CIMM Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, April 13, 2000

• 0911

[English]

The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Colleagues, I wonder if we can resume clause-by-clause consideration of Bill C-16, an act respecting Canadian citizenship.

We had passed clause 31. We'll resume with clause 32. We'll get back to the clauses we stood.

Can I have a motion to move clause 32?

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): So moved.

The Chair: Is there any debate on clause 32?

Mr. Leon Benoit (Lakeland, Canadian Alliance): On division.

(Clause 32 agreed to on division)

(On clause 33—Ceremony)

The Chair: On clause 33 there's a Bloc amendment. Bernard, thank you for providing the amendment to us.

Before you get to it, I have some concerns with this amendment. I'm going to give you the opportunity to tell us why... I find that it goes beyond the scope of the bill in the sense that we're asking or imposing another government to do something. You can explain it, but in your case you asked that the Government of Quebec be present at a citizenship ceremony and be able to do a number of things. I've looked at that and I think it goes beyond the scope of the bill. We can't require certain things to happen, especially concerning another government.

Before I rule it out of order, perhaps you can convince me. I'll give you the benefit of the doubt. Maybe you can read the amendment. I think everybody has a copy of the amendment. Just give us some justification as to why you don't think this goes beyond the scope of the bill. I'm having a little bit of difficulty, but I'm prepared to give you the benefit of the doubt if you can convince us that we should at least hear this amendment.

Mr. John Bryden (Wentworth—Burlington, Lib.): There's nothing new in there.

The Chair: Go ahead, Bernard.

[Translation]

Mr. Bernard Bigras (Rosemont, BQ): I am certain that I will obtain the unanimous support of all committee members with respect to this amendment. First of all, I hope you will deem it admissible. If you read the amendment carefully, you will see that the Bloc Québécois has no intention whatsoever of having another level of government intervene. If you read the words between the commas, "during the ceremony and in the presence of a representative of the Government of Quebec", you will note that the only effect would be to ensure that a representative of the Government of Quebec is present at the ceremony.

• 0915

Secondly, these documents would not be distributed by a representative of the Government of Quebec, but rather by the commissioner presiding over the ceremony, who must hand out, to any new citizen residing in Quebec, copies of the documents I mentioned.

Mr. Chairman, with respect to citizenship, I feel that Canadian citizenship exists in legal terms but, in our opinion, Quebec citizenship also exists based on the two political communities. We feel that such citizenship has a democratic foundation, based on the fact that in America there exists a common public space where French is spoken and where we have a common history and culture. Accordingly, this would simply mean that, during the ceremony, the commissioner would distribute documents that pertain to the culture, history and common public language of Quebec.

[English]

The Chair: Bernard, thank you for that explanation.

I've attended many citizenship ceremonies myself, but not in Quebec, I must admit. At any citizenship ceremony I've attended, judges often talk a lot about what this country is made of, its linguistic duality and its multicultural characteristics. I don't know whether or not the judges in Quebec perhaps go further at length in describing how Quebec is a little more unique and whether they talk a little bit about those things.

Could I just ask the administration for their guidance? I might hear from a couple more members on points of order.

Rosaline.

Ms. Rosaline Frith (Director General, Integration, Department of Citizenship and Immigration): In general, the Citizenship Act itself does not regulate the circumstances surrounding the ceremony. We provide guidelines to our local offices through our ceremonies manual and explain who may be invited to a ceremony and what kinds of materials are appropriate for distribution at a ceremony. All of these details are then organized at the local level to try to truly meet the needs of the local community.

It's not appropriate to have some kind of requirement specifically in the act itself. This normally is done through the guidelines. In fact, for newcomers in Quebec, it's very clear that there, as elsewhere in Canada, they would have been resident for at least three years before applying for citizenship. During that time, the Quebec government disseminates most of that information to them through their integration program, for which they are responsible.

Quebec is unique and it has the sole responsibility for the administration of integration programs. As a result, most immigrants would benefit from those integration efforts and would likely have already received the information.

In general, the purpose of the ceremony is to celebrate citizenship. We do not hand out very many things at all at such ceremonies. Sometimes people provide gifts in the way of lapel pins, flags of Canada, flags of the province. It's up to the judges today, and it will be up to the commissioners under the new act, to speak exactly to what you, Mr. Chairman, referred: the values of languages, the values related to diversity, anti-racism, etc., all of those things.

The Chair: Thank you.

Rick and then Steve.

Mr. Rick Limoges (Windsor—St. Clair, Lib.): Thank you, Mr. Chairman.

I certainly understand the Government of Quebec wanting to make sure everybody has their version of history. However, I have a real problem in particular because of the way this is written. If the representative of the Government of Quebec either could not or would not show up at the ceremony, it looks like the ceremony could not take place because of the way this particular amendment is written. Therefore I really think it would be inappropriate to even consider such a thing.

The Chair: Steve, on a point of order.

Mr. Steve Mahoney (Mississauga West, Lib.): Is this in order?

The Chair: I'm seeking guidance.

Mr. Steve Mahoney: Well, I don't think it is, Mr. Chair.

The Chair: That's what I thought I said, but I'm giving the benefit of the doubt here, with all due respect to our—

Mr. Steve Mahoney: But do we want to debate all morning whether or not it's in order?

The Chair: No, we're not going to debate all morning. Get to your point and then I'll deal with it.

Mr. Steve Mahoney: My point is that I'm questioning you, sir. Are you willing to make a ruling as to whether or not it's in order? If you're not, I will speak, but if you are, I'd like to vote. I'd like to have you rule on it.

• 0920

The Chair: Bernard, with regard to the word “shall”, I think Mr. Limoges has pointed out some other technical matters that impose certain things that would happen at the ceremony, and if in fact they couldn't, they would be problematic.

I'll give you the opportunity to withdraw the motion before I deem it to be out of order. I'll put it, but I sense, after some advice I've received, not only from you but from the administration and some people who have bothered on a point of order to do it... Are you prepared to withdraw it? I'll give you that opportunity.

Mr. Bernard Bigras: No.

The Chair: Okay, then I will rule it out of order.

Mr. John Bryden: I have a point of order. I take it that means Mr. Bigras can still move this at report stage.

The Chair: It all depends on whether or not the Speaker says it's in order. I think it goes beyond the scope of the bill.

Mr. John Bryden: I see what you're saying.

The Chair: An amendment can't go beyond the scope of a bill, and I think the argument has raised that possibility, by the administration and everything else.

[Translation]

Mr. Bernard Bigras: With all due respect, Mr. Chairman, I would like to point out that this amendment represented the wishes of certain groups that appeared when we examined the previous bill. I respect your decision. However, today I should advise you that I intend to submit this case to the clerk of the House, Mr. Marleau, for his assessment.

[English]

The Chair: Sure, thank you.

(Clauses 33 to 35 inclusive agreed to)

(On clause 36—Surrender of certificate)

The Chair: Mr. Anders.

Mr. Rob Anders (Calgary West, Canadian Alliance): Thank you, Mr. Chair.

I have a question for our officials today. I'm wondering whether or not the surrender of the certificate equals a revocation, or if that's just part and parcel of a revocation.

The Chair: Mr. Sabourin.

Mr. Norman Sabourin (Registrar for Citizenship, Department of Citizenship and Immigration): Thank you, Mr. Chairman.

This is an administrative provision to allow the minister to say that a person is not entitled to a certificate. It could be as a result of a revocation order, or it could be because a person received a certificate claiming citizenship by birth, when in fact they were not a citizen by birth. So it's an administrative provision allowing for the surrender of that certificate to be asked for.

Mr. Rob Anders: On the next one, you make reference to the cancellation of a certificate. So would surrender be seizing it or claiming it back? Is that not revocation?

Mr. Norman Sabourin: Clauses 36 and 37 are complementary to one another. Maybe the best way to explain it is to give you an example.

A person was given a certificate by the minister because they said they were born abroad of Canadian parents. Then information came to the minister's attention that the parents were not Canadian citizens. The minister asked the person to surrender the certificate, thinking the person was not entitled to it, but then in hearing representations from the person, or after a judicial review perhaps, it was established that the person was entitled to the certificate.

Clause 37 says the minister has to either return it to the person in such a case, or if the person was not entitled to it, then the minister must cancel the certificate, as it's of no value to anybody any more.

Mr. Rob Anders: I'm trying to draw the distinction between cancellation and surrender. With surrender you would actually seize their certificate. They would already have it, and you would go out and get back. Is that right?

Mr. Norman Sabourin: That's correct.

Mr. Rob Anders: So that's just part of revocation. I take it there's more than a certificate involved.

Mr. Norman Sabourin: That's correct.

Mr. Rob Anders: Okay.

• 0925

(Clauses 36 to 38 inclusive agreed to)

(On clause 39—Definition of “certificate”)

The Chair: There are three amendments, CA-1, CA-2 and CA-3. I think we should take them each individually.

Tell us a little bit about CA-1, Leon.

Mr. Leon Benoit: The purpose of this is to increase the possible penalties for someone who is guilty of an offence, in terms of handing out citizenship documents in an improper way, when they don't have the authority to do so.

Further on, I understand subclause 39(4) refers to a person guilty of an indictable offence. That's something I'm not going to bring an amendment forth on here, but I probably will at the report stage.

I move that Bill C-16 in clause 39 be amended by replacing lines 25 and 26 on page 19 with the following:

not more than $50,000, or imprisonment for a term of not more than seven years, or to

The Chair: Can I just ask the administration quickly for the reference on what's before us in the bill on the $10,000? There must be some precedents or some reasoning.

Mr. Sabourin.

Mr. Norman Sabourin: Thank you, Chairman.

The rationale behind clause 39 is to make offences under the Citizenship Act similar to the same offences in the Criminal Code of Canada, so there is not a huge discrepancy between current offences in that legislation.

Also, several of these offences are similar to what's in current immigration legislation, although I understand you will be considering increases for the proposals in Bill C-31. Obviously that bill is not in force right now.

So what's in clause 39 of Bill C-16 is in keeping with the current existing provisions of the Criminal Code and the Immigration Act.

The Chair: Steve.

Mr. Steve Mahoney: I think that's a good explanation. We should support it and let it stand as it is. When you get the kind of gerrymandering in different bills, and have this for that, and this for another thing, you just cause a lot of confusion. The issue is that if the person has committed a crime in this area, there is a standard fine that is dealt with, and I think it suffices.

The Chair: Leon.

Mr. Leon Benoit: Mr. Sabourin, you've said it's to make it correspond to the current sections in other laws. Could you explain in more detail specifically what you're referring to there?

Mr. Norman Sabourin: An example is the offences regarding altering a certificate of citizenship. There are similar offences in the Criminal Code of Canada.

Mr. Leon Benoit: Such as...

Mr. Norman Sabourin: I believe there is actually, in the Criminal Code of Canada itself, a specific offence that deals with alteration of passports or citizenship certificates. But there are also general offences of fraud, forgery, and counterfeiting in the Criminal Code of Canada. The advice we received from the Department of Justice was to try to compare them as much as possible, because the offences may not be identical.

The penalties provided in clause 39 are the same or very similar to the ones in the current provisions of the Criminal Code of Canada.

The Chair: Mr. Benoit.

Mr. Leon Benoit: I'd just like to say, Mr. Chair, that this is an amendment that could lead the way to amending the other corresponding or similar offences in other laws.

Mr. Rob Anders: I have a question, Mr. Chairman.

The Chair: No, I'm sorry. I allowed the mover the last opportunity. That's why I asked if there were any speakers before I went to the mover of the amendment.

I'll let you this time, but that's how we usually do it. He puts the amendment, there's debate, and I let the mover of the amendment have the last word.

Mr. Rob Anders: That's okay if you want to go to the amendment, but I would just like to speak to the main part of this.

The Chair: Right now we're speaking on the amendment, CA-1. Do you want to speak to the amendment or the main motion, which is clause 39?

• 0930

Mr. Rob Anders: Well, the amendment, as I understand it, is to increase the amount, yes?

The Chair: Right.

Mr. Rob Anders: Okay, well, I'd like to speak to that.

The Chair: As I said, I'll let you, but usually I let the mover speak last.

Mr. Rob Anders: Okay. I just wanted to point out that I understand there's some concern about standardization, making it $10,000 maybe across the board. I just wonder, though, since this is a current review of the legislation, whether or not that is going to be appropriate. And I'll raise a question with regard to that again in clause 40.

The reason I say that is I have a friend in Toronto who's been offered $20,000 to do one of these quickie marriages so that somebody could get into the country and all the rest of this stuff. If the going price—

[Editor's Note: Inaudible]

A voice: —

Voices: Oh, oh!

Mr. Rob Anders: Well, I'll let you know this individual didn't take it up and was disgusted at the fact that somebody offered them this, but this does go on, and you all know this.

The thing is, though, in that particular circumstance—and they were coming from a country that did not have strife, turmoil, etc. to the extent others do—the going price per head was about $20,000.

We heard, for example, during the whole migrant boat situation in China, that in the Fujian province, some of the fees could have been as high as $50,000. If people are willing to pay $50,000 in order to somehow abrogate our system, whether it's through buying a marriage or paying a snakehead or some other smuggler that amount of money, $10,000 to me just doesn't seem to counterbalance that very well. We all know that for every person who's actually convicted, a lot more are actually charged, and a whole bunch more don't even ever get found out.

Even in Holy Scripture there is reference to how, if something is a crime, there has to be a commensurate payoff. If somebody steals one sheep, they have to give back five or seven sheep in order to compensate, because otherwise, if it were just a quid pro quo, one for one, well, then thieves would have the banquet, wouldn't they? If they're not likely to get caught in all the thieving or all the breaking of the rules, what's the point in having the fine in the first place? There's not much disincentive there.

What I'm arguing is, if the incentive in the black market in immigration is already $20,000 or $50,000, $10,000 seems a pretty chintzy amount of money compared to that. If you apply the standards of what you consider normal punishment, I don't care where you want to draw them from, they're usually multiple times what the marketplace incentive is. In other words, if someone steals a stereo and is going to get a couple of hundred bucks for it, if you don't make the fine or the punishment for that a few thousand dollars, then you're going to have a lot of stereo thieves out there, and you're going to help encourage it.

So what I'm saying is if the marketplace rate is $20,000 or $50,000 for the abrogation of our laws in these particular circumstances for documents, then why not make the fine multiple times that, say $100,000 at a minimum?

The Chair: I heard an explanation given. I think we're into debate.

Mr. Rob Anders: I'm asking. Has any consideration been given to this at all?

The Chair: Mr. Sabourin.

Mr. Norman Sabourin: These are very good points. We have to remember that the kinds of situations being discussed would call for many, many different types of charges under the Criminal Code of Canada. I'd suggest the offences in the Criminal Code of Canada constitute a much broader set, as opposed to a very small subset of offences in the Citizenship Act. If the kind of information being discussed came to the attention of the RCMP, I know from experience they would lay a lot of charges under the Criminal Code of Canada that would probably call for a lot of very severe penalties.

The Chair: Okay.

It's been moved. I call the question on the amendment.

Mr. Leon Benoit: Recorded vote.

• 0935

(Amendment negatived: nays 9; yeas 2)

The Chair: Do you want to put the second amendment, Leon, CA-2?

Mr. Leon Benoit: I guess I did bring that one here, didn't I?

The Chair: It's changing $1,000 to $10,000.

Mr. Leon Benoit: Yes. This one has to do with the summary convictions, and again, it's for the same arguments.

This is a very serious crime. It's obvious from my last amendment that I believe for someone who trades in these documents or uses them fraudulently, the penalty should be more. Even in the case of a summary conviction, I believe it has to be clear it is a serious crime when you falsely use a citizenship document to some end that often may not be... Well, in any case, it's obviously not the kind of thing we want to encourage, and with a larger fine, in fact you can discourage that.

That's why I think a $10,000 fine rather than a $1,000 maximum for a summary conviction is more in line. Some might argue it should be higher. I would encourage your support on the amendment.

The Chair: Is there further debate? I call the question.

Mr. Leon Benoit: Recorded vote.

(Amendment negatived: nays 9; yeas 2)

Mr. John Bryden: On a point of order, Mr. Chairman, we moved a little bit fast there, and I did want to make a very brief comment on this.

The Chair: Well, maybe you could do it on amendment CA-3, because it's probably on the same principles.

Mr. John Bryden: Okay, fine.

The Chair: We'll call amendment CA-3. You're putting it, Leon?

I know it's early in the morning and some of you are still waking up, so you'll have to pay attention to the chair. I got a lot of rest last night.

Mr. Leon Benoit: CA-3 is an amendment to replace lines 33 and 34 of clause 39. This one again would increase the fine for a person guilty of an indictable offence. Now it says they're liable to a fine of $10,000 and/or a prison term of five years. This amendment would increase that to a fine of $50,000 or imprisonment for a term of not more than seven years, or both, if the person is guilty, and it goes on to explain the indictable offences.

This again is to allow for a tougher maximum penalty when it comes to people who try to deal in Canadian citizenship documents. Often a citizenship document will give a person access to our country and possibly voting privileges. These are very serious offences, and the fines in here aren't appropriate.

Mr. Anders' arguments apply to this as well. When people are looking to come into our country or to get the benefits of our country fraudulently, they can choose to pay the $50,000 and come with the help of a smuggler or they can choose some other method. One other method would be to get a document that either is a false document or isn't their document and use it to come in. So it's a matter of economics.

There are those individuals, as we know, who would try to use any means possible to come to our country. If you don't have balance, it encourages people, encourages smugglers in fact, to use this approach of getting false citizenship documents to come to our country. So the fines and the penalties have to be higher than they are currently.

• 0940

The Chair: Okay. John, did you have a point?

Mr. John Bryden: Yes, I did want to make a comment.

I think the members opposite are making some important points here but I'll make the observation that the text of all these clauses says “a term of not more than five years”. In other words, a maximum penalty could be imposed that would actually be up to five years in prison. In that sense there is a real penalty there.

Although I like Mr. Anders' argument, I'm not entirely convinced that simply jacking up the fine is going to make the difference. What I think you really have to look at in these clauses is the option of putting somebody away for five years, which would be more than adequate in most instances that we're talking about.

The Chair: Rob.

Mr. Rob Anders: Mr. Price was indicating that he had been in some refugee camps just recently, and he told me how squalid and horrid the conditions were there. While I appreciate Mr. Bryden's sympathy, I'd just like to point out that if I was coming from a refugee camp... and Mr. Price is going to have to forgive me.

Where was it again, Somalia?

Mr. David Price (Compton—Stanstead, PC): It was around the border.

Mr. Rob Anders: All right. If I was coming from a refugee camp in Somalia and I had the choice of spending my time in a Canadian prison or in a refugee camp in Somalia, a Canadian prison for five years, minus time for good behaviour or whatever, would look pretty darned good. That being the case, I think the financial aspect of it here is also extremely important.

If the going market rate is $50,000, I think you really have to have some multiple of that. I'm going to get a question to our officials on that.

For any of those who would be interested in taking the question here... I'm not sure who would be the most appropriate. How many people have actually been charged as a result of some of these previous provisions and how many have actually been convicted? It's one thing to have these things written down, but it's another to have them put into force and used. I'm wondering how often they've actually been used, because it will give me some sense of... If you use it sparingly, and it's been used sparingly, it has to be a big hit when it comes; otherwise it's not going to register with people.

Can you answer that question, please?

Mr. Norman Sabourin: I don't have, from memory, numbers on this. We do have convictions on a regular basis, but often what will happen when a person is found to have committed fraud and they appear in criminal court to answer these charges is that the penalty they receive will not be a very strong penalty. The rationale of the court often is that this person is going to be expelled from Canada or this person has already spent some time in jail. Experience to date has been that provincial courts, when convicting individuals, don't impose very severe fines, even though there is a maximum amount being proposed of five years' imprisonment and various fines.

Mr. Rob Anders: Mr. Chairman, please. I just want to point out something for the government members, if they're paying attention here. You've had your own officials today tell you that the provinces are very sparing in applying this. You've heard your own officials today say that the RCMP, if they were testifying here today, would probably want to see more stringent fines. I'm taking what you just said in the last few comments, not those just now, but the ones previous... I've laid out what I think is a fairly cogent argument for why you need to have it—

The Chair: That's why we're going to put it to a vote.

Mr. Rob Anders: There is one last thing, Mr. Chairman. This is going to be one of the few times we have a chance to change this law perhaps in a decade. You can bet your bottom dollar that inflation's going to increase and the $10,000 today is going to seem chintzy compared to what the enforcement will be 10 years from now.

The Chair: I think the point by our colleague John Bryden... You're only focusing on the $10,000?

Mr. Rob Anders: No.

The Chair: For the good of the education of the people, it says “$10,000 or imprisonment for a term of not more than five years”. So it's not just a question of money. They can go to jail, and that's worth a heck of a lot more than $10,000.

Mr. Rob Anders: Mr. Chairman, I also pointed out that if I was in a Somali squatter camp, the Canadian jail would seem fairly good compared to those conditions. So if somebody spent five years minus time for good behaviour in a Canadian jail, it's better than what they have.

• 0945

The Chair: Rob, that's why we're debating this, and now we'll see whether or not your point has a lot of support.

The question has been put. All those in favour of amendment CA-3?

Do you want a recorded vote on this one too, Leon?

Mr. Leon Benoit: It's probably not necessary.

(Amendment negatived)

(Clause 39 agreed to on division)

(On clause 40—Offences respecting citizenship officials)

The Chair: We're now on clause 40. We have a couple of amendments on this one too, amendments CA-4 and CA-5.

Yes, go ahead.

Mr. Leon Benoit: I found this to be extremely surprising when I was going through the Citizenship Act that if a citizenship official wilfully makes... and that's what this says here at paragraph 40(1)(a), as follows:

40.(1) Every person is guilty of an offence who

(a) being a citizenship official, wilfully makes or issues any false document

It goes on to say, or takes a bribe in the performance of their duty.

I found it shocking that a citizenship official, someone in that position of trust, would only be subject to exactly the same penalty as another individual who committed the same type of offence or an offence involving a citizenship document. I think it's totally inappropriate.

What this amendment will do is send the message to those in positions of trust that if you're going to commit fraud or benefit from trading in a citizenship illegally, you're going to pay a higher price than another individual who does a similar type of thing.

So I think it's completely appropriate to send that clear message to people working in those positions of trust. This amendment will increase the possible penalty for a person found guilty of such an offence to not more than $100,000, or to imprisonment for a term of not more than 10 years. Again, I would hope there would be support for this amendment, even from those who didn't support the last one, because clearly there is a difference when you're in that position of trust.

The Chair: Mr. Sabourin.

Mr. Norman Sabourin: Thank you, Chairman.

I want to point out that the penalties provided in clause 40 are more or less the same penalties as currently exist in the Immigration Act. I'm aware that Bill C-31 provides for increased penalties. Perhaps when this committee considers Bill C-31 there would be an opportunity to consider consequential amendments of this legislation. I don't know. I'm just explaining why the offences and the penalties in the current clause are such as they are.

Mr. Leon Benoit: I'll see if others want to speak on it first.

The Chair: All right. Let's go to debate.

Mr. Steve Mahoney: I've a question, perhaps to the officials.

It would seem quite likely that the individual convicted here just might possibly lose their job as well.

Mr. Norman Sabourin: There is no question... as well. I'm aware of a very sad story some years ago where the individual found to have accepted a bribe committed suicide. An officer involved in the case was sent to jail for some time. They lost their jobs, reputations, the family was ruined. It was obviously a very serious matter.

The Chair: Okay, the question has been put.

Mr. Leon Benoit: I would like a recorded vote, please.

Mr. John Bryden: I would like a comment.

The Chair: No, the question has been put. I'm sorry, the vote has been called.

(Amendment negatived: nays 8; yeas 3)

• 0950

The Chair: Do you have another amendment?

Mr. Leon Benoit: This next amendment is to lines 4 and 5, on page 21, of clause 40.

The Chair: It's to paragraph 40(2)(b).

Mr. Leon Benoit: Yes.

This is for, I assume, the summary conviction, raising it from $1,000 to $10,000. Again, this is just to put in place a more serious penalty, a meaningful penalty, because $1,000 is hardly appropriate, I think, even for a summary conviction, for an official involved in dealing improperly with citizenship.

The Chair: Or six months in jail.

Mr. Leon Benoit: Yes, and/or six months in jail. Both, yes. It raises that six months to a year in jail.

The Chair: Any debate?

Mr. Rob Anders: Mr. Chairman, once again I'd just like to point out that the officials today have indicated that the provinces are very sparing in terms of the application of the time in jail. Now, six months as a maximum is pretty small, and when you consider that the provinces are pretty sparing in terms of their application...

I know you like to say that it's either $1,000 or six months in jail, but we've heard today that the six months in jail is very sparingly applied, if ever.

The Chair: Well, what makes you think they'll put them in jail for a year if they're not putting them in jail for six months?

Mr. Rob Anders: Therefore, Mr. Chairman, if the jail time is applied pretty sparingly, instead of having a small fine of $1,000 maybe we should consider going up to $10,000, as Mr. Benoit has suggested. I think it makes a lot of sense.

Mr. Leon Benoit: I'd like to ask a question of Mr. Sabourin.

In a case where an official was found guilty of a summary conviction, would they automatically lose their job?

Mr. Norman Sabourin: They would not.

Maybe I'll ask my director general to take that question.

Ms. Rosaline Frith: Normally it would be subject to a review under the Public Service Employment Act. They would initiate a process that may lead to their losing their job, yes, but they would not automatically lose their job.

Mr. Leon Benoit: So they may or may not.

How many times has this offence been committed in the past? Is it once a year, once every ten years? As well, what has happened in the past, the most serious and the least serious? I'm not looking for specifics, but just to get a good idea.

Mr. Norman Sabourin: This is a new offence in Bill C-16. There currently is not a specific provision in the legislation act dealing with offences by citizenship officials. In the past, then, when action has been taken it's been under the Criminal Code of Canada.

Mr. Leon Benoit: What types of penalties have there been?

Mr. Norman Sabourin: There haven't been many. From recollection, I can say that it's generally been some time in jail, but I can't recall the penalties.

Mr. Leon Benoit: For a summary conviction, even?

Mr. Norman Sabourin: I believe so, yes, under the Criminal Code.

Mr. Leon Benoit: The fact that this is being put into this act would lead me to believe that there is a problem that maybe wasn't recognized or wasn't there before. If it wasn't in the act before, it's being put in now. I would like your comments as to why that is.

Mr. Norman Sabourin: We added it to this legislation to make sure there was consistency between the Citizenship Act and the Immigration Act. The Immigration Act does provide specific offences regarding immigration officials, and we wanted to have similarity between the Immigration Act and the Citizenship Act.

I certainly can't say there's been a lot of fraud in the citizenship program. As a matter of fact, I'm very proud to say that citizenship officials are generally extremely conscientious and go to great lengths to try to spot any kind of fraudulent activity.

The Chair: John, and then that's it.

Mr. John Bryden: I want to follow up on that. I take it that's one way of approaching this. I have some sympathy with the arguments being presented here, but if I understand correctly, the level of fines or the level of penalty we see here is matching what exists in the current Immigration Act.

Mr. Norman Sabourin: That's correct.

Mr. John Bryden: So based on what you're saying—and I ask your advice on this—would it be appropriate and feasible, when we come to the Immigration Act, which is next on our timetable, to look at this problem and make a consequential amendment to this Citizenship Act when we deal with the Immigration Act? Is that feasible and possible?

• 0955

Mr. Norman Sabourin: It certainly is, and it's certainly within the purview of this committee.

The Chair: It's been moved, amendment CA-5.

Mr. Leon Benoit: I'd like to have a recorded vote, but I'm willing to apply the vote, Mr. Chair, if everyone agrees to that.

The Chair: All right. We'll apply the same vote as last time. I'm breaking new ground.

Mr. Leon Benoit: Yes, we can do that. It speeds it up. That way it's not slowing the process down, and we have a recorded vote.

The Chair: With all party consent.

(Amendment negatived: nays 8; yeas 3)

The Chair: That amendment is lost. On to amendment CA-5.

Leon.

Mr. Leon Benoit: That was amendment CA-5. I'm in enough trouble this morning.

The Chair: Oh, I'm sorry.

(Clauses 40 to 42 agreed to on division)

(On clause 43—Regulations)

The Chair: There is a government amendment, G-4, and I should tell you that the NDP amendment, if I'm not mistaken, is exactly the same thing.

Mr. Steve Mahoney: Why don't we give them the credit?

The Chair: Yes, why don't we give Pat the credit? No, I'm sorry, he might not be here, because he can't move it. I don't know what the rules are, but does he have to be present?

The Clerk of the Committee: Yes.

The Chair: Okay, I'm sorry. Then it will have to be G-4.

Andrew, are you prepared to move it? Where is Andrew? He's not here.

Steve.

Mr. Steve Mahoney: Yes.

The Chair: All right. Do you want to give us a reason?

Mr. Steve Mahoney: No. It's a good amendment.

Some hon. members: Oh, oh!

The Chair: You can at least read it.

Mr. Steve Mahoney: It says that we delete lines 26 to 28 in clause 43 on page 22, so it would be paragraph 43(g).

The Chair: Mr. Sabourin, have you any comment? Was that because of the good work of our resident person?

Mr. Norman Sabourin: I don't see our resident person here, but indeed his testimony made us review what had been happening in the Federal Court. The Federal Court has adopted rules of procedure, making the necessity for this authority redundant.

The Chair: If he were here, I'd thank him and others who have brought it to our attention, obviously the administration, and this committee who saw fit to make that amendment. I think it sets out greater clarity on those rules.

(Amendment agreed to)

The Chair: Unanimous.

Now, clause 43 as amended—

Mr. Leon Benoit: I have a question on clause 43.

They're talking about regulations here, and it seems to me that an awful lot is being left to regulation. Again, this is a bill in which there are several spots... I understand the need for things be left to regulation in certain cases, and I have no problem with that. But I believe this bill has gone beyond what's reasonable. What we're being asked in Parliament, when this bill is put before the House—and in committee here—is to pass the government a blank cheque. We'll sign the cheque, they'll fill in all the details, including the amount, later.

I'm quite concerned, particularly about paragraph 43(e), which states:

providing for criteria to determine whether a person meets the requirements of paragraphs 6(1)(c) and (d) and, for that purpose, authorizing the Minister to set questions that apply those criteria;

and it goes on.

I'd like some comment from Mr. Sabourin. At least, I want some idea of what the regulation is likely to be in regard to that.

The Chair: Just for the purposes of the committee, as you know, Leon, every regulation that's put is scrutinized by a joint committee of members of Parliament and Senate to make sure that the regulations... and in fact have some public input so there's greater clarification for the public that there is scrutiny and there is public input on regulations.

Mr. Sabourin, would you care to comment?

Mr. Leon Benoit: There's no ability for Parliament to reject them, really.

Mr. Norman Sabourin: Mr. Chairman, the intent is to more or less do the same thing as what is in the current regulations for the existing Citizenship Act, which is basically to set out a certain level, a certain standard, that applicants must meet. I alluded to that standard briefly yesterday.

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The current regulations say that a person must comprehend in an official language basic spoken statements and questions, and that the person must be able to convey orally or in writing in that language basic information or answers to questions. It's the basic level. What the minister does, based on that standard, is develop tests to be administered to applicants. And these tests must be kept confidential to a certain extent, otherwise it's not a test any more.

Mr. Leon Benoit: But the thing about that is surely there's not just one test. I mean, people talk to each other.

Another concern is that there's been a lot of concern expressed that the testing isn't consistent from one part of the country to the other, and from one individual to another—the judge, commissioner, or whoever's conducting the test, or at least judging what the test should be.

The Chair: I can tell, Leon, you're going to await those regulations with a lot of zeal and anticipation, and you're going to appear before that committee to make sure they're just right.

Mr. Leon Benoit: Well, of course, we have no real ability to even vote against—

The Chair: Oh yes, I've sat on that committee, and it's amazing what you can do. It's an absolutely fantastic committee.

Anyway, for the record, can you imagine, with how long it takes us to change legislation now, if you wanted a change, if you wanted to put everything in legislation and nothing in regulation, this House of Commons would have to be meeting 24 hours a day, 365 days a year in order to get stuff done. So there is a need for regulations in some instances. I think you make a good case that we have to be very vigilant as to what should be in legislation and what should be in regulation, and I think you've made a very good point for all of us.

(Clause 43 as amended agreed to on division)

(On clause 44—Delegation of authority)

The Chair: Is there any debate? Are all in support?

Mr. Leon Benoit: I have a concern on this one, Mr. Chair. Several witnesses expressed concern about the powers being delegated to the minister in several clauses of this bill. I just want to note that I share that concern. Again, I think more should be put right in the legislation, with less power to the minister, and I fully acknowledge there has to be a balance.

The Chair: Okay.

(Clause 44 agreed to on division)

(Clause 45 and 46 agreed to)

(On clause 47—Citizen of the Commonwealth)

The Chair: Rob.

Mr. Rob Anders: I have a question here for the officials, and it's just a matter of clarification and curiosity on my part. This deals with regard to somebody being considered a citizen of the Commonwealth or a citizen of Ireland. I've often heard... I know that clause 48 makes reference to a British subject, and I believe that “citizen of the Commonwealth” in clause 47 is to replace the reference to a British subject, if that's correct.

I've often heard that term bandied about, and I'm wondering what the difference is in terms of tangible benefits, if you will, or status within Canada, when somebody is considered a Canadian citizen, versus a citizen of the Commonwealth, a citizen of Ireland, or a British subject. How do the statuses differ? I recognize there are geographical differences there in terms of where they're from, but in terms of actual status and how they're treated under law in Canada, what is the difference?

The Chair: Good question.

Mr. Sabourin.

Mr. Norman Sabourin: Chairman, there's very little legal difference between these statuses. As a general comment, I think that's a fair thing to say. A citizen of the Commonwealth is a symbolic status. If one wants to compete in the Commonwealth Games, it might be nice to be able to call yourself a citizen of the Commonwealth. But there's very little implication, other than symbolic, for that status.

In terms of a British subject—speaking perhaps out of turn to clause 48—we want to make sure we don't abrogate some kind of right that might have existed under common law or under some past legislation that is still in force in Canada that uses the term “British subject”, because we're well aware that before 1947 there was no such thing as the status of Canadian citizen. So it's merely to ensure that there is not accidentally an abrogation of some rights that would have been vested in British subjects.

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The Chair: Good explanation.

(Clauses 47 and 48 agreed to)

(On clause 49—Rights)

The Chair: Do you have a question Rob?

Mr. Rob Anders: This is a subject that's near and dear to my heart, this whole idea of property rights. I think it was one of the things that should have been included in our Charter of Rights and Freedoms but—

The Chair: Good Liberals asked for it, and the provinces decided to say no.

Mr. Rob Anders: Then the provinces were wrong, Mr. Chairman.

The Chair: Mr. Trudeau did this.

Mr. Rob Anders: I would actually go so far as to call them private property rights, because I think a distinction has to be made in our common usage in terms of whether they're public property rights or private property rights.

Anyhow, the question I have here is that the last part of paragraph 49(a) talks about removal, or the “taken, acquired, held and disposed of” property, and it says basically—I'm trying to truncate it here and it's very difficult—that somebody who's a non-citizen can have their property taken, acquired, held, or disposed of in the same manner as a citizen can. And I think that's an awfully odd reference to have in this whole thing, to say that in a sense non-citizens are being compared to citizens in the same ability to have their property taken, acquired, held, or disposed of.

An hon. member: By them themselves.

Mr. Rob Anders: Is that what it's referring to? I'm putting the question to our officials here. Is that referring to the government's ability to dispose of the property, or referring to the individual's ability to dispose of the property?

Mr. Norman Sabourin: Chairman, with your permission, maybe I could make a general comment about clauses 49 to 53.

The Chair: In fact I was going to suggest that, because they all deal with one particular section. I think we can deal with this whole section all at once, clauses 49 to 54.

Mr. Norman Sabourin: Chairman, clause 49 sets out the general principle to answer the specific question. The general principle is that when it comes to acquisition or disposition of real property, citizens and non-citizens have the same rights. That's the general principle. But then it says that's subject to the next clauses, and clauses 50 to 53 talk about the authority of provincial lieutenant governors in council to make regulations to place restrictions on non-citizens to acquire real property in the province. The only province that has adopted provisions to that effect is the Province of Alberta, but the authority is available to any province to do so.

Mr. John Bryden: How does that apply to the staking of claims in the sense that the tradition of the Yukon and western Canada has been to allow foreign nationals like Americans to stake mining claims, whereas, if I understand the law in the United States, it's that foreign nationals are not allowed to stake mining claims, that it's restricted only to Americans? Can you comment on that?

Mr. Norman Sabourin: I don't think so. Other federal legislation that regulates the right of people to make claims or acquire property would not be affected in any way by these provisions. These provisions strictly allow a province, to regulate under its constitutional jurisdiction for property and civil rights, to make a distinction between a citizen and a non-citizen.

Mr. John Bryden: So to back up a bit then—and obviously I'm taking you to an area that perhaps you're not all that familiar with—as far as you can tell, then, there's nothing in this that restricts a non-citizen from acquiring rights to mineral wealth or anything else in the country, or any—

Mr. Norman Sabourin: That's correct.

Mr. John Bryden: We're a generous country, aren't we?

Mr. Norman Sabourin: Yes, we are, and I'm proud to live here.

Mr. John Bryden: I don't know. I think we're more generous—

[Editor's Note: Inaudible]

The Chair: ...the rest of the bill. I'm a Canadian. Let's go.

I'm sorry, Rob.

Mr. Rob Anders: Mr. Chairman, I—

The Chair: And we'll drink some Canadian or Molson's, or whatever it is that commercial says.

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Mr. Rob Anders: I have a question therefore with regard to... Switzerland used to have some of the most strident banking secrecy laws, and now of course I think that's been somewhat violated, so that now the Cayman Islands and some of those other countries are kind of taking over that.

What I'm wondering is this. How would this apply, for example, if somebody was known as being an international criminal, if you will, involved with organized crime internationally, say the Russian mafia or somebody who's dealing with embezzled or drug funds, and that type of thing? How would these provisions here deal with property rights? Do they in a sense provide some sort of exemption for those people in how they deal with their property in Canada? Or are those things all dealt with outside by the Criminal Code? How does that all apply?

Mr. Norman Sabourin: Exactly, proceeds-of-crime legislation, the Criminal Code, the types of situations you speak about... And anything else that the federal government wants to do, that Parliament wants to do, with regard to issues of property is not in any way addressed by these provisions of the legislation.

What is proposed in Bill C-16, clauses 49 to 53, is just to allow the provinces to make a distinction between citizens and non-citizens within their sphere of jurisdiction, because they could not do so without the authority coming from Parliament to do so.

Mr. Leon Benoit: In paragraph 50(3)(e), I think, there's a penalty of... No, it's a little farther ahead. But if we're dealing with all those together, then it's in the next clause actually, subclause 51(1), where it talks about a:

person who fails to comply with a prohibition, annulment or restriction under subsection 50(1) is guilty of an offence and liable on summary conviction to a fine of not more than $10,000 or to imprisonment for not more than one year

Is that to be consistent with provincial laws dealing with similar issues? Why is the prison penalty of a year in this with a fine of $10,000? In all other clauses it was six months, with a fine of $10,000.

Mr. Norman Sabourin: I apologize, Chairman, I can't recall. To the best of my recollection, this again is consistent with the Criminal Code. That was our guiding principle in establishing fines and penalties. But really I can't recall specifically.

The Chair: Inadvertently you got half a win out of this, Leon. You got a year as opposed to six months. Let's do it.

(Clauses 49 to 54 inclusive agreed to)

The Chair: Clauses 55 to 57 are those transitional clauses that Mr. Sabourin talked a little about yesterday in his general overview with regard to retroactivity and something, so I'll take those three together, 55 to 57. Any questions on those?

Mr. Leon Benoit: Yes.

The Chair: Leon.

Mr. Leon Benoit: I still want some clarification on that, particularly to do with refugee claimants. I believe that under the current act, for someone who claims refugee status, if they're granted refugee status when applying for citizenship, something like half of the time from the time they applied to when they received refugee status is considered to be meeting part of the residency requirement. Could you just explain—

A voice: To a maximum—

Mr. Leon Benoit: Yes, to a maximum of roughly six months, I believe. It amounts to a year, depending on how you look at it.

But could you explain to me how this transition clause might apply to people who are part way through the process—at any stage in the process under the current act?

The Chair: I think that's what Mr. Sabourin tried to do yesterday, but maybe you can cover that point and some of the general comments that you had yesterday.

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Mr. Norman Sabourin: Specifically in terms of the refugee claimants, that is addressed in clause 6. But refugee claimants who don't have any status whatsoever in Canada under the Immigration Act will not be able to claim any half-time—as we call it—under this proposal. Anyone else who has any type of status under the Immigration Act, be they visitors, be they students, be they deemed refugees, will be able to count half-time until they obtain permanent resident status.

Mr. Leon Benoit: Can I ask why that is? Under the current act that is allowed. It seems to me that refugee claimants who are accepted as refugees are being punished under this new bill because of possible administrative delays in their case being heard and determined.

Mr. Norman Sabourin: I think Mrs. Caplan addressed that question on March 29 when she said—I'm paraphrasing—something like, we're sending a message out that if you come in through the back door you're not going to get a benefit out of it.

Mr. Leon Benoit: So is she considering then that any person who comes to Canada and claims refugee status is coming in through the back door?

Mr. Norman Sabourin: I think we'd have to ask her that.

Mr. Leon Benoit: But you commented using her comments, and I think that's what you indicated. So you must believe that's what she's indicating, that any refugee claimant who comes to Canada to claim is one of those people who is coming in through the back door and who she's going to try to keep out.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Mr. Chairman, I have a point of order. We really should have Ms. Caplan herself here to answer these questions. I really do not think it's appropriate that we ask the officials to put words in her mouth. There are transcripts, presumably, of meetings that took place.

The Chair: Yes. And for some of us who are here, I think the clarification would be that legitimate refugees are not considered those who are coming in through the back door. I say that in a contextual sort of way, but I think it's a legitimate question.

Mr. Leon Benoit: Do you understand the—

The Chair: Mr. Sabourin, you said refugees are covered under clause 6. Are you talking about subclause (6) of clause 55 or clause 6 of the bill?

Mr. Norman Sabourin: I'm talking about clause 6... of the proposal, Chairman, in paragraph (b), when we set out the manner in which time in Canada is calculated.

The Chair: It's the top of page 4, Leon. That's why I think, when we covered it yesterday... Clause 6 covers those refugee questions that you might have.

Mr. Leon Benoit: No. I understand that. But I didn't feel I got a clear answer yesterday. And I still don't understand... I think I understand what Mr. Sabourin is saying, but I don't understand the reasoning here. Obviously if people are accepted as refugees we would believe they're genuine refugees, so why would you change from the current law, where you're accepting at least part of that time as they wait for this slow process to take place? Why wouldn't that be considered as time they've spent in Canada, actually physically present in Canada?

The Chair: Rosaline.

Ms. Rosaline Frith: Perhaps we might make the comparison between a refugee who is waiting overseas in a camp to be named as a government-assisted refugee to come to Canada... The time period that it takes before they actually are identified and then come to Canada with legal status upon landing in Canada is not counted toward citizenship. The point that is counted is from—

Mr. Leon Benoit: But they're not physically present in Canada.

Ms. Rosaline Frith: This is true. But if you are going to treat one group differently from another, in terms of being here and being recognized with legal status in Canada, then you would be giving an advantage to every refugee to come and claim as a refugee claimant inland.

Mr. Leon Benoit: Is that the reason this change was made?

Ms. Rosaline Frith: The reason the change is made is to acknowledge that legal status is a requirement for the measurement of physical presence.

Mr. Leon Benoit: Okay.

The Chair: Don't forget these are consequential transitional provisions.

Clauses 55 to 57 have been moved.

Mr. Leon Benoit: I would like a recorded vote.

The Chair: A recorded vote on all three of them?

Mr. Leon Benoit: Together is fine.

The Chair: Okay.

(Clauses 55 to 57 inclusive agreed to: yeas 6; nays 4)

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The Chair: I'm going to take clauses 58 and 59 together, because they're consequential amendments to CSIS Act, and paragraph 59...

(Clauses 58 to 61 inclusive agreed to)

(Clause 62 agreed to on division)

The Chair: I'm going to take clauses 63, 64, 65, and 66 together.

(Clauses 63 to 66 inclusive agreed to on division)

The Chair: We'll bring together clauses 67 and 68.

Mr. Rob Anders: Mr. Chairman, I'd like to point out once again that a number of people testified before us talking about how various aspects of immigration and citizenship should be done based on merit. I recognize that the changes that were made to have a lot of the appointments and what not in this entire process were done by the Mulroney administration, but I think it's worth pointing out that the government has an opportunity to make changes to this and to rectify many of the problems that Barbara McDougall and the Mulroney administration made with regard to the appointment process.

Clauses 67, 68, 69 and 71—and I haven't had a chance to review clauses 72 or 73 yet—all deal with this issue of the appointment of either judges or commissioners. I think you could go back to reports such as the McGrath report, when members of this government were sitting in opposition. There are reams of material, and all sorts of people have testified before us saying these types of appointments should be made by merit.

The Chair: The only thing I can say, Rob, is I know you spoke to that before, and those were previous clauses dealing with the principle of whether or not we ought to have commissioners and how they're chosen.

Clauses 67, 68, and 69 primarily deal with the Public Service Superannuation Act as it relates to those individuals, either judges or commissioners, so you're skirting the line of being out of order.

Mr. Rob Anders: I'm trying to get in another kick at the can for merit-based appointments.

The Chair: I know.

Leon, did you have something further to say?

Mr. Leon Benoit: That's all right. We'll do it on division.

(Clauses 67 to 71 inclusive agreed to on division)

(Clauses 72 and 73 agreed to)

The Chair: Before I get to the schedule, I want to get back to what we stood down yesterday.

(*On clause 2—Definitions)

The Chair: The first one was clause 2, which was the debate about physical presence. I believe we stood it down because, Bernard, you had raised some questions on clause 2. Or was it Leon?

Mr. John Bryden: It was me, Mr. Chairman.

The Chair: Yes. It was on physical presence, if I'm not mistaken.

I'll go to you, John, if you want.

Mr. John Bryden: I regret, Mr. Chairman, I was trying to do research on paragraph 2(2)(b), to examine this question of the Jay Treaty, but I just haven't had the time. So I'd like to ask the officials one or two questions.

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I'm always leery when new clauses come that have not been subject to any debate or have never been before witnesses. The difficulty with something like this clause is that it refers to a treaty, and as you know, treaties are not ratified by Parliament. So we have the difficulty of something that exists here in legislation, on which Parliament has no say. By coincidence, we have a private member's bill—a Bloc bill, indeed—that's before the House right now, this very day, asking whether treaties ought to be ratified by Parliament.

Having said that, let me ask a question. First of all, what do we mean by “permanent resident” under subsection 2(1) of the Immigration Act? I don't have the Immigration Act before me, so I would like to know what that means. It pertains to paragraph 2(2)(b), which says a person who is registered as a Indian under the Indian Act is a permanent resident.

The Chair: What's your question, the definition of “permanent resident”, or do you want—

Mr. John Bryden: I'm at a disadvantage. I don't have the Immigration Act before me. I'd like to know what “permanent resident” means in the context of what's worded here.

The Chair: The chair wanted to be clear as to what the question was.

Mr. Sabourin.

Mr. Norman Sabourin: Thank you, Chairman.

First of all, I would say that paragraph 2(2)(b) is not about the definition of “permanent resident” in the Immigration Act. Paragraph 2(2(b) is about a special class of persons who might wish to apply for citizenship and who would not be able to meet the normal requirements of the Citizenship Act because they would not be able or would not wish to become permanent residents of Canada.

Perhaps the simplest way I can explain this is to give the example of a person born in the United States of parents who were born in the United States on the Akwesasne reserve. Because of their affiliation with the band to which they belong, that person born is entitled to be registered under Canadian law as a registered Indian in Canada, and because of that status that they acquire, under the Immigration Act they have the right to enter and leave Canada as they please—because of their status as an Indian, not because of a status per se under the Immigration Act or under the Citizenship Act.

That person who is the registered Indian is neither a permanent resident nor a citizen. If that registered Indian wants to become a citizen of Canada, he'll say “I can't meet the requirements; I'm not a permanent resident.” If we ask, “Why don't you become a permanent resident?”, he'll likely say “Why should I, when the Immigration Act says I have the ability, the right to come into Canada as I please?”

The Citizenship Act says, okay, if you are a registered Indian, for the purposes of the Citizenship Act only—that's what subclause 2(2) says, “For the purposes of this Act”—we will pretend you are a permanent resident in order to allow you to count any time you spend in Canada toward your residency requirement in order to become a citizen. If we did not have that, it would not be possible for the person ever to become a citizen of Canada, because they would not become a permanent resident of Canada.

Mr. John Bryden: I appreciate that it's complicated, and I need to study it. It's very difficult for me on such short notice.

The Chair: Think about it for the moment, and I'll go on to Leon and Rick. I'll give you about two and a half minutes to study it.

Mr. John Bryden: That's exactly what I need.

The Chair: Leon.

Mr. Leon Benoit: I think it's clear, but this would only apply to an Indian who is registered under the Indian Act in Canada if that registration somehow was revoked by the Indian Act and they would no longer be eligible for this requirement.

Mr. Norman Sabourin: That's correct.

The Chair: Hallelujah! Thank you, Leon, for that clarification.

Rick.

Mr. Rick Limoges: For further clarification, I assume the fact that they are registered under the Indian Act implies certain rights to that particular individual. Because we don't have the treaties before us, or the Indian Act for that matter, I would ask, does citizenship give them any additional rights over and above the rights that are given to any other citizen?

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For example, if the government is going to be giving out sums of money or compensation to a group under a treaty, do they now become eligible for compensation on both sides of the border? For example, the American government might give them something because of their status as an American citizen, and then they could also be entitled to additional compensation over here.

Mr. Norman Sabourin: I can't answer that with any degree of certainty, but I would be extremely surprised if that were the case. I don't see how you could justify the distinctive treatment.

I don't know if, Eric, you have some other thoughts on this.

Mr. Eric Stevens (Legal Counsel, Legal Services, Department of Citizenship and Immigration): No, I simply can't add anything. I've never dealt with that hypothetical.

Mr. Rick Limoges: I guess we're saying we're deeming them a permanent resident, and I'm just wondering what we are giving them by saying that.

Mr. Norman Sabourin: The deeming provision that deems them a permanent resident has no effect whatsoever as far as any other legislation is concerned. It has an effect only for the purpose of administering the Citizenship Act, and absolutely no other effect. That derives from subclause 2(2), which says “For the purposes of this Act...”.

What it does give them is the opportunity to become citizens of Canada. The example that normally comes before us is an Indian who wants to travel and does not have a Canadian passport. He or she will say “I've never needed a passport, because I'm a registered Indian. I travel across the border freely; I go back and forth between Canada and the U.S. But now I want to go to Europe. I don't have a Canadian passport, and I'd like to be a citizen.”

Mr. Rick Limoges: But does the Indian Act or do any of the treaties between the Government of Canada and Indian bands give rights to citizens who are registered that are different from the rights it would give to just those who are registered?

Mr. Norman Sabourin: I don't know.

Mr. Rick Limoges: We don't have that legislation or those treaties in front of us, so...

The Chair: It's a very good question.

Mr. Rick Limoges: I wouldn't want us to be handing something out unknowingly.

The Chair: But it's an interpretive clause here that says “For the purposes of this Act...”. As Mr. Sabourin and others are trying to say, there may be different classes, such as the permanent resident, under the Indian Act. That is there to interpret for the purposes of citizenship.

Mr. Sabourin.

Mr. Norman Sabourin: Mr. Chairman, I think I can answer the question, because the real question is, should these people be entitled to become citizens? If they should be entitled to become citizens, then they may or may not derive rights out of that. That's not the purpose of this legislation. The purpose of this legislation is, should we have a mechanism to allow them to become citizens? If they are registered Indians and they live in Canada for three years out of six, the principle is yes, they should be entitled to become citizens.

The Chair: Leon, you have another point?

Mr. Leon Benoit: Yes, I have a question on subclause 2(1), the “citizenship official” definition. It lists the citizenship commissioner and the registrar of Canadian citizenship, and then “any other person to whom the Minister delegates powers”. First of all, what process does the—

The Chair: Where are you?

Mr. Leon Benoit: Subclause 2(1), the “citizenship official” definition.

The Chair: Okay, good.

Mr. Leon Benoit: Who would be “any other person” on that list? Can the minister just do that in an ad hoc way, or is there a process through which the minister has to get approval from cabinet to have a certain list of other people who could be considered citizenship officials? And who would be on that list? You must have that worked through. What other people, in terms of positions in the citizenship department or possibly in the immigration department—I don't know—could be designated these other people?

The Chair: Who is a citizenship official according to this act?

Mr. Norman Sabourin: To answer that, I have to talk about clause 44, because the minister's authority to delegate her powers falls under clause 44. The definition of “citizenship official” that you find in clause 2 is there merely for convenience, so that when we have the offences we discussed earlier, found at clauses 39 and 40, where it says, “being a citizenship official, wilfully makes...”, we don't have to say “being a citizenship commissioner”, or “being the registrar”, or “being a person to whom the minister has delegated authority pursuant to section 44”. It's strictly for convenience; it's so that we can use the words “citizenship official” in clause 40 that the words “citizenship official” are defined in clause 2.

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Mr. Leon Benoit: But it doesn't say in clause 44, really, how... There's a process required for the minister to appoint someone to that position. I mean, it does in a general way. Who normally is given that power? What I'm looking for is this: who will be given that power under this bill?

The Chair: Does it include all bureaucrats in the citizenship department?

Mr. Norman Sabourin: Chairman, the way it's done today and the way it will be done in the future is that a chart of delegation is prepared that lists the provisions of the legislation and who can do it, and then the minister signs it.

Who can do it? There are some 300 citizenship officers across Canada who approve citizenship applications. There are going to be some 20 citizenship commissioners who are going to administer ceremonies. There are going to be case officers in the processing centre in Sydney, Nova Scotia, and so on.

Mr. Leon Benoit: Roughly how many people across the country?

The Chair: Hundreds.

Mr. Leon Benoit: Would be delegated that power...

Mr. Norman Sabourin: The delegation authority itself would go to between 300 and 400 people, I'm guessing.

Mr. Leon Benoit: Okay—

The Chair: John.

Mr. John Bryden: Just following up on my original line of argument here, I have the Immigration Act before me, and one of the things it says is that:

Where a permanent residence is outside Canada for more than one hundred and eighty-three days in any one twelve month period, that person shall be deemed to have abandoned Canada as his place of permanent residence

But if I read this clause correctly, as long as you're registered under the Indian Act, you are a permanent resident regardless.

An hon. member: That's right.

Mr. John Bryden: So this clause basically suspends the restriction on permanent residency that I see in the Immigration Act. Is that correct?

Mr. Norman Sabourin: That's correct.

Mr. John Bryden: I see.

Mr. Norman Sabourin: And the reason for that is that the Immigration Act itself provides that a registered Indian shall be considered for purposes of the Immigration Act to have an absolute right of entry and exit from Canada.

Mr. John Bryden: But that's not what we're talking about. We're talking about living in Canada. If I understand what I see so far, a Warrior Society individual living in Texas for 11 months of the year can come to Canada and be deemed to be a permanent resident of Canada even though he's lived 11 months of the year in Texas.

The Chair: John, may I suggest...

Mr. Norman Sabourin: That's correct.

The Chair: I think you've raised a very important issue, which we may want to look at very closely under the next bill, the immigration bill. This is citizenship.

I understand that it's relevant. I'll let Mr. Sabourin answer it again. I think it's clear to us all now exactly what the significance of that particular paragraph 2(2)(b) is.

Mr. Norman Sabourin: I think I understand the concern that was just expressed. We have to remember that the provisions of clause 6 continue to apply. If the person wants to become a citizen, whether they fall under paragraph 2(2)(b) or not they're going to have to live here, to be physically present in Canada for three years, before they can become a citizen.

The Chair: Is there any further debate?

(Clause 2 agreed to)

(On clause 17—Notice of decision)

The Chair: Here's where I have a problem. We started dealing with the amendment that was put yesterday by Mr. Martin. He's not here right now. It's his amendment.

Mr. Leon Benoit: Mr. Chair, if I may, we were just now given a chart—

The Chair: I agree, and we'll probably get into the main motion, which has to deal with revocation.

But I want to think about whether or not I'm in a position to deal with the amendment—

Mr. Leon Benoit: Oh, I see.

The Chair: —because Mr. Martin isn't here and therefore can't speak to his amendment. It's on the floor, and therefore he can't withdraw it even if he wanted to. That's my point.

• 1040

We're on the amendment. The amendment speaks to the whole issue of revocation.

Mr. Sabourin, I think there were a number of questions with regard to how this appeal mechanism works. You provided us all with a citizenship revocation process—

Mr. John McKay (Scarborough East, Lib.): I have a point of order, Mr. Chairman.

The Chair: —survey, or at least a flow chart of how it works.

John.

Mr. John McKay: If the motion is properly on the floor, which you've ruled, the motion as I understand it only makes sense in the context of further amendments to the whole clause 17, and those changes are clearly not before us. I don't know how we can proceed to discuss other subclauses of clause 17, namely subclauses 17(2) and 17(3), if the only thing before us is the amendment to paragraph 17(1)(b).

An hon. member: That's an excellent point.

Mr. Leon Benoit: If I may comment, Mr. Chairman...

The Chair: Excuse me. As you know, we started discussing clause 17 yesterday. An amendment was put forward as it relates to, as you said, line 38, and we're dealing with that particular amendment. That's not to preclude... Because as you know, some people can move some further amendments before we deal with the clause. What I am dealing with now is the amendment, which has been properly put here, because it can't be withdrawn. The only people who can withdraw it are the people who moved it.

Let's deal specifically with what the amendment says:

That Bill C-16 in clause 17 be amended by replacing line 38 on page 7 with the following:

Court—Trial Division, or the Federal Court of Appeal, or the Supreme Court of Canada in the event of one or more appeals, finally determines, on a;

And now—

Mr. John McKay: But is that the only thing we're dealing with? That's the point.

Mr. Leon Benoit: I have a point of order.

The Chair: I'm only dealing with the amendment at this point, but I thought what might be—

Mr. Leon Benoit: I have a point of order.

The Chair: Just hang on to your horses.

I thought what might be important, because I think the discussion yesterday sometimes went beyond this, is to give Mr. Sabourin the opportunity of taking us through the chart we asked for, so that we could have a better understanding of how the appeal mechanisms work or don't work or whatever. That's what I'd like to do, and then we'll get to the question.

Mr. Sabourin, if we can deal with the chart—

Mr. John Bryden: Can I have a point of order, though, Mr. Chairman?

The Chair: What's the point?

Mr. John Bryden: I just wonder if, in view of my colleague's remarks, maybe one way we can deal with this is to defer the vote on this particular amendment to another time.

The Chair: No, it's properly on the floor. We're into debate now on this, but before we get further into debate, I want Mr. Sabourin to take us through this chart, please.

Mr. Norman Sabourin: Thank you, Chairman.

First of all, I would like to point out that I think the sheets were given to you in reverse order. Obviously the citizenship revocation process would take place before any kind of deportation process. Having said that—

The Chair: Excuse me. Should the deportation process... Is this an A and a B, so that there's a citizenship revocation process as well as a deportation process and they actually go together?

Mr. Norman Sabourin: That's correct, Chairman. Part A would be the citizenship revocation and part B would be deportation.

The Chair: Thank you for clarifying that. Some of us thought this was part of another bill.

Mr. Norman Sabourin: Chairman, I'd like to introduce the acting deputy director of the crimes against humanity and war crimes section at the Department of Justice, Mr. Max Wolpert.

We asked Mr. Wolpert to be with us today. With your permission, I'd like him to take us through the flow chart, because he is the one at the Department of Justice who is responsible for the litigation of the most complex revocation cases.

The Chair: Thank you very much for doing that, Mr. Sabourin, for inviting Max so that he could take us through this. I'm sure there'll be some good questions.

Thank you for being here, Max.

Mr. Max Wolpert (Acting Deputy Director and Senior Counsel, Crimes Against Humanity and War Crimes Section, Department of Justice): Thank you, Mr. Chairman and honourable members of the committee.

I'd like to take you briefly but clearly, I hope, through the process of citizenship revocation, first of all, and to demonstrate to you that there are, in the existing process as set out in the bill, at least three phases where the individual affected can bring—or in actual cases has brought—judicial review applications to the Federal Court and who would then have an absolute right to take that to the Federal Court of Appeal and then, with leave, all the way to the Supreme Court of Canada.

• 1045

As you and the members are aware, the very first step in this process is the Minister of Citizenship and Immigration issuing a notice of intent to revoke. That's in subclause 17(1) of the bill.

Judicial review is before the Federal Court this very week challenging both the process by which that has been done in a particular case—that's the case of Mr. Jacob Fast—and also, going beyond that, not just raising issues of fairness and so on, the actual substance. In other words, that notice sets out the allegations, and the person concerned is challenging this and saying “Even in law you can't win this case, so let's get rid of it right now.”

That hearing is taking place this week. As I've indicated, even if it goes against Mr. Fast, he has a right of appeal that's without leave. It's an automatic right of appeal to the Federal Court of Appeal under section 27 of the Federal Court Act. If he should be unsuccessful there, he has an absolute right to try for leave to appeal to the Supreme Court of Canada. If that is granted, the Supreme Court of Canada will deal with it. So that's right off the bat.

If the matter goes forward and the individual elects to have the case referred to the Federal Court—that's the second box on the left—then of course there's a decision issued by the Federal Court on whether the person did or didn't obtain citizenship by fraud or other similar means. As was mentioned yesterday by Mr. Sabourin, under the existing system, if the individual is found not to have obtained citizenship by fraud, that ends the process permanently. The individual is free to have citizenship unchallenged thereafter.

However, if the individual is found to have obtained citizenship by fraud, first of all, by law and by policy, the person has an opportunity to make full and extensive submissions in writing to the Minister of Citizenship and Immigration. In the recent case of Helmut Oberlander, Mr. Oberlander has retained a distinguished former judge, His Honour Judge Roger Salhany, who'll be making a very comprehensive submission to the Minister of Citizenship covering both legal and non-legal aspects of the case.

If the minister decides not to recommend revocation, again, that's the end of the process. If the minister does go ahead and issue a report recommending revocation, individuals concerned have brought judicial review applications before the Federal Court trial division. In the case of Mr. Oberlander, he has done that already. Even though there has been no report yet by the minister, he has already brought an application for judicial review to the Federal Court trial division asking for an order prohibiting the minister from doing that or the Governor in Council from acting on it.

Again, as in the first case I told you about—I won't have to repeat all the boxes—all those appeals from the Federal Court trial division are there. I apologize that boxes two and three are out of order. Obviously it's a right of appeal to the Federal Court of Appeal first and then to the Supreme Court of Canada.

Then the Governor in Council will consider the minister's report. Of course, if the Governor in Council decides not to revoke, the person retains his or her citizenship. But if the Governor in Council does decide to revoke, there's an absolute right to have the Governor in Council's decision judicially reviewed by the Federal Court trial division. That is provided for in section 18 of the Federal Court Act.

Again, if the Federal Court trial division turns that down, there's an absolute right to appeal to the Federal Court. No leave is required. There's an absolute right. It goes to the Federal Court of Appeal. If that yet again goes against the person concerned, then there is a right to apply for leave to appeal to the Supreme Court of Canada, and an appeal if leave is granted.

Obviously the person is still here in Canada. We're just talking about revocation of citizenship.

• 1050

I'd like to explain also that if the accusation against the citizen is that he or she lied at the citizenship stage—in other words, came in legally but then lied about how long he had been in the country and so on—all that happens to the person is that he or she becomes a permanent resident. That's all. Then several years later, if the person behaves, they can apply to become a citizen again. It's only if the basis upon which the citizenship has been revoked is lying or fraud at the immigration stage—the stage of entering the country in the first place—that there are further possible consequences, which might include removal from the country.

I acknowledge, Mr. Chairman, that it's not the direct subject matter of this bill—

The Chair: But very useful to the discussion.

Mr. Max Wolpert: —but with your permission, I'd like to indicate how many opportunities for appeal, review, and submissions there are at that stage.

The Chair: I think it would be helpful.

Mr. Max Wolpert: Thank you for that permission.

If you'll turn to the other page labelled “Deportation Process”, that begins with a report under section 27 of the Immigration Act alleging that this is a person who has had his or her citizenship revoked for reasons of fraud in entering the country in the first place. That goes to an inquiry before the adjudication division of the Immigration and Refugee Board.

It's not listed on the form because it's not really an appeal, but I must bring to your attention that it is possible—and it has already happened—that the individual concerned makes a refugee claim at that stage. Mr. Bogutin was the first person who had his citizenship revoked in a World War II case in the post-1995 era when the policy of citizenship revocation became the focus. He had his citizenship revoked in mid-1998, but he's still in that IRB process because he made a refugee claim. So that's yet another way to have a sort of appeal.

The Chair: At least exercise your rights.

Mr. Max Wolpert: That's right. If no removal order is issued, of course the person remains in Canada.

What if a removal order is issued? As I think the members of this committee are well aware, under section 82.1 of the Immigration Act, the person has a right to apply for leave for judicial review to the Federal Court trial division. If leave is granted—you can follow it through the boxes—there is judicial review. If the person is unsuccessful but convinces the Federal Court trial division that there is an important question involved, that question is certified, and there's a full appeal to the Federal Court of Appeal. From there one can apply for leave to appeal to the Supreme Court of Canada, and then, if it's granted, there is an appeal by the Supreme Court of Canada.

If all of that is unsuccessful and the removal order is upheld, the person, as you are aware, has a full right to apply for a humanitarian and compassionate review, for example on medical grounds, to the Minister of Citizenship and Immigration. That again triggers the entire series of rights to apply for leave for judicial review in the Federal Court; if the question is certified, an appeal to the Federal Court of Appeal; an application for leave to appeal to the Supreme Court of Canada; and if leave is granted, an appeal before the Supreme Court of Canada.

So there are approximately six stages at which people can apply or have applied for judicial review or appeal. This doesn't include the refugee claims. By the way, if the refugee claim is turned down, as you know, there are all kinds of appeals there.

What are the results of this plethora of appeal rights that are already in the existing law and are essentially carried over to the new bill? Since 1995, in the new era of focus on revocation and deportation, the Governor in Council has revoked a total of four persons' citizenship in World War II cases. The total number of people who have been removed from Canada stands at zero. There are two people who did not contest. They didn't fight. Their citizenship was revoked. To the best of our knowledge, they did leave the country. But of the people who have gone to court, of the four people who have had their citizenship revoked, not one has yet been removed from the country. One case is fairly recent, that of Mr. Oberlander. Certainly in the other three cases, that relates primarily to the many opportunities for submissions and review and judicial review that are already in the existing law and in the proposed law.

• 1055

The Chair: Mr. Wolpert, just before I go to a couple of questions, let me just understand this very clearly.

At the top of the citizenship revocation process, where the minister issues notice of intent to revoke, you have judicial review brought before the Federal Court—you used the Jacob Fast case as an example—with all the rights of appeal to the Federal Court of Appeal, to the application for leave to the Supreme Court, and ultimately the Supreme Court. There are no arrows or anything else. Are you saying that's presently within the system and is possible within the bill we're talking about?

Mr. Max Wolpert: This is an application that has actually been filed in the Federal Court.

The Chair: My point is, as I understand the revocation parts of this under the new bill, they are exactly the same as under the old bill.

Mr. Max Wolpert: Yes, there would be no effect on that.

The Chair: That's what the whole issue of the amendment is, and I think that's why the amendment may very well be out of order. If that presently exists and you can appeal at those various levels at the first stage, are you saying this new bill does that? Is it possible to do that?

Mr. Max Wolpert: To clarify, this is a concept that might be of huge interest only to lawyers. What Mr. Fast is doing is judicial review. If he loses on that judicial review, there's an appeal of that.

The Chair: Okay, that's fine.

Mr. Max Wolpert: Judicial review is a review of how things have been done, although it can include the law. The difference between appeal and judicial review in this case is if Mr. Fast wins, rather than disposing of the matter, the court can give it back to the minister and say “Now follow the law, and this is what the law is.” Of course, if the law is expressed in a way that there's no way to go ahead any further, the minister has to withdraw it.

The Chair: Okay, so there's leave provision. I think we've got it.

Mr. Sabourin, do you have something else to add to that?

Mr. Norman Sabourin: Chairman, just very quickly so we're clear on your point, there is no change contemplated at all between the current process and Bill C-16.

The Chair: That's useful, as are both of these charts, from an educational standpoint. I don't think we could add them to the bill, and that's unfortunate, but had we not asked the question... Sometimes bills are understood by lawyers and only lawyers and people like Max. When it comes down to the very people on the street that we're actually trying to inform and educate... This is very helpful and constructive to some of us who were asking some very pertinent questions on how the judicial process works.

I have Bryden, Myers, Benoit and Telegdi.

Mr. John Bryden: Can I just ask the witness to elaborate a little bit on the difference between the judicial review and an appeal?

Mr. Max Wolpert: The main difference is that at the end of an appeal, the appeal court can substitute the verdict or the judgment they felt ought to have been given, according to the law.

The judicial review court can't do that. It sends it back to the lower level, but says “You got it wrong. You applied the wrong procedure, you made errors in law, or you made perverse or capricious findings of the fact that are ridiculous. This is the right law and approach. Now you make the decision, following strictly what we are directing you.” That's the main difference.

Judicial review, section 18.1 of the Federal Court Act, lists all the grounds upon which a judicial review court can quash or set aside a decision made by whoever is being reviewed. It covers jurisdiction, fairness in the process, natural justice, errors of law, and findings of fact that are erroneous and made in a perverse manner or without regard for the material that was before the lower body.

Mr. John Bryden: In terms of a person's individual rights, are you saying that judicial review is equivalent to the right to appeal?

Mr. Max Wolpert: No.

Mr. John Bryden: Is it inferior or superior?

• 1100

Mr. Max Wolpert: It effectively gets the person to the same point. It's not a one-stop process. You may not emerge from judicial review with the verdict you wanted, but you set aside what's been done already; it's invalid.

Mr. John Bryden: Are they truly equivalent, or is one an inferior opportunity for justice compared to the other?

Mr. Max Wolpert: They're equivalent.

Mr. John Bryden: Thank you, Mr. Chairman.

The Chair: Lynn Myers.

Mr. Lynn Myers: Mr. Chairman, I just want to say I find this very useful. I think you've already said that. Based on the comments yesterday, there was some confusion about what was to transpire, but I think Mr. Wolpert has put it in perspective very nicely. This really capsulizes it in a way that I can certainly understand, and I think others can as well.

I hope we can move on. Perhaps you'll also note soon whether or not you think the amendment's in order.

The Chair: Thank you.

Leon.

Mr. Leon Benoit: Thank you, Mr. Chair.

This seems like an awfully long, convoluted process. That's the first thing I notice. The second thing I notice is if an individual is found not to have obtained citizenship by fraud, the government has no appeal. Is that correct?

With the number of cases that are dealt with, I think it would be reasonable to have the referral to the Federal Court in any case, and an automatic application for leave to appeal to the Supreme Court. That process would be available to the government and the individual.

Is that something that would be workable and might save a 20-year process and make it a seven-year process for an individual?

Before you answer the question, could I just get again, probably from Mr. Sabourin, the number of people to whom the minister issues a notice of intent to revoke?

The Chair: Unfortunately, you weren't here when that part was done.

Mr. Leon Benoit: I did ask about that yesterday, but I just wanted—

The Chair: Only four persons have been issued revocation orders, and none has left yet because they're still going through the process.

Mr. Leon Benoit: Was that in the last year?

Mr. Norman Sabourin: Excuse me, Chairman. To clarify, the four cases Mr. Wolpert referred to involve activities that are being examined from World War II.

Mr. Leon Benoit: As war crimes.

Mr. Norman Sabourin: Since 1977, when the Citizenship Act has been enforced, there have been approximately 40 cases of revocation of citizenship, in total.

Mr. Leon Benoit: Okay, so there has been roughly a little more than one per year. So why not go to that process, where either party has the right to file an application for leave to the Supreme Court after the Federal Court hearing, and that would be it for both parties?

Mr. Max Wolpert: Thank you for the question. If the Federal Court trial division judge hearing the reference were to breach fairness—not allow the government to fully present its case and so on—the jurisprudence in the court indicates that the government equally, with the person concerned, could take that to a higher court for review. Presuming there's a fair hearing and the trial division has rendered its findings on the fact, we feel that no purpose is served by going beyond that. We must respect that.

Given the rather complicated, difficult, and lengthy nature of the proceeding already, in order for Canada to attain its objective of sending a message to the world that we will not be a safe haven for persons complicit in war crimes or crimes against humanity, or other heinous or reprehensible acts, the process must have its hearing and come to an end in that way. We have to live with the cases that are decided against us, and we do.

• 1105

The Chair: Okay. Mr. Telegdi.

Mr. Leon Benoit: So are you saying that what I'm suggesting there would actually lengthen the process rather than shorten it?

Mr. Max Wolpert: It would add an appeal. Having an appeal process would not necessarily eliminate any of these other opportunities for judicial review. Obviously one could argue that if a judicial review application was brought after an appeal had already been dealt with, at least those same issues raised on the appeal should not be raised again before the court.

If a person is challenging, on judicial review, the Governor in Council decision to revoke, that wouldn't necessarily involve factors and events that had happened after the Federal Court trial division's hearing was already finished. There could be complaints about the fact that the person wasn't allowed into the cabinet to speak to them in person, or various things like that. Those kinds of judicial reviews would still go on and still occur and still take as long as they do now. I fear that the net result would be a lengthening of the process.

The Chair: Andrew.

Mr. Andrew Telegdi: Mr. Chairman, thank you very much.

I think if you look at this citizenship revocation process, it's probably much more complicated than it should be. What is at the heart of my contention, and what I and other people are so concerned about, and why there's all sorts of court time being taken up is the fact that you cannot appeal the decision of the Federal Court in that box.

Do you see the the third box down on the left-hand side? You cannot appeal that decision. What lies at the base of my concern is that if that one judge who sits in judgment was infallible, then it would be fine. If that one judge would not make a mistake, it would be fine. If you could attribute that kind of skill to all the judges—

An hon. member: In favour of the individual...

Mr. Andrew Telegdi: No, it doesn't matter if it's in favour or if it's against.

That is what we have available to every individual who's charged in a civil case before a civil court or in a criminal case in a criminal court. They can appeal the decision of that one judge.

Mr. Fast went to court last week. He is saying the process is unfair because he cannot appeal the decision of that one judge, where our whole history of jurisprudence is that you have avenues of appeal. If he makes a mistake, if nobody ever reviews the fact that he made a mistake in that particular trial in terms of the conclusions that he came to... And for a criminal case you can do it; you can do it for a civil case and an insurance case, and that's where the weakness in this whole thing is. It's resulting in unnecessary cases going to appeals before the process even starts, because of the unfairness of the process. What contaminates it is the fact that you can do that.

The Chair: Technically, though, there are appeal mechanisms, just to correct the record, but they're down somewhat further.

Max, you might want to comment on that.

That's why the amendment that has been put is in order, because it does talk about introducing an appeal mechanism at that stage. I will deal with that amendment on that basis, because that's exactly what this whole debate is about. The amendment is in order from that standpoint.

Mr. Lynn Myers: So it's in order.

The Chair: Max, could you comment on Mr. Telegdi's comments?

Mr. Max Wolpert: Yes. The reason there is an appeal in cases that the honourable member mentions is that in those cases there has been a decision or a judgment that affects your rights. It takes away something from you or imposes a penalty.

The difference here, as the court has explained in the Federal Court of Appeal in the Luitjens decision, is that the decision by the Federal Court trial division does not remove anybody's citizenship. You're a citizen before that decision and you're a citizen after that decision. It is an executive act of the Governor in Council that, if it goes against you, will remove your citizenship. This is why the logic is that you then have the judicial review after that act has been—

The Chair: Thank you for that very salient point.

I'll take one more speaker on this issue, Mr. Bryden, and then I'm calling the question.

Mr. John Bryden: As a qualitative question, suppose there was an appeal right to the Supreme Court in this mechanism. Would that not make it almost impossible for the ministers to exercise discretion in not revoking citizenship?

• 1110

Mr. Max Wolpert: No, because there would still be many other factors the minister can address. If the person during this long process of appeal has become gravely ill, or perhaps a family member has become gravely ill...

Mr. John Bryden: I was thinking more about justice though. Right now, if I understand it correctly, the Federal Court trial division can come to a determination that says the citizenship should be revoked. The minister has the power, as I understand it, to override that finding and not revoke citizenship. I guess the qualitative question I'm asking you is, if there was an appeal right to the Supreme Court, would that not make it much more difficult for the minister to exercise his or her discretion to not revoke citizenship?

Mr. Max Wolpert: No, because, by law, the Federal Court trial division judge makes no recommendation whatsoever on whether the person's citizenship should be revoked. The judgments are silent. They simply end—you did or did not get your citizenship by fraud, period. No recommendation is made. It's entirely up to the minister—

Mr. John Bryden: Yes, but that's improper.

Mr. Max Wolpert: —whether to go ahead, and then ultimately up to the Governor in Council. It's entirely in their hands.

Mr. John Bryden: Okay. Thank you.

The Chair: I have an amendment by Mr. Martin on clause 17. It's been put. I will call the question on the amendment.

(Amendment negatived)

The Chair: On the main motion, Mr. Benoit.

Mr. Leon Benoit: I would like to bring another motion before the committee. It's the one Mr. Narvey presented, and I think it deals with what Mr. Telegdi has talked about in a way that might work.

I think everyone has a copy of the amendment.

Mr. Steve Mahoney: I don't have one.

Mr. Leon Benoit: They were passed around yesterday.

The Chair: They were circulated yesterday and disposed of this morning. Perhaps everybody could just shuffle through your paper.

Mr. Leon Benoit: Yes, you will find it, I believe, gentlemen.

An hon. member: I have one.

Mr. Leon Benoit: Does everyone have a copy? I know several people do.

Do you want me to read it, Mr. Chair? I think everyone has it.

It deals with the issue that the last amendment dealt with, but it adds to it and puts in place a process that would work better. It's the last amendment. It also would replace in clause 17 lines 6 to line 8 on page 8 with the following:

Division made under subsection (1) and a decision of any person, body or court performing similar functions under prior legislation may be appealed to the Federal Court of Appeal with the leave of the Federal Court of Appeal.

and (c), it would replace the marginal note on line 5 on page 8 with the following:

Appeal with leave

The Chair: First of all, if you're moving the (a) part of this as an amendment, I'm going to say that the (a) part of this is out of order, because we just dealt with it with regards to Mr. Martin's suggestion and it essentially has the same effect.

Mr. Leon Benoit: I think it's quite different.

The Chair: I see (b) and (c) as consequential. If you're proposing them as amendments, I will accept them, but (a) is out of order, as far as I'm concerned.

Mr. Leon Benoit: Mr. Chair, that's why I was asking before we voted on the last amendment whether you would accept this complete amendment, which included as part of it the last amendment. I'd like to put the whole amendment, including the part (a), which was the one we voted on last time. I think you have to take them together. That was part of the problem with the last amendment.

• 1115

The Chair: I'm asking you to separate them or I'm going to deem this whole thing out of order. If you want to separate them, (b) and (c), I will deal with it on that basis. If you intend on keeping them intact, I would say this whole amendment is out of order because we dealt with it with a previous amendment.

Mr. Leon Benoit: Well, in that case, I guess—

The Chair: I'm trying to be fair.

Mr. Leon Benoit: I did ask the chair whether this would be accepted. I didn't get a ruling but I was—

The Chair: I've just given you my ruling after some—

Mr. Leon Benoit: I was hoping the chair would accept this whole amendment.

The Chair: I'm telling you I will accept (b) and (c) as amendments.

Mr. Leon Benoit: Well, (b) and (c) don't make any sense without (a).

Mr. Steve Mahoney: Withdraw it all, then. That's absolutely right.

Mr. Lynn Myers: Withdraw it all.

Mr. Leon Benoit: I'll bring it up at report stage, then.

The Chair: Okay, thank you.

Mr. Leon Benoit: I'm not withdrawing. We have to—

The Chair: First of all, is there an amendment on the floor?

Mr. Leon Benoit: There is an amendment on the floor.

The Chair: Then I'll put the question on the amendment on the floor.

Mr. Leon Benoit: It's the whole thing, as written here.

The Chair: Fine.

On the amendment that's proposed by Mr. Benoit, all in favour?

Mr. Leon Benoit: Recorded vote.

(Amendment negatived: nays 9; yeas 2)

(Clause 17 agreed to on division)

The Chair: Do I have clause 23? Which one didn't we deal with? Which other one was stood?

Mr. Bigras, do you want to ask something on another chart that was provided to us before I move on to the other points?

[Translation]

Mr. Bernard Bigras: Mr. Chairman, I would like to have further clarification on the diagram pertaining to clause 8 which, I know, was adopted yesterday, but which we have just been given now.

[English]

The Chair: We were given another document this morning on clause 8. Mr. Bigras just asked if he could ask a question of the administration. Theresa wants to take us through this. Is that what you were asking, Bernard?

[Translation]

Mr. Bernard Bigras: Yes, Mr. Chairman.

[English]

Mr. Lynn Myers: Mr. Chairman, I have a point of order. Haven't we dealt with clause 8?

The Chair: Yes, we dealt with clause 8, but I feel this is an important issue. He's asking a simple little question on a point of order, and I'm going to allow the administration to answer the question.

Mr. Lynn Myers: Very good.

Mr. Steve Mahoney: We're back on clause 8?

The Chair: Yes. Technically speaking, we're back on clause 8.

Mr. Lynn Myers: We've approved it but we're back on it?

The Chair: That's right.

Mr. Leon Benoit: Mr. Myers wants to be chairman here.

Ms. Theresa Harvey (Deputy Director, Social Policy and Programs, Selection Branch, Department of Citizenship and Immigration): Thank you, Mr. Chairman.

We thought it would be helpful if we outlined the process that is envisioned in the new Citizenship Act. I want to stress that the new process will mirror the process we currently have under the Immigration Act.

Essentially, the way it works is that the first point of contact for the parents is normally Citizenship and Immigration, where we provide general information on how the citizenship process works. We suggest that they contact the province or territory to obtain information on the province's requirements and to start the provincial process. Citizenship and Immigration provides the parents with a complete citizenship kit, which outlines all of the information. They complete the kit and submit it to citizenship officials for processing.

CIC also advises the provinces and territories of the application and requests their approval. The approval of the adoption, stating that the provincial requirements have been met, is sent to the mission that will be dealing with the application overseas.

Generally what happens is the parents will submit the application to our case processing centre in Sydney, Nova Scotia. The office in Sydney will confirm the eligibility of the parents, that one or both are Canadian citizens. They will then advise the province of the application for citizenship and they will send the citizenship application over to the responsible visa office, who will be dealing with the citizenship application in the foreign country where the adoption will take place.

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Many of these things can take place simultaneously. It is our suggestion, and the provinces normally suggest, that the parents proceed with meeting the provincial requirements at the same time as the adoption is in process in the foreign country, so that the home study and other requirements of the province are met or are completed as quickly as possible.

Once the province or territory makes a decision of whether the adoption meets the requirements of the province, that advice is sent to our officials at the visa office, who will assess the case in total under clause 8. If it should happen that the province does not approve the adoption, if they don't feel the adoption meets the provincial requirements, the case would not result in a grant of citizenship. We will not interfere with provincial jurisdiction. It is one of the elements that must be looked at by citizenship officials.

A letter is actually required from the province indicating that all provincial requirements have been met. Once that is provided to the visa office, finalization of the application can proceed. The visa office will look at the other factors, such as whether the adoption was completed according to the laws of the country where the adoption took place and whether the province of residence of the parents has concurred in the adoption or issued approval.

There is also a check to ensure that the adoption is in the best interests of the child. In determining whether the adoption is in the best interests of the child, it's envisioned that in the regulations there will be factors considered by the citizenship officer designated overseas, that qualified people have determined that the adoption is in the best interests of the child. For instance, a medical should have taken place for the purposes of advising the adoptive parents to ensure that they're aware of the medical situation and want to proceed with the adoption. Consent of the biological parents may be required to ensure that there has been no fraud in the process and so on.

The final step would be to ensure that the adoption has taken place for the purpose of providing the child a family and not for the purpose of the child being granted citizenship.

These requirements mirror what is in effect today. In terms of how the process works, essentially what will happen at the end is that instead of the issuance of an immigrant visa, it will be the grant of citizenship. The citizenship officer will be charged with the decision of whether the grant of citizenship should occur. It's not an issue of whether the adoption is legal in the country or is recognized by the province. We will not interfere in those matters of provincial or international jurisdiction.

The Chair: Thank you.

Remember, this is for information purposes.

Bernard, one further comment, then Leon, and that's it.

[Translation]

Mr. Bernard Bigras: I do not intend to repeat what I said yesterday with respect to responsibilities and provincial jurisdiction. Rather, I would like to ask some questions dealing with the medical examination. When we were examining the former Bill C-63, the Fédération de parents adoptants du Québec had wanted the immigration services to give the children medicals when they were matched up with a prospective parent.

In addition, they wanted the information to be provided when a prospective match was found and not when the passport or any other document was issued, at the end of the process. I would like to understand the spirit of the regulations you talked about in your explanatory notes on page 53 of your document. I would like to know whether or not the regulations will ensure that the results of these medicals will be forwarded to the parents before a proposed match is made, before a child is suggested. The parent must be aware of the medical status of the child, who may have special needs, which the parent may not be able to meet at that time.

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[English]

Ms. Theresa Harvey: Where the province requires that a medical be completed as part of provincial requirements, then the medical would occur at that stage and possibly be part of the home study process and so on.

Now, we cannot require that the medical be completed at a certain stage, but before a grant of citizenship would occur, the citizenship officer would have to be satisfied that the parents were fully informed as to the child's medical situation so that they could make a decision on whether to proceed with the application.

It would be very difficult for us, because the intent of this legislation is to deal with adoptive children in the same manner as biological children. So for us to require a medical, or for that to be a reason for refusing a case, would just not be sustainable. The reason for the medical is to ensure the parents make an informed decision, and if the medical is part of the provincial requirement, then of course we would ensure that the medical be included in the province's decision on whether they would approve the adoption and whether they feel the parents are fit to handle a child, be it with special needs, and so on.

[Translation]

Mr. Bernard Bigras: When a match has been suggested, I want to know if the parents have the results of the medical that the child has undergone, in order to be able to make an informed decision, thereby avoiding the situation where the parent has to make a decision at the end of the process, when a relationship has already been established. It is important that the parent have sufficient information, not at the end of the process, but at the time that the match is suggested.

Mr. Norman Sabourin: Mr. Chairman, that is the specific intent of the provision. This is precisely why we created the criterion with respect to the child's best interest. This is a provincial requirement and, therefore, we have to ensure that this takes place in order to recognize the validity of the adoption.

[English]

The Chair: Leon, quickly, an information question.

Mr. Leon Benoit: Ms. Harvey, you said the intent of this act is to deal with an adoptive child in the same way as... what? A natural—

Ms. Theresa Harvey: A biological child.

Mr. Leon Benoit: And you said where a province requires that a medical is conducted, one will be. That's not in all cases?

Ms. Theresa Harvey: There will be factors stipulated in the immigration regulations, factors that will be taken into consideration by the citizenship officer in determining whether a grant of citizenship should occur, and this will occur under the best interests of the child provision. One of those factors is a medical. So if a case is before a citizenship officer and there is not a proper, complete medical examination, and the citizenship officer cannot make a determination that the parents are fully informed of the child's medical status, then in that situation the grant of citizenship is not likely to occur.

Mr. Leon Benoit: Okay. Now, is that proper medical exam the same one referred to in the Auditor General's report, which is a 40-year-old exam, or is it an updated exam that includes tests for hepatitis C and HIV?

Ms. Theresa Harvey: We have recently been in contact with the provinces and have sought their advice on what types of medical testing they feel would be appropriate to include to ensure the parents are properly informed. So there are discussions going on, and we are seeking the provinces' input as to additional testing that they feel is required for the medical, that would constitute the medical for this purpose.

Mr. Leon Benoit: Is it the department, a CIC official, who determines that this is in the best interest of a child, not the province?

Ms. Theresa Harvey: No. It will be the citizenship officer who is reviewing the case.

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Mr. Leon Benoit: And how those regulations will be set. This is one of those cases where I feel an interpretation of what are the best interests of a child should be in legislation.

Mr. John Bryden: I have a point of order, Mr. Chairman. We should have the vote and have the discussion after the vote.

The Chair: Yes. That's the last question.

Mr. Leon Benoit: Is that my last question?

The Chair: They gave us a report. I wanted to give the opportunity to all committee members to be educated so that it's helpful, not a problem.

Mr. Leon Benoit: So where will that definition of the best interests of the child come from?

Ms. Theresa Harvey: There is no intention to define the best interests of the child.

The Chair: I think that's a question that was asked before, so that's enough on that one.

(Schedule 1 agreed to)

(Clause 1 agreed to)

The Chair: Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill carry?

Some hon. members: Agreed, on division.

The Chair: Shall I report the bill with amendments to the House?

Some hon. members: Agreed.

The Chair: On this last question, shall the committee order a reprint for use at report stage, because we've only had four technical amendments and in order to save some money, I don't think we need to completely reprint it at that stage. It can be done when it's passed. So I will do that at that stage.

Mr. Lynn Myers: A wise decision.

The Chair: Thank you very much for your participation and your constructive input on Bill C-16.

There is one issue I want to deal with quickly. It has to do with our budget, and I think it's important. I'd like to submit to you our base budget for the committee. I don't know if you all have it before you. I just want to distribute it right now and get it approved so that we can continue our work. This covers essentially the base work we want to do. It doesn't include any of the travel we may want to do with regard to the immigration bill.

Can I have a motion. It's for $114,300.

Mr. David Price: I so move.

The Chair: Are there any questions? Leon.

Mr. Leon Benoit: What is the advertising for?

The Chair: Clerk, what is the advertising for?

The Clerk: We could have it on CPAC or in the papers or on Newsworld. That's why a certain amount is set aside for that.

Mr. Leon Benoit: What does the advertising actually advertise?

The Chair: Some of our work.

The Clerk: When committee hearings are going to be held and where they are going to be held, and all that must be approved by the committee.

The Chair: All committees have to do that.

Mr. Leon Benoit: It's strictly that kind of information.

The Clerk: Absolutely.

The Chair: Are there any objections to our budget of $114,300, or is there agreement so that we can continue our fine work as demonstrated today?

Mr. John McKay: I so move.

(Motion agreed to on division)

The Chair: Thank you.

The meeting is adjourned until May 3.