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CIMM Committee Meeting

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Standing Committee on Citizenship and Immigration


NUMBER 024 
l
2nd SESSION 
l
41st PARLIAMENT 

EVIDENCE

Monday, May 5, 2014

[Recorded by Electronic Apparatus]

  (1530)  

[Translation]

    Honourable members, welcome to the 24th meeting of the Standing Committee on Citizenship and Immigration.
    Thank you all for being here.

[English]

     Thank you to our witnesses for being with us for this first hour of the committee.
    Today we have the Inter-Clinic Immigration Working Group with us. Geraldine Sadoway is the staff lawyer and Nicole Veitch is a law student caseworker with Parkdale Community Legal Services. Thank you for being with us.
    From the Centre for Israel and Jewish Affairs, we have Mr. Shimon Fogel, the chief executive officer. Thank you, sir, for being with us.
    I will start with the Inter-Clinic Immigration Working Group. You will have up to eight minutes.
    Good afternoon and thank you for this opportunity to speak with the committee about the proposed changes to the citizenship law in Canada. Our eight recommendations are set out in our written brief and summarized on the second page of the brief. We have extras if you need them.
    In this oral presentation I will focus on the issue of the increased residency requirement and explain how this will not do anything to strengthen Canadian citizenship. Nicole Veitch will talk about the problem of barriers to citizenship for some refugees and family-class immigrants that will become more serious barriers and more serious obstacles if Bill C-24 becomes law.
    I'd like to begin with an example of strong Canadian citizenship. When the representatives of our community legal clinics first met to talk about Bill C-24, one of our colleagues, Rosalinda, told us how important it was for her and her family to become Canadian citizens. She was 16 when she arrived in Canada in 1975 with her parents and six brothers and sisters. They had come to Canada from Chile via Argentina after the Pinochet military coup. Her father had been detained and tortured in Chile. When he was released the family fled to Argentina where they were recognized by the UNHCR as refugees and then accepted by Canada for resettlement.
    Rosalinda's father had previously worked as a pipefitter in a big factory in Chile. He got a job at Holmes Foundry in Sarnia and later at the Bruce nuclear plant. Her mother, who had not worked outside the home before, took a job in a tomato-canning factory in Aylmer. Rosalinda and her brothers and sisters were encouraged by their parents to learn English and to learn everything about Canada. In 1978, three years after their arrival in Canada, the very day that they became eligible to apply for Canadian citizenship, they all filed their applications. Eight months later, they were granted citizenship.
    For their citizenship ceremony, Rosalinda's mother made all the girls beautiful red velvet pantsuits that they wore with white blouses. Afterwards, Rosalinda's father always wore his Canadian flag lapel pin when dressed up for any special occasion, and that's the prop that you have in front of you. Rosalinda said that her father, who died last year, always spoke of how they were treated with respect and consideration at the Canadian embassy in Argentina. After their arrival in Canada they experienced nothing but kind and caring treatment by government officials and Canadian people.
    She said her father felt his human dignity had been restored to him. He wanted to become a Canadian citizen so that he would feel that he truly belonged here and so that he could participate fully in Canadian life, including being able to vote. He was always very proud of being Canadian and made it clear to his family in his last illness that he wished to be buried in Canada.
    In his later years, Rosalinda's father worked as a volunteer and a paralegal, translating and interpreting for new refugees and immigrants and helping them to become settled. He instilled in all of his children his strong sense of dedication and loyalty to Canada.
    Now I doubt that there can be any greater degree of love, loyalty, and dedication to Canada than that felt by refugees who have been forced to flee their country at a time of war and political oppression and who've been granted protection in Canada.
    The point of this story is that Canada will lose some of its most devoted and loyal citizens if refugees who've been accepted here find that they are unable to gain Canadian citizenship. Refugees need citizenship even more than other immigrants, because in most cases they are legally or practically stateless. They have no other place to go. Their only home is Canada, yet they cannot feel that they fully belong here if they are unable to become citizens.

  (1535)  

    As we've noted in our written submissions, under article 34 of the refugee convention, Canada also has a legal obligation to facilitate the integration and naturalization of refugees in Canada.
    Under Bill C-24 the lengthening of the residency requirement to four out of six years, with no credit for the time already spent in Canada before becoming a permanent resident, will not strengthen Canadian citizenship. This increase in the residency requirement will only delay the integration and naturalization of many refugees and immigrants, and discourage some from applying.
    Our recommendations are therefore focused on reducing the barriers that could prevent or delay refugees and other new immigrants from becoming citizens. Nicole will describe some of the barriers we have seen, to illustrate why we are making these recommendations.
    Thank you.
    Madam Veitch, you have up to two minutes.
    Thank you for the opportunity to speak today. By highlighting the barriers to citizenship that I have seen as a caseworker, I hope to show you how the proposed changes to the Citizenship Act disregard the needs of permanent residents with disabilities, impairing psychological conditions, and social hardships.
    Subsection 5(3) of the Citizenship Act empowers the minister to waive the knowledge and language requirements on compassionate grounds. While this discretionary exemption provision is maintained in the proposed changes, if the age groups for those who must meet the requirements are expanded, the volume of exemption requests will increase. The process can be made much more accessible. We recommend that efforts be made to facilitate exemption requests by making people aware of the possibility and by assisting people where necessary.
    I would also like to note that in my experience, obtaining sufficient medical evidence in order to get an exemption from these requirements is daunting. To illustrate, last summer I called 15 different agencies in Toronto before I was able to find an organization willing to attempt an assessment of my Tibetan-speaking client who had no formal education and who had a learning disability. Similarly, at PCLS, we frequently encounter refugees whose trauma has manifested in conditions that prevent learning, including grief, anxiety, and post-traumatic stress disorder.
    Realistically, permanent residents who face barriers to learning and who have wealthy, privileged support networks are more likely to obtain an exemption. Citizenship should not be for sale. We need clear guidelines directing citizenship judges to be reasonable in the evidence they require, and to give consideration to the barriers to obtaining medical documentation in order to confirm disabilities.
    I would also like to note that having a right of appeal is essential to protecting permanent residents whose request for an exemption has been denied by a citizenship judge. When my Tibetan-speaking client was finally able to find a specialist to work with him, we obtained a strong report that said he will never be able to learn English to any level of proficiency due to his disability. However, when he went to a citizenship hearing with letters of support from his employer, his ESL teachers, and his family physician, he was still denied a recommendation for an exemption. This was devastating for him. He is deeply ashamed of his inability to learn English despite years of ESL classes over his 11 years in Canada. Currently my client has the right to pursue an appeal to the Federal Court, which he is doing on the basis that the medical evidence has been disregarded.
    We urge you not to revoke the right of appeal for people whose citizenship application has been rejected. An application for leave to seek judicial review is discretionary, and it is also an expensive and inaccessible remedy for low-income applicants.
    These examples are unique because our clients were able to access a legal aid clinic with the translation services and capacity to assist them. But the committee members should remember that in many parts of Canada, these legal services are not available. There are many permanent residents in Canada who are members of the refugee and family classes who face these barriers to citizenship—

  (1540)  

    Thank you. I'm sorry, Madam Veitch. Your time has expired. Hopefully you will have time to tell more during the question period.
    Mr. Fogel, you have the floor now for up to eight minutes.
    Go ahead.

[Translation]

    I am pleased to appear before the committee today to discuss Bill C-24.

[English]

     I'd like to begin by echoing the consensus surrounding the need to update the Citizenship Act and thank the government for taking on this important initiative.

[Translation]

    We look forward to immigrants enjoying the rights and responsibilities of Canadian citizenship quickly, efficiently and with greater integrity under a reformed legal framework.

[English]

    Canadian citizenship is one of the most valuable and highly respected commodities in the world, but it is far from being just a prestigious status one acquires. Citizenship in this country is an unparalleled package of balanced rights and responsibilities, based on a set of core values, designed to ensure dignity, freedom, and equality for all.

[Translation]

    The story of Canada is largely the story of immigrants, a reality that Jewish communities across this country know well.

[English]

    Despite the dark era of Canada's “none is too many” immigration and refugee policy for Jews, we've been able to come here from all corners of the world over the last 200-plus years and contribute positively to the Canadian story, like so many other groups whom we join in appreciating the extraordinary opportunity and privilege inherent in being Canadian.
    Immigrants to Canada are a source of cultural vitality and economic strength. Many of those who choose to come to Canada embrace our values because they know the reality of living in their absence.

[Translation]

    Immigrants are among the proudest patriots and shapers of this country, and indeed the modernization of the Citizenship Act will benefit all Canadians as a result.

[English]

    The vast majority of Canadian citizens appreciate the gift they have, but unfortunately, there are those who reject our core values and abuse the trust that underpins our social contract. We appreciate the steps taken by Bill C-24 to promote strong ties to Canada and buy-in to core Canadian values.
    The introduction of more robust residency requirements, including physical presence to qualify for citizenship, is particularly well-received.

[Translation]

    That, coupled with basic language and knowledge requirements, will go a long way toward facilitating integration and decreasing the marginalization of new immigrants.

[English]

    In addition, it will go a long way towards preventing the importation of anti-Semitic views that, though marginalized in Canada, are unfortunately still prevalent in some parts of the world.
    We also support the introduction of measures to ensure that those who apply for Canadian citizenship actually intend to maintain a meaningful connection to Canada after taking the oath. The “intent to reside” provisions are an important element in this regard and could have a significant impact on reducing the problem of citizens of convenience. There's a problem with people taking advantage of Canadian citizenship, availing themselves of Canadian generosity but demonstrating absolutely no real connection or contribution to this country. Their citizenship is a matter of convenience, with no real intention to ever reside in Canada.
    We acknowledge, however, that there may be a potential for abuse of this provision. There doesn't appear to be any safeguard that would preclude a minister from commencing a revocation proceeding for someone who declared intent to reside, but then went abroad to study, work, or tend to an ill relative. It's unlikely the minister would do so but it's not an impossibility.
    In our view, the problem of potential abuse could be dealt with by requiring the minister to seek a court declaration in cases of misrepresentation of intent to reside, similar to the requirement included for other cases of fraud. In addition to intent to reside, the proposed legislation will streamline the process for revoking citizenship from those who obtained Canadian citizenship while misrepresenting their involvement in violating human or international rights.
    Given the arduous experience of trying to remove Nazi war criminals from Canada, for which the Canadian Jewish Congress, one of our predecessor organizations, fought for so long, this is a measure that the Jewish community is particularly glad to see included. The proposed changes will eliminate cabinet's ability to overrule the court's determination to remove someone who misrepresented their involvement in such heinous acts, which actually happened with Nazi war criminals, and consolidates the process to ensure that the criminals in question can be removed from Canada within a reasonable timeframe.
    In a previous session of this committee's study, an assertion was made that, rather than further protecting Jewish Canadians as I've suggested, the bill would actually make Jewish Canadians particularly vulnerable for having their citizenships revoked due to Israel's Law of Return. This is not the case.

  (1545)  

    According to the UN 1954 Convention relating to the Status of Stateless Persons, a stateless person is defined as someone who is not considered as a national by any state under the operation of its law. The UN High Commissioner for Refugees has clarified that the convention does not ask whether a person should or could be a national of a particular state based on its legislation, but rather whether the person is a national of another state. Israel does not consider Jews in Canada to be nationals of the state under the Law of Return; rather, they have a legal right to become naturalized as Israeli citizens through a voluntary immigration process subject to certain restrictions.

[Translation]

    For a Canadian Jew to be considered an Israeli national, they would first have to immigrate to that country and be certified as a new immigrant.

[English]

    The possibility to become an Israeli citizen does not equate to dual nationality for Canadian Jews, according to the UN convention on statelessness, or according to Bill C-24. Were the minister to seek the revocation of a Jewish Canadian citizenship, the individual facing revocation, you'd only prove they are not a citizen of another state—be it Israel, the United States, the U.K., or anywhere else—in order to prevent the revocation due to Canada's international obligations regarding statelessness. This is no different for Jews than for any other Canadian citizen. As long as Jewish Canadians are not dual citizens and do not commit one of the prescribed offences, there would be no ability for the minister to revoke their citizenship.
    The bill provides recourse to revoke citizenship from Canadians with dual nationality who commit certain offences, such as treason, espionage, or taking up arms against Canadian Forces. These offences are inherently actions against the institution of citizenship and the state itself. Revocation of citizenship is a reasonable consequence of these actions, and it's surprising that Canada is one of the only western democracies that does not have the ability to revoke citizenship from dual nationals in these types of instances.
    There are other political crimes that are so heinous in nature that they attack the core values on which Canadian citizenship is based. Acts of terrorism are one example of this, for which revocation of citizenship is a reasonable consequence. We're pleased to see it included in the bill within this context.

[Translation]

    While we support the revocation of citizenship as a consequence of terrorism in principle, there are some details in the application of this provision that we believe could be improved.

[English]

    We take the Minister of Citizenship and Immigration and his officials at their word that foreign convictions of Canadian dual nationals for terrorism offences would be subject to a two-stage evaluation to determine that the foreign terrorism offence is equivalent to a terrorism offence under the Criminal Code here in Canada, and that the judicial process for convicting the offender is fair, transparent, and independent. This two-stage evaluation is crucial, yet the second step does not appear to be explicitly codified as a requirement for revocation in the bill.
    Accordingly, there appears to be a potential for a future minister to forgo the second step of this critical process. This could lead to the unintended consequence of Canadian dual nationals having their citizenship revoked based on false allegations, politically motivated charges, and kangaroo court proceedings. Accordingly, we suggest that the bill be amended to codify an explicit requirement that equivalent evidentiary standards and due process are employed in a foreign conviction in order for that conviction to be grounds for the minister to revoke Canadian citizenship.
    In addition, we suggest that war crimes, crimes against humanity, and genocide should also be included as grounds for revoking citizenship. As in the case of terrorism, these are political crimes that are so heinous in nature, that they attack the core values on which Canadian citizenship is based.

  (1550)  

[Translation]

    The principle that applies to terrorism also applies to those cases.

[English]

    Furthermore, just as a terrorist could benefit from Canadian citizenship to enjoy greater mobility to perpetrate attacks and evade justice, so too the utility of Canadian citizenship should be removed from those who perpetrate these crimes. That Canadian citizens who are dual nationals could have their citizenship revoked for lying about their involvement in war crimes, crimes against humanity, or genocide before becoming citizens but not for committing them even while brandishing a Canadian passport is puzzling. The Jewish community has tragically been victimized by terrorism, war crimes, crimes against humanity, and genocide all too often.

[Translation]

    We appreciate consideration being given to our perspective on this important issue.
    Thank you kindly, Mr. Fogel.
    We will now start the round of questions.
    Mr. Menegakis, please go ahead.

[English]

    Thank you, Madam Chair.
    I have a big thank you for our witnesses for appearing before us today.
    Mr. Fogel, I will say a special thank you to you for actually appearing here on the Independence Day of the great State of Israel. I'm sure you have a very busy day planned with your colleagues. We're keenly aware of the good work of CIJA.
    I'm going to start my questions as follows. I want to touch a bit on the issue of revocation. The bill provides for revocation for those who have dual citizenship and who perpetrate an act of treason or terrorism against the Canadian Armed Forces or against our country, Canada. These are people who have dual citizenship. They will lose their citizenship should they do one of those two things.
    We've heard from critics of the bill. Actually, we've heard a lack of compassion here for the victims of terrorism acts from people who have spoken about revocation with respect to this bill.
     We have seen heinous acts of terror in other countries that have resulted in the deaths of innocent mothers, fathers, daughters, sons, brothers, friends, and loved ones. We think the bill sends a pretty strong message, but I'd like to hear from you. What message do you think it sends to the victims of these criminals if their actions are not taken for what they are and if they continue to have the same rights and access as the vast majority of Canadian citizens who proudly uphold Canadian values, rights, and responsibilities?
    First, thank you for your kind words.
    I agree with the premise of your observation, but I would come at it from a slightly different perspective. At CIJA we are thinking very hard about how Canadians can reflect appreciation and gratitude for the wonderful gift this country is, come two years from now when we mark our 150th anniversary, and one of the things that has been percolating is the notion of not just the rights we enjoy but the responsibilities that attach to being a Canadian.
     I don't look at this so much as an issue of punishing people by revoking their citizenship as a result of particular undertakings or acts they've committed, but rather that they are so fundamentally at odds with core Canadian values that there's no rationale or way to reconcile Canadian citizenship with that kind of activity.
    For those who are born in Canada, we don't have those instruments to show just how far from core Canadian values those kind of acts are, but for dual nationals, we do. I think it's entirely reasonable for us to declare that those kinds of acts are so foreign to Canadian values and Canadian sensitivities that it merits us saying, “You no longer belong in Canada.”

  (1555)  

    Thank you.
    I grew up in Montreal. I grew up in the heart of the Jewish community, the Van Horne and Mountain Sights area. That will tell you exactly. I was right on the corner, actually. My bedroom overlooked the Jewish People's School. I have friends, and I still have friends, who went to school with me there, at Van Horne school and Northmount High School, and who have parents.... The mom of my best friend at the time—God bless her—is still living. She still has the numbers written on her skin, Mr. Fogel.
    Growing up as a young man of immigrant parents, particularly in that part of Montreal, I learned at a very early age about the impact of fanaticism and extremism, and of those who want to perpetrate harm—acts of terror—on other human beings because of who they are. I learned about the impact on generations and generations, and not only of those families directly affected but also of mankind.
     I'm in favour of any bill that deters that kind of activity and eliminates it. We should have zero tolerance as Canadians. I appreciate your comments. Do you think the ability to revoke dual nationals of their Canadian citizenship, if they're convicted of terrorism or high treason, will have a deterrent effect, potentially?
    A deterrent effect on those who might be contemplating undertaking those kinds of acts...?
    I think if an individual appreciates the gift that is Canadian citizenship and the potential for forfeiting that gift as a result of particular actions, it very well might have that kind of deterrent effect.
     I do know we have to move away from thinking exclusively of entitlement, and that citizenship in this country requires commitment to certain values, a certain code of conduct. If someone were to declare they hated Canada, they hated everything this country stands for, we would scratch our heads if they were to then express a desire to be part of this country. These kinds of acts are tantamount to saying that, because they're antithetical to everything that we stand for.
    In the 30 seconds I have left, let me say this. Last year we passed Bill C-43, the Faster Removal of Foreign Criminals Act, and I think it speaks a little to this bill as well, because there are deterrents in here for those who obtain...we can clearly revoke the citizenship of those who obtained it in a fraudulent manner. They need to disclose who they are before they come here, because we believe that Canadians have a right to know that their neighbours, people whom we allow into this country, are not going to perpetrate crime or be a danger to their families, their children, around their schools, and in the communities we live in. So I appreciated your comments on that as well.
    Thank you very much.

[Translation]

    Thank you, Mr. Menegakis.
    Mr. Sandhu, you have the floor.

[English]

    Thank you, Madame Chair.
    I thank the witnesses for being here this afternoon.
    Madam Sadoway, I have a question for you. We've been raising concerns in the House and also in the committee with regard to the need for Canadians to be consulted on the proposed changes to Bill C-24. The last time significant changes to this act were made was in 1977. The government at that time published a white paper and there were wide consultations throughout the country, forums were held, and opinions were sought from Canadians across this country.
    Increasing the residency requirement isn't necessarily a bad thing on paper, but that depends on what additional changes are made. I have a number of questions for you.
    First, why should the increase in residency requirements as it currently stands in Bill C-24 be a concern to this committee and Canadians?

  (1600)  

     I wanted to explain that through the example of one of my colleagues and her family, because for refugees in particular, that time when they have no human dignity, when they have been reduced, is a very crucial period. It is harmful to Canada, and it is also contrary to our obligations under the convention for refugees, if we don't facilitate their integration and their naturalization in Canada. In the case of that family, time was very short.
    But unfortunately what we're seeing now is that the time just for the process of citizenship is taking two or three years. If you add to that more time, not counting the time the person has legally been in Canada prior to being a permanent resident here, going through their refugee claim, for example, or in some other kind of immigration programs, of which we have many more now.... Increasingly that seems to be the way we are acquiring immigrants, through immigration programs that are almost two-step or probationary programs. We're not recognizing the contribution of these people to Canada. They want to be here. They are here working, paying taxes but can't vote. Refugees can't even get a passport.
    So it's extremely important for refugees in particular. In some ways some of the most talented people come to Canada through the international student programs and then through the Canadian experience class. One of my other colleagues is in that boat. She's been in Canada seven years. She just qualified and got her permanent resident status, and now it would be another four years before she would be able to apply for citizenship. Under the current law, in two years she would be able to do it. It's a democratic deficit.
    Your organization works with many cultural ethnic groups from various economic backgrounds. Do you think Bill C-24's proposed increase in time for residency requirements will affect citizenship applications equally?
    No, because we're not just worried about the time. We're worried about the failure to reasonably deal with the potential exemptions especially by expanding the groups of people who are caught by the language and knowledge of Canada criteria.
    It's not going to be any problem for some of the people. They will be able to do it. But people who have experienced deprivations, such as refugees, are going to be suffering from that and are not going to be able to be granted the exemptions. We're concerned, and the increase in time and also the upfront requirement of the testing, which has already happened.... You have to pass the test.
    Our client who Nicole spoke about would not even be able to get his application in under the current system. Under the previous system he could get it in. Now we're at the Federal Court asking for an exemption.
    The time amount is going to be excessive, and that is a democratic deficit for Canada.

  (1605)  

    In your written submission you talked about the amendments creating a two-tier citizenship. Can you maybe elaborate on what that means?
    I think it's exactly the situation of dual citizens and naturalized citizens who are going to be facing two-tiered citizenship.
    It's fine to say of course we want citizens—those who are applying to be citizens—to reside in Canada, but it's not fair to treat them differently than Canadian citizens who are born here. The fact is that for a Canadian citizen who decides to get married overseas, raise a family overseas, and maybe come back to retire, it's not a problem. We don't take that citizenship away. But in the case of a naturalized citizen, we're now saying that, if you decide you're not going to reside here all the time, and we will.... I mean it's just a paper application that the minister's representative can make saying that you didn't intend to reside; you misrepresented your intention when you obtained Canadian citizenship.
    In people's lives situations change. Job offers appear overseas. Why should we treat a naturalized citizen differently with regard to their ability to take up a job offer overseas than we do Canadians who are born here?
    The same is a problem with revocation of citizenship. This is punishment. Very clearly it is punishment. We have ways of punishing people. We don't do banishment anymore, although one of our founding fathers was banished for treason by Queen Victoria.
    Thank you, Madam Sadoway. Sorry, I have to interrupt you.
    Mr. McCallum, you have the floor.
    Thank you to all the witnesses for being here.
    I certainly agreed with much, not all, but much of what Mr. Fogel said, particularly with regard to poor Canadian values. I would also say through you, Madam Chair, to the Conservatives that I have no more time or tolerance for terrorists or others who commit heinous crimes than you do.
    But at the same time, as a Canadian, I'm also concerned with rights of due process, fairness, and adherence to the Charter of Rights and Freedoms, and whether or not we agree that real terrorists should be deported—that's one question—I'll put that to one side.
    My question is more the process for deciding whether somebody is a real terrorist or real criminal of some sort, and whether that person has right to due process in a way that is fair. So I would read to you what a lawyer last Wednesday called Robin Seligman said. She said:
…if a person gets a parking ticket in the City of Toronto, or probably anywhere in Canada, you would have more judicial rights and appeal rights and the right to a fair hearing than you would under [this] Citizenship Act…. As a parking-ticket holder you have a right to a fair hearing. Under the Citizenship Act, as proposed, there is no hearing. It is up to the minister to decide whether there's a hearing or not. This can be very political, and these decisions should definitely be taken out of the hands of a minister.
    While we might all agree that terrorists are awful, I don't want someone to be treated as a terrorist when he or she is not.
    Does the lack of enough due process for fairness concern you?
     I think you raise a critically important point. The short answer would be that, yes, I share the concern that you're expressing.
     I can think of a number of circumstances, especially where someone who is alleged to have committed or participated in a terrorist act abroad faces conviction somewhere else, but that conviction doesn't meet our standards in one of two ways: either in terms of the evidence that's brought forward or the alleged act doesn't have an equivalent charge within our Criminal Code.
     Which is why we're suggesting that it would be important for this bill to explicitly codify that which I believe the minister and some of his officials indicated was the case but wasn't explicit; namely, that both elements have to be present in order for Canada or a government to consider revocation, that it meets those tests that would be applied here in Canada.

  (1610)  

    Let me now turn to the question of reverse onus in terms of the determination of who is a dual citizen. Again, I'll put to one side the issue of whether it should or should not be possible to deport dual citizens. We may disagree on that.
    My concern here is the process. The bill says that the onus is upon the individual to prove that he is not a dual citizen. That may be really difficult, depending on where the person comes from and what sort of evidence he or she has at their disposal. It may not be able for him to prove that, even if it is true.
    Is it not normal in law for the onus to be put on the prosecutor, so that the government, which would have greater resources than the individual, should have the onus to prove that the person is a dual national rather than the onus of proof being the other way around?
    Your observation, again, is reasonable and does reflect the process that has been in place here in Canada for many years. I can tell you from experience with respect to efforts undertaken by a number of different governments here in Canada to establish the status of alleged Nazi war criminals that the governments had to produce substantial information—and sometimes were unable to and were therefore frustrated in undertaking proceedings—to establish that they weren't stateless, that they were nationals of another country as well.
    It's hard for me to contemplate circumstances in which a government or a minister would undertake action absent of clear documentation, which the minister would have, that would indicate that the individual in question did have status of citizenship in another country.
    Thank you.
    Thank you, gentlemen.
    Mr. Leung, you have the floor.
    Thank you, Madam Chair.
    I want to go back to Mr. Fogel on one or two points.
    First, I wish to mention that we've been discussing the revocation of citizenship and I want to interject that it is for persons who are convicted of those crimes and not simply accused. I think that is very clear in the minister's view. I hope the interpretation is also clear in the act.
    Mr. Fogel, what I would like you to elaborate on is a bit more of a theoretical issue, perhaps, and that is this intent to reside. You mention in your statement that there's attachment to Canada and why attachment is so important.
    Let me give you an example. There are members of my family who came to Canada, got educated, and acquired citizenship. Then they had to go overseas to work, but they eventually did work for Canadian corporations overseas. There's a net contribution to Canada and after, now I guess, 20 years, they have the full right of citizenship. They haven't committed any illegal act. They have certainly helped build this nation, build our international reach in trade, finance, and commerce.
    These are fully bona fide Canadian citizens. They have contributed to Canada. The intent to reside issue is not actually an issue because they still have an attachment to Canada. As Madam Sadoway also mentioned, they happened to marry someone from abroad.
    I don't think those are the issues. I think the intent to reside is strictly directed at people who want to use Canada's passport as a passport of convenience to conduct heinous crimes or conduct an act of terror here because we are so generous and considerate in that. Therefore, I don't think a time limitation is of concern in this case. I'd like to hear your comments.
    Again, I agree with the premise of your observation; namely, that it's a very slippery slope to start attaching motivation and intent to people's actions. All of us here, I think, can contemplate a whole range of scenarios where someone legitimately has to go and set up a home abroad, whether it's to care for an aged, ill family member, for work consideration or study, or any number of other things.
    I don't think that the intent of that clause is to constrain to that degree the movement or decisions of individuals about where they're going to live.
    I think you focused in on the true motivation over here when you made reference to passports of convenience or citizenship of convenience. I can think of a couple of specific scenarios in which that applies and where I think it isn't inappropriate for us to challenge the intent of a person with respect to their commitment to Canada.

  (1615)  

    Could you share some of those with us?
    Well, I'll share a couple and somebody else will determine how long I can go on.
    You have three minutes so you have a lot of time.
    In 2006 the Lebanese-Israeli conflict became a hot war and some 15,000 Canadian nationals who had naturalized Canadian citizenship—they weren't born in Canada but they had acquired Canadian citizenship—were airlifted out of Lebanon at a cost of almost $100 million. They were Canadian citizens. The government correctly felt a responsibility to try to offer them refuge and protection and commenced the airlift, which was a very complicated operation. We can see that just in terms of the cost attached to the effort.
    Within three months, more than half of them had returned to Lebanon. So the question that I think comes forward is, what actually is their connection to Canada other than a safe haven to be used when circumstances are such that they don't feel comfortable where they're living?
    But there are more egregious examples than that. There was a country—and for the moment I can't recall the country but I'll look in my notes because it's here somewhere—where an individual, who was associated with a despotic regime in the course of the Arab Spring and had been convicted subsequently of crimes against humanity, had already acquired permanent residency here in Canada for both himself and his family, even though he wasn't living here.
    In order to escape justice in the Middle East, he sought to seek refuge in Canada—not because he had an intention of establishing a life and family and home over here—but rather as a way of circumventing having to be accountable for the crimes he had allegedly committed.
    I'm not sure, under those circumstances, it's appropriate for us to be extending that kind of protection.
    I certainly share with you that it's a difficult decision to make when you assess intent, especially in situations of citizenship of convenience, and marriage of convenience, and birth of convenience, where people do come in here, give birth, and then they leave.
    But I thank you for your remarks.
    You also mentioned something about attachment to Canada. Can you elaborate on what kind of attachment you are thinking of, and what was behind your reason for making that comment?
    You have 30 seconds to answer.
    I'm a first generation Canadian. My parents were Holocaust survivors who came after the war.
    It wouldn't take me 30 seconds to demonstrate what attachment to Canada means if you were to look at my parents and the pride and the gratitude that they express in having come to Canada and having been given the opportunity to build a life over here.
    Attachment means that you feel you have a responsibility to contribute to the upbuilding of this country, to add value to Canada, to enrich it with what you bring to the table. You can't do that from a distance. You can only do it by getting your hands dirty here in Canada, going through the winters, and for some of us, the mosquitoes in the summer.

[Translation]

    Thank you, Mr. Leung and Mr. Fogel.
    Mr. Toone, it is over to you for five minutes.

[English]

    Again I thank you all for coming today. It has been a very interesting discussion.
    I want to underline the unusual nature of the hearings we're having today. We're in committee debating these matters before this bill has been presented to the House for a vote on second reading, which means that we're essentially having a pre-hearing. I think it speaks to the complexity of the nature of the questions in front of us that the government would ask us to do this. It's very unusual. Again I'd like to underline the gratitude I have for your participating in this unusual process.
    I want to raise a couple of concerns that I have with the bill. One follows from Mr. Leung's interventions. Concerning the quality of the person requesting citizenship, one element is whether or not they've been found guilty of a crime. I think we have to be careful here, because we've already mentioned—I think, Mr. Fogel, you brought it up yourself—that when some of those crimes happen overseas, the criteria are different. We have people performing legitimate political protests in other countries that, by those countries' definitions, are quite illegal and not permissible, and they end up in jail.
    My first exposure to that was when I was quite young, when my parents admitted somebody from Czechoslovakia during the Prague Spring as a refugee in this country. I think it was the first opportunity I had to realize that in some other places people are living lives a lot more difficult than ours.
    I just want us to be very careful about how it can be that people can be discriminated against by the nature of laws abroad when they are making applications here in Canada. I know you touched a little bit, Ms. Sadoway, on the question of being discriminated against by virtue of the nationality laws of other countries. Could you continue to elaborate on that?

  (1620)  

    We don't have any control over the nationality laws of other countries. They vary quite dramatically throughout the world. If someone could be a dual citizen and then in another country—and this has happened in Canada, actually, whereby people have become stateless because of the passage of a law in another country. It happened to about 100,000 Canadian-born women whose citizenship was attached to their spouse. When the U.S. passed the Cable Act in 1927, I believe it was, they became stateless. A lot of them were living in Canada with their American husbands at that time.
    We have no control over those laws. Taking away citizenship with the understanding that the person may have access to another citizenship is, I think, very dangerous, and it will lead to statelessness.
    I'm interested in that especially because the onus of proof is on the applicants to prove that they are not in fact dual citizens. As happens many times even in Canada, some people in this country do not know all of the rules and all the laws that we adopt here in Parliament, for instance.
    We know that some people are dual citizens who don't even know that. Because of the laws in the country of their parents' birth, they are dual citizens. They were born in Canada, yet have no idea of the reality of their situation.
    Yes, I too have gone through many cases in which we have to determine under what law somebody is married in international law. It's a classic case. When somebody is at sea and marries, under what law do they fall? Most of the time the person being married has no idea. They haven't the benefit of several years in university to figure this out. I think the burden of proof here is a fundamental problem.
    When it comes to residency requirements as well, we've seen it. The Canada Revenue Agency, for instance, has massive amounts of documentation on how to define residency. In the U.S., the revenue agency there has I think given up even trying to define it. Now they've decided they're going tax anybody, regardless of where you are and whether or not you have any intention of returning.
    I have 20 seconds left.
    Intent clearly poses a problem. I'm going to ask very quickly: within 15 seconds, can you summarize it for us?
     Yes, I think it's absolutely impossible. We've seen it already with just establishing or continuing your permanent residence in Canada. There's a great difficulty for some people who have had to live abroad for very good reasons—to care for relatives or because some accident happens abroad.
    So yes, it's difficult.

  (1625)  

[Translation]

    Thank you, Ms. Sadoway.
    Mr. Daniel, your turn.

[English]

    Thank you, Madam Chair, and thank you, witnesses, for being here. I, like most of the panel here, am a first generation immigrant. We know the importance of being Canadian and the privilege it is to become Canadian.
    I would like to ask Mr. Fogel a question regarding some of the things he has said.
    Last week we had a witness who wrongly informed us that Jews had the Law of Return to Israel, so could have their citizenship revoked. But you explained it earlier, and I wonder whether you can elaborate on this and explain it again so that we get it.
    Very briefly, the Law of Return was a basic law passed, really, at the establishment of the state in 1948. It was done partly as a way of reflecting the experience that Jews had in Europe. They codified those categories of individuals who would be entitled to automatic citizenship, if they applied, by virtue of being Jewish. They used the same set of criteria that the Nazis had used in reverse, identifying who was a Jew for the purposes of selecting them out for what turned out to be the Holocaust.
    However, while it's a right, it's not an obligation. For example, I'm a Canadian-born, Montreal-born Jew. I've been to Israel more than a few times in my life. I carry a Canadian passport because I was born in Canada. I do not carry an Israeli passport. I'm not a citizen of Israel, because I haven't made application to be a citizen of Israel. So there are no circumstances under which I as a Jew, as a Canadian citizen, could have my citizenship revoked by virtue of being a national of another country, be it Israel or any other country.
    We've constantly discussed the idea that citizenship here is not for sale, and through this legislation we're looking at strengthening the value of Canadian citizenship.
    What type of message would we send to those who are seeking to exploit Canadian citizenship as a means to obtain a Canadian passport and commit acts of terrorism through this legislation?
    I hope, Madam Chairman, that I'm not going off too far afield here, but our community deals with many controversial issues, not least of which is the ongoing Arab-Israeli dispute. One of the concerns we have had—and this is by no means a blanket statement about any particular group—is with the tendency to import to Canada certain attitudes and orientations that really come from somewhere very far away, rather than allowing Canadian values to assert themselves as the defining set of criteria that inform a person's attitudes.
    When we talk about Canadian values as they relate to new Canadians, I think what we're trying to say is that they're a set of values that define us as a country and define us as Canadians, and those are the things that we want new Canadians to embrace. If we allow into that basket attitudes or allegiance to certain things that are antithetical to Canadian values, then what are we saying about the value of the Canadian character?
     I think it becomes increasingly important for those contemplating a move to Canada or for those seeking Canadian citizenship to understand that there is a social contract involved. It means embracing those things that are inherently Canadian. They're not just Canadian—other countries share those same values—but they define what we are as a country and who we are as a people.

  (1630)  

[Translation]

    Unfortunately, that's all the time we have.
    I would like to once again thank the three witnesses for appearing before the committee to contribute to our study of Bill C-24.
    I am now going to suspend the meeting and ask our next panel of witnesses to take their seats.

  (1630)  


  (1635)  

    We now reconvene for the second half of the 24th meeting of the Standing Committee on Citizenship and Immigration.
    Joining us, we have three witnesses, two in person and the third via videoconference in just a few minutes. She'll be with us just as soon as we get the technological issues squared away.
    In the meantime, we'll have the two witnesses here with us start things off with their presentations.

[English]

    We have, from the Foundation for Defense of Democracies, Sheryl Saperia, director of policy for Canada. Welcome.
    We also have, from the Alliance of Canadian Terror Victims Foundation, Madame Maureen Basnicki, founder and executive director, and co-founder of the Canadian Coalition Against Terror. Welcome.
    Madame Sheryl Saperia, I will give you the floor for opening remarks of eight minutes.
    Good afternoon, and thank you for inviting me here today.
    I want to give credit; many of the ideas I'll be discussing today were formulated with my friend Danny Eisen, who's with the Canadian Coalition Against Terror. I just wanted to mention him by name.
    My comments will focus exclusively on the provisions in Bill C-24 that deal with the revocation of citizenship for treason, terrorism, and armed conflict against Canada. As I have stated in previous testimony, I support these provisions conceptually. They amount to a 21st-century updating of the social contract that has always existed between Canada and its citizens. This contract, common to liberal democracies, broadly refers to the understanding that citizens consent to abide by certain obligations towards the state in exchange for other benefits. Bill C-24 suggests that Canadian citizenship, whether bestowed by birthright or naturalization, is predicated on a most basic commitment to the state: that citizens abstain from committing those offences considered most contrary to the national security interests of Canada.
    Treason and armed conflict against Canada are actions clearly intended to damage the country as a national entity and political community. It is therefore fitting that one consequence of these crimes may be loss of citizenship to the country the offender seeks to harm.
    What about terrorism? One could make a persuasive case that terrorism, as a unique crime—it’s not me saying this, it's the Canadian courts who call terrorism a unique crime—is so antithetical to Canadian values that anyone choosing to embrace such violence has effectively declared that his or her allegiance lays elsewhere.
    Nonetheless, I personally would recommend that the bill stipulate a tighter connection between the crime and the consequence of losing one’s citizenship. Specifically, I suggest that revocation of citizenship for terrorism be triggered only by either terrorist offences in Canada or against a Canadian target elsewhere, or in association with a listed entity. Listed entities have been publicly designated by Canada as terrorist organizations, and in effect have become public enemies of the state. Working with a listed entity in the commission of a terrorist act is a clear statement of allegiance to forces acting to damage Canada.
    The bill provides that revocation can stem not only from a domestic terrorism conviction with a sentence of five years or more, but also from a foreign conviction. When the conviction comes from a like-minded country with legal standards similar to Canada’s, this makes sense. But what about a country whose legal system we don't trust?
    I understand from last week’s hearing that Minister Alexander envisions a two-step process in his ministerial discretion. The first step would be to examine the substance of the foreign offence and whether it is equivalent to a Canadian Criminal Code terrorist act. This is set out in the legislation. But the second step of the review, which was described as an examination of the fairness of the process by which the conviction was achieved, is not mentioned anywhere in the bill. I would recommend an amendment in this regard.
     One option is for the minister’s two-part analysis, which was described by his officials last week, to be codified in the legislation—to be explicit, in other words—that both the substance of the act and the fairness of the conviction would be factors taken into account when deciding on a terrorism revocation case. Alternatively, revocation resulting from a foreign terrorism conviction could involve both a ministerial recommendation and court approval, which would take into account whether, for example, the conviction was politically motivated or the judge was truly independent.
    The point is that a measure as severe as the revocation of citizenship needs to be drafted carefully to ensure conformity to Canadian laws and values and of course our international obligations. To that end, I do credit the bill for its consistency with the Convention on the Reduction of Statelessness. Bill C-24 provides that if a person holds only Canadian citizenship, it is not possible for that citizenship to be revoked, regardless of the crime, because no person can be stateless.
    However, this has opened up the argument that the bill unfairly creates two classes of citizens: those with dual or multiple nationalities, who are at risk of having their citizenship stripped, and those with only Canadian citizenship, who may be punished in a variety of ways but cannot lose their citizenship.

  (1640)  

    For dual nationals who have chosen that status, often because of personal connection to or benefit from more than one citizenship, this is simply not a compelling argument. Dual citizenship was not forced on them. They are not being subjected to discrimination as a result of any inherent trait. It is a choice they have made, just as they can choose to renounce their other citizenship so as to be solely Canadian and therefore not subject to these provisions.
    But what about countries that do not permit renunciation of citizenship? If the government is reluctant to uphold the legal status of a citizenship that a person has unsuccessfully tried to renounce, the following could be considered as a solution.
     When someone commits terrorism, treason, or armed conflict, and his or her other citizenship is from a country where renunciation is not allowed, the minister could use his discretion to assess the extent of what I've called “active relationship” to that citizenship. For instance, does the person maintain deep ties to that other country? Has he invoked any of the rights of that citizenship? Has he travelled with the passport of that country, or served in an official capacity only open to citizens? The more active the citizenship, the weaker would be any claim that it was forced on him.
    I should note that while stripping away citizenship is one tool to deal with those convicted of the most serious crimes against Canada, preventive or disruptive action should be taken to prevent, in the first place, a situation leading to citizenship revocation. Counter-radicalization programs are essential, and I am heartened to hear that a federal program is set to be unveiled in the near future.
     Stronger exit controls are another option. Ray Boisvert, who is a former assistant director of intelligence at CSIS, suggested last year, I believe, that:
There has to be an easy way to trigger a denial of a passport—or the removal of somebody's passport—if there is sufficient information to demonstrate this person has become highly radicalized and/or made threats, or done things to threaten lives or the welfare and well-being of others.
    This could apply equally to sole and dual citizens, and unlike citizenship revocation, which is reactive, the removal of a passport might actually prevent Canadians from engaging in terrorism or armed conflict abroad. The RCMP's recently disclosed high-risk traveller case management system, which is intended “to prevent radicalized youths from leaving for conflict zones like Syria, Somalia and North Africa”, seems to employ just such a mechanism.
    Western security agencies are concerned that their citizens are travelling to these countries to participate in jihad, gaining the skills and motives to pursue similar acts in their home countries. At least one study has found that terrorists with foreign experience are far more lethal, dangerous, and sophisticated than are purely domestic cells. If the citizenship revocation provisions in Bill C-24 help prevent bloodshed from being exported to or from Canada, they are worth parliamentary consideration. Let us remember that it took only 19 hijackers to perpetrate the 9/11 attacks.
    I have one last comment. If this bill goes through, perhaps it should be accompanied by a change to the application for a Canadian passport. Anyone who is 16 years or older should be required to acknowledge on paper the terms of citizenship. The document would clarify to the applicant that engaging in treason, terrorism, or armed conflict with Canada entails the possible revocation of citizenship. It essentially becomes a contract, and if you break the terms of the agreement, you are subject to the penalties.
    Thank you.

  (1645)  

    Thank you, Madame Saperia.

[Translation]

    Our third witness is joining us via videoconference from Toronto, Audrey Macklin. She's a member of the Canadian Association of Refugee Lawyers Executive Committee, as well as Professor and Chair in Human Rights Law in the University of Toronto's Faculty of Law.

[English]

    Welcome, Madame Macklin. Before giving you the floor, I will give the floor to Madame Basnicki for eight minutes. Then it will be your turn.
    Thank you for inviting me to provide input to the deliberations. I speak to you as a Canadian 9/11 widow, and as the founder of the Alliance of Canadian Terror Victims.
    Since the 9/11 attack in New York, I have worked to raise awareness of the plight of Canadian families who lose loved ones in terrorist acts in Canada and elsewhere in the world. Today, I specifically want to address the matter of revoking Canadian citizenship from convicted terrorists in the light of what I see as a set of profoundly Canadian values. Canada, as a nation, has a proud track record in the world as a defender of human rights and democracy. Canada values and protects a form of society that gives individuals the opportunity to live productive and fulfilling lives.
    Canada, in my view, is a shining example of everything that is admirable about the western world. Canada accepts many immigrants from all over the world who come here to seek a better life. In return for opening our doors to them, Canada expects them to live in Canada in accordance with a minimum set of standards. Canada provides, in its support of multiculturalism, all manner of freedom for immigrants to practise the lifestyles they were used to before they arrived. Most immigrants do adjust and become productive members of Canadian society, in actions, if not in spirit, accepting Canadian values.
    Terrorist acts are the exact antithesis of such values. Terrorists, in executing innocent people, denigrate and violate every tenet of the values that make up Canada. Therefore, if Canada allows a convicted terrorist to retain Canadian citizenship, Canada is in effect saying that we accept the terrorist act as part of the fabric of life in Canada. In as much as citizenship in Canada is a privilege, it should be subject to revocation if the holder of such privilege demonstrates, through terrorist acts, that there is no intention to adhere to the minimum standards Canada expects from its citizens. Canada needs to make a definite statement that it will not tolerate terrorist activity on the part of anyone.
    Revocation of citizenship is a straightforward statement that, by your actions, you have forfeited your Canadian citizenship. In effect, Canada needs to say loud and clear that if you violate Canadian values by carrying out terrorist acts, we take away the privilege of being a Canadian. A zero tolerance policy in this area is the only way Canada can remain a beacon in the world, upholding and promoting the values we all hold dear. Allowing citizens convicted of terrorist acts to remain in Canada is, in my view, the worst sort of cowardice and an affront to all Canadian citizens who abide by the law.
    Thank you, again, for inviting me to comment.
    Thank you, Ms. Basnicki, for your opening remarks.
    Now we're going to Ms. Macklin. You have up to eight minutes.

[Translation]

    Thank you for inviting me to join you today via videoconference.
    I am going to give my presentation in English.

[English]

    I will take questions in English as well, but I look forward to the committee's inquiries.
    I'm going to confine my presentation as well to the revocation provisions. Within that I will limit myself more narrowly to the legality of those provisions.
    First, I'd like to clarify the provisions regarding revocation for fraud, misrepresentation, or concealment of material facts.
    I understand that you have heard testimony from the minister that the inclusion of a condition requiring an applicant to intend to reside in Canada after citizenship is a provision that would not be applicable after obtaining citizenship. Perhaps the minister is there expressing the way he would desire or intend to use the law that is proposed, but I'd like to clarify that's not, in fact, how the law presently drafted is written.
    What Bill C-24 does is take existing conditions for citizenship by naturalization. These are: that one reside in Canada for a certain length of time, that one pass language and knowledge of Canada tests, and that one have, broadly speaking, a clean record. The way these conditions work is that if they are not fulfilled or if an applicant conceals, misrepresents, or commits fraud with respect to any of those conditions, then citizenship obtained through that means can be revoked after the fact.
    The proposed law adds a requirement that one intend to reside in Canada after acquiring naturalization to the conditions of citizenship acquisition. It follows from the structure of the provision that, if the minister takes the view that one committed fraud or misrepresentation or concealment of facts in one's intention to reside in Canada after citizenship acquisition, then the minister could, in principle, seek revocation for fraud or misrepresentation. Whether the minister chooses to do so or not, of course, is a matter of his discretion, but I'd like to insist here that the law, as presently drafted, does grant the minister power to seek revocation for an individual who, after obtaining citizenship, the minister believes did not honestly state his or her intention to reside in Canada after obtaining citizenship. So that's one clarification about the law and the legality.
    Secondly, I'd like to turn to the constitutionality of the revocation provisions. Here I'm going to begin not with the revocation on grounds of fraud or misrepresentation, but the provisions that our two previous witnesses testified about, which is revocation for misconduct as a citizen; in other words, the use of citizenship revocation as punishment.
    Here I think it is important to understand that we have a jurisprudence in Canada that deals with the constitutionality under the Canadian Charter of Rights and Freedoms of certain forms of punishment. The most relevant case for our purposes today is a case called Sauvé. In Sauvé we had a law that denied the right to vote to inmates of Canadian prisons serving more than two years. In other words, they were denied their constitutional rights under section 2 of the charter to vote for the period of time that they were prisoners.
    This law was struck down by the Supreme Court of Canada as a violation of section 2 of the charter that could not be justified under section 1 of the charter. I'd just like to reference a couple of parts of that judgment that are particularly relevant to considering revocation as punishment here.
    Can you revoke somebody's citizenship in order to punish them for what we'll call crimes against citizenship? Let me draw to your attention what the Supreme Court of Canada said, because it goes directly to this claim that was made by the two other speakers about this idea of the social contract, this idea that it's a part of the social contract that people do not commit certain kinds of crime, and if they do, they have broken their part of the social contract, and it follows from that they could have their citizenship revoked from them.

  (1650)  

    Here's what the Supreme Court of Canada said about that kind of approach:
The social compact requires the citizen to obey the laws created by the democratic process. But it does not follow that failure to do so nullifies the citizen’s continued membership in the self-governing polity. Indeed, the remedy of imprisonment for a term rather than permanent exile implies our acceptance of continued membership in the social order.
    In other words, the Supreme Court of Canada stated quite clearly that punishing somebody by depriving them of their constitutional rights, indeed, by denying them all constitutional rights and casting them out in the name of the social contract, is not constitutional. It isn't constitutional to deny somebody the right to vote, just in order to punish them. That's one right under the charter. It seems to follow that denying them of all constitutional rights, which is the effect of stripping someone of citizenship and exiling them from Canada, could not be constitutional either.
    So it seemed to me that reading the Sauvé case provides a fairly complete answer to the constitutionality of banishment as a valid punishment under the Canadian Charter of Rights and Freedoms.
    But certainly if one wants to go further and consider other aspects of citizenship ratification under the charter, there are certainly other dimensions of it that also appear unconstitutional on their face. For example, it is required under section 11 of the charter that if somebody is going to face a penal consequence for their actions—in this case, punishment by citizenship revocation—they're entitled to certain procedural rights.
    Those rights include, under section 11 of the charter, the presumption of innocence. In the present legislation, the presumption of innocence is violated in the following way. If the minister believes that the person is a dual citizen, and therefore exposed to the risk of denationalization through citizenship stripping, the minister puts the burden on the citizen to prove that he or she is not a citizen of another country, in other words, to prove a negative in order to escape the consequence of citizenship revocation. A reverse onus violates section 11 of the charter and has been found to be unconstitutional. Bill C-24 contains a reverse-onus provision.
    The charter requires that before somebody is found guilty and sentenced to a crime and punished, that person be found guilty beyond a reasonable doubt. Bill C-24 requires no such standard of proof of guilt beyond a reasonable doubt.
    Our charter requires that if somebody is going to be punished, that they be tried in an open and fair trial before an independent and impartial tribunal. The Minister of Citizenship and Immigration doesn't qualify as an independent and impartial tribunal. He's a government minister, not a judge.

  (1655)  

     Madame Macklin, you have 30 seconds to conclude, please. Thank you.
    Lastly, section 15 of the charter is violated in two ways. This legislation discriminates against naturalized citizens, as compared to those who acquire citizenship at birth. Secondly, it also discriminates in other ways against dual citizens, as opposed to what I'll call “mono-citizens”. Neither of those forms of discrimination, in my view, would pass constitutional muster and be justified under section 1.
    Thank you.

[Translation]

    Thank you kindly, Ms. Macklin.
    We will now go to members' questions.
    Mr. Shory, you have seven minutes. Please go ahead.

[English]

    Thank you, Madam Chair.
    Thank you to the witnesses for coming to share their views with the committee, which will definitely help us in our study of Bill C-24.
    I'll start with Ms. Basnicki.
    Ms. Basnicki, I know that your life has been personally touched by terrorism and you have lived through it. I can tell you that no one in this room has the level of understanding of what terrorism is, what effect on one's life terrorism can have, as much as you do. That's very clear in my mind.
    I'll also be talking about this revocation part of Bill C-24. When we talk about revocation, we are talking about that group of convicted terrorists who have done a heinous act against humanity. In my view, when we talk about Canadian passports, when we talk about Canadian citizenship, I always say this: I am an immigrant.
    I immigrated to Canada only in 1989. I always say that any individual who has the opportunity to come and live in Canada has actually hit the jackpot. This is my belief. We must do everything to protect those values. That is that, in my personal belief—I have seen this.
    Everybody knows that a Canadian passport is very highly regarded around the world. When I fill out that landing paper anywhere, when I write “Canadian”, it reminds me of the day when I talked to the CBSA guys for the first time, and I'm very thankful for that day and very thankful to this country. Very thankful to God as well.
    Here we are talking about the reputation of Canada as a safe country and a law-abiding nation in the world. We see more and more Canadian passports being used to fly under the radar and commit terrorist acts abroad.
    Could you give me your opinion on Bill C-24 and what it proposes to do to combat those actions and those individuals?

  (1700)  

    I'd like to go back prior to 9/11. I never would have imagined that my husband would be murdered by terrorists. But prior to that I was an Air Canada flight attendant. It was my experience as a flight attendant—and I had over thirty years of it—first of all seeing the maple leaf on the tail of the airplane when I was overseas in another country and thinking, “I'm going back home”, and also personally observing many immigrants who were landing in Toronto for the first time. Again, this is an observation. The majority of immigrants saw this as a true blessing, and as you mentioned, that it was a gift, that they were coming to the promised land.
    There were, unfortunately, other observations that I had. Some, fortunately a minority, were already calculating how they could flush their passports down the toilet and seek the benefits of Canadian citizenship, have their English language rights and their OHIP card—I live in Ontario—and all these things. Again, thankfully it was a minority.
    That's what I believe this bill addresses, shall we say. Not the immigrants who come and contribute to our Canadian society, but, as it's been mentioned, the “convenient Canadians”.
     I hear this word “punishment”. I don't think of it in terms of punishment. I think it's more a message of our Canadian values. What message are we giving to the global community if we're saying that someone convicted of terrorism—they’re convicted, you know? They’ve had a rightful trial. We believe in the rule of law. I'm not a lawyer, but certainly I would like to see safeguards that there was a proper conviction.
    What message do we give the global community if somebody has been convicted of terrorism in another country and we say, “Welcome to Canada”? I don't understand this. From my lens, it's not good.
     Agreed.
    You made mention of immigrants. As I said before, I'm an immigrant. Immigrants have made great contributions to this country. I always say that Canada is built by immigrants. Some came thousands of years ago. Some maybe 500 years ago, and they will keep on coming. But you're right that we are talking about that small portion of people who like to have the right to be Canadian but no responsibility toward Canadian citizenship. That is the key here and that is very important to understand. Lately we see articles like the one from The Globe and Mail just this past February stating that CSIS is tracking 130 Canadians who have gone abroad to participate in extremist activities with known terrorist groups. It's not like they are there just by chance. They know what they are doing.
    In your opinion, are we beginning to see an erosion in the value and prestige of the Canadian passport and Canadian citizenship? Do you think that Bill C-24 is on the right track to maintain Canada's reputation on the world stage, as well as to protect the safety of our own citizens?
    Personally, I look through the lens of being a terror victim and yes, terrorism is a global situation. Even though Canada has been fortunate in not having large numbers of Canadians who have been killed by terrorists, we do have them, by the way, from 9/11 and from Air India and many other acts of terror. So we can't disregard that. We do have Canadians who choose to engage in terrorist activities. So if this bill or any such legislation could help deter and help Canada with its statement of intolerance for the most heinous crimes—not to create a hierarchy but it targets innocent civilians—if this can help then I think it's a good thing.

  (1705)  

    Thank you, Madame Basnicki.
    Mr. Sandhu, you have the floor.
    Again, good afternoon, and thank you to all the witnesses for being here this afternoon.
    My first question would be to Madam Macklin.
    Madam Macklin, you pointed out a number of cases where this Bill C-24 is not consistent with the Charter of Rights and Freedoms. You mentioned section 15 of the charter. You mentioned other sections of the charter. Is there one section of this particular bill you haven't had a chance to talk about? Would you like to have a few minutes to talk about that?
    Thank you.
    I think I have mentioned most of the affected constitutional provisions. I will add only a couple. One is section 12 of the charter that prohibits cruel and unusual punishment or treatment. Now, in a line of U.S. constitutional cases culminating in a case called Afroyim v. Rusk, the United States effectively made it unconstitutional to strip U.S. citizens of their citizenship. In some of those cases, they relied on the U.S. equivalent of the prohibition on cruel and unusual treatment or punishment to do so. So that's one provision, again, one aspect of the charter violations here.
    Another is the prohibition on retroactive punishment. We consider it unjust to punish somebody for an act that was not prohibited before the law was passed. So in this case, Bill C-24 would impose retroactive punishment on people who are convicted of the listed offences before section 24 came into effect. So it would also violate the charter prohibition on retroactive punishment.
    In addition to that, section 11 of the charter also guarantees the right not to be punished twice for the same offence, so in the listed offences, what you have are convictions for terrorism, treason, etc., and punishments that are meted out in a court of law by an independent judge, like imprisonment, and then, supplementing that, ministerial discretion to add yet another punishment in the form of citizenship revocation and ultimately banishment.
    So those are yet more charter violations that are imposed under the provisions of this bill.
    Madam Macklin, we've heard in this committee that providing for a revocation for dual citizens, dual nationals, would actually create two classes of citizenship: those who have only one nationality, which cannot be stripped, and those others. Could you talk about what section of the charter this would apply to?
    The provisions of Bill C-24 that permit revocation for what I will broadly talk of as crimes against citizenship, crimes committed while a citizen—terrorism, treason, and so on—are only applicable against people who are dual citizens, because to strip citizenship from a mono-citizen would create statelessness.
    But what this means, of course, is that dual citizens are vulnerable to a kind of punishment that mono-citizen individuals are not. Yet in all other respects one would expect they are similarly situated. For example, there is no reason to think that an offence committed by somebody who is a dual citizen is any more severe, graver, or harsher, as it were, than a crime committed by somebody who is only a citizen of Canada, yet they are exposed to differential punishment. That's a kind of inequality that would breach section 15 of the charter and be very difficult to justify under section 1.
    After all, whatever objectives one seeks to achieve through stripping citizenship, apparently you can't do it to people who are mono-citizens. So clearly, whatever the objectives are can't be so significant that you can't achieve them through other mechanisms of punishment. We have lots of ways of punishing people who are convicted of treason, terrorism, and other offences. We have a functioning criminal justice system. There is no reason to think that it is inadequate to deal with people who commit those offences, who also happen to be dual citizens.

  (1710)  

    Madam Macklin, I'm not a lawyer but we often talk about due process. Does denying due process to citizens facing revocation violate any sections of the charter?
    I've gone through some of the due process considerations. Those are things like the presumption of innocence, which is violated here; the requirement of proof beyond a reasonable doubt; an open and fair trial before an impartial tribunal; probation on retroactive laws; the right not to be punished twice for the same offence. Let me add one more element to it.
    When I say the right to “an open and fair trial”, what happens under this statute doesn't resemble anything like an open and fair trial insofar as the entire process will be in writing unless the minister decides otherwise. So an individual would get notice that the minister intends to revoke his or her citizenship and will be invited to submit written comments, after which the minister will make a decision and issue reasons in writing. That decision will not be open to challenge unless a court grants what's called leave to seek judicial review. There is, in many cases, no role for the judiciary at all, and in other cases, a very limited role, which I can describe, if you like.
    Please, do go ahead.
    Only in the cases where a person is subject to revocation for misrepresenting or committing fraud in relation to acts done before acquiring citizenship, which are related to terrorism and national security, will a court be called upon to make a declaration that the person so engaged in those acts. It's not a trial. It's just that the court will be called upon to declare that those acts occurred.
    Similarly, where the ground for revocation is serving in an armed force that is engaged in conflict against Canada—where that is the ground for revocation—there again a judge will be called upon to make a declaration that the person so served in an enemy force. But again, it's not a trial.
    Let me just add something about that latter ground as well. Bill C-24, An Act to amend the Citizenship Act and to make consequential amendments to other Acts empowers the minister—

[Translation]

    Forgive me, but I have to cut you off there, Ms. Macklin. Mr. Sandhu's time is up.
    It is now Mr. McKay's turn.

[English]

    I don't normally serve on this committee, but it seems I'm helicoptering in from time to time.
    What strikes me from the time I was here previously and now is that good facts tend to make bad law. People seem to think they know what a convicted terrorist is, yet when you're pressing them on certain factual situations that are out of their realm of comfort, then maybe they're a little bit less comfortable.
    For instance, this weekend The Globe and Mail had a story about Rwanda. The President of Rwanda is systematically hunting down people who are convicted of “terrorist activities” in Rwanda and have fled, some to South Africa but some to here in Canada.
    Would you see those people who are here in Canada, who have been convicted of a “terrorist offence” as being vulnerable to having their citizenship revoked?
    Are you directing this question to me?
    Either one of you....
    In terms of a person who is accused of terrorism—did you say accused or convicted?
    No, they're convicted. If they go back to Rwanda, they're cooked.
    Okay. There are two issues that would need to be evaluated. One is addressed in the bill, and one I think should be addressed in the bill. The first part that is present in the legislation is that the actual terrorist offence that they were convicted of in the other country needs to also be a terrorist offence in Canada. If there isn't an equivalent in Canada, that's the end of the matter—
    Well, let's work on the presumption that these are equivalent offences, because that's what the bill actually does say. If convicted, prohibition against Canadian citizens includes persons who are charged outside of Canada of an offence similar to an indictable offence as in Canada.
    Exactly. What I'm suggesting, though, is a country where the terrorism charge is a purely political one. We'd actually have to evaluate whether—
    How do you tell what's purely political?
    I'll give you another example; 16 people were listed this week by the President of Sri Lanka, and I don't know what the stage of their citizenship is here, but they're “terrorists” as far as the Government of Sri Lanka is concerned.

  (1715)  

    Right. Again, according to the actual act itself, the offence they were convicted of in the other country has to also be a parallel offence here in Canada. That's part one. Part two, though, which I believe the minister intends to consider within his discretion, but which I believe needs to be explicit in the bill, is the fairness of the conviction. Is this purely political in the other country? Is this just a matter of using terrorism to go after your enemies, because that is common in some countries—
    But that's a very subjective test.
    We all agree today that Sri Lanka is a rogue state. We don't necessarily agree that Rwanda is a rogue state and therefore... In fact, up until recently, Rwanda has been a bit of a darling of the west because it has, in some respects, recovered from its genocide. Recovered, put that in big quotation marks. So you're leading kind of a very vague test here.
    I think that there are some existing standards that we could be using in order to evaluate whether a conviction was achieved in a fair manner, whether this country does this traditionally and whether, in the particular case, the conviction was arrived at fairly.
    I think that's very dangerous ground.
    Let me switch to Professor Macklin. I appreciate your answer, but I'm interested in Professor Macklin's response to the questions I just asked and then maybe I should... I probably am poorly advised, but—
    The Chair: You have 30 seconds.
    Hon. John McKay: Oh, well, okay.
    Just answer the questions that they responded to then.
    Let me just point out that there's a Canadian journalist who's also an Egyptian citizen who is on trial for terrorism in Egypt right now. If he is convicted, then in principle, he would fall under the purview of this act and be subject to citizenship revocation in Canada for a terrorism conviction in Egypt.
    One of the dimensions of this act that I think is notable is that if we can revoke Canadian citizenship for a conviction of a terrorism offence in another country.... I guess that's because terrorism is thought to be a problem of global proportions, but if that's the case, then why are we thinking that revocation of Canadian citizenship leading to somebody becoming the problem of some other country is the appropriate solution?
    Really, what that means then is that Canada gets to revoke somebody's citizenship and send them to another country. So there was a question earlier about what the world is going to think of Canada. What would the world think of Canada's having a criminal justice system that's able to prosecute, convict, and punish people, yet chooses instead to export somebody who it considers to be a terrorist, found under a court of law, to make it some other country's problem?
    Thank you, Madam Macklin.
    Mr. Opitz, you now have the floor.
    Thank you, Madam Chair.
    I think people would continue to think of Canada as what it already is, a heaven on earth.
    Ms. Basnicki, thank you so much for being here. You obviously personify the pain and the tragedy of that horrific act in 9/11, but you have really applied yourself in so many constructive ways to help Canadians, and in fact people all over the world, understand what occurred and to be vigilant and to guard against future instances of this. That's one of the reasons clearly you're here talking to a parliamentary committee, and I applaud that.
    Ms. Saperia, I like your idea about the passport application rider. I think that makes infinite sense, and I think we'll talk about that further.
    My parents came here almost 70 years ago, and they had a very challenging time becoming Canadian citizens. They had two-year contracts. They had to work hard. They raised a family, and I'll tell you 70 years on in their late eighties and mid-nineties they wave the Canadian flag as high and as proudly as anyone.
    So we're working on that, and we don't ask much of people coming to this country. We ask them to obey the law and that includes no terrorism. We ask them to respect their fellow citizens and that all the old prejudices and practices should remain in the old country. And pay your taxes.
     I see nothing cruel or unusual about getting rid of terrorists and traitors to my country. Especially as a former soldier, I would be really upset if anybody who had committed a terrorist act against me in the field retained a Canadian citizenship.
    I'll give you a couple of examples of where they do revoke citizenship with good reason. In Britain they have revoked citizenship if it's deemed to be conducive to the public good, and there are several examples of that. In Switzerland they can revoke citizenship if an act in that way causes serious prejudice to the national interest of the country. In Australia they have done it, and in the United States they can pursue revocation for high treason or for being a member of an armed force at war with the United States. These are all good reasons and good examples of these countries.
    Ms. Basnicki, I'll start with you. In the current Citizenship Act those convicted or charged with an indictable offence in Canada are barred from obtaining citizenship. The first part of this question is: do you think that goes far enough?

  (1720)  

    Again, through my lens there's no degree of how far we can go. If we can prevent other Canadians being murdered by terrorists, then we do it. I think we have to play catch-up in Canada when you mention other countries.
    I look to our legislators. I look to our lawyers. There are many in here. I believe in the rule of law, and I appeal to my fellow countrymen. As a country so far we've been fairly lucky, if you will, but the threat of terrorism is not less since my husband was murdered on 9/11. It is greater.
    It was mentioned before about 130 individuals who CSIS knows of who have left Canada for terror training. Can you imagine the numbers we don't know about? Without being alarming, and I don't want to be a fearmonger, it's an issue that, if we can use every tool in the tool chest to prevent such atrocities, then I'm happy that Canada is taking a positive stance.
    I would agree. To Ms. Saperia's point earlier of giving some instruction to youth who might be subject to radicalization, I know I do that on my own with various groups. I've found a lot of success in trying to turn some of those kids to better endeavours.
    Prior to 1976 Canadian citizenship could be revoked for high treason, but the Liberal government of the day chose that this shouldn't any longer be grounds for revoking citizenship even though almost every peer country would disagree, and many have since added grounds for that kind of revocation or renunciation.
    So in addition it is legal to revoke citizenship for someone found to have obtained it fraudulently, and clearly there used to be and still are legal and constitutional grounds to revoke citizenship.
    Would you agree this would still be the case with this bill and with the suggested amendments made?
    Ms. Saperia, how about you?
    I do not have a problem with revoking citizenship for someone convicted of treason. I don't believe that beyond giving them a fair trial here in Canada with regard to whether they did commit that crime, once that has been established I don't think there is a problem with revoking their citizenship. I believe they have cut those ties, and then the natural consequence is the loss of citizenship.
     I want to mention very quickly with regard to Professor Macklin's interpretation of the law, I, too, have a legal background and I do take issue with some of those legal interpretations, but I realize there's not enough time here—
    Sorry to be curt, but I think I have a minute left.
    We know that a Canadian citizen can have their citizenship taken away if they obtained their citizenship fraudulently. Most of our peer countries have the ability to revoke citizenship for reasons, as we said: treason, terrorism, and other things. Yet, some of the critics of the bill claim that Canadian citizenship is an unalienable right.
    Ms. Basnicki, how do you respond to that?

  (1725)  

    I'm a Canadian citizen, and I believe we have to find the balance between the rights of those who have been harmed in such a way with the rights of those who would do harm to Canadians.
    Thank you very much.
    Mr. Toone, you have the floor.
    Thank you.
    Again, thanks to all of you for coming. It's been an informative session.
    Ms. Macklin, I certainly appreciate the fact that you filled in at the last moment, as did I, and as I suspect Mr. McKay did. We're all here on our helicopters trying to make sense of what we're hearing here.
    I want to start by pointing out, my ancestors who came to Canada many generations ago were Huguenots. By the mores of the day, they were criminals. They were traitors. They were punishable by the worst possible punishment of the day, being burned at the stake. Even back then, Canada was rather welcoming, and they came here and settled and became fine, upstanding citizens. But by the laws of the day, they were treasonous criminals.
     I suspect things have improved since then, but I will point out that we've had people in this country whom we've declared traitors, such as Louis Riel, whom later on we decided to pardon. Who's considered a traitor today is not necessarily a traitor tomorrow. These things can be subjective. I don't think we can hold an objective line to these things every time.
    I'll remind people that just before the Second World War, Canada refused Jewish refugees from Germany. We didn't want them here. The minister agreed to that; our government agreed to that. Things change over time. What are the mores? What's acceptable and what isn't?
    Let's fast-forward into what's going on today, and I don't want to repeat what Mr. McKay mentioned earlier, which I think was right on the money. Let's talk about a Canadian who is being held in Egypt, who I think Ms. Macklin mentioned briefly. All these people are considered traitors. All these people have committed heinous crimes by the terms and definitions that exist where they are. I think we're going down a path that could be considered dangerous, especially that there seems to be a serious lack of due process that's permitted by this bill.
    Ms. Macklin, you mentioned section 11 of the charter. We need to have independent and impartial tribunals reviewing these things, yet by the terms of the proposed statute in front of us we're going to have ministerial discretion with leave for judicial review being the only possible third-party option for anybody being denied citizenship. So what are the terms of judicial review? What does it mean to have judicial review? What is the likelihood of even being accepted by a court to hear a judicial review?
    Ms. Macklin, can you explain to me what judicial review is, and whether this is a sufficient remedy in the case of revoking citizenship?
    Judicial review is a form of supervision that a court exercises over an administrative decision-maker. It differs from an appeal or the exercise of judicial authority in the course of a trial. It is limited in its scope. Often, according to the latest jurisprudence from the Supreme Court of Canada, it is intended only to disturb decisions by administrative decision-makers if they are unreasonable, which is a different standard from asking whether the decision is correct or incorrect.
    There is something unique in immigration law in Canada. In all other areas of law, one gets to seek judicial review, to go to the court and ask it to supervise the decision of the administrative decision-maker on request. In immigration law, you have to get permission of the court—that is, leave of the court—to seek judicial review. It's probably the only area of law in Canada where you have to do that.
    So a court won't even exercise its supervisory authority without first deciding whether it thinks the case is worth hearing. That's what this bill proposes with respect to citizenship revocation. First you have to ask a court if it will even hear the case, and then only if it gives permission to hear the case will there be a possibility for the court to set it aside using its supervisory authority.
    Perhaps I can just interrupt for a moment.
    With only 30 seconds left here, if there were a couple of elements that you'd like to see changed in this bill, what specifically would they be?

  (1730)  

    I would remove citizenship revocation. It's unconstitutional. Other countries don't do it. I don't know what Mr. Opitz was referring to. You'll note that in the aftermath of 9/11, not a single U.S. citizen had citizenship revoked. Australia, as I read it, doesn't permit citizenship revocation in the way that Mr. Opitz described. In fact, the U.K. is one of the few outliers that do this. So it's not as if there is this worldwide trend against which we are now imposing a new law.
    So get rid of citizenship revocation. I think our criminal justice system is perfectly adequate to handle crimes, criminal offences, and it does so just fine.
    Second, I would get rid of the “intent to reside” provision with respect to putting that as a condition on the acquisition of citizenship by naturalization.
    Thank you very much.

[Translation]

    Once again, I'd like to thank our three witnesses for taking the time to contribute to our study on Bill C-24.
    I would also like to thank all the committee members for their cooperation.
    Meeting adjourned.
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