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

NUMBER 044    |    2nd SESSION   |    37th PARLIAMENT
Wednesday, February 19, 2003

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

[Recorded by Electronic Apparatus]

    The Vice-Chair (Mr. Jerry Pickard (Chatham—Kent Essex, Lib.)): Ladies and gentlemen, I will call the meeting to order. The purpose of the meeting today is Bill C-18, the act respecting Canadian citizenship.

    We have Eugene Czolij with us today, representing the Ukrainian Canadian Congress.

    First, Mr. Czolij, I very much respect the fact that you've had opportunity to come and share your time with us. It's a great help for us and we appreciate it. I have a copy of your brief here, which we will ask permission to circulate as it is not in both languages, but because of the short notice the committee gave, very few people were able to translate into both languages. So we have to ask permission as a course of action.

    Mr. Czolij, I think best process is if we could have a brief synopsis of your ideas. The committee members can read more of the detail in the full presentation. It would be helpful for us if you took the main points and in ten minutes or less were able to give us the nuts and bolts of what you're trying to do. Then we can go through discussion. When the committee has time, they can read the presentation as well. The floor is yours.

    Mr. Eugene Czolij (National President, Ukrainian Canadian Congress): Thank you.

    Mr. Chairman and members of the committee, I am the president of the Ukrainian Canadian Congress. The Ukrainian Canadian Congress, also known as the UCC, is the national coordinating body of the Ukrainian Canadian community, which began settling in Canada well over 100 years ago. According to the latest census statistics, there are over one million Canadians of Ukrainian descent.

    Since 1940, the UCC has actively participated in the development of national policies and programs that impact not only on Ukrainian Canadians but on Canadian society as a whole. Throughout its 60-year history, the UCC has taken a proactive approach on such issues as multiculturalism, citizenship, immigration, justice matters, constitutional development, and foreign affairs.

[Translation]

    It gives me great pleasure to appear before the Standing Committee on Citizenship and Immigration on behalf of the Ukranian Canadian Congress and to present our community's viewpoint on Bill C-18 on Canadian citizenship.

[English]

    Since December 1998, three bills concerning citizenship legislation have been tabled in Parliament. The UCC monitored their progress and appeared before this standing committee of the House of Commons on March 30, 2000, as well as the Senate Standing Committee on Legal and Constitutional Affairs on September 26, 2000, to make its submissions regarding Bill C-16.

(0810)

[Translation]

    When we appeared before these parliamentary committees, the UCC recommended, among other things, that any revocation or annulment of Canadian citizenship should, firstly, be carried out within an equitable judicial process; secondly, include a right of appeal not contingent on obtaining leave to appeal; thirdly, require a high standard of proof; and fourthly, be subject to a five-year limitation period following acquisition of citizenship.

    Clause 3 of Bill C-18 correctly notes that the Citizenship Act must have as its purpose:

b) to encourage the acquisition of citizenship by all who qualify;

c) to protect the integrity of citizenship;

d) to reaffirm that all citizens, no matter how they became citizens, have the same status;

[...]

f) to heighten the awareness of citizens that the acquisition of citizenship is a significant event worthy of celebration; and

to promote respect for the principles and values underlying a free and democratic society.

    We also warmly approve the following statement on the rights and obligations of Canadian citizens in clause 12, and I quote:

All citizens have the same rights, powers, privileges, obligations, duties, responsibilities and status without regard to the manner in which their citizenship was acquired.

    This important statement of principle by Parliament should surprise no one. It is an implicit tribute to the contribution that naturalized Canadians have made to this country's prosperity and its current demographic reality.

[English]

    Indeed, in its January 21, 2003, newsletter, The Daily, Statistics Canada reported that:

The proportion of Canada's population who were born outside the country has reached its highest level in 70 years, according to new data from the 2001 census.

As of May 15, 2001, 5.4 million people, or 18.4% of the total population, were born outside the country. This was the highest proportion since 1931, when foreign-born people made up 22.2% of the population.

[Translation]

    When he tabled Bill C-18, the Minister of Citizenship and Immigration said this, and I quote:

Canadians have asked for citizenship legislation that requires potential Canadians to make a strong commitment to this country. We have listened to these concerns and they are reflected in this bill.

    The Ukranian Canadian Congress supports this strong commitment to Canada. However, we deplore the fact that Bill C-18 does not provide for an equally strong commitment on the government's part to Canadian citizens, including naturalized Canadians.

[English]

    In the recent denaturalization case of the Minister of Citizenship and Immigration v. Odynsky, reported at 2001 FCT 138, the Honourable Mr. Justice MacKay of the Federal of Court of Canada stated that:

While the ultimate issue for determination appears relatively simple, its resolution is complicated by reason of the lack of records maintained by the Minister concerning Mr. Odynsky's admission to Canada and his subsequent obtaining of citizenship. Its resolution is complicated further by the quality of evidence concerning, and the difficulty for witnesses asked to recall, events and processes that occurred or in which they may have been involved more than 50 years ago.

    Surprisingly, this was not an isolated case where the government initiated denaturalization proceedings against a Canadian almost half a century after granting him citizenship, even though, first of all, the government employees had already destroyed the necessary immigration files in accordance with the government's policy of disposal of unnecessary records after a fixed period of time, and, second, relevant witnesses had long since passed away.

    The UCC believes that after a reasonable period of time, naturalized Canadians should not feel that their citizenship is indefinitely conditional and subject to challenge by a minister or any person delegated by a minister, nor should they feel they must preserve at all times the necessary evidence to be able to prove, independently of their age, on a balance of probabilities, that they acquired Canadian citizenship in accordance with our laws. Therefore, the UCC recommends that Bill C-18 provide a limitation period of five years from the date of acquisition of citizenship for all types of revocation and annulment of citizenship proceedings under the act.

    Furthermore, in the case of the Minister of Citizenship and Immigration v. Bogutin, reported at 1988 144 FTR 1, the Honourable Mr. Justice McKeown analyzed the requisite standard of proof in revocation of citizenship proceedings and declared that:

A high degree of probability is, in my opinion, required in a case of this kind. What is at stake here is very important; the right to keep Canadian citizenship, and the serious consequences which may result if that citizenship ceases.... For some, such as those who might become stateless if deprived of their citizenship, it may be valued as highly as liberty.

    In view of the fact that revocation and annulment of citizenship proceedings are not regular civil proceedings and may be described as quasi-criminal proceedings, the UCC recommends that Bill C-18 be amended to provide a higher standard of proof in such proceedings, namely, that of “beyond a reasonable doubt” instead of a “balance of probabilities”.

    We are also seriously troubled with subclause 16(6) and paragraph 17(4)(j). Subclause 16(6) stipulates:

In a proceeding before the court under this section, the court...is not bound by any legal or technical rules of evidence and may receive and base a decision on any evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.

    Paragraph 17(4)(j) stipulates that:

the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.

    These legislative provisions introduce a dangerous element of arbitrariness in a judicial process and contravene the fundamental principles of the rule of law defined as follows in Black's Law Dictionary, which states that the rule of law, sometimes called the “supremacy of law, provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application”.

    Therefore, the UCC recommends that provisions such as subclause 16(6) and paragraph 17(4)(j), which subject the admission of evidence to arbitrariness, be struck from Bill C-18.

    Moreover, the UCC stands for the principle that our legislation should ensure due process before the courts for naturalized Canadians in cases of revocation of citizenship, including full appeal rights without the necessity to obtain leave to appeal.

    We are pleased that subclause 17(3) of the previous bill, Bill C-16, which provided that a decision of the Federal Court Trial Division made under subsection (1) is final and, despite any other act of Parliament, is not subject to appeal, has been struck from Bill C-18 in clause 16.

    The UCC also believes that Canadians should be able to examine and challenge the reliability and probity of the evidence used against them.

[Translation]

    In our opinion, clause 17 infringes the principles of natural justice, fairness, transparency and respect for as fundamental an acquired right as Canadian citizenship.

[English]

    Indeed, clause 17 of Bill C-18 first authorizes the use of secret evidence in its examination by a judge in the absence of the person named in the certificate and their counsel; second, allows for the introduction of evidence, even if it is inadmissible in a court of law; and third, stipulates that the decision of the trial judge is final and may not be appealed or judicially reviewed.

    Canadians should not face this kind of justice, which lends itself to abuse. Therefore, the UCC recommends that clause 17 of Bill C-18 be completely struck.

    As for clause 18, it is also problematic, since subclause 18(3) provides that a naturalized Canadian can “make written representations to the Minister” who, under subclause 18(1), should already have been “satisfied that a person has...acquired...citizenship in contravention of section 28 or by using a false identity” as to why his citizenship should not be annulled after all. The law should not force a minister to be a judge and a party initiating the proceedings.

    We took note, however, of the fact that subclause 18(4) gives an individual a “right to apply for judicial review” from the minister's annulment order under the Federal Court Act.

    The UCC recommends instead that clause 18 of Bill C-18 be struck and cases dealing with the acquisition of citizenship in contravention of section 28, or by using a false identity, be dealt with in an impartial hearing before the Federal Court.

    The problems we raise regarding clauses 17 and 18 of Bill C-18 are compounded by clause 44, which provides that the minister may delegate to “any person”, and I will quote again, “Anything that is required to be done or that may be done by the Minister under this Act”. It is also illogical, at best, that section 6 of the Immigration and Refugee Protection Act prohibits the same minister to delegate certain powers, which could have a serious negative impact on permanent residents and foreign nationals, whereas Bill C-18 does not contain any restrictions regarding Canadian citizens.

    Therefore, the UCC recommends that the minister should not be allowed to delegate his powers concerning processes dealing with, first, legislative prohibitions to acquire Canadian citizenship, and, second, any form of revocation of such citizenship.

(0820)

[Translation]

    Finally, in news release 2002-38, issued on October 31, 2002 to mark the tabling of Bill C-18, the Department of Citizenship and Immigration stated that:

The Minister can consider humanitarian factors before undertaking revocation procedures or at any stage in the process, including during the removal process.

    And yet there is nothing in the bill that provides for this type of consideration.

[English]

    The UCC recommends that our courts take into account humanitarian and compassionate circumstances in deciding whether to revoke someone's citizenship. The UCC also recommends that the minister should be permitted, under the new citizenship legislation, to consider such humanitarian and compassionate circumstances in all the cases of denaturalization and deportation that are not fully completed.

    Mr. Chairman and members of the committee, citizenship is one of the fundamental tenets of any nation. Throughout our history, Canada has opened its doors to the people of the world who are looking for a tolerant and free society based on democratic principles.

    The proposals brought forward by the UCC attempt to strengthen our citizenship legislation, enhance the value of Canadian citizenship, and ensure that the core values of our justice system are utilized to guarantee fairness, transparency, and justice for all Canadians without regard to the manner in which their citizenship was acquired, as envisioned by section 12 of the bill.

    Thank you for your attention. I look forward to answering any questions you may have.

(0825)

    The Vice-Chair (Mr. Jerry Pickard): Thank you, Mr. Czolij. I really appreciate the fact that your brief was very clear and very to the point. I think you've done a great job at putting that forward.

    Many of my committee members would, I'm sure, be interested in asking questions. With the amount of time we have, approximately an hour, I am looking at a reasonable time for each member. Possibly we can even get around a couple of times.

    Diane, would you like to start the questioning?

    Mrs. Diane Ablonczy (Calgary—Nose Hill, Canadian Alliance): Thank you, Mr. Chairman, and thank you for this brief. It makes points that have been brought to the committee's attention previously, but I have some questions for you. First is with respect to the submission you made on page 12 of your brief, and this is with respect to evidence even if it is inadmissible in a court of law.

    I understand from discussions on this point that previous citizenship acts have always had this type of provision, because when it comes to background or security concerns respecting an applicant, sometimes information is provided to the Canadian government confidentially or under an order that it would be used only for certain purposes. This is necessary in order to use confidential international intelligence that is extremely relevant to the security of an applicant but which cannot be revealed.

    I wonder if this is a rationale that you are aware of, and what would your response be to that necessity?

    Mr. Eugene Czolij: My response is the following. I have not seen language that blunt in the current citizenship legislation. If there is anything that resembles what is stated in subsection 16(6) and paragraph 17(4)(j) with respect to the use of inadmissible evidence in the current legislation, I think this House has the opportunity to improve the legislation and should not use that type of language.

    Mrs. Diane Ablonczy: If the bill used language such as “international intelligence or confidential security information from other governments provided on condition can be taken into account by the judge”, would you have any problems with that?

    Mr. Eugene Czolij: Excuse me, if the bill would state what exactly?

    Mrs. Diane Ablonczy: This is with respect to information concerning the background of an applicant, information provided by other governments as secure intelligence or provided on condition that it not be made generally public because it was obtained through intelligence operations, something to that effect, probably a little bit more succinct, but being specific about the type of information that may be taken into account.

    Mr. Eugene Czolij: Let's put it this way. If it were much more succinct and much more restricted in scope than something as broad as any evidence that is inadmissible in a court of law, that is something that may be discussed or considered further.

    Mrs. Diane Ablonczy: You also mentioned, and we spoke about this before the hearings opened, a proposal on the issue of limiting Canadian citizens' exposure I guess to having their citizenship revoked past the five-year window.

    Was that in your brief or did I just miss that?

    Mr. Eugene Czolij: That is in my brief on page 9.

(0830)

    Mrs. Diane Ablonczy: I'd like to discuss that a bit further then.

    Given the mobility of some very dangerous and very abhorrent people in this global society, I have a problem with that recommendation. For example, I mentioned to you the news item this week of a Haitian general who had ordered the slaughter really of thousands of Haitians, who was known for ordering the torture of Haitian citizens, and who is now residing in peace and comfort in Florida.

    I think it would be apparent to citizens of any democracy who find that an individual is living peacefully among them, protected by citizenship in their country, who has that kind of record.... If those sorts of facts came out after a five-year window, it seems to me that should not protect the individual from the fullest sanctions, including being tossed out of the country. To have Canadian citizenship conferred on such an individual would certainly be repugnant to any fair-minded Canadian.

    You mentioned that such people could still be brought to justice, but I wonder under what Canadian law could an individual like that be sanctioned. The crimes didn't take place here and they didn't contravene our laws in Canada. It just seems to be that five years and your “get out of jail free” card are completely unacceptable. I'd be interested in your response to those concerns.

    Mr. Eugene Czolij: It's not a “get out of jail free” card. Let me start by putting it in the right context.

    First, when we talk about five years, let's not forget that paragraph 7(b) provides that citizenship is acquired by a permanent resident who has, during the six years immediately before applying for citizenship, resided in Canada for at least 1,095 days, calculated in the manner provided. That individual has already been in Canada for three years. We are suggesting a limitation period of five.

    Now contrast that with the fact that the government has been currently using the denaturalization proceedings against 70- and 80-year-old individuals under the guise that they apparently committed war crimes during the Second World War, but it has not been able to show any element of criminality in those proceedings. It is essentially going on and bringing in additional cases where the debate is whether 50 years ago an individual said or did not say certain things, on a balance of probabilities, without the benefit of any documentation. That has been going on in the cases of Vitols, Dueck, Katriuk, Podins, Oberlander, and Odynsky.

    I'm saying the government has given itself the tools if it wants to prosecute criminals. There is a Criminal Code. Canada has passed a Crimes Against Humanity and War Crimes Act. Those are the tools it should use in order to go after individuals who have committed heinous crimes in the past.

    The suggestion that there be a limitation period of five years could in no way be similar to a “get out of jail” card in a Monopoly game, but it could protect an individual who, after a certain number of years, should know he is fully a Canadian citizen; no one can challenge that citizenship, and he no longer has to preserve evidence to demonstrate in civil proceedings that he acquired citizenship according to our laws.

(0835)

    Mrs. Diane Ablonczy: I guess I'm just concerned about making law for individual cases that you and I would agree have not been dealt with in a way that would satisfy the concerns of natural justice. To make law based on those, that narrow segment of exposure, seems to me to open more problems than it might solve. I would be very concerned about five years. In five years we would have to accept these people in the country, like the Haitian general, just as an example. I'm not talking about people who might have 50 years ago done something in an occupation or war situation that was a matter of survival, as I understand is the situation with some of the people you mentioned. I'm talking about far more serious things than that.

    In order to limit the exposure in a small number of cases, it seems to me we're actually limiting the exposure where it ought not to be limited, and I have a continuing concern about that. I fully support your concern in the narrow segment of cases you've mentioned, but I think it shouldn't lead us to give too much consideration and too much aid and comfort to people who are really repugnant as members of our own country and society.

    I'm willing to be convinced. I want to be fair and reasonable, but I really have a concern.

    Mr. Eugene Czolij: Let me ask you this. First, the current legislation treats citizenship proceedings not as we have suggested to treat citizenship proceedings, as quasi-criminal proceedings with a higher standard of proof, namely that of beyond a reasonable doubt.

    Mrs. Diane Ablonczy: That I agree with.

    Mr. Eugene Czolij: That's not in the current legislation. The current legislation or current bill provides that you can lose citizenship by using the criteria of the balance of probabilities, which is a civil proceeding and a civil standard of proof.

    The current legislation treats these proceedings as civil proceedings. I've enumerated several current cases where the government has gone after individuals 50 years after the fact. You agree with me that would violate the principles of natural justice. So I'm asking you --

    Mrs. Diane Ablonczy: Well, not in every case. In these particular cases, given the lack of evidence, yes, I would agree.

    Mr. Eugene Czolij: I'm saying that if you prosecute someone in a civil proceeding without having complete documents regarding the admission of a particular individual into a country, without being able to raise any issue of criminality 50 years after the fact, that violates the principles of natural justice.

    If you agree with me on that and if you agree with me that Bill C-18 treats revocation of citizenship as a civil matter, then what, according to you, would be a more reasonable period of time? We agree that 50 years is unacceptable. You're saying that five years is too short. Can we agree somewhere in between?

    Mrs. Diane Ablonczy: It seems to me that the issue isn't time. The issue is weight of evidence. That's why I agree with you that a balance of probabilities is not acceptable. It must be beyond a reasonable doubt because the sanctions are some of the most severe that our society can provide to a person. Stripping someone of their citizenship is an incredibly serious sanction, but I'm not sure, if evidence exists of a person having engaged in serious crimes against humanity, even 50 years after the fact, why that exposure would be limited. In our law there's no statute of limitations on murder, for example, or other serious crimes.

    I think there should be a limitation of exposure only on those kinds of very thin grounds. On a balance of probabilities, you might not have said something at an interview 50 years ago. That kind of thing is, I think, not acceptable. However, if as a general you ordered thousands of people shot and killed for no good reason, I don't think 50 years down the road, or even 75 years down the road, you should be home free for that.

(0840)

    Mr. Eugene Czolij: However, let me tell you that if someone has lived in Canada for the last 15 years, then Canada should not dump that problem on somebody else. I'm not suggesting for one second that somebody who committed a heinous crime, because of passage of time, should go unpunished. The UCC position, which has been sent to the government consistently on DND proceedings, always states, and I quote:

The Government of Canada should prosecute Canadian citizens who are seriously suspected of war crimes before Canadian courts of criminal jurisdiction, in accordance with Canadian criminal law and Canadian standards of evidence in criminal proceedings.

    I'm not suggesting for one second that somebody who has committed a heinous crime, because of passage of time, should go scot-free. On the contrary, I think if an individual has lived in Canada for 15 or 20 years, Canada should not initiate denaturalization and deportation proceedings and then dump the problem on another country. It should assume the role it had when it promoted its own statute and introduced the crimes against humanity legislation in Canada; it should prosecute such individuals and punish them for having committed a war crime.

    There is a distinction. I'm not suggesting that because we are recommending a limitation period in the citizenship legislation that individuals be given, after five years, a “get out of jail” card. On the contrary, I'm saying if Canada has evidence that a Canadian citizen, especially a Canadian citizen who obtained citizenship 15 or 20 years ago...they should be dealt with in accordance with Canadian criminal laws.

    The Vice-Chair (Mr. Jerry Pickard): We're out of time. If you want to continue with that we can come back to that later.

    Mrs. Diane Ablonczy: Sure. Thank you, Mr. Chairman.

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

    Mr. Massimo Pacetti (Saint-L´┐Żonard—Saint-Michel, Lib.): Thank you, Mr. Chair.

    That was a very nice presentation. I like the fact that you highlighted the recommendations and then you went ahead and gave us some suggestions.

    Just quickly, I want to continue with what Diane was saying. I have a problem as well with the five years. Maybe you can correct me if I'm wrong, but does it say it's just war crimes? If somebody obtained their citizenship falsely, it doesn't necessarily mean it's because he was a war criminal. Is that not one of the issues as well?

    Mr. Eugene Czolij: I'm not sure I understand your question.

    Mr. Massimo Pacetti: We were just talking about the five-year limit that you have a problem with if we decide to take away someone's citizenship. If we find that someone's citizenship has been given to him under false pretences, or we become aware of certain facts that came about prior to him obtaining his citizenship under false pretences, are those conditions only based on war crimes? Isn't it any type of evidence? Even if he committed murder, why does it have to be that he slaughtered millions of people?

    If we find these facts 10 years after, he still has his citizenship based on...I don't know if you want to say false pretences, but based on information we didn't have prior. Why do we have to put that five-year limit?

    I don't think Canada is the type of country that is going to say, “Listen, we think you're guilty. There's not going to be any judicial process and we're going to take away your citizenship.” I think it's as Diane said. After five years we're just going to give free passes to people to maybe just lay low on the radar screen and after five years they will have got away with it.

(0845)

    Mr. Eugene Czolij: I'm suggesting to you that, yes, whether somebody committed a murder or a crime against humanity, he can be punished in Canada for that crime. That's one issue.

    I'm suggesting that when you cease recommending there be a statute of limitation of five years in the Citizenship Act, an individual in a civil proceeding should not have to preserve evidence until he dies to be able to demonstrate in a court of law that he acquired citizenship in accordance with the law, especially if the government policy is to destroy documents after a fixed period of time. The debate very often then becomes what an individual said or did not say 20, 30, or 40 years ago.

    If we were today debating whether there is a possibility that a country that is democratic, that is governed by the rule of law, such as Canada, would ever use these proceedings against citizens 50 years after the fact, without the cases I've enumerated had naturally occurred, I would have told you I could not fathom or imagine that the government would actually do that.

    Unfortunately, notwithstanding that it is incredible, at best, it is happening. It is happening and the government is using denaturalization and deportation proceedings against 70- and 80-year-olds.

    The debate is essentially this. In a court of law the government brings a civil servant and asks him, on the balance of probabilities, what did this individual say or not say? What was the policy at the time? Then the court, on the balance of probabilities, after having examined what an individual can recall 50 years after the fact, decides whether the act was violated or whether there was misrepresentation in acquiring citizenship. That is the kind of situation we are living, and this legislation allows you to correct such injustice by providing a limitation period.

    Now if you are telling me that five years for you is too short, I'm not necessarily married to five. I am telling you, though, that there has to be a period of time after which a Canadian citizen should know his citizenship will no longer be challenged.

    Mr. Massimo Pacetti: My only comment is that it's unfortunate that it took 50 years, but if they're guilty, I think it's commendable that we took action against them. It's unfortunate that it took 50 years. That's the way I view it. I'd hate to think that because we placed a 45-year limit we decided not to take action against them. The fact that they're 70 or 80--it's not up to me or us to decide if they're guilty or not.

    As Diane says, I'm open to hearing some arguments about that, but I have a problem with putting a time limit on it. I would have to agree.

    In some of the other recommendations...it's not a recommendation but a quote, the court “is not bound by any legal or technical rules of evidence”. When we're looking at reviewing citizenship, do you recommend that we do this through the courts or through some type of judicial informal court? That wasn't too clear.

(0850)

    Mr. Eugene Czolij: Let me just correct your first statement when you said that if they were guilty it was commendable that Canada took those actions, because I can't leave that unanswered. Let me bring you into the proper context with respect to the injustice that has been committed.

    The Canadian government was asked or pressured to go after individuals who could have committed war crimes during the Second World War. The government spent millions by convening the Desch´┐Żnes commission, which presented a report.

    The government has taken an individual -- and the case has gone all the way to the Supreme Court of Canada in the Finta case -- and four additional individuals to court for war crimes. Notwithstanding the fact that it has spent millions of dollars, the Canadian government has not been able to successfully convict anyone of war crimes during the Second World War -- not one individual.

    The government keeps stating that Canada should not be a safe haven for World War II criminals. Canada is not a safe haven for World War II criminals. Canada has spent millions of dollars and has never been able to convict anyone of such crimes.

    In 1995 the government announced a new strategy by initiating DND proceedings against individuals suspected of war crimes. At the time, conscious of the fact that it would be going after individuals for events that occurred half a century ago, the government stated, and I quote, “The key criterion in all these proceedings” -- that is, DND proceedings or denaturalization and deportation proceedings -- “is the existence of some evidence of individual criminality. If that cannot be proven, no proceedings will be considered.”

    In the case of Vitols, Dueck, and Katriuk, the government admitted, sir, that it had no evidence to support allegations of any war crimes or crimes against humanity, yet it nevertheless prosecuted individuals using the civil standard of a balance of probabilities, without having the necessary immigration-connected documents to debate whether someone, very often using what the former justice of the Supreme Court of Canada, Mr. Sopinka, said, namely “innocent misrepresentations”...and it prosecuted such individuals under the citizenship legislation.

    That was an abuse that you have an opportunity to correct in Bill C-18. There's nothing commendable about having used those proceedings against individuals who had not committed any war crimes or that the government was unable to demonstrate that it possessed any evidence to that effect.

    As for your other question about which forum should be debating the admissibility of evidence that would not be otherwise admissible in a court of law, I'm not really sure what you're asking me.

    Mr. Massimo Pacetti: If I'm not mistaken, I think we're saying that it's not going to be a civil court or it's not going to be a judicial court, but it will be like an immigration judge or committee. That's what I thought we were going to recommend, or that's what's in the proposed code. You're saying you don't have to be bound by the same evidence as in a court of law.

(0855)

    Mr. Eugene Czolij: No, I'm suggesting that Canadian legislation should not have any such provisions as subsection 16(6), which very broadly states that a court, in this case the Federal Court dealing in a citizenship matter, is not bound by any legal or technical rules of evidence. I object to the fact that paragraph 17(4)(j) states that a judge may receive into evidence anything, even if it is inadmissible in a court of law. Those statements are too broad and they introduce a dangerous element of arbitrariness that violates the principles of the rule of law and the supremacy of law.

    Mr. Massimo Pacetti: Thank you.

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

[Translation]

    Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you, Mr. Chairman. First of all, I want to apologizing for arriving late. Once in ten years isn't so bad.

    I did have an opportunity, though, to read through your submission quickly. One good thing about it is that I can read the text without having to don my glasses. That's quite amazing. As you can well imagine, we've heard much the same thing from many other, highly credible witnesses.

    There's something about this whole issue of citizenship revocation that disturbs the average citizen like myself. It's the realization that the rules of law that apply to all persons charged can be disregarded for reasons of national security, with everything this applies. Obviously, we'll take your suggestions into consideration.

    On page 15, you mention a news release issued to mark the tabling of the bill. You recall a reference in the release to the minister's prerogative to consider humanitarian factors before undertaking revocation procedures. Nothing in the bill provides for this type of consideration.

    I want to thank you for pointing that out because all legislation grants ministers fairly broad powers and this is to citizens' advantage. In this instance, we want to ensure that this is spelled out clearly in the act.

    I don't recall other witnesses bringing this to our attention as you have. Therefore, thank you for the suggestion and for coming here today. Since I agree with much of what you have said, I don't really have any questions for you.

    Mr. Eugene Czolij: Thank you very much.

    I wish I could take full credit for this, but unfortunately, I cannot. The National Immigration and Citizenship Law Section of the Canadian Bar Association notes the following on page 13 of its November 2002 submission, and I quote:

[English]

When the Federal Court determines that there has been misrepresentation in obtaining citizenship, the result is that citizenship is revoked. If the misrepresentation was in obtaining permanent resident status, then permanent resident status is lost as well.... The person concerned ceases to be a citizen or a permanent resident, and they are removable from Canada.

In our submission on Bill C-63, we noted the inconsistency between enforcement proceedings against permanent residents for misrepresentation leading to obtaining that status, before obtaining citizenship, and enforcement proceedings for the same misrepresentation taken against the same person after they became a citizen. When enforcement action is taken against a permanent resident for misrepresentation, there is a right of appeal to the IAD and consideration of humanitarian and compassionate considerations, before the removal order becomes enforceable. This is appropriate. But when the same misrepresentation in obtaining permanent resident status is taken against a citizen under the Citizenship Act, there is a complete loss of all status without any review of humanitarian circumstances.

It is illogical that a person whose misrepresentation is found out after years of residence and acquisition of citizenship be in a less favourable position than one whose misrepresentation is discovered during their permanent resident status.

(0900)

[Translation]

    We agree with these criteria.

[English]

    The Vice-Chair (Mr. Jerry Pickard): Thank you. Mr. Czolij, in your presentation regarding section 17, in particular the authorization of secret evidence examined by a judge in the absence of the person or counsel, could you comment on the thoughts about an advocate for this person who certainly would be dealing with the secrecy issues and the other issues around it, yet there to protect the rights of someone? Is that an area where an advocate could add to what we're dealing with here?

    Mr. Eugene Czolij: Are we talking about an advocate who would want to challenge that provision?

    The Vice-Chair (Mr. Jerry Pickard): Advocates who would do everything they could to make sure there was fair representation without the lawyer-client privilege, regarding the process itself. Many people have challenged the fact, certainly beyond fairness, when neither the lawyer nor the client can deal with something.... If there were an advocate for the lawyer and client in that particular case making certain there was protection there, yet guaranteeing security or confidentiality issues that may be required, would that help in any way?

    Mr. Eugene Czolij: Let me begin by saying this. If I were the lawyer representing an individual who was subjected to section 17 proceedings, where secret evidence would be examined by a judge in the absence of my client and myself, and if on top of that I was uncertain whether evidence that was inadmissible in the court of law was or not used because I obviously had no access to such evidence, I certainly would at the very least challenge this process under the charter, namely section 7, which states that 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.

    The Vice-Chair (Mr. Jerry Pickard): I certainly understand that, and there probably will be challenges under the charter. I'm not trying to debate this issue. I'm trying to ask, is there justice if this passes, if this goes forward? Is there a mechanism like an advocate for the accused and the lawyers to make certain the process is not only perceived to be but is in reality more fair and less one-sided? An advocate may help in that case.

    That's all I'm asking. What are your thoughts? There have been many witnesses who have come forward and said it's just too wide open and it doesn't leave the guarantee of protection we need. I only throw that out as a thought, that somehow we can't leave the whole question in a vacuum.

    Mr. Eugene Czolij: Let me answer in this way. I cannot tell you honestly that I know of the best way to deal with that evidence. The reason I have not gone further into verifying what kind of mechanism would best serve, if such a provision were to be introduced, is because the UCC is suggesting that it be struck.

    What I can say I found interesting is the proposal by the National Citizenship and Immigration Law Section of the Canadian Bar Association in their November 2002 submission, on page 19, where they recommend the following two items.

    One, a review committee as defined in the Canadian Security Intelligence Service Act should have the mandate to investigate the reasonableness of evidence or information underlying a section 17 certificate, alleging inadmissibility for terrorism, security, or organized crime against a citizen. Provisions equivalent to subsections 39(2) and 39(3) and sections 43, 44, and 48 to 51 of the Canadian Security Intelligence Service Act should apply.

    Two, evidence or information found to be reasonable and provided by the review committee would be referred to the Federal Court for consideration under section 17 proceedings, with the additional caveat in their paragraph 2 that the “protection of information” provisions in section 17 should be applicable only to the determination of terrorism, security or organized crime inadmissibility, and they've put in bold, in capitals, “NOT to the initial determination of loss of citizenship for misrepresentation”. I find that proposal interesting.

(0905)

    The Vice-Chair (Mr. Jerry Pickard): That really does deal with it in a different way. It puts a group of people in a position to make some determination and recommendation.

    I guess I was looking further, saying an actual person who looked at it and then could advocate for the process may have some other. I think one way or another you can't just leave it in a vacuum, and that's just what we're dealing with here.

    Mr. Eugene Czolij: Mr. Chairman, not only in a vacuum, but certainly not with such broad strokes as we currently see in Bill C-18.

    The Vice-Chair (Mr. Jerry Pickard): I hear you. I think a lot of folks have mentioned that. That's something we'll have to look at very carefully.

    Are there any other questions from committee members?

    I want to say thank you very much for coming forward with your presentation. We certainly appreciate it. The information you've brought forward will be examined by the committee very carefully. We will put together our recommendations. In the final strokes we'll be back to the minister. I'm not sure on the timeline of that because we have a fair amount of work to do before we get everything together and have to merge the hearings from western and eastern tours, as well as all the evidence we have in Ottawa. I assume the committee will be working at this for some time still.

    Thank you very much.

    Mr. Eugene Czolij: Thank you very much.

[...]