported, and they have to be deported right away. They should also be given a chance to appeal, but not an indefinite amount of time, because the system has to be a little bit more efficient in dealing with these sorts of crimes.

Thank you.

Ms. Marie-Claire Namroud: I agree with most of what she has said. I agree that we have to protect our society and not allow people to take advantage of the system. At the same time, as I mentioned in my presentation, it is important to establish maybe one way or chance for them to defend themselves and establish a mechanism of assessment of the risk if they are deported.

But absolutely, we cannot allow things to go on in an unlimited way. We have to have a mechanism that can work within a certain or limited time period, and sometimes we have to take decisions that are not to the benefit of an individual per se, but to the benefit of the Canadian society and people.



The Vice-Chair (Ms. Meili Faille): I would now invite our guests to come and join us.

I would like to begin by welcoming you before the committee. We are very anxious to hear what you have to say. Please feel free to make your presentations in either official language. As you have probably noticed, we have simultaneous interpretation services.

Please welcome Ms. Rivka Augenfeld, Ms. Glynis Williams and Ms. Amy Hasbrouck. We have an hour and I would therefore ask that you stay within the five minutes we have given you for each of your statements. We will then have a round of questions and you will have the opportunity to complete your statements.

Let us begin with Ms. Rivka Augenfeld.

Ms. Rivka Augenfeld (President, Table de concertation des organismes au service des personnes réfugiées et immigrantes): Good morning, Madam Chair, members of the Standing Committee. Thank you for welcoming us here to speak to you about certain aspects of citizenship.

The Table de concertation des organismes au service des personnes réfugiées et immigrantes is a Quebec-wide umbrella organization comprised of 140 member organizations that work in various ways with and for refugees and immigrants. We have just celebrated our 25th anniversary. We have thus acquired broad experience with regard to the hosting and establishment of refugees, the rights of refugees and various aspects of immigration.

I would like to state at the outset that the Table de concertation is also a member of the Canadian Council for Refugees and that as such we also support the positions and resolutions of the council.

Without wanting this to be the central point of our presentation today, we would like to simply state that we are in favour of the granting of Canadian citizenship to every child born in Canada. This is a position that we have been defending for some time now and that we have already discussed on other occasions.

Today, we would like to use the limited time we have to speak about an issue that is very close to our hearts, the matter of statelessness. I will be calling upon my colleague, Glynis Williams, to explain our position to you. Ms. Williams is director of an organization called Montreal Action Refugee, which is of course a member of the Table de concertation des organismes au service des personnes réfugiées et immigrantes.

Ms. Glynis Williams (Director, Montreal Action Refugee): I am really delighted to be able to say a few words to you about stateless persons. Montreal Action Refugee works in the area of detention; it is one of our projects. We therefore meet many people who are already stateless.

I will continue in English. I do however have a short article that we have drafted in French and which, I imagine, will be translated for those who are unable to read French.


Citizenship has been called the right to have rights. Citizenship provides a link between an individual and a state. Without the right of citizenship, there is no state to which a person can seek protection and basic human rights.

In some ways, I think of stateless persons as the orphans of the global world. No state has recognized the right to participate in society, to exercise any of their political rights, nor can they seek protection that is accorded to all of us by our citizenship or nationality -- and those two words are used interchangeably.

There are two conventions that relate to the question of statelessness: the 1961 Convention on the Reduction of Statelessness, to which Canada is a signatory; and the 1954 Convention relating to the Status of Stateless Persons, which Canada has not signed onto.

I'm sorry if I am repeating things that you may already know. Maybe it's Statelessness 101.

Generally speaking, Canadian laws do conform and recognize the importance of citizenship, and they conform to the principles required in order not to create statelessness. This is good news.

I would argue that I think some people have presented that we should consider changing citizenship on the basis of birth on the territory. I propose that this would actually put us in conflict with our commitments that we have made under the question of reducing statelessness or preventing statelessness. So we would definitely be against that.

What Canada has not been able to do is respond to the needs of people who are considered stateless and who have arrived on our soil. It has been argued that we do not need to sign this second convention, the 1954 convention, because a stateless person in Canada can actually seek protection as a refugee or a category of protected person. In reality, the refugee determination system is not able to respond to the situation of stateless people who have not been individually targeted by their country of habitual residence. Obviously, everybody lives on a territory.

At this stage, the Immigration and Refugee Board has neither a mandate nor the competency to determine that a person is stateless. Even if they did agree that a person was likely stateless, and periodically you see that written in a decision from the Immigration and Refugee Board, there is actually no framework to accord refugee status in the absence of any nexus with any of the five enumerated grounds in the convention.

So what are some examples? Probably we are all familiar with the dissolution of states or transfer of territory that can result in statelessness. A common one would be the republics of the former Soviet Union, which may refuse nationality to those who cannot claim ethnic lineage before the time of annexation to the Soviet Union, thereby rendering folk who may find themselves on that territory stateless. Russia will not then recognize those who have not lived on its current territory, so a person is therefore left in limbo state.

Palestine is another good example. Palestinians who were sent off their land sometimes have a travel document from another country but absolutely no right to live on that territory. Thus, they are stateless.

In some countries, marriage or the dissolution of a marriage, if you're divorced, can result in the loss of nationality of that person. Women are quite often more at risk in these situations.

Some of you who watch The Passionate Eye might have seen a recent documentary on the case of a young Romanian girl who was sponsored here, and because of that sponsorship-adoption by a Canadian parent, her own country considered her to be Canadian and she had lost her citizenship.

Anyway, these are some ideas. A child born to stateless people becomes stateless.

So what happens to people who are stateless and in Canada? If they're not determined to be refugees, they then enter the removal from Canada stream, but of course, with no recognized nationality by a state and therefore no travel documents, these folk often enter into a limbo state that can last for years. This has lots of implications for their capacity to work, their access to health care, access to education, their mobility, and obviously, I think, the most traumatic incident would be separation from family members. The trauma of statelessness is not to be underestimated.

Some people who would be considered stateless will end up in our immigration detention facilities awaiting removal, which is the context in which the people in my organization come into contact with stateless folk, and we have encountered numerous individuals there.

We do have examples of people who have been removed from Canada but end up being denied entrance back into the country of habitual residence, or whatever one wants to call it, and then being returned back here.

In one case that we actually knew quite well, we had a person who twice went through this trajectory of being sent back, through two countries of origin overseas, and came back to Canada. We did the whole thing again, still unsuccessfully, and he ended up back in detention for several more months and fell into an extreme, extreme depression.


There is no recourse that exists in Canada to respond to statelessness, and one of the difficulties is even who determines who is stateless. At this stage only the UNHCR can definitively decide that someone is stateless, but there's really not a provision for us to apply to them to accord that and then respond to that. Neither the pre-removal risk assessment nor the humanitarian and compassionate review can contain any provisions for remedying this situation of statelessness. So what proposals do we have?

I think it would be useful to establish a sort of public policy category to protect stateless persons when these people have no effective protection. The immigration manual chapter IP15, section 13, should be amended to include statelessness as a persuasive factor in processing humanitarian and compassionate considerations.

Even now, if we use the humanitarian and compassionate route, the criteria really work against... they are kind of contradictory. A person who is stateless may not have any right to work or may find it very difficult to work. In one of the cases we're working on, that's the case. The humanitarian and compassionate route is very much allied with the ability to show integration, and integration shows work.

Currently I'm working with a gentleman who has been in this country since 1993 and still has no determined state. We have a document from UNHCR, but we have no remedy for his situation. He's in quite a bad situation.

I think I'll leave it there. Sorry, I've probably taken more than five minutes.

Thank you.



The Vice-Chair (Ms. Meili Faille): Thank you.

Would you like to add anything, Rivka, or would you prefer to wait for questions?

Ms. Rivka Augenfeld: I will wait.



Ms. Helena Guergis (Simcoe—Grey, CPC): Thank you very much, all of you, for being here. I really appreciate the time you have taken to give your presentations.

I'm always called upon to go first, and I don't always have some great questions until I've actually heard some of the conversation going around the table, which I find is unfortunate for me, being on this side.

I have a couple of comments on your presentation, Ms. Williams.

I find it really disturbing that we have some people in the country who have committed crimes, and there's the odd one you hear about in the paper where they can get into and out of the country. We can't seem to deport these people who have clearly been required to be deported. And then I hear about people who are sitting in such a sad situation of being stateless, and we're doing everything we can to get them out of the country.

It just doesn't make any sense to me. I'll give you some more time to comment on that if you like.


I'm going to stop there and allow any of you to take up the rest of my time to add further comments.

Ms. Glynis Williams: I appreciate your making that comment, because it is a nice segue into discussing this issue.

One of the difficulties of statelessness is actually diagnosing it, if I can use that terminology. It's not a common... most people don't have much understanding -- most immigration officers, even front-line workers, intervenants -- because it's not immediately obvious to a lot of people. It takes a long time. So they enter this removal stream, because the only way we can look at them is by asking, “Do you need protection or not?” And if they don't meet that category, and some of them don't, then they go into a kind of limbo state, because we cannot remove them.

There's no official body to determine statelessness, so it means there's no way you can even seek a remedy. It's a bit like being in front of a medical doctor: they cannot treat you until they know what the diagnosis is.

So I think that's one of the issues. Consequently, until -- if they're fortunate enough -- their lawyer or some other person is able to recognize that this is potentially a stateless case.... Again, I have to emphasize that you can't tell that by looking at someone. You definitely have to do a lot of research, and at this stage only UNHCR can do it. The UNHCR has limited resources, but they also need a referral.

Ms. Helena Guergis: But at this point, you may have identified a plan of action on how to do that. Is that something you would be able to provide to Canadians?

Ms. Glynis Williams: I think there are a number of ways, but yes, we could respond to this particular situation. One thing we could do is give the Immigration and Refugee Board the mandate to examine not only questions of refugee protection but also questions of statelessness as a category for persons in need of protection.

In fact, I feel like I'm experiencing déjà vu because I actually talked about this the last time the standing committee came through here. I'd suggested that putting it in as a category in the new Immigration and Refugee Protection Act would be one way to do it.

I actually believe, first of all, the government is concerned about signing the 1954 convention because of fears that large numbers of people would come and take advantage of or benefit from this provision. I would like to suggest that I doubt very much that is going to happen. You still have to be able to get to our soil in order to benefit. People who are stateless may not be able to do that very easily because they still have no travel documents. If you ask UNHCR, they don't know what the numbers are worldwide, but we are not even dealing in the tens of thousands compared to all the refugees and others. It's a small number, but folks live in limbo for a long time.

Having worked for a long time on this issue, one of the things I now recognize is that some people disintegrate slowly because they have no status in Canada. There is a young man who has been in such a state since he was about 20 years old. He is now over 30 years old. He is a single young man, who is alone and quite vulnerable to being preyed on by other people in his community, and he has fallen into some trouble. He has done nothing, I would suggest to you, that is a criminal activity, where we would wish to deport him for other reasons. He is chronically depressed and under medical care, and he isn't functioning very well. He said it actually relates back to the time when he was put in detention prior to removal in 1998. That's how long we've been trying to get him out.

I am sorry to go on about one case, but I think he's a good illustration of this. He has gone through the entire determination process. The UN High Commission for Refugees has done a thorough analysis of all his potential countries of habitual residence. He is from the former Soviet Union and they have determined that he's stateless, but there is no provision for that.

The only option currently is on humanitarian and compassionate grounds, which has a very strong link, as you know, under the provisions. It's somewhat open-ended, but it is very much based on the capacity to show successful integration. He cannot demonstrate that adequately, so we're in a kind of circular situation.

For instance, if there's a short-term remedy, humanitarian and compassionate considerations could include a comment on those who are stateless or who are most likely stateless. Again, I keep coming back to the fact that there are very few people who can even give you a definitive diagnosis. I think that would be a very successful remedy because other parts of the requirements could be diminished recognition and recognition of their status.



The Vice-Chair (Ms. Meili Faille): Madam Augenfeld, would you like to add something.

Ms. Rivka Augenfeld: Yes. I consider your question to an important one. Ms. Williams spoke of a case, and there are others. But see the tremendous efforts and resources that are deployed in order to remove someone. But, as Ms. Williams well explained, the criteria for humanitarian and compassionate reasons are very narrow, but can be used to accept someone if we so wish. If the officer wishes to use his or her discretion in the most positive way possible in order to resolve a problem, then that is a possibility. Otherwise, we waste tremendous energy for cases such as those and, as you were saying, all of these resources could perhaps be better used elsewhere. But this would also require more advanced training for immigration officers and, in the first place, for the decision makers, the policy makers. In order for training to be offered to those officers working in the field, there must be some recognition somewhere that it is important and that training must be made available to those who set policy and then to those officers who must deal with the individual cases, because it is very complex. People imagine that it is very simple, that you are either a citizen of a country, or you are not, but I must assure you that it is complicated. As a matter of fact, I believe that several people here in this room know just how complicated it can be.


Mr. Bill Siksay: Thank you, Madame Vice-Chair.

I want to say I appreciate all the presentations in this panel because they have been very helpful and they have helped me clarify. Little light bulbs went on. I don't know if you noticed the room getting brighter over here, but ....

Ms. Williams, your point about the way Canada deals with statelessness helped me understand the situation of the government's response to the Vietnamese refugees in the Philippines. The government, the department, came here and said these people were not in any particular difficulty there, even though they were stateless, which I found hard to understand. They said they are not on the verge of deportation; they are not in difficult circumstances, which doesn't sit well with me when they can't legally work, they can't go to school, and those kinds of things. The difficulties that presents for people I think are huge and significant. But given our own attitude to statelessness and stateless people here in Canada, it makes more sense that they take this position.

So I think that was very helpful. And on statelessness, we heard this morning that statelessness is a misfortune, but it is not like people are being tortured or something like that. I wonder if maybe you could expand a little bit on that.


Ms. Glynis Williams: Thank you.

I want to respond to the question on torture, but I think we need to come back to the notion that nationality is absolutely basic to exercising rights, to being human. I really have found it helpful to think of stateless persons as orphans in our world, and it is not to be underestimated what that does to one over time. So we should start from that point of view.

The nation state is the way our world is divided. That's why we have borders we ferociously defend. Having acknowledged that, we have to allow that people then have to belong within the borders of some country in which they can at least demand their rights, or, in the case of when they're being abused, to seek them elsewhere. You don't have that when you're stateless, and I can't imagine what that's like.

I'm always hesitant to use a word like torture, which can be perhaps overused or facilely used in a way, but I think the nature of statelessness is that it's incremental and it's long-lasting. When you have repeated and continuous denial of very basic rights, at some point it accumulates and becomes a form of torture, I think.

I don't know how you define it. I used to be a nurse; I worked in palliative care, and we used to say all the time that you can't tell someone that their pain is less than another's. It's really difficult to do that, so I won't do that. But I'll just say that I think the endlessness, with no solution in sight, can amount to torture.

With regard to the Vietnamese who are in the Philippines, I did a little investigation on that too because I had seen the word “stateless” used. Yes, the inability to ever be able to send your children to school, to buy property, to set up any kind of formal business -- everything, you just have no rights -- is untenable in the long-term.

That brings me, actually, to another solution or recommendation that we might want, which is to include a category of statelessness in the treatment of overseas visa applications as well. So open the possibility for private sponsorship, “groups of five” sponsorship, as well as government-sponsored UNHCR to refer people for government-assisted sponsorship to come to Canada, recognizing that statelessness over a protracted period of time needs protection. These folk need a durable solution, and that's what we look for.



Mr. Lui Temelkovski: Thank you very much, Madam Chair, and thank you all for presenting.

I'll go to Ms. Williams. You mentioned that people become stateless because of the dissolution of states and for other reasons. Is one of the other reasons people leave a country that it is persecuting people of their ethnicity?

Ms. Glynis Williams: Yes.

Mr. Lui Temelkovski: So geographically, a state could still be there, but they don't feel a part of that state?

Ms. Glynis Williams: I think there are two issues there. You are talking about some people who might renounce citizenship, and I'm not as familiar with that. I suspect it does happen, but I haven't seen any.

There is another category in which you can have both dissolution or changing of territories or boundaries, as we saw. The former Yugoslavia would be an example. One of the examples given of how someone ends up stateless was through the introduction of new legislation. For instance, when the Czech Republic was created, there were people such as the Roma who, for reasons of ethnicity, were marginalized. It was impossible for them to prove the criteria that made for nationality. So it effectively left a certain number of people stateless, probably on the basis of fairly racist or discriminatory considerations.

Mr. Lui Temelkovski: I am aware of people of Macedonian background who came from Greece and who subsequently wanted to go back to Greece. Greece would not allow them to go back because they were of Macedonian background, and Greeks did not recognize Macedonians within Greece.

Do you see the development or the emergence of the European Union as maybe providing some sort of assistance in this?

Ms. Glynis Williams: This is a good question. We were very fortunate in Canada to have Carol Batchelor, who is considered the world-renowned expert from the UNHCR on statelessness, come and give a presentation five or six years ago. That is what piqued my interest. One of the comments she made was that some of these issues are fairly emerging issues. The dissolution of the Soviet Union was one. She said that as countries, especially in Europe, are seeking entry into the European Union, it can be a bit of a carrot or a stick that your nationality laws or citizenship laws have to conform to international norms in order for your country to be considered a member of the democratic world, or the European Union in this case. Sometimes one of her roles at UNHCR is to work with newly emerging states in helping them or encouraging them to bring their nationality laws in line with international covenants and protection.

So we may be seeing in fact I think a certain amount of change within the whole scenario of statelessness in the future. But until such time, we can have significant numbers of people, and consequently their children, who do not have access to basic rights. I don't know where we are going to go. I don't know where statelessness is going to go. It could be that it is resolved in certain regions of the world and becomes worse in others as the world unfolds.

Mr. Lui Temelkovski: Rivka, you wanted to add...?


Ms. Rivka Augenfeld: Yes. I wanted to add that this business is so complex because of how certain countries deal with the nationals of other countries at one point or another historically. For example, we have a colleague whose family was from Rwanda, but they moved to the Congo, to what was then Zaire, the Democratic Republic of Congo. They lived there for many years. My colleague was actually born there; her children .... It was always very iffy which country they were citizens of. It wasn't clear that Rwanda was going to give these children citizenship. The Congo sometimes treated them like citizens, sometimes gave them passports and sometimes didn't. Given that they were of Tutsi origin, there was a point where the government in the Congo -- and after the coup d'état -- was friendly and then they turned around and didn't like them any more. So are those people still going to be treated as citizens?

There was a situation in Ivory Coast. Ivory Coast has recently had a whole terrible situation where a number of people have been disenfranchised because there was a question of their origins. So even if they were born in Ivory Coast but they had origins in another country because their parents were there, there is a notion of ivoirité. I am not getting on to this, but suddenly there are people who have been disenfranchised because they are not considered to be true citizens of the Ivory Coast.

And in a number of countries when nationalism has taken over, for whatever political interests or national ethnic interests there might be, suddenly there is a move to disenfranchise people who have been living, sometimes for generations, in a country.

You also have children who are born en route, for example, children of refugees or even children of displaced people.

I noticed this morning people were talking about their personal situation. I can say that I was born a stateless child in a displaced person camp in Austria after the Second World War. My parents left Poland and lost their citizenship in Poland as they left, and I was born a stateless child because all the countries that did tolerate all these displaced persons for a number of years did not give these children citizenship. So there were thousands of us who were stateless. The first country that, to its credit, did give me citizenship was Canada, when we came here.

But it would be terrible to think that in similar situations Canada would then add to the statelessness problem by not giving citizenship to children born on our territory. And the situation of some of those children would be far more complex than people imagine, given the situations in the countries of origin of the people.

Mr. Lui Temelkovski: How many stateless people would we have presently in Canada?

Ms. Glynis Williams: It would be almost impossible to tell. Some do get accepted under refugee determination, because they can show a nexus with the convention. It's the ones who don't .... We are probably not talking about more than a few hundred, I would say. Now, I may be wrong, but I don't think we are dealing with huge numbers. You could maybe argue, why do we need to have all of these extraordinary measures for a small number of people, but ....

Mr. Lui Temelkovski: Are some of them kept in detention?

Ms. Glynis Williams: Yes. That is where we tend to meet people, because they have been put in detention prior to removal. Then they discover they cannot remove them. My organization, with law students and others, visits our immigration detention facility weekly, where we try to find out who is being detained and if they understand why. I can honestly say that I have dealt with a handful, so I don't know how many there are, but over 10 years there are maybe eight people I would have known, so it is not huge.

However, there is no determination; they simply go into this removal stream. I think that point was made by Madam Guergis before: it's as if we've got these great hordes of numbers now who we cannot remove from Canada, which is creating a lot of anxiety around security issues among Canadians. It would be enlightened self-interest to say, let's deal with the ones who are not actually security questions. As we cannot literally remove them, and will probably not be able to do so in any foreseeable time, let's land them and deal with them and get on with it.




The Vice-Chair (Ms. Meili Faille): Thank you very much to everyone. We did not use up all of the time we had at our disposal. I would like to thank you for your statements before us. This was important for us to hear. I will repeat what Andrew Telegdi has a habit of saying: you have before you a group of members of Parliament who work together free from partisanship and who are interested in all groups of people, including immigrants and persons with a disability. The issue of citizenship is important to us -- it is a matter of law.

In this context, it has been for us a pleasure to hear all that we have heard to date. We still have a few places to visit. Our sessions are most enriching. I would invite you to follow the committee's work, because without you, we cannot succeed. Your contribution is important. Thank you.

This meeting now stands adjourned.