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

NUMBER 006    |    2nd SESSION   |    37th PARLIAMENT
Thursday, November 21, 2002

[Excerpts relevant to revocation of citizenship,
also known as the denaturalization and deportation process]

Mr. Denis Coderre:
In addition, we have a duty to protect the value of Canadian citizenship. We must not allow people to retain citizenship if they obtained it when they were not entitled to it.
The minister will have the authority to annul citizenship in straightforward cases in which the applicants have obviously used a false identity or concealed a criminal history.
The citizenship revocation process will apply to more complex cases and to cases dating back more than five years.
So now what we're saying is that the revocation of citizenship will go through a judicial process.
Only the Federal Court will have the authority to revoke citizenship. This will ensure the transparency of the process. Furthermore, during revocation hearings, in cases of individuals who have participated in acts of terrorism, war crimes or organized crime, the Federal Court could be asked to render a second decision that would allow for a person's swift removal from Canada.
So when we said from the beginning that it was zero tolerance regarding war criminals, it was zero tolerance. And because we want to do it in a transparent way, revocation and removals will be, at the same time, in front of the judge. I would like to repeat that it is only in very rare cases that the governor in council would be able to refuse citizenship to persons who demonstrate a serious disregard for the values and principles underlying our free and democratic society.
I have followed the debate somewhat and I know that some MPs have concerns about this provision.
However, the authority to refuse citizenship is in fact controlled in two ways. First, the phrase "free and democratic society" is tied to the case law concerning the Canadian Charter of Rights and Freedoms, and secondly, the procedure eliminates the possibility of the government using it in a frivolous manner.
First, we must ask ourselves what values and principles belong to a free and democratic society. We can find an answer to that question in the Oakes decision of 1986, in which the Supreme Court of Canada provided an interpretation of section 1 of the Charter.
The court ruled that these values and principles include, among others, respect for human dignity, tolerance of a wide variety of beliefs, and respect for cultural and group identity.
The details of the procedure are set out in the bill. The Minister must first notify the person of the proposed refusal and the grounds for it, and give the person 30 days to submit written representations.
Only after these 30 days have elapsed will the minister be able to recommend that the governor in council prohibit the granting of citizenship. The cabinet will need to examine the file and decide if an order must be made.
Such an order would simply prohibit the granting of citizenship for a period of five years. The person concerned could remain in Canada as a permanent resident and submit a new citizenship application at the end of those five years.
I would now like to move to the administrative component of the bill. [Translation]
Because the new criteria are easy to understand and to apply, we will be able to work effectively in a system based on administrative decisions.
Through the ministerial review process simple errors detected by applicants could be corrected without involving the courts.
Persons who receive a negative decision during the internal review will be able to apply for judicial review by the Federal Court.
I would like to conclude my comments on this draft legislation with the following thoughts. Many people have made enormous sacrifices to become Canadian citizens. We cannot allow a few individuals to undermine the meaning or the integrity of something so precious. Ladies and gentlemen, I truly believe that the new legislation for the new revocation process will give even stronger values about what it is to be a citizen of our country.

Mr. Inky Mark (Dauphin-Swan River, PC): Thank you, Mr. Chairman. First, let me welcome the minister and congratulate the minister for his work in meeting with the provinces to enhance the nominee program, which is long overdue. I hope he continues in that direction.

To make sure people don't get confused about who I represent today, I represent the PC Party. The party's position is that it supports immigration, and certainly refugee protection.

There are two points I want to raise. First, as the minister indicated, he's here to talk about both Bill C-18 and the Safethird country agreement. The only criticism I have of Bill C-18, as he knows, is the two classes of citizenship, which are still in the bill. And I hope he'll correct that.


Mr. Denis Coderre: My answer will be that, for the benefit of everybody, I'm going to read the proposed oath of citizenship. I think this covers it all:

From this day forward, I pledge my loyalty and allegiance to Canada and Her Majesty Elizabeth the Second, Queen of Canada. I promise to respect our country's right and freedoms, to uphold our democratic values, to faithfully observe our laws and fulfil my duties and obligations as a Canadian citizen.
That's not bad.

Mr. John Bryden: The alternative, Mr. Minister, is:

In pledging allegiance to Canada, I take my place among Canadians, a people united by the solemn trust to uphold these five principles: equality of opportunity, freedom of speech, democracy, basic human rights and the rule of law.
Which oath, Mr. Minister, describes Canadians better?


Ms. Rosaline Frith: Good morning, ladies and gentlemen. My name is Rosaline Frith, the director general of integration at the Department of Citizenship and Immigration. I'm pleased to be here this morning with Patricia Birkett, who is the registrar for citizenship; and Paul Yurack, who is our legal counsel.

We're prepared to answer any questions you might have on Bill C-18. We've already given a very quick brief on the differences between Bill C-18 and the previous bill, Bill C-16. I believe you probably would like to spend your time asking questions and getting answers, so with that, I turn it back to you.

Mr. Andrew Telegdi (Kitchener-Waterloo, Lib.): On this Safethird country agreement, if we think back to the Chilean situation, we had thousands of people from Chile who were accepted as refugees to Canada. The situation was that if they had asked for asylum in the United States, they would have been sent back to Pinochet and back to Chile. Of course, at that time, Chile was the land of the missing. People disappeared and many were found to be dead. I wonder how those folks would have fared under the Safethird country agreement. I just put that on the record because we have similar situations from South America in which the United States was or is used as a land transit to get to Canada.

Another issue that I have relates to the proposed Citizenship of Canada Act, and clauses 16, 17, 18, and 56.

Clause 16 makes some improvements by allowing for an appeal to the Federal Court of Appeal and, with leave, to the Supreme Court. This is still done on the balance of probabilities, which is a concern to a lot of folks. But clause 56 then states that this new process does not apply to anybody currently in the system. That really causes me a great deal of concern. Simply put, why have a new law when we recognize that the old law is bad, but not allow the benefit of that new process? So that's one question.


Ms. Rosaline Frith: As for the second question, with respect to clause 17 and the certificate process, it is very clear.

Mr. Andrew Telegdi: I didn't ask about clause 17.

Ms. Rosaline Frith: Did I misunderstand your question?

Mr. Andrew Telegdi: I talked about clause 16, which I said had some good parts. I then talked about clause 56, which negates anybody presently before the system from benefiting from the new legislation, both for the Crown and the person whose citizenship is a concern.

Ms. Rosaline Frith: Okay, so we're referring to clause 56 - which is the transition - and how we would go from those cases that are currently in the process to new cases that would fall under the new legislation when the new legislation comes into effect.

I believe what we've put in place is clearly a system to try to allow the cases that have already been processed to complete the process under the current legislation, as they would have already been partially heard or completely heard by the courts. Those cases that would be coming forward would then be heard under the new legislation.


The Vice-Chair (Mr. Jerry Pickard): Madeleine, excuse me, but please allow me to interrupt just before you ask that question.
Ladies and gentlemen, you notice that several folks have just come in. Visiting with us this morning are members of Parliament and senior officials from Ukraine.
We're honoured to have you here. Welcome.
Sorry to have interrupted you, Madeleine.

Ms. Madeleine Dalphond-Guiral: That's all right. Our other concerns about Bill C-18 are about the clauses that deal with citizenship revocation. Given the way the bill is currently worded, we have grave concerns about the possibility that in some cases, a person's citizenship could be revoked without the person in question even knowing what evidence has been adduced and with that person having no right to appeal the decision.

Every successive government in Canada was extremely proud, in my view, to say to the world that Canada's legal system was a model. Now, however, it appears we have a serious problem on our hands. I'm concerned that a judge can act very quickly and receive as evidence that which would be deemed inadmissible by the other courts. If this legislation infringes upon the rights of even one person, then it should be considered unacceptable. The judge in the case could make an exceptional ruling, admittedly, but I would never allow someone to cut off my left hand -- I'm left-handed -- for that. So, my question is: What justification could there possibly be for the current wording? I want to tell you right here and now that my party will certainly be tabling some amendments. You can count on that.


Mrs. Rosaline Frith: You are quite right. Different citizenship revocation processes apply. There's one process for "ordinary individuals", so to speak, that is for cases where there is no reason to keep the information confidential. In other cases, it's impossible to go forward without safeguarding the information. In these instances, we have proposed a points system which would allow a person to know why a case is being mounted against him or her. Yes, the information is protected, but it's not a black and white issue. Two ministers must sign the certificate at the outset to indicate the need to protect the information in the case.

A judge then takes a close look at the case presented by the ministers and decides whether or not the information truly needs to be kept confidential. Only then does the case move on to the third phase in which the judge ensures that a summary document is available detailing why the person is before the court. The information is then conveyed to that individual. Furthermore, the judge may also call that person to a hearing. Therefore, the individual is not excluded from the process.

It's true that information must not be disclosed, but in some instances, we have no choice. In cases where we're dealing with a terrorist and a person involved in organized crime, if we allow information to be made public, the witnesses may be adversely affected. Therefore, for reasons of public safety, it's important to keep any information confidential.

We do not anticipate that many cases like this will arise. In the very rare instances where they do, this is the only way to proceed before the courts.


Mrs. Diane Ablonczy: Thank you for that.
With respect to subclause 18(5), clause 16 provides that the minister can disallow or revoke citizenship under certain conditions, such as finding out that the person misrepresented himself or herself substantially, or that he or she has engaged in criminal activity that was not disclosed, etc., but under subclause 18(5), the minister only has five years from the granting of citizenship to exercise this discretion. I'm wondering why the limitation is for five years. What if the information comes to light six years from the time the person has received citizenship?

Ms. Rosaline Frith: I believe that, when we went through it and tried to come up with reasonable limits on when the information became available and how clear-cut the information would be, a decision was taken that if the person had never been entitled to receive their citizenship in the first place due to criminality, if the misrepresentation had taken place within the previous five years, if the documents were available, and if there were very few other factors to be taken into consideration, then it was perfectly reasonable to annul the citizenship. They never should have received it in the first place. If that was a possibility in certain cases, they would have to wait and could apply again at a later date, as though they still remained a permanent resident of Canada.

In a case in which it has been more than five years and other factors might come into play, it was felt that going through the revocation process - which, in the case of the bill, is a fully judicial process and would allow for a more complex presentation of the case and for a judge to hear everything - made more sense than to simply go through the annulment process. That is why we restricted it to a five-year period.

Mrs. Diane Ablonczy: Are you saying the person might still have their citizenship revoked, but just not by the minister?

Ms. Rosaline Frith: That's correct.


Mr. Andrew Telegdi: Actually, the real problem with this process is that the government makes an allegation that says you obtained citizenship by fraud; however, it then doesn't give the person whose citizenship is at stake a chance to defend themselves in a court of law.

Just imagine if the government could go around saying that you did this or you did that, could accuse you of crimes, and didn't give you a right to defend yourself in terms of a court of law. That is really the basic complaint I have with the whole of clauses 17 and 18.

In the Charter of Rights and Freedoms, section 7, under "Legal Rights", says:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Now, there are six million Canadians in this country who were not born here, and to us our citizenship is very much part of our security of the person. Mr. Chairman, at some point, I would like to see all the consultations that the department has tabled before this committee, because we at this committee heard evidence on this issue before. Every group that appeared before the Commons committee - and there were dozens of them - wanted the due process of law in there and wanted the courts to decide these decisions, not politicians, and certainly not bureaucrats. And that's essentially what you have when you say "the Minister". He follows the recommendations of the bureaucracy. God knows, how do you test that evidence? How do you test that charge? You don't.

The other issue is in clause 17. This is a brand new clause as well. We talk about no appeals to a very draconian process. We can present evidence in secret and the rules of evidence do not apply. This doesn't make any sense. Not only is there no appeal for the person whose citizenship is at stake, there's also no appeal for the Crown.

I will refer you to the case of what happened to Maurice "Mom" Boucher. If the Crown could not have appealed, Mr. Boucher would be walking free. The Crown appealed, and Mr. Boucher is behind bars. I think that just shows how ridiculous it is to have a situation in which there is no appeal. To suggest otherwise, to suggest that we somehow have a system that is efficient and that works, is a fraud. We haven't gotten rid of anybody. Even though we've spent tens of millions of dollars on very few cases, not one person has been sent out of the country and ultimately deported.

I think the problem is that we do not respect section 7 of the charter. Had we respected section 7 of the charter, I think all the cases before the courts would have been dealt with, along with submissions to that effect. If we had a better process, a process with appeals, we probably would have resolved all the cases before us right now.

Ms. Rosaline Frith: I believe we are discussing clause 17, the security certificate in particular, and the fact that there is no appeal in that case.

Mr. Andrew Telegdi: In clause 18, there is no appeal. It is done by the bureaucracy and the minister.

Ms. Rosaline Frith: In clause 18, there is an appeal. There's a judicial review.

Mr. Andrew Telegdi: A judicial review is not an appeal. Don't mislead the committee.

Ms. Rosaline Frith: I'm sorry.

The Vice-Chair (Mr. Jerry Pickard): [Editor's Note: Inaudible]...clarify what we mean. Go ahead.

Ms. Rosaline Frith: Paul, would you please address this one.

Mr. Paul Yurack (Counsel, Department of Citizenship and Immigration): You've made a number of points, so I want to go back to the context of citizenship.

To date, citizenship has not been held to engage section 7 interests. It's purely a creature of statute, subject to being in compliance with the charter. Therefore, when somebody is granted citizenship lawfully, they have a right to retain citizenship lawfully. However, if somebody has acquired citizenship by fraud, misrepresentation, or knowingly concealing material circumstances, the government has an absolute right and duty to take that away in accordance with the law.

We have the revocation process, we have a certificate process, and there's an annulment process. It would depend on the circumstances of each case. We'd look at it and determine what's appropriate.


Mr. Andrew Telegdi: Mr. Chairman, this is where the whole confusion from the department comes from.

If the prosecutor charges me with fraud, I get to go to court and I get to contest the allegation of fraud. If I lose in the first instance, I have the right to appeal. With leave, I can appeal all the way to the Supreme Court. What you are alleging is that the person committed a fraud in obtaining citizenship. Well, we have a presumption of innocence in this country. But with your process, by saying we give it and can take it away and that a person does not have the right to due process, what you imply is that there's no presumption of innocence.

Mr. Paul Yurack: No.

Ms. Rosaline Frith: Very clearly, there is an presumption of innocence. The person goes through a process in order to determine whether or not fraud occurred. In that first instance, under the normal revocation rules under clause 16, that person is able to proceed with appeals and can go all the way to the Supreme Court.

Mr. Andrew Telegdi: But not clauses 17 or 18.