CITI Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, March 25, 1999

• 0910

[English]

The Chairman (Mr. Rey D. Pagtakhan (Winnipeg North—St. Paul, Lib.)): I shall call the meeting of the standing committee to order.

We have before us the order of reference, in consideration of this further study on Bill C-63, an act respecting Canadian citizenship.

This morning we have with us witnesses for B'nai Brith Canada, Mr. David Matas, the senior honorary counsel; and Mr. Rubin Friedman, the director of government relations.

Mr. Matas, you may want to proceed with your opening remarks—or Mr. Friedman, I'm sorry.

Mr. Rubin Friedman (Director of Government Relations, B'nai Brith Canada): I just wanted to thank the committee for inviting us to give our presentation. The B'nai Brith Canada Institute for International Affairs has been dealing with the issue of war criminals for many years, first in the area of suspected Nazi war criminals, and more broadly, dealing with the International Criminal Court and all war criminals in Canada.

I'd like to mention that David is our honorary senior counsel and has represented us in the Deschênes Commission and in other legal cases dealing with war criminals. He's a man who is widely respected and well known for his experience and expertise on war criminals. I'd like to invite David to give our brief.

Mr. David Matas (Senior Honorary Counsel, B'nai Brith Canada): Thank you.

What we wanted to do is go over just the revocation provisions of Bill C-63, because through B'nai Brith we've had substantial experience in the whole issue of revocation of citizenship. We've been following quite closely the cases that have gone before the courts for Nazi war criminals and criminals against humanity where there's been revocation of citizenship.

Overall we have two goals that we'd like to see: a system that's fair and that's efficient. We don't want to see the system dragged out so that people can stay in Canada indefinitely, but we would like to see a system that is fair, so that even though we're dealing with people who denied every principle of justice in their dealings in the past, we want to make sure they are given the justice they denied their victims and that we assert our values in the face of their values.

When we look at the present system, it's our view that it doesn't meet either of these standards adequately. It's not very efficient, and there are also weaknesses in fairness. If we look at Bill C-63, those problems we see are not solved, and to a certain extent they are exacerbated. We have eight particular recommendations, which I'll go through. I should say that I have a more detailed paper that is going through revisions and will be distributed to the committee in both languages when its wording is finalized. But the recommendations will be the same.

First of all, we're proposing that the Federal Court trial division be given the power to revoke citizenship. Right now the power to revoke citizenship is with the Governor in Council. After somebody loses in the courts, there is then this procedure where it goes to cabinet. That can consume an awful lot of time in some cases, and it doesn't accomplish anything substantive. There's no real protection either for the public or the person concerned in that step. So we propose it be abolished.

Secondly, we would like to see proceedings consolidated so that a person who is being removed from Canada doesn't go through the revocation of citizenship proceedings and then through the immigration proceedings, when basically the issue is the same and it's two sets of courts churning through the same issue. We would like to see the Federal Court trial division judge have the power not only to revoke citizenship, but also, at the same time and as a result of the same proceedings, order the removal of the person concerned. So you would have one proceeding, rather than three or four, as we have now, accomplish the same result.

• 0915

The third recommendation we would make is that the grounds of revocation of citizenship should be expanded. Right now, the ground for revocation of citizenship is basically that you entered by fraud or false representation or by concealing material circumstances. We would also like to see citizenship be revoked for being a war criminal or a criminal against humanity. The way we put it is participation in persecution. That's already in American law for deportation, the so-called Holtzman amendment, and we would like to see it for revocation of citizenship. In some cases it would give another string to the bow or another arrow in the quiver that would allow the crown to proceed on one of two grounds, rather than the one ground they have now.

The fourth recommendation we would make is that the citizenship and immigration proceedings be consolidated with criminal proceedings. Right now we don't have an effective criminal remedy, but it's my understanding that the government intends to introduce into Parliament proposed legislation that would make the criminal law remedy work, and we may see, at least for modern-day war criminals, prosecutions for war crimes and crimes against humanity. If and when that happens, we would like to see that the criminal court judge, as well as convicting for war crimes, crimes against humanity, also has the power to revoke citizenship and to order deportation at one and the same time in one and the same proceeding. Again, this is a further consolidation.

Even if we don't have that consolidation, we would say that if there is a criminal conviction—this is a lesser form of consolidation—the mere entry of that conviction into citizenship court proceedings or Federal Court revocation of citizenship proceedings should be enough to allow for the revocation of citizenship. There shouldn't be a need to go through a separate trial proving the same things all over again. Again, that's on the assumption that our earlier recommendation of revocation for participation in persecution is accepted.

The sixth recommendation we have has to do with the rules of evidence. Right now in immigration proceedings, a person can be ordered deported based on any evidence an adjudicator considers credible or trustworthy and necessary for the decision in the case. In citizenship proceedings, as well as in criminal proceedings, there are technical rules of evidence that must be followed, and sometimes they lead to the defeat of cases on technical grounds. It's our view that at least for these cases, the appropriate rule of evidence is the one in immigration proceedings and it should apply throughout all these proceedings—citizenship proceedings, criminal proceedings, as well as immigrant proceedings. And I repeat, the court should have power to receive and base its decision on any evidence the judge considers credible or trustworthy and necessary for the decision. We would like to see something like that in Bill C-63.

Now those mostly have to do with what I would call efficiency, but there are a couple of concerns we have with fairness. One is the absence of an appeal. There is no appeal, either in the present law or under Bill C-63, from the decision of the Federal Court trial division. That means there can be errors of law that go uncorrected. There can be divisions between different judges of the trial division, and it never gets sorted out. There is no final ruling about which of these trial division decisions is right on points of law.

We believe the appeal should be with leave, not necessarily as of right, so that would allow for frivolous appeals to be cut off without going to court. But there is a need for some form of appeal. And the appeal, of course, won't necessarily benefit only the people concerned. It can benefit the crown because the crown can and does lose some of these cases, and potentially improperly so. An appeal would allow for that to be corrected.

Finally—and this also has to do with fairness—there's a provision in Bill C-63 that's not in the current law that allows the minister to annul citizenship obtained by use of a false identity. This is basically another way of getting at fraud, false representation, or concealing material circumstances, but it's a non-judicial way. It's an administrative way. It basically allows the minister to do this, rather than having it go to court.

• 0920

It's our view that these cases should be in court. They shouldn't simply be decided by an administrative ukase or an administrative fiat. Admittedly, once the minister makes a decision, it's subject to judicial review, but it's judicial review where there's no determination of facts by the court. All the determinations of fact are by the minister, and the court only looks to whether or not the minister made an error of law. In some of these cases that's simply unsatisfactory, because the issues of fact can be quite complicated.

So those are our recommendations, which we believe would make the workings of revocation both fairer and more efficient.

Those are my introductory remarks.

The Chair: Thank you, Mr. Matas.

We would now like to start with Mr. Benoit for ten minutes.

Mr. Leon E. Benoit (Lakeland, Ref.): Thank you, Mr. Chair.

Good morning, gentlemen. With regard to your comment that there's no appeal process and there should be one but that it shouldn't be a right, could you just explain a bit what you mean by that? Who would determine, then, who would be granted an appeal and who wouldn't?

Mr. David Matas: The system of appeal by leave is something that exists right now in the Immigration Act for all immigration proceedings. I'm an immigration refugee lawyer in Winnipeg, so I deal with this form of appeal all the time. In fact, the courts are quite used to dealing with it.

Basically, it's a written application to the court, and the court decides whether or not to have a full hearing on the basis of the written application. The criterion they use is is there a seriously arguable issue. If there is a seriously arguable issue, they will grant leave, and if there's not, they won't grant leave. The experience shows that they grant leave in about 12% of the cases. That's the statistic I've heard recently. It prevents somebody just invoking the appeal system simply because they want to stay but without having any good reason for doing so. The whole process takes about six months. As far as I'm concerned, it's not an undo delay to assert what I think is an important right.

Mr. Leon Benoit: In some of your recommendations you're looking at trying to streamline the system and trying to prevent this continual appeal and holdup that seems to be in the system now. Yet in your last recommendations you're looking at granting an appeal process in one case, which could lead to a further holdup, and taking the power away from the minister to revoke and giving it to the court, I think, in every case. Is that correct?

Mr. David Matas: I think that's right. That's what I said in my introductory remarks, that we want a system that's both fair and efficient. If it were just a matter of getting people out lickety-split, we could have a system that would be very efficient, but it would be unfair. The reason we advocated streamlining of these earlier steps is because right now the system has a lot of steps that really don't do anything in terms of protecting people concerned and protecting the public. They just chew up time. I'd like to get rid of all those steps.

It depends on how many of these consolidation recommendations you accept. Collapsing a number of steps into one would cut years off the process and, admittedly, the recommendations we've put in at the end would add a few months to the process, but our view is that what you get by taking the recommendations we make at the end is a substantial increase in fairness. You get something substantive out of that time, rather than just spinning our wheels.

Mr. Leon Benoit: That seems to make a lot of sense. I think you have some good recommendations here.

With regard to taking the power away from the minister to revoke citizenship where the minister has determined there was false documentation or some false information given at the time of application, why would you want to take that power away? To me that seems to be a reasonable amount of power, a reasonable type of power, a reasonable circumstance to give power to the minister.

• 0925

Mr. David Matas: First of all, it sets up a double track. The power is there anyway to remove through the courts the citizenship of anybody who has gotten it through the use of a false identity, because that's what the law says now and what the law would continue to say. You can revoke for fraud, false representation, or concealing material circumstances, so there's no doubt that use of a false identity would fall within that. You have something that's already in the courts being put into the hands of the minister. What's more, if you look at what it says, it doesn't say that the person had to use a false identity. It has to be that the minister is satisfied that the person used false identity. So what judicial review looks at is not whether false identity is used but whether the minister was reasonable in coming to the conclusion he did even if it were wrong.

There can be issues of fact. For instance, take the case of Albert Rauka. Obviously, I'm no defender of Albert Rauka, the mass murderer from Lithuania, who was found to be responsible for the death of 11,500 people. He came to Canada. He changed one letter in his name, from Rauca to Rauka. If this power were in effect, potentially the minister could have used that to remove his citizenship, and that would have been it. I'm not sure that would have been fair to Rauka. I'm saying that we have to be fair to all these people, no matter what's alleged against them. Was that really false? Did he change that letter to disguise his identity, or was it just an alternative spelling and so on? So there are some legal issues here that are properly decided before a court.

Mr. Leon Benoit: If you look at the immigrants to my part of the country, there are an awful lot of Ukrainian and Polish immigrants, and in some cases their names were changed by the people who were registering them. You could probably revoke the citizenship of half of them. Really, there were a lot of errors in recording, so I can understand that.

But wouldn't another way of dealing with this be to define in the legislation itself the circumstances under which a minister could use this revocation, rather than taking it away completely? One thing I see as being a huge problem with this bill is that too much of what this bill will actually do will be determined by regulation, and that regulation isn't approved by Parliament. It may be scrutinized in some cases, but it doesn't go through the procedure, so Parliament has no power to reject or accept these regulations. In so many areas it seems that the legislation is so vague, you don't really know what it means. It will be the regulation that will determine what the legislation really will and will not do.

Mr. David Matas: I certainly would be in favour of that in some areas. One of the provisions that really puzzled me, where I didn't know what they were getting at, is clause 30, where the minister may reverse a decision if there appears to be a material defect in the decision. I gather that's sort of a slip error. It's sort of to deal with something where, let's say, they wanted to give citizenship to Joe Blow and they gave it instead to Joe Smith, and they sent out the letter but they haven't sent out the certificate. So they want to be able to say, sorry, we sent you out the wrong letter, without having to go through the court. I assume that's why that's there, but it's so vague I'm not sure. I'd like to see that specified.

Clause 18 deals with a couple of things. It deals with false identity and citizenship in contravention of section 28. I said nothing about citizenship in contravention of section 28 because that deals with a separate issue. Maybe that should or shouldn't be there, I'm not so sure. That looks to be more like whether or not you had a criminal conviction. If you hid a criminal conviction in Canada and then got citizenship on the basis of hiding that criminal conviction, it may be appropriate to have a separate procedure for that. I haven't really focused on that. But when it comes to false identity, that's the same thing as fraud, false representation, or concealing material circumstances.

In my view these are complicated issues. They raise debated questions of fact. There's already a legal stream there. We don't need a separate one. The legal stream we have there is a fairer one, so let's just go with that one.

• 0930

Mr. Leon Benoit: Could the regulation that the minister and the department put in place make it actually determine that the normal law won't apply? Can they, through regulation, steer things away from the normal legal channel?

Mr. David Matas: No. There's a legal doctrine that every statute has to be what's called intra vires, within the powers of the statute. If it's beyond the powers of the statute, it can be struck down by the courts.

Mr. Leon Benoit: So you don't think that could be used in this section to get around the normal legal channel.

I understand that, but through regulation, you can maybe make a certain section of an act appear to be, or give, I guess, the reason for it being there, define it quite differently than you would think it might have been.

Mr. David Matas: In theory, if this provision is passed as it stands, it needn't be used. Because there is a dual track, the minister could always use the other track. Certainly that would be our position if it is passed. We would like to see it deleted, but if it's passed, our position is that it should never be used and the other track should always be used.

The Chair: Thank you, Mr. Benoit.

Mr. Ménard has the floor.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Good day and welcome. I knew your presentation would be good; you've never disappointed me on the many occasions you have appeared before our committee.

I wonder if you could make a general comment about the issue. The Minister of Justice announced, a year or a year and a half ago, a variety of steps that would make it possible to address some of your earlier demands concerning war criminals. Could you tell us what you think of the work done by the Department of Justice, together with Citizenship and Immigration, in connections with the measures announced? I will then ask two or three technical questions. It would be interesting to have your views on this at this point.

[English]

Mr. David Matas: I would say on the whole that we've seen some progress, in the sense that the government has put some money and some staff into this area, substantial amounts of money, particularly for modern war criminals. The cases have been proceeding at a more orderly pace than they were originally, and we're seeing several cases in court. On the whole, that's positive.

When it comes to the working of the war crimes unit, it seems to be functioning okay, but we have a number of longstanding demands or requests or proposals, going back as far as the Deschênes Commission, many of which have not been acted on. Most of the proposals we're making to you today we have made to the government through the years, and we're disappointed that they're not here. I think any balance sheet of where the government is going has to consider that as well.

We have consistently proposed consolidation of proceedings. We have consistently proposed that participation in a persecution be a ground for revocation of citizenship. It's not here.

It's the same with immigration reforms. We're still at the stage of a white paper. We don't have a bill. Some of our reforms are perhaps of enough of a detail that it's maybe unrealistic to expect them to surface in the white paper, but again, for immigration, we haven't seen some of the proposals that had consistently been put forward.

I can go into other areas—criminal law, or disclosure of records, and so on. We're still waiting for criminal law amendments. We still haven't got the disclosure of records, not just to the public but even to law enforcement authorities, which we wanted.

So I would say it's a mixed bag. On the whole, things are a lot better now than they were five or ten years ago, but even when things are fine, there's always the reality that we've waited until so late, and now cases that may well have succeeded ten, twenty, or thirty years ago are being lost because witnesses have died, immigration witnesses or fact witnesses.

[Translation]

Mr. Réal Ménard: I would like to return to your third recommendation, which is that grounds for revocation of citizenship should be broadened to include involvement in war crimes or acts of persecution. Am I correct in saying that that was a recommendation of the Deschênes Commission?

[English]

Mr. David Matas: I don't recall that he actually recommended that.

• 0935

[Translation]

Mr. Réal Ménard: So you are convinced that it should be a reason for revoking citizenship and you would like that wording to appear in the Bill. Have you had the opportunity to make representations to officials of the Department, and what reasons have they given for not including those grounds?

[English]

Mr. David Matas: Well, yes, we presented it. We've never been met with a refusal and an explanation. The response we've always had is yes, that's interesting; we're considering it. Still today, that's the response we get. I've talked with a number of people in government, and that's the response, that it's an interesting proposal and we'd like to discuss it with you further, and so on.

All I can say is the government hasn't yet got around to deciding it should be there, but it hasn't, at least from what we've been able to read, rejected it out of hand.

[Translation]

Mr. Réal Ménard: There is something in your recommendations that I find surprising. You seem to want to limit the possibility of direct intervention by the Minister in the citizenship revocation process. Generally speaking, I am in favour of the principle requiring referral to the courts, along with the imposition of the rules of natural justice, such as the right to a hearing, to be represented by a lawyer, etc., but are there not certain circumstances in which it might be faster and more reassuring to know that the Minister had discretion to revoke citizenship?

If we were to learn tomorrow that there was a major war criminal in Canada and that public opinion was getting organized to exert pressure for us to act quickly, it would be good for the Minister to be able to revoke citizenship. The process would likely be faster than the court process, which takes weeks, months, or even years. If the Minister could intervene, the process would be quicker in the event of a swell of public opinion and hard lobbying. Do you share this point of view?

[English]

Mr. David Matas: No, we don't. I think we have to always keep in mind the context in which the issue of war criminals arises. These mass crimes occur in a very heated political context where the perpetrators justify the crimes in one way or another and have supporters who justify the crimes, who have constituencies who justify the crimes. It's important that we assert justice in the face of this politicization.

If you make that decision a political decision, it's not going to have a general legitimacy, particularly among the supporters of the perpetrators, who will deny the crimes or justify the crimes in one way or another. What we're trying to do in the face of these crimes is to assert justice, and we can't assert justice convincingly by a political process; we can only assert justice convincingly by a legal process.

Look at the turmoil that Britain just went through with the Pinochet case to make sure it was as fair as fair could be. Once they had heard it in the courts, they even reheard it to make sure the hearing was as fair as possible to everybody concerned. There was as much support for getting rid of Pinochet as you could possibly want in Britain. I think we have to have that sort of legitimacy here, which we can get only with a court process.

Although one can say that an order by the minister will be quicker, at the end of the day it will cause more problems than it will solve, because it will undercut the acceptability of the decision that's being made.

[Translation]

Mr. Réal Ménard: By and large, I agree with you, but it seems to me that we are depriving ourselves of a mechanism that would ultimately allow justice to be done without the Minister's intervention in some very specific high-profile cases. When the Minister makes a decision, she does so on the basis of a file and documented opinions. It doesn't arise in a vacuum.

• 0940

I understand your point of view and want you to understand that I too prefer the judicial process as the first line of approach. But it appears to me, at the end of the line, to totally deny the Minister any discretion to revoke citizenship.

[English]

The Chair: Mr. Matas.

Mr. David Matas: What you've envisaging is a clear-cut case where there's nothing on the other side and the facts are obvious. I would say in that situation, if it went to court, it wouldn't take a long time because we're proposing a procedure where you go to court and you don't go to the cabinet afterwards, where if there's an appeal, it would be appeal by leave, so presumably in this case there would be no leave granted. And in any case, I'm not even sure that this is quicker. The initial decision would be quicker, but somebody would still be able to go to court on an application for judicial review.

This is in the Citizenship Act, not the Immigration Act. In the Citizenship Act, applications for judicial review are by right rather than by leave. So you'd get to court anyway. And also, under the Citizenship Act if you go to judicial review you go to the court of appeal, by right as well, and not by leave. Then you go to the Supreme Court of Canada by leave. So what you have here is that the first step is quick, but you have three steps after that, which at the end of the day will take longer than the procedure that we're proposing or that's even envisaged in the act now through sections 16 and 17.

What you're getting through section 18 is a quick, unfair decision with subsequently three layers of Federal Court and Supreme Court after that, which can potentially take years and which can't get at the original decision directly because they can't look at the facts, instead of a one-step decision by a court, which will be much fairer, with a potential for leave, and will take a lot less time.

The Chairman: Thank you, Mr. Ménard.

Mr. Telegdi, you have the floor.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Thank you, Mr. Chair.

I wonder if you could tell me, Mr. Matas, how would Canada, in comparison to other nations, fare in terms of dealing with the problems of removal of war criminals?

Mr. David Matas: With the United States we compare unfavourably when it comes to Nazi war criminals. The United States started about ten years earlier than we did and has been operating systematically. Its numbers are a lot higher and it has done a lot that we don't do. For instance, they cross-check lists. One of the things we've been after is getting lists into the hands of enforcers so they could cross-check lists. But we have data banks that are secret even from enforcers, like the old age pension lists. The RCMP can't look at the old age pension lists, which are an obvious source for Nazi war criminals. We proposed legislation to allow that to happen, but the privacy commissioner has opposed it.

So it has not happened. The RCMP cannot cross-check lists. That sort of cross-checking is happening in the U.S. We saw this fellow from the United States, Steve Rambam, who just cross-checked lists using telephone books and picked up all sorts of names. He was an American and he was on 60 Minutes and so on; and that's the sort of thing the Americans do that we don't do.

The result is that in the United States now they get a lot of no-contest. The system works so effectively that people who know they're going to be caught don't bother to contest any more. While we've had a couple of no contests, it's not been a systematic experience. We get a lot of people fighting who have weak cases, just because they know the system is going to take a lot of time and they can buy time through the system.

In terms of the continental European countries, the crimes were committed there, so they tend more to prosecution and deportation. Australia and the United Kingdom have had experiences very similar to ours. They've had some prosecution systems that haven't worked very effectively. There's a trial still going on in the United Kingdom right now.

I would say that on the whole, globally, Canada is not the best, and it's not the worst. It's in the middle.

• 0945

Mr. Andrew Telegdi: When we talk about war criminals, I think of the case of My Lai in the case of the United States, and I think of Somalia in the case of Canada. I'm not sure how effective either country was in dealing with that. It's a real problem. I come from Kitchener—Waterloo. We have a fair number of people who came from eastern Europe at various times. We also have one out of six Canadians who were born abroad. When you start dealing with somebody's citizenship, it becomes very touchy.

In terms of the State of Israel, how would they compare in terms of dealing with deportations or that kind of a situation?

Mr. David Matas: I don't know that much about the law of the State of Israel, but I know they've prosecuted Eichmann. He was convicted and executed. They prosecuted Demjanjuk, who was acquitted. The Israelis have civil law principles when it comes to extradition and deportation. Their attitude is they like to try criminals who are there themselves rather than extradite them for trial abroad, which has been a bit of an issue with fugitives. There's been some debate about it in the courts.

As you can imagine, there are not a lot of Nazi war criminals who try to get into Israel and hide themselves there, so it hasn't been quite the same issue as it has been in Canada.

Mr. Andrew Telegdi: No, I appreciate that. I also appreciate that many people fled to Israel at various times. If you flee dictatorship and if you need to get out, you can very easily commit a crime by the laws of that particular country you're fleeing, even though it's a dictatorship. We don't have the same kinds of problems now, but we used to have them. When you dealt with the Soviet Union, how could you rely upon evidence that they would give you from the state itself? This would be true even if you fled Hungary, given the fact that it was really illegal to flee the country in the first place. Now that the Iron Curtain has fallen the problems are not quite the same, but those problems existed.

Mr. David Matas: When we're talking about war criminals or criminals against humanity, we're not talking about people who broke exit control laws, obviously. We're talking about people who violated international human rights standards. We're also not talking about relying on evidence that's garnered under a totalitarian system. We're talking about the courts making their own determination of the evidence. They'll look at the evidence that's garnered elsewhere, but it's presented in Canadian courts and subject to Canadian tests. In the citizenship revocation proceedings we've had, we've had the courts go over and hear evidence themselves, and hear the witnesses themselves and read all the documents themselves. They have on occasion rejected some of the evidence that's presented in front of them, deciding it's unreliable. It's the Canadian system. It's not a foreign system in terms of the evidence.

Mr. Andrew Telegdi: No, but in many cases the source of the evidence could be tainted. That's the point I'm trying to get across.

Mr. David Matas: People in court can lie. That's true in every case. We rely on Canadian judges to sort out the truth from lies.

Mr. Andrew Telegdi: Mr. Matas, maybe I caught you off guard with the question, and it wasn't the purpose of it, but I know it's an issue that you and B'nai Brith have given a great deal of thought to.

I wonder if you could, perhaps when you are making the submission and if you have any further thoughts on it, compare Canada in terms of a continuum with other countries that receive a fair number of refugees and immigrants.

Mr. David Matas: I don't mind doing that, but the idea is not to rank well, the idea is to do what's right. If doing what is right puts us way in front of everybody else, that's no reason to desist.

Mr. Andrew Telegdi: Mr. Matas, if you allow me, perhaps you can identify what's good in the other countries that Canada doesn't have. If you can pick what's best in each one of the countries, then perhaps we could adopt the best practices so we can improve the system.

Mr. David Matas: I can tell you, for instance, that in the United States one thing that's very good is we started ten years earlier than we did in Canada, but we can't change that now. We can't change the fact that we started late. We certainly can't do that through legislation.

• 0950

When it comes to legislative changes, everything is done in the context of a legal structure with a certain legal tradition and a certain legal vocabulary. The exercise of drafting legislation is not a matter of comparative draftsmanship, where you simply pick up different things from different jurisdictions and put them all together. It's a matter of looking at our own experience, see what has worked and keep that, and see what hasn't worked and jettison it.

In fact, what I have tried to do in this proposal is pick up something that has worked in the United States, this participation in a persecution. That's part of the American experience that has worked and has been quite effective. Perhaps what I could do is maybe elaborate on that, about why that has worked in the United States and why that's useful here. I certainly don't mind doing that.

Mr. Andrew Telegdi: Thank you.

The Chair: Thank you.

Mr. Martin and then Ms. Augustine.

Mr. Pat Martin (Winnipeg Centre, NDP): Thanks very much, Mr. Chair.

Thank you, Mr. Matas, for very clear, thoughtful, and useful points. I made a lot of notes, and I look forward to seeing your report.

I don't know if the people here realize what a reputation Mr. Matas has, living in Winnipeg. Certainly we see him in the news a lot. He's a leading authority on this subject.

I want to comment first on the generous attitude you've demonstrated, that you hold us to a higher standard of justice than the war criminals that we seek to kick out of the country ever demonstrated for the people they were persecuting. I think that's a very admirable point, and you were making it again with Mr. Telegdi.

I'm interested in your comments on the grounds of revocation being broadened. I wonder if you could talk a little bit more about that, what further reasons you would add to that list, and specifically, would you see broadening it to include hate crimes within this country?

Mr. David Matas: What you're dealing with is always something that happened before the person was granted citizenship. A person would never be able to lose citizenship for something they did after they were a citizen.

If a person was involved in hate crimes in this country, presumably they would be subject to prosecution and then they would fall within clause 28, so we wouldn't have to worry about that. I would hope that would be covered by the present law.

What we're dealing with mostly is people who are involved in crimes abroad.

The participation in a persecution or war crimes or crimes against humanity would include hate crimes. I remind you of the case of Julius Streicher before the Nuremberg tribunal, who was convicted and sentenced to death and executed for hate crimes alone and for nothing else—incitement to genocide. So it is part of the international criminal law jurisprudence that hate crimes would fall within this category, and I don't think we need to have a specific legislative provision about it. I believe the general provision we're talking about would include it.

Mr. Pat Martin: I see.

I want to be perfectly clear on one of the points you raised, on more power to the minister to annul cases or to annul in the case of fraud, and so on. You were saying that if there was a judicial review of that ministerial intervention, they wouldn't be able to look at the facts of the case so much as if the minister actually had the authority. The review wouldn't actually look at the merits of the case. Is that correct?

Mr. David Matas: That's right. The judicial review powers are in the Federal Court Act under section 18. What it says is that the federal court can overturn, on judicial review, a decision if there is no jurisdiction, an error in law, a failure of natural justice, or the decision is perverse or capricious or without regard to the material before it.

So if there was an error of fact that was totally perverse, like it became apparent that the minister was just out to get this guy even though all the facts were in his favour, then the court could intervene. But if it was just an error in judgment, the courts would say “It's not for us to decide the facts. As long as the minister is satisfied, the legal requirement is met, and we're not going to make the actual decision, because by law the decision wasn't given to us to make; it was given to the minister to make.”

Mr. Pat Martin: In other words, the minister has the right to be wrong.

• 0955

Mr. David Matas: The minister has the right to be wrong; and indeed, sometimes that has been the government's position.

Mr. Pat Martin: One thing that has come up with Bill C-63 is the idea of revocation of citizenship in the case of the adult child of a citizen living abroad. When they reach the age of 28, if they haven't spent a certain number of years in the country they would have their citizenship revoked. What do you think would be the status of that person after their citizenship is revoked? Would they then be stateless, or would they automatically fall back to a permanent resident status? This is in the case of the child coming to Canada and turning 28 years old while in Canada. What do you think would happen to that individual?

Mr. David Matas: As you can appreciate, that's not something we dealt with in our brief.

I'm familiar with these other changes in the act that are being proposed, because I'm also part of the executive of the immigration law section of the Canadian Bar, which is preparing a brief, and I've seen some of their drafts and some of their concerns. What I would do, rather than try to answer that, is leave it to the Canadian Bar when they present, because they will be addressing that issue and they're going to do it a lot better than I could.

Mr. Pat Martin: Okay, certainly.

The Chair: Thank you, Mr. Martin.

Ms. Augustine.

Ms. Jean Augustine (Etobicoke—Lakeshore, Lib.): Thank you, Mr. Chairman.

It's always so interesting to listen to you, Mr. Matas.

I'll bring to you something that's closer to home. A good number of my constituents are very concerned about the revocation of citizenship as it applies to participation in war crimes, accusations about crimes committed against humanity, and so on.

Could you go back over your initial statement about the rules of evidence and looking for that credibility and trustworthiness in the process?

Mr. David Matas: Yes, I'll certainly be glad to do that.

The problem we face now is that we have different proceedings looking at the same issue with different standards of evidence. In the immigration proceedings, the standard of evidence is credible or trustworthy evidence necessary for the decision, credible or trustworthy to the judge. That allows for the immigration judge or the adjudicator to avoid being caught up in the technical rules of evidence—and sometimes they can be a problem, particularly in this area.

I remind you of the Pawlowski case, an accused war criminal in Canada, a criminal case in the old days when we were prosecuting. The witnesses against him were all elderly, and they weren't able to travel to Canada. It was a jury case. The crown proposed to present videotape evidence to the jury. There would be cross-examination. The defence lawyers would have gone over and the witnesses would have been examined and cross-examined with the judge in their home locations, and then the videotapes would have been shown to the jury. The judge said no, that was not good enough; there had to be live testimony. He wouldn't allow videotape testimony only.

As a result of that, the case was dropped, because without those witnesses the case could not proceed. That case was lost on a technical ruling on evidence. If there had been a rule of the sort we've proposed, that case could have proceeded. He may have been acquitted or he may have been convicted, but at least it wouldn't have been stopped at the very beginning simply on a technical rule of evidence. That's the type of case we have in mind.

Of course, when you're dealing with those sorts of crimes, it's not the normal crime where somebody robs a bank and everybody is around in the street and they see what happened. You're dealing with situations where maybe everybody in a village has been killed, where a document has been burned, and you're dealing with maybe statements of people who died years ago. Obviously the rules of evidence are there in order to get only the best evidence in court, but sometimes what you're left with is fragments of the best evidence. I'm not saying people should be convicted on that evidence, but at least let the decision-maker look at that evidence.

• 1000

Ms. Jean Augustine: The balance between fragmented evidence, 50 years or so of good citizenship, a life free of any involvement in any activity in the Canadian setting that could be considered criminal—how do we balance all of this? I'm trying to grapple with a way of discussing with constituents the whole issue of credibility and trustworthiness and being a Canadian for x number of years in Canada—individuals who have somehow shown themselves to be outstanding citizens of this country balanced against what is considered to be fragmented pieces of information, and the fact that there are communities that feel the system is more than punitive and unfair.

Mr. David Matas: Obviously I think you have to get at both. You have to get at fairness, which I've been trying to do, and you have to make sure the system is fair and that people aren't convicted unjustly.

But I don't think you can balance evidence against behaviour. You weigh evidence in order to come to a conclusion. If the conclusion is that the person has committed a crime against humanity, I think we have to remember what we're talking about. Canada is part of humanity; Canada is not isolated unto itself. A crime against humanity is a crime against Canadians. It's not just a crime against somebody else out there who we don't care about. There should be no immunity for those crimes. There should be no statute of limitation for these crimes.

The issue of good behaviour afterwards of somebody who has committed a bad crime may go to sentencing if it's a criminal trial. It may be that a person should get a lesser sentence. But it doesn't go to innocence or guilt. The fact that a person has behaved well afterwards doesn't change the fact that he did something bad before that. It can't turn a guilty person into an innocent person. It's fundamental to this whole notion of crime against humanity that there is no immunity for these crimes, that there is no statute of limitation for these crimes, and they cannot be forgiven. They can be forgiven at the level of sentencing, but... I guess “forgiven” isn't the right word; they can't be forgotten. We can't forget these crimes just because people behave well afterwards.

The Chair: Thank you, Mr. Matas.

Mr. Benoit.

Mr. Leon Benoit: I don't actually have any more questions.

The Chair: I'll go to Ms. Leung, then.

Ms. Sophia Leung (Vancouver Kingsway, Lib.): Thank you, Mr. Chair.

I just want to comment, Mr. Matas, that your organization is famous, doing wonderful work.

This may not relate to immigration in a regular sense. From your experience, do you see that there is a reduction of racial discrimination in the last 10 years, or is there a rise? I'm from Vancouver, where your group is doing very good work, but there are still a lot of undercurrents and there are incidents that reappear.

Mr. David Matas: If I may, I'm going to ask Rubin to answer that, because he works with B'nai Brith.

Ms. Sophia Leung: Sure.

The Chair: Mr. Friedman.

Mr. Rubin Friedman: All we can say is that the context in which we live, the environment, is constantly shifting and the speed at which things are shifting is rapidly increasing. Today we are here meeting about the possibility of dealing with war criminals. At the same time, Kosovo in Yugoslavia is being bombed because of actions of the State of Serbia in Kosovo. Things are going on at the same time. We're likely to get people who are fleeing the scene in the next few years. So the source of criminals is not going to dry up.

• 1005

In terms of our own context in Canada, we have to understand that what happens now around the world is instantly available in Canada, and this was not true to the same degree ten years ago. Every group that has a reason to hate any particular minority has its message up on the Internet. The Internet is instantly downloaded here in Canada. Rumours that Monica Lewinsky was a Mossad agent were printed in an Arab newspaper in Cairo, and within days it was common talk here in Ottawa.

We have to understand that when we talk about these things, crimes against humanity or hatred in Canada, there is an intimate link. We cannot separate ourselves out, be a North American island completely removed from the rest of the world. Whatever is going on in the rest of the world is going to affect what's going on here. What's going on here will affect what's going on in the rest of the world.

The Chair: Do you have any further questions, Ms. Leung?

Ms. Sophia Leung: I'm finished.

The Chair: Would you like to complete your commentary?

Mr. Rubin Friedman: Yes, just one thing.

So there is not necessarily an increase in racist thinking, but there are certainly increased opportunities for people who have negative feelings to express themselves, increased reasons why they might say something nasty or do something nasty, because as I say, everything affects what we live through here in Canada.

So I have a concern for the future in that regard, and it's one of the reasons why we in Canada have to continually emphasize the need to control hate and to ensure a public discourse that doesn't descend to the level that we've seen lead to horrendous crimes elsewhere in the world.

The Chair: Thank you.

One very short question, Mr. Telegdi.

Mr. Andrew Telegdi: Mr. Friedman, in terms of a follow-up, what can we do as a country when we take people from, say, the former Yugoslavia, so we have three distinct groups who have historical grievances... and I suppose, depending at what point in time you stop, everybody's justified. Once the people come from those kinds of places, once they get to Canada, what can we do as a country to have them change their attitudes and say that kind of activity in this country is unacceptable? That's number one.

The Chair: Excuse me, Mr. Telegdi, I do not see the relevance, unless you tell me, to the citizenship bill.

Mr. Andrew Telegdi: Certainly. How do people become good citizens when they come from other countries where they're fighting each other and all of a sudden we have them over in Canada?

The Chair: Proceed, please, Mr. Friedman.

Mr. Rubin Friedman: I think we have to put the emphasis on our democratic institutions, on our democratic processes and the tradition of respect that we have in public discourse. We have to emphasize it and we have to enforce it, and we have to enforce it for everybody.

Mr. David Matas: I would say actually that's highly relevant to this legislation, because I think in this legislation and in others we need to assert the values that have been so lacking in these other countries: we do not accept hate speeches, we do not accept war criminality, we do not accept crimes against humanity. And our response to them is not an unending cycle of revenge crimes or revenge hate speech; our response to that is justice: to say that the law does not allow it, that you will get a fair trial, that you will be allowed to present all your evidence, you will get your appeals, and if you do not succeed, then you will either lose your citizenship or you will be deported or you'll be sent to jail, depending on the law.

The Chair: Mr. Matas, are all those included in so-called democratic values?

Mr. David Matas: Absolutely. Part of democratic value is the rule of law.

Mr. Andrew Telegdi: Mr. Chairman, we had an example recently where we had people come and demonstrate, and they had a very good grievance. But I think what was bothersome to many people in Canada is the fact that they were willing to break the law to make their point.

• 1010

Obviously if we're going to be a country that is a haven to people from troubled spots of the world, then somehow we have to be able to impress upon the people in Canada that here those kinds of activities are not acceptable, because if they were, then Canada would be in deep trouble, given all the fault lines that we have, in terms of extenuating the differences.

Mr. David Matas: Indeed, I think that's why it's so important to get the law working in this area in particular, so people can feel that the law is a recourse and a remedy, and that when they see a war criminal when, let's say... I think you were referring to the Kurds. If the Kurds see a Turkish criminal against humanity in Canada, they can go to the courts and the courts will do something about it. They don't feel they have to seek extra-legal means.

Mr. Andrew Telegdi: Mr. Matas, I don't think they were—

The Chair: Mr. Telegdi, if I could just... We have exceeded our time already. We have only 45 minutes left for the next witness. I think we have to terminate the questioning at this time.

Mr. Andrew Telegdi: If I could just end it, I'm not talking here about people who are necessarily going up to war criminals. I'm saying there's somebody here who is angry at what happened over there and they want to demonstrate their anger.

Mr. Rubin Friedman: Just a very quick—

The Chair: I'm sorry, Mr. Friedman.

Mr. Rubin Friedman: Okay, fine.

The Chair: I would like to end it at this point, because we would like to be fair to the next witness.

Mr. Rubin Friedman: Go ahead. Absolutely.

The Chair: I have two questions to ask. I will ask the question, and I would like your answer submitted to the committee, perhaps later on.

For clarification, when we say “a crime against humanity” and “war crimes”, are we saying that following conviction for those offences, there is a basis for revocation, or that a prosecution for those offences is sufficient ground for revocation? In fact, if you can get that answer quickly, Mr. Matas, say yes or no.

Mr. David Matas: The answer is both. If there's a conviction, there would be automatic revocation without a further proceeding. If there's no conviction, you could do it just in citizenship proceedings.

The Chair: Thank you.

We would like to thank you both for your presentation. I wish we had more time, but we are bound by the practicality of the day. On behalf of the committee, we thank you both.

Mr. Rubin Friedman: Thank you.

Mr. David Matas: Thank you.

The Chair: If you have further documents to send, the committee would appreciate that.

Mr. David Matas: We will. Thank you.

The Chair: We now have before us Mr. Aimers from the Monarchist League of Canada. He is the chairman of the office of the dominion.

Mr. Aimers, you may want to proceed with your opening remarks.

Mr. John Aimers (Chairman, Office of the Dominion, Monarchist League of Canada): Thank you very much, Mr. Chair.

I'm delighted to have the opportunity to appear before the committee today on behalf of the 18,000 members of the Monarchist League of Canada and many Canadians who feel strongly about the monarchy as one of our fundamental institutions in Canada.

The Chair: Sorry. Just one moment.

Ms. Jean Augustine: We wouldn't want Mr. Ménard to miss any of this.

Mr. Réal Ménard: Ms. Augustine, I think you're right. You know how open I am.

Ms. Jean Augustine: I know.

Mr. Réal Ménard: And I would like to have more of a place in your life.

Ms. Jean Augustine: Exactly.

The Chair: Mr. Aimers, you may want to start again.

Mr. John Aimers: Sure. I was saying I appreciate the opportunity to appear before the committee on behalf of the members of the Monarchist League of Canada and all those who feel strongly about the place of the monarchy within the democratic institutions of our land.

The background material submitted to members of Parliament and the public about the new oath of citizenship suggests that the proposed new oath is a modernized version that better reflects the values of Canadians.

We have a number of concerns. It's been represented to us that we won the big battle, since the Queen remains in the oath of citizenship, so why should we press our case? But we do think there are some things in the proposed new oath we would like to draw to the attention of the committee, beginning with perhaps the fact that it isn't an oath, as we in Canada have known an oath to be, but a pledge.

• 1015

I would think it might be of some concern to members of the committee to ask what I haven't succeeded in getting an answer to, which is why we're adopting American-style nomenclature, and now “pledging” loyalty and allegiance, rather than swearing or affirming, as one's religious dictates observe. It seems to me that in a way we're at least implicitly downgrading the importance of what should be the moment when our new fellow citizens join the great family under the big inclusive tent that is the Canadian monarchy and indeed the embodiment of the Canadian state.

We also feel, in general, that the old oath had precise legal meaning and it was appropriately worded in the future tense. A person appearing before a citizenship judge, as they then were, states that he or she will undertake certain responsibilities, just as members of Parliament, jurors, witnesses, and others taking oaths take oath in the future tense to proclaim their intention to do something. The new oath, to us, is somewhat anomalous in being worded in the present tense. That may be just a question of grammar. But in general there seems to be a fuzzy warmth in the new oath that is perhaps reflective of today's values but not necessarily conducive to having a precise and generally understood meaning. It's to some of those points that I'd like to speak very briefly this morning.

First of all, obviously we have a concern. Some of our more rabid members said they're putting the Queen in second place. Now, I'm not as concerned about the placement of the Queen as the implied dichotomy between the Queen and Canada. The proposed new oath says “I pledge my loyalty and allegiance to Canada and Her Majesty...”, suggesting that they are discreet, distinct elements. We have suggested to the committee that it would be a far more accurate representation of the constitutional reality of Canada... Whether one intends to agitate for a change in that reality, whether one supports it or not, is another question. Indeed, the minister has said that she doesn't want this bill seized by debate on the role of the monarchy, which she views, as I understand, as a debate for another time.

But there is no distinction in law, in constitution, between the Queen and Canada. The Queen is the embodiment—the Crown is the embodiment of the Canadian state. To imply that Canada and the Queen are separate items on a menu to me tends to suggest a sort of cafeteria Canadianism whereby we can pick and choose the elements of citizenship, of constitution, and of law that appeal to us.

We think that adding the two little words “and so” would easily clear up any confusion, real or implied. We'd like to see the wording, obviously, as “loyalty and allegiance to the Queen, and so to Canada”. But equally one could argue “to Canada, and so to the Queen.” I'm not hung up on that particular issue. But it seems to me that connection ought to be made very clear, and there ought not to be any dichotomy implied between the two as long as we are a constitutional monarchy. The one is the natural consequence of the other.

Secondly, we ask, what does loyalty and allegiance to Canada mean? I think everyone in this room, and I suspect almost everyone in Canada who believes in Canada, would say that he or she feels loyal to, fond of, bound to, or emotionally tied up with Canada. The difficulty, as we pointed out in our brief to you, is in knowing precisely what Canada means. And I would suggest that even in this room there would be very distinct differences in our several interpretations of Canada. We each have a view of Canada.

I don't have to tell members of the committee that where legislative language is imprecise, there's the opportunity for mischief, there's the opportunity for misunderstanding, there is the opportunity, unlikely though it be in this case, for the courts to read in meanings where Parliament allegedly failed to be sufficiently precise. That to me is a danger, especially in an oath designed to be very clear, the culmination of a process of education and assimilation into the great Canadian family, which every one of our new fellow citizens should be able to take, not only with pride, but with a precise meaning.

• 1020

Canada means everything in the country, if one's taking that oath, or else it means everyone is taking it with the mental reservation “I believe Canada includes everything and everyone in the country, except certain things I despise, don't agree with, or don't feel are worthy of Canada”. That does not lend itself to a generally understood, precise meaning.

Third, dropping the phrase from the current oath of citizenship “heirs and successors” is quite a red flag. The government has told us, in our background briefings, this has no legal force or effect, and loyalty to this sovereign, may she be spared many years, will automatically continue to Charles and William, in their turn. That may be true in law, but the plain and ordinary meaning of dropping words that exist in one formulation in a new formulation of an oath of citizenship would suggest to the ordinary man or woman in the street there is some excuse, some doubt in the minds of the framers of this oath whether there will be heirs and successors.

If the minister does not want to have a debate on the monarchy over this particular issue, it would seem to me clear, as part of our tradition and constitutional reality, la reine est morte, vive le roi, we should acknowledge that continuity by continuing to include the phrase “heirs and successors” in the new pledge or oath.

Fourth is something I hope will appeal to members, whether they're monarchists, republicans or indifferent, and that is the question of nomenclature. The wording in the proposed oath, “Her Majesty Elizabeth II, Queen of Canada” is simply not a wording known to anyone who is involved in dealing with the crown on a day-to-day basis. One refers to Her Majesty the Queen; Her Majesty Queen Elizabeth II, Queen of Canada; Elizabeth II, Queen of Canada; but this phrasing, “Her Majesty Elizabeth II, Queen of Canada” is simply stylistically, in protocol terms, an unknown.

When I talked to the department, they said it had been okayed by certain people at Rideau Hall, or wherever. I have been unable to find anyone who says they gave that the okay. It's possibly based on a misunderstanding. I hope this committee will be able to clear up that. We've suggested a different formulation. If it really is impossible to repeat the word “Queen” twice in the oath—and I understand the framers wanted keep the new oath brief—then why not simply say “Elizabeth II, Queen of Canada”? It's a much more customary wording of the sovereign's title.

Fifth, there is a concern about respecting our country's rights and freedoms and defending our democratic values. I think it was you, Mr. Chairman, who asked the last witness if he didn't feel the rule of law and certain things were included in the phrase “democratic values”. Again I'd suggest, in this room and certainly in the country at large, many Canadians have different interpretations of democratic values. The very narrow listing of them in the charter is surely not the whole compass of democratic values, as we understand them to be. Again, this goes to the question of precise meanings: that oaths ought to have precise meanings, and indeed precise consequences for failing to obey them.

For instance, one of the democratic values defined in the charter is the length of Parliament. While that's an important issue, it surely doesn't go to the heart of what we feel is the rule of law, as you mentioned, Mr. Chair, and other things we all consider to be democratic values. The question is that at a time when the courts are naturally, under the charter—I said making in my brief, but some people might say framing—much more involved in the process of lawmaking, law amending, and the rule of law, it's more important not to suggest that our new fellow citizens, any more than we, are bound to support or defend all those values the courts may have read into controversial legislation.

• 1025

Proclamations, which make the laws Parliament has passed come into effect, ask that our loving subjects take notice and govern themselves accordingly. In other words, everyone has to be aware of the law—ignorance is not a defence—and obey the law. But the idea that supporting a particular law, which after all is often the end of a highly political and contentious process and may be amended or revoked subsequently by the same or another Parliament, doesn't sit easily with many who have read this new proposed oath.

Finally, all of these matters I've brought to your attention in these brief remarks and in our written brief, which has been circulated, are probably not very important or significant if this new act and this new oath are not accompanied by a process of education. We have long felt the real problem in this country, about the monarchy or any other of our fundamental institutions, is the appalling lack of awareness of Canadians, whether they are recent immigrants or have lived here for generations, in our fundamental institutions, in what used to be called civics.

We have suggested to the department—and maybe there are members here who can carry that call to the minister in the department if they find this idea congenial—there is a vast reservoir of volunteers among the loyal societies, and I'm sure among many other parts of the Canadian family, who would consider it an honour to give something back to Canada by being trained to be volunteer educators of their new prospective fellow Canadians, to make sure at least all our new citizens are grounded in the facts about Canadian governance—not propaganda, just the facts about the way our government works and why we enjoy this unparalleled freedom and prosperity under the rule of law.

There is a vague reference to the new commissioners possibly fulfilling some of these roles in the community, but there is certainly nothing in the act that suggests they will be the educators of our new fellow citizens.

The Chair: I would advise that we end the presentations here and proceed with Mr. Benoit.

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

Good morning, Mr. Aimers.

Mr. John Aimers: Good morning.

Mr. Leon Benoit: You seem to have a lot of concerns about the oath. I just wonder whether you took part in the consultation process the minister had in the formation of this oath.

Mr. John Aimers: Yes, we did, Mr. Benoit.

Mr. Leon Benoit: When did you become involved in the process?

Mr. John Aimers: Over the last ten years, ever since David Crombie was minister and this idea of dropping the Queen from the oath was first floated, we've been involved in an ongoing process of making representations to the department, successive ministers, members of Parliament and the public, on this issue.

In August we were briefed by one of the minister's officials as to what the bill might contain. We had a chance at that point to make some representations. Subsequently, I've sent a copy of our position to the minister.

Mr. Leon Benoit: Did you have a draft of the oath in August?

Mr. John Aimers: It wasn't a draft of the oath, but it was some indication of the minister's thinking.

Mr. Leon Benoit: So you had given input on your concerns about the oath before that. Had you approached the minister by letter, or whatever, before that, to give your position on what you would like in the oath? In August, did someone from the department come back to you and say “We're planning to go in this direction. Would you like to respond to this?”

Mr. John Aimers: All we knew specifically in August was the minister had made the decision to keep the Queen in the oath. The official said she felt the oath was so important she was drafting it herself, with just one or two officials. That was all he could tell us about that specific part, which obviously is the core of our concern about this legislation.

Mr. Leon Benoit: The department told you the minister thought it was so important she was drafting it herself.

Mr. John Aimers: Right.

Mr. Leon Benoit: So there wasn't a public consultation process leading up to the drafting of this. There were no public meetings. There weren't open invitations given to Canadians to present their ideas on the oath to the minister.

Mr. John Aimers: I don't believe that's quite accurate. Immediately after the minister was sworn in as minister, she said at Rideau Hall she wondered if the Queen should still be in the oath. Subsequently, there was a process of discussion. The department said they were looking at new oaths. In fact they released a couple of suggestions that had been made. I think one was by the famous group of poets who retreated somewhere in British Columbia and came up with a very poetic oath. The results were to be a preamble to the legislation at that point, but were subsequently dropped.

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Mr. Leon Benoit: What was the public consultation process that took place?

Mr. John Aimers: At that point, when the department released some of these draft oaths, the minister or her officials said they would be happy to receive more suggestions from Canadians. Indeed, there was quite a bit in the press. I remember the Ottawa Citizen at the time asking a number of different organizations, including our own, to submit their ideas. To that extent, there was some consultation about the oath.

Mr. Leon Benoit: So it was through the media. That was when? In August?

Mr. John Aimers: No, I would say it was in the year leading up to the tabling of the legislation, so it probably started in December 1997.

Mr. Leon Benoit: Okay, thank you.

The Chair: Mr. Ménard.

[Translation]

Mr. Réal Ménard: If I were to tell you that I held unswervingly to the symbol which underlies your recommendations, I would clearly be straying quite some distance from the truth. I agree that an oath is important and that symbols are even more so in the kind of society in which we wish to live.

Why do you feel that a specific allusion to Her Majesty Queen Elizabeth II is necessary? What is the basic underlying reason? You are a militant. The Monarchist League has members and you have taken the trouble to appear before us this morning. It is therefore something that is dear to you and I would like you to explain your convictions about the need to allude to Elizabeth II. You are the second monarchist I have met in the course of my life; I met one when I was 18 and I am now 36. I meet one every 18 years.

[English]

Ms. Jean Augustine: You've been associating with me all the time.

Mr. John Aimers: Monsieur Ménard, I'll try to respond to you in a way that's brief.

I think there's a reason why the people of Canada feel so strongly about the monarchy and swearing allegiance in all oaths to Her Majesty the Queen. The Queen is the living symbol and personification of the system of government under which Canada was formed, the system that guarantees the rule of law that makes you and me and everyone else in this room equal in terms of our ability to speak freely and to be heard; that has always stood for the rights of minorities in Canada, for decency, fair play and justice; that distinguishes us positively from the United States and gives a further reason for our nationhood; that provides a big tent, showing that persons are important even in the midst of a very impersonal society, because our ultimate allegiance is another person, another human being, rather than to a symbol or an abstraction; and that, most importantly, denies ultimate power to those who would love to wield it.

The Queen provides a neutral, indifferent—in the correct sense of that word—level of authority that allows us to disagree on the issues of the day that you and your colleagues debate vigorously, but allows us to have another level of authority symbolizing and guaranteeing the things in this country that do not change even when election results bring in different governments, or when different ministers adopt different policies. That's it in a very brief nutshell.

[Translation]

Mr. Réal Ménard: I understand the continuity involved in the monarchist system. I have more trouble understanding your reference to democracy. As you are aware, the Queen has never entered the House of Commons. She visits the Senate, but not the House of Commons. Could you explain to me then in a way I might understand how the Queen, in an oath of allegiance, could come to be a symbol of democracy? Historically, I have been told that the establishment of Parliament at Westminster was the result of a gift of an abbey, and that this is what it represents in the Western world.

I recently invited Daniel Latouche, a professor at McGill university, to speak to our caucus about democracy. He explained that the reason for the left side, the right side, a speaker, etc., stemmed from religious references at Westminster. But I must admit I do not understand how the Queen can be a symbol of democracy. I can understand that she represents continuity, as well as the respect and allegiance of a country to a person, but I need more of an explanation from you to help me understand how she can symbolize democracy in an oath like the one suggested by the Minister of Citizenship and Immigration.

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[English]

Mr. John Aimers: Mr. Ménard, I think the easiest way I can do it is by saying that democracy is fallible, as are all human institutions, right? It is based on fallible men and women doing their best and sometimes lacking in honour, conviction or determination, while possessing all the other human weaknesses and foibles that each one of us has. The Crown guarantees or helps to guarantee democracy in Canada—as in the other realms of the sovereign—by assuring that there is a separate level of authority that seeks nothing for itself, as politicians inevitably do. I have done this for you and I hope you will vote for me, is the partisan part, the political part, if you will, of our democratic institutions in Canada.

The Crown stands for the things that do not change or that we hope will never change, the rule of law being principle among those things, with national sovereignty and, for that matter, provincial sovereignty amongst those values. By denying final authority to those who might love to wield it, it guarantees that no tinpot dictator could ever assert his will here in Canada, because we have the Crown to make sure that doesn't happen. Now, we don't expect that to happen in Canada, but that is the very strength of the Crown in denying that possibility, which is a possibility writ large in the pages of many other nations of the world as look around today.

In terms of sovereignty, it was, after all, your own Monsieur Lévesque, the Premier of Quebec at the time, who joined his nine provincial counterparts in 1978 in rejecting Mr. Trudeau's Bill C-60, which would have emasculated the monarchy. It was Monsieur Lévesque who said every federal system needs a neutral arbiter. In Canada, that's the Crown. If you read David Smith's fascinating book The Invisible Crown, I think it's that arbitration that goes to the heart of why Mr. Lévesque found it important to support the monarchy in 1978.

[Translation]

Mr. Réal Ménard: Your comments about Mr. Lévesque reconcile me somewhat to the idea of the monarchy. You believe, and I say this without any derision, in the superiority of the monarchical system. If a sovereign Quebec in the future were to become a monarchy, would you find the idea of sovereignty more acceptable?

[English]

Mr. John Aimers: Mr. Ménard, I hope the people of Quebec will long continue to live in Canada, with the Crown of Quebec and the Crown of Canada guaranteeing the special place and indeed nationhood of the francophone reality in Canada, and preventing it from becoming a folkloric curiosity subsumed in a large continental economy and nation, such as happened to the people of Louisiana.

[Translation]

Mr. Réal Ménard: If Her Majesty Queen Elizabeth were here, she would say that you did not answer my question.

Mr. John Aimers: If Her Majesty were here, sir, she would say that it was a hypothetical question that she could not answer.

[English]

The Chair: I'm having a little bit of difficulty here as to relevance. Anyway, until the last word, I cannot say.

Are you done, Mr. Ménard?

[Translation]

Mr. Réal Ménard: Yes.

[English]

The Chair: Miss Sophia Leung.

Ms. Sophia Leung: Thank you, Mr. Chair.

I enjoyed your presentation.

All of us know that new Canadians come here with their traditions and their cultural beliefs, so it may require time and effort for them to fully accept any new concept, including the symbol of the monarchy. Do you have any specific suggestions as to how we can enhance their understanding or even induce their acceptance of the concept of monarchy?

Mr. John Aimers: Ms. Leung, I think our brief and my brief remarks here suggest that the most effective way of producing what you might call a knowledge of civics, which leads to a pride in nation and all the things that make up a nation, the institutions of nationhood, would be to have the prospective fellow Canadians of the new citizens to engage in a process of civic education. Use the loyal societies and other volunteer groups in an organized way. Make it a requirement for new citizens to take a course of civics over a period of time in the year leading up to their taking the oath and joining our national family. It should be a course in the ABCs, you might say, of Crown, Parliament, and judiciary, the building blocks, the basic fundamentals of Canadian governance. Once they join our national family and have that basic information, then they're free to make whatever determinations they want about the value of those symbols and those elements of our Constitution.

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Too often, rumour, innuendo and gossip, the latest news off an American television station or the Internet informs people's impressions of a variety of institutions nowadays. I think the most useful thing the department and Parliament could do would be to mandate this process of education. And you don't need to set up a great, new expensive bureaucracy. Use the talent and the desire of existing Canadians to give something back to their country by helping in a process of educating their new fellow subjects.

Ms. Sophia Leung: Are you prepared to be involved in such a thing on a voluntary basis?

Mr. John Aimers: Absolutely.

Ms. Sophia Leung: Were you doing that before?

Mr. John Aimers: At the moment, we don't get involved. We concentrate our educational efforts on young people through the schools, through a red box program mimicking the Queen's red dispatch boxes, which I could describe to you at some point. But we haven't been involved directly with the citizenship courts at this point.

Ms. Sophia Leung: I have just one other question. Regarding the oath, I think there have been other suggestions since Queen Elizabeth II's coronation. There may also be other successors coming. The suggestion may be to put in the successors instead of just having her name. Is that acceptable to you?

Mr. John Aimers: We feel very strongly about that, Ms. Leung. The whole idea of monarchy is based on continuity. To take those words out suggests some doubt about that continuity. If the framers of this oath say they're doing so because Canada is a monarchy, surely we should express that principle of continuity in an oath.

The Chair: Thank you, Ms. Leung.

The chair would like to pose a couple of questions very briefly, following on that. If the committee were to be in consensus that there would be no change in the oath as drafted, would you rather delete the oath or proceed with it as second-best, from your point of view?

Mr. John Aimers: Just so that I understand you correctly, Mr. Chair, do you mean to keep the present, existing oath?

The Chair: No, the one as drafted in the bill.

Mr. John Aimers: If the choice were between the present oath and the new oath?

The Chair: No, the drafted oath or no oath at all.

Mr. John Aimers: We would feel there has to be an oath. This is half a loaf. There has to be some ceremonial process that comes at the conclusion of this formative process for new citizens.

The Chair: No, I want to clarify that. I am told that many countries, such as Germany, France, Switzerland, Belgium and Mexico, do not require oaths in their citizenship proceedings. I thought I'd just like to make that very clear to you.

On your question about the tense used in the oath, there is no “will”. Of course the “will” could also be meant as a determination, not necessarily a tense. Having said that, as I am reading it now, the oath says “From this day forward”. That would include the present and the future, and it would therefore satisfy your concern about tense. Am I right?

Mr. John Aimers: You could argue that, Mr. Chair. At the same time, further down it says, for instance, “I promise to respect our country's rights and freedoms”. Not to be niggly about it, but the individual has not yet become a Canadian at that moment. You say “I will respect Canada's rights and freedoms”, but “I promise to respect our country”. It's not quite yet his or her country. Do you see my point? It's not quite there at that moment. It may be ten seconds away, but the individual is not yet a citizen of Canada.

The Chair: But this is the oath of citizenship. In other words, the whole thing becomes substantive once you become a citizen.

Mr. John Aimers: Exactly.

The Chair: Therefore, whether you're there instantaneously or ten seconds before you become a citizen, the substance of the oath is that the oath becomes substantive after you have assumed citizenship. I think it's common knowledge.

Mr. John Aimers: I agree with you, sir. I just pointed out that a change had been made to the universal practice in Canada, as far as I am aware—I'm not a lawyer—of formulating oaths in the future tense. I merely mentioned that as an example of some of the difficulty we have with the drafting of this particular oath.

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The Chair: I think an earlier witness had indicated about it being only a part of a ceremony or part of a legal requirement. How do you see it as it's stated in the draft?

Mr. John Aimers: We see it as both legal requirement and as the culmination of a process of formation that leads to a ceremony where the individual, having gone through a process of examining his or her conscience and being educated in what it means to be a Canadian, through public ceremony ratifies that decision they've made and is accepted into the Canadian family. So we see it as the culmination, both ceremonial and legal.

The Chair: Thank you. I have a few more questions, but I will defer them for a later date, only because I am told by the clerk that the vote will take place in about 15 minutes, and Mr. Benoit would like to bring an agenda item to the committee's attention. So I would like to thank you on behalf of the committee.

Mr. John Aimers: Thank you, Mr. Chair.

The Chair: Thank you.

I would like to get the committee members together, because Mr. Benoit would like to raise an issue about witnesses. Is that right, Mr. Benoit?

Mr. Leon Benoit: Actually I have two issues I'd like to bring up. The first has to do with witnesses. We've had concerns expressed by three groups that were approached as witnesses that they were given about a day and a half notice between the time they were approached and the time they were to appear, and they just couldn't prepare in that amount of time. They were concerned because it seemed to them that they have been eliminated as potential witnesses because they couldn't be ready in such a short time. I think we have to give groups that feel they can't prepare on such short notice more time to prepare, and allow them to appear at a future date, if they—

The Chair: The chair would like to convey to you an assurance to him that this will not be the case. In fact I discussed this with the clerk in the presence of the research staff, and we agreed that should they not be able to appear on a given date, then of course they have not been dropped off the list.

Mr. Leon Benoit: That message hasn't gotten through to them, because we had these three different groups, and two that—

The Chair: I thank you for bringing it up, so that at least we can re-emphasize to them.

Mr. Leon Benoit: So they will be asked again.

The Chair: Yes, definitely.

Mr. Leon Benoit: That's good.

The other thing is I noticed twice at the meeting today that you referred to relevance. In the one case, Mr. Telegdi, I thought the relevance was obvious, and I was quite surprised that you would even refer to that. As well, from time to time we use a line of questioning where relevance may not be apparent at all in the initial questions, and I would—

The Chair: May I interject? The chair has an obligation by our rules of procedure to see that when we have a given agenda things must be relevant. And I have to be satisfied; I have to use my judgment. I will be very forthright: that's why I ask when I do not see the relevance. I have not made a conclusion. So when there is an indication of relevance, and then the argument offered tells me that in fact there could be a thread of relevance, I have allowed it. In the case, to use it as an example, where in the past you yourself admitted in your statement that it is irrelevant but I do not care, which means—

Mr. Leon Benoit: No, I didn't say that at all. Hansard would show that it is not what I said at all.

The Chair: Okay. We will review the blues, because I heard it. But therefore to me there is no basis to assess the relevancy, because you yourself admitted to the absence of relevance. If it is not in the blues, I would—

Mr. Leon Benoit: No, it's not. If you'll review it you'll see that's not what I said.

The Chair: But at the same time, Mr. McNally, who used the same document, because he used imagination—

Mr. Leon Benoit: Because he justified relevance. And I don't think we should be having to justify relevance when there's... I think it's important that the chair gives a lot of leeway and allows the person to pursue their line of questioning and then the relevance will be obvious in most cases.

The Chair: When a member raises a question on relevancy in the one instance, I have a duty to recognize that point of order. And when irrelevancy exists, I have a duty to rule it out of order. That is what our guidelines and procedures tell us. To not do that I would be in breach of procedure, and you would be the first to question why I have breached the procedure. Because one day you may raise that question yourself.

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Mr. Leon Benoit: I disagree entirely. I think the point is that you're presuming whether there is relevance or not, and the relevance, as I've said, at the beginning of the line of questioning may not be obvious.

The Chair: You will recall—

Ms. Jean Augustine: Mr. Chair—

The Chair: Let me complete my remarks, and then I will allow you to comment, Ms. Augustine.

When Ms. Folco raised an issue of relevance, I said that it's a premature point of order because I had not heard your full statement.

Ms. Augustine.

Ms. Jean Augustine: I was going to try to bring closure to this by saying that the chair has a responsibility to bring clarity to the question and to the discussion, and to ask the question of relevance is to put the onus on the individual asking the question to respond and support the relevancy of the question. So I think we have to give the chair that ability and the member the ability to defend the position, or to defend the relevancy of the question. So I think it's in the ordinary back-and-forth of your responsibility. I think in terms of fairness and in terms of your role that it is relevant to ask the question of relevancy, and to challenge or support, or give an opportunity to defend is also our prerogative.

The Chair: On that note, you could perhaps discuss it again later on, but because of the votes I would like members to have the opportunity to go about the chamber. But if you'd like to discuss it again, then we can put it next on the agenda, perhaps after our business on the bill.

The committee is adjourned to the call of the chair.