Ukrainian News | 08Jun2005 | Marco Levytsky
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Committee calls for radical changes in Citizenship Act

Most UCC recommendations reflected in report

After conducting a series of hearings across Canada during March and April, 2005, the House of Commons Standing Committee on Citizenship and Immigration has called for radical changes to the Citizenship Act, incorporating many of the recommendations made by the Ukrainian Canadian Congress and other Ukrainian community representatives during the process.

In tabling the proposals before parliament, June 07, 2005, Committee Chair Andrew Telegdi (Liberal, Kitchener-Waterloo), Diane Ablonczy, Conservative Critic (Calgary-Nose Hill), Meilie Faille, BQ Critic (Vaudreuil-Soulanges) and Bill Siksay, NDP Critic (Burnaby-Douglas), stated: "We are pleased that Committee members from all four parties endorse our conclusion that the current revocation process is unacceptable and we must move to a system that requires the government to respect due process and the legal sections 7 to 14 of the Canadian Charter of Rights and Freedoms."

"Under the current Citizenship Act, citizenship can be revoked when a person obtained citizenship or permanent residence by false representation or fraud or by knowingly concealing material circumstances. Following a review in Federal Court -- where a judge must simply agree that it is more likely than not that the person improperly obtained citizenship -- the Federal Cabinet becomes responsible for making the revocation order. The Committee has recommended a fully judicial process and a higher standard of proof.

"We determined that the potential loss of citizenship is of such fundamental significance to the person concerned that fraud should be proven beyond a reasonable doubt in a criminal court. Currently, an appeal isn't even allowed with respect to a Federal Court judges decision that, on a mere balance of probabilities, an individual fraudulently obtained citizenship. We have recommended that there be a full appeal process and that the legal protections of the Charter of Rights and Freedoms apply; the same rights a person fighting a shoplifting charge would enjoy," they said in a rare four-party press release issued June 07, 2005.

The report is the result of cross-country consultations involving more than 130 witnesses during this parliamentary session. Evidence relating to previous citizenship studies in the 36th and 37th parliaments was also reviewed. Key recommendations in the report include:

"These recommendations regarding changes in the current Citizenship Act are consistent with the government's commitment in the Speech from the Throne of October 2004, to defend the Charter of Rights and Freedoms and to be a steadfast advocate of inclusion," stated the four representatives.

The report may also reverse the revocation of citizenship process for a number of Canadians of Ukrainian and other eastern European origin who were found to have misrepresented themselves upon coming to Canada over 50 years ago on the "balance of probabilities".

"A new citizenship bill will of course have to address the issue of processes that are currently underway under the existing legislation. Should they be discontinued and proceedings commenced under the new legislation, if appropriate? In Bill C-18, the government had proposed a transitional provision that would have allowed pending revocation proceedings to continue under the current Act if some evidence had been received or a decision already rendered by the Federal Court," stated the report.

"The Committee has determined that if Parliament, in responding to the perception that the current practice is unfair, sees fit to switch to a fully judicial process, it would be illogical to maintain pending proceedings. New citizenship legislation would obviously be intended to improve upon the existing system. It is therefore appropriate that individuals engaged in revocation proceedings when the new law takes effect be given the choice of proceeding under the new legislation or under the 1977 Citizenship Act," it says.

That had been the principle bone of contention raised by Ukrainian community representatives during the committee hearings in March and April, 2005.

Representations directly related to the Citizenship Act were made to the committee by the Ukrainian Canadian Congress in Regina (Saskatchewan Provincial Council), Calgary (Calgary Branch) and Toronto (National and Toronto Branch). The Ukrainian Canadian Civil Liberties Association made a presentation in Calgary and three individuals made their own - William Pidruchney and Dr. William Zuzak in Edmonton, and Olya Odynsky in Toronto.

"I am pleased with the report of the Standing Committee on Citizenship," said Odynsky, whose father faces revocation of his citizenship despite the fact he was not found guilty of any war crimes, which is the prime justification of the government's targeting of Ukrainian Canadians.

"There is finally some light at the end of this eight-year tunnel. In particular it is very encouraging that all political parties have united with support for this report. During the current political climate this is most notable."

"We all need to join together and call on Minister (Joe) Volpe to table a new citizenship act immediately where these recommendations can be implemented. The sooner the better," she told Ukrainian News.

The report was approved by a majority of its 12 members. Along with the Chair and three opposition critics, other members are: Vice Chair Inky Mark (Conservative, Dauphin-Swan River-Marquette), David A. Anderson (Liberal, Victoria), Colleen Beaumier (Liberal, Brampton West), Roger Clavet (BQ, Louis-H´┐Żbert), Hedy Fry (Liberal, Vancouver Centre), Helena Guergis (Conservative, Simcoe-Grey), Rahim Jaffer (Conservative, Edmonton-Strathcona) and Lui Temelkovski (Liberal, Oak Ridges-Markham).

The only two dissenters were Anderson and Fry, who is the Parliamentary Secretary to the Minister of Citizenship and Immigration.

Anderson termed the recommendation that "beyond a reasonable doubt" be used as the standard for revocation cases "troubling".

"The reason for revocation of citizenship may be, but need not be, based on a criminal act by the person involved," he said.

"Further, it can be extraordinarily difficult to launch a criminal action and obtain a criminal conviction in a Canadian court, particularly for an action overseas, even for a criminal matter for which there is no reasonable doubt. Consider for example, how rarely child abuse overseas by a Canadian has led to a successful prosecution in Canada. This recommendation in my opinion would, if enacted, lead to substantial inconsistency in the revocation process."

Fry agreed that "when a person applies for citizenship, the client does not have to prove beyond a reasonable doubt that the information they provided on their application is true."

"Instead, government assesses on a balance of probabilities that the client is telling truth when applying for citizenship. Applying a different standard when revoking citizenship would be inconsistent and hold government to a different standard than the client. It would also prolong the processing time lines and make the granting of citizenship extremely difficult. The Supreme Court of Canada has stated that the balance of probabilities is an appropriate standard for revocation proceedings. Applying a criminal standard of evidence to a civil proceeding would represent a significant change in the administration of law in Canada. Revocation is not prosecution of a crime; it is a mechanism to address the concealment of information that had a bearing on admissibility to Canada or eligibility for citizenship," said Fry.

Telegdi responded that Fry "seems to have confused the granting process with the revocation process."

"The granting process is not on a balance of probabilities test. Once an application is made, the government has the opportunity outside of the judicial process to examine and fully assess the information given by the applicant in order to determine whether the information is true or false. The government can make independent inquiries and contact the sources of the information given by the applicant.

"It is the granting of citizenship process that should be tightened. While there is no onus of proof under the granting process, it is and should be made on the basis on the information investigated. This is essentially beyond a reasonable doubt," Telegdi told Ukrainian News.

"Revocation can only be done in a court proceeding. Court proceedings are really artificial. The judge is only entitled to rely on the evidence presented in the courtroom. This ensures that the reliability and honesty of the evidence is carefully scrutinized by cross-examination. It is well recognized that in a court proceeding involving the citizen against the government, the private citizen is always at a disadvantage because the government has unlimited resources to gather evidence of witnesses and documents. A balance of probabilities test is very easy to achieve and very easy to abuse," he added.