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37th PARLIAMENT, 2nd SESSION

Standing Committee on Citizenship and Immigration

EVIDENCE

CONTENTS

Tuesday, February 18, 2003

0810

The Acting Chair (Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.))

Mr. Patrice Brunet (Lawyer, Association québécoise des avocats et avocates en droit de l'immigration)

The Acting Chair (Mr. Yvon Charbonneau)

Mr. Kenneth Narvey (Legal Researcher and Chief Operating Officer, Coalition of Concerned Congregations on the Law relating to War Crimes and Crimes against Humanity including those of the Holocaust)

0815

0820

0825

The Acting Chair (Mr. Yvon Charbonneau)

Mr. Kenneth Narvey

0830

The Acting Chair (Mr. Yvon Charbonneau)

Mr. Patrice Brunet

0835

Mr. David Chalk (Lawyer, Association québécoise des avocats et avocates en droit de l'immigration)

0840

The Acting Chair (Mr. Yvon Charbonneau)

Mr. Patrick Apikan (As Individual)

0845

0850

The Acting Chair (Mr. Yvon Charbonneau)

Mrs. Diane Ablonczy (Calgary—Nose Hill, Canadian Alliance)

0855

Mr. Kenneth Narvey

Mrs. Diane Ablonczy

Mr. Patrice Brunet

0900

The Acting Chair (Mr. Yvon Charbonneau)

Mr. Jerry Pickard (Chatham—Kent Essex, Lib.)

0905

Mr. David Chalk

Mr. Jerry Pickard

Mr. Patrice Brunet

The Acting Chair (Mr. Yvon Charbonneau)

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ)

0910

Mr. David Chalk

Ms. Madeleine Dalphond-Guiral

Mr. David Chalk

Ms. Madeleine Dalphond-Guiral

Mr. David Chalk

Mr. Patrice Brunet

Ms. Madeleine Dalphond-Guiral

Mr. Patrice Brunet

0915

Mr. David Chalk

The Acting Chair (Mr. Yvon Charbonneau)

M. Massimo Pacetti (Saint-Léonard—Saint-Michel, Lib.)

Mr. Patrice Brunet

Mr. Massimo Pacetti

Mr. Patrice Brunet

Mr. Massimo Pacetti

Mr. Patrick Apikan

0920

Mr. Massimo Pacetti

Mr. Patrick Apikan

Mr. Massimo Pacetti

Mr. Patrick Apikan

Mr. Massimo Pacetti

Mr. Patrick Apikan

Mr. Massimo Pacetti

Mr. Patrick Apikan

Mr. Massimo Pacetti

Mr. Patrick Apikan

The Acting Chair (Mr. Yvon Charbonneau)

0925

Mr. Patrick Apikan

The Acting Chair (Mr. Yvon Charbonneau)

Mr. Patrick Apikan

The Acting Chair (Mr. Yvon Charbonneau)

Mr. Jerry Pickard

0930

Mr. David Chalk

Mr. Jerry Pickard

0935

Mr. David Chalk

The Acting Chair (Mr. Yvon Charbonneau)

Me William Sloan (“Association américaine des juristes, section canadienne”)

0955

1000

The Acting Chair (Mr. Yvon Charbonneau)

Ms. Rivka Augenfeld (President, Table de concertation des organismes au service des personnes réfugiées et immigrantes)

1005

1010

The Acting Chair (Mr. Yvon Charbonneau)

Mrs. Diane Ablonczy

Mr. William Sloan

Mrs. Diane Ablonczy

Mr. William Sloan

1015

Mrs. Diane Ablonczy

Ms. Rivka Augenfeld

1020

Mrs. Diane Ablonczy

Mr. William Sloan

Mrs. Diane Ablonczy

Mr. William Sloan

Mrs. Diane Ablonczy

Mr. William Sloan

The Acting Chair (Mr. Yvon Charbonneau)

Ms. Rivka Augenfeld

1025

The Acting Chair (Mr. Yvon Charbonneau)

Ms. Madeleine Dalphond-Guiral

1030

Ms. Rivka Augenfeld

Ms. Madeleine Dalphond-Guiral

Ms. Rivka Augenfeld

The Acting Chair (Mr. Yvon Charbonneau)

Mr. Massimo Pacetti

Mr. William Sloan

Mr. Massimo Pacetti

1035

Mr. William Sloan

Mr. Massimo Pacetti

Mr. William Sloan

Mr. Massimo Pacetti

Ms. Rivka Augenfeld

Mr. Massimo Pacetti

Ms. Rivka Augenfeld

Mr. Massimo Pacetti

Mr. William Sloan

1040

The Acting Chair (Mr. Yvon Charbonneau)

Ms. Rivka Augenfeld

1045

The Acting Chair (Mr. Yvon Charbonneau)

Mr. William Sloan

The Acting Chair (Mr. Yvon Charbonneau)

Mr. William Sloan

The Acting Chair (Mr. Yvon Charbonneau)

Ms. Rivka Augenfeld

The Acting Chair (Mr. Yvon Charbonneau)

Ms. Rivka Augenfeld

Mr. Stephan Reichhold (Directeur, Table de concertation des organismes au service des personnes réfugiées et immigrants)

The Acting Chair (Mr. Yvon Charbonneau)

Ms. Rivka Augenfeld

The Acting Chair (Mr. Yvon Charbonneau)

Ms. Madeleine Dalphond-Guiral

The Acting Chair (Mr. Yvon Charbonneau)

Ms. Louise Carrier-Corriveau (“conseillère en adaptation ”, “Service d'aide aux néo-canadiens”, “Carrefour d'intégration des immigrants de l'Estrie”, “Table de concertation des organismes au service des personnes réfugiées”)

1050

The Acting Chair (Mr. Yvon Charbonneau)

Ms. Louise Carrier-Corriveau

The Acting Chair (Mr. Yvon Charbonneau)

Mrs. Diane Ablonczy

Mr. William Sloan

Ms. Rivka Augenfeld

1055

Mr. William Sloan

Mrs. Diane Ablonczy

Mr. William Sloan

1100

Mrs. Diane Ablonczy

Mr. William Sloan

Mrs. Diane Ablonczy

The Acting Chair (Mr. Yvon Charbonneau)

CANADA

Standing Committee on Citizenship and Immigration

NUMBER 040

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, February 18, 2003

[Recorded by Electronic Apparatus]

¾ (0810)

[Translation]

The Acting Chair (Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.)): I call the meeting to order. Welcome. Ladies and gentlemen, we began our hearings last week, and so I would like to summarize them briefly for those who are here today and for the people of Montreal.

The Citizenship and Immigration Committee was split in two. We have one group of committee members that is holding public hearings in western Canada. Those hearings started last week and are ongoing still. The other group went to the Maritime provinces and the Atlantic last week. Yesterday, that sub-committee which is here now, held hearings in Quebec City. Today and tomorrow, the hearings will be held in Montreal.

These are public hearings on issues that are presently before the House of Commons Standing Committee on Citizenship and Immigration. These issues have to do with Bill C-18, and other concerns which the Standing Committee on Citizenship and Immigration is looking into.

Our first session here this morning will go till eleven o'clock. During the first part, which will go till 9:30 a.m., we will be hearing from the following witnesses: as an individual, Mr. Patrick Apikan; on behalf of the Coalition of concerned congregations on the Law relating to war crimes and crimes against humanity including those of the Holocaust, Mr. Kenneth Narvey. Then we have Mr. Patrice Brunet, who will be speaking on behalf of the Association québécoise des avocats et avocates en droit de l'immigration.

I would invite each of the witnesses to limit themselves, as much as possible, to a 10 minutes presentation. If your briefs are in both official languages, we will be able to distribute them to the members. Otherwise, we will make the necessary arrangements. Finally, I would ask you not to read your briefs in their entirety, but to give us a summary of your views.

[English]

I will begin with Mr. Patrice Brunet,

[Translation]

who will be presenting his association views, if everyone is ready. I will just check with Mr. Brunet.

Mr. Patrice Brunet (Lawyer, Association québécoise des avocats et avocates en droit de l'immigration): Thank you, Mr. Charbonneau. Could I ask you to give the floor to the next witness, since my colleague has just arrived.

[English]

The Acting Chair (Mr. Yvon Charbonneau): Then I would invite Mr. Narvey, since he is second on the list. You have the floor to summarize your presentation in less than 10 minutes, if possible.

[Translation]

Mr. Kenneth Narvey (Legal Researcher and Chief Operating Officer, Coalition of Concerned Congregations on the Law relating to War Crimes and Crimes against Humanity including those of the Holocaust): Thank you, Mr. Charbonneau, and honourable members. My name is Kenneth Narvey, and I believe I know almost everyone who is here today. I have already submitted the text of my presentation.

I apologize to the francophone members; the text is mostly in English. However, these specific amendments we are suggesting are presented side by side in English and in French.

[English]

I am, as it says in your materials, legal researcher and chief operating officer of a coalition of Montreal synagogues, the Coalition of Concerned Congregations on the Law Relating to War Crimes and Crimes against Humanity. We had the privilege of appearing before this committee two years ago, at which time we made three suggestions. Two of them were adopted by the committee. The third one is, more or less, in the bill today, which is very gratifying. We were saying there shouldn't be a section that says the Federal Court trial division decision on whether a person has or has not obtained their citizenship by fraud etc. is, as it is today, non-appealable. There should appeals, with leave, to the Federal Court of Appeal and to the Supreme Court of Canada. What we see in Bill C-18 is exactly that in clause 16.

We think this is an excellent bill, but it would be even better if it were amended in rather a large number of ways. When you look at my paper, you'll see there are 18 headings, and one of them has 11 subheadings. That makes about 29 topics, which I'll try to run over very quickly. Our suggestions run from page 1 of the bill, the short title, to page 40, the oath. I found the day before yesterday, when I was typing this, that I hadn't left enough time to type it, so about half of this paper is headings followed by the words “details to follow”. I will prepare another edition of this, or several other editions, with specific draft wording in English and French for all the ones in which there is nothing yet.

The short title of the bill is Citizenship of Canada Act, in French Loi sur la citoyenneté au Canada.

¾ (0815)

[Translation]

In our view, the short title in French should not read “au Canada”, but perhaps “du Canada”, since, like “citizenship in Canada”, it would include citizenship in Canada from any country, Peruvian citizenship for instance, and would exclude Canadian citizenship outside Canada. So I checked the use of the word on the Internet, and I came across the European Union's Treaty of Nice, which creates a “citizenship of the European Union”. That could be a model for the citizenship of Canada.

There are other models as well. On page 37 of Bill C-18, reference is made to the “Canada Shipping Act, 2001”, and, in French, to the “Loi de 2001 sur la marine marchande du Canada”. Another possibility would be to change the short titles to “Citizenship Act, 2003”, and “Loi de 2003 sur la citoyenneté”.

On page 3 of my brief, you will note that, when the Canadian Jewish Congress appeared before you, Mr. Vernon pointed out that reference is made in subclause 21(1) to “the principles and values underlying a free and democratic society”. This is somewhat problematic, since the United States can also be said to be a free and democratic society, but they are less opposed to hate propaganda than we are. So, he suggested replacing the phrase “a free and democratic society” by the words “Canada's free and democratic society”. That would be one of our suggestions as well.

He also pointed to other alternatives, including the one suggested by Mr. Matas, of the B'nai Brith. His proposal was to drop this fairly vague wording relating to a free and democratic society, in favour of more specific wording joined from the Canadian Human Rights Act.

The Canadian Jewish Congress would be in favour of either this wording or the wording to be found in the anti-hate sections of the Criminal Code.

Our view, and my own personal view, is that it would be better still not to adopt clause 21, but to make amendments to clause 28, which would allow us to better achieve what clause 21 is intended to achieve, and to prevent Mr. Ernst Zunder from acquiring citizenship.

In clause 3, which outlines the purpose of the bill, subparagraph (g) also makes reference to the “principles and values underlying a free and democratic society”.

We would suggest that the word “Canada's” be inserted in clause 3(g) if it is inserted in clause 21. If clause 21 is deleted, clause 3(g) should also be deleted.

Let us go now to pages 5 and 6 of my brief.

¾ (0820)

[English]

There are some things about who is a citizen, including who is a citizen at birth, and exceptions to that. According to us, there are some errors in the wording, because whoever drafted this forgot that people have two parents, or at least many people have two parents. What we say is wrong with subclause 5(3) in the French only I'll skip over; you'll see it in the written materials. Subclause 5(4) is easier to describe. This is talking about la troisième génération not being able to get citizenship, because they were born abroad to a person who was born abroad who is a citizen. We're not arguing with the concept, but the wording in the bill would make that not only not a qualification to have citizenship at birth, but a disqualification to having citizenship at birth. That leaves out the other parent. If we get to the other parent, it might be a person born in Canada or a person naturalized in Canada. So you would have the bizarre situation where, if one parent is born or naturalized in Canada and the other is not a Canadian, and you're born abroad, you're a citizen. If the other is born abroad to somebody who's a citizen because they were born abroad, you won't be a citizen. It becomes poison, rather than just a lack of qualification.

So you'll see on page 6 that we suggest that the one who shouldn't get citizenship at birth is a “person if the citizenship of both their parents or the citizenship of only one one of their parents who is a citizen was acquired by being born outside Canada” of a citizen.

[Translation]

In French, it says:

la personne qui naît à l'étranger si la qualité de citoyen de chacun de ses parents ou du seul d'entre eux qui est citoyen n'est due qu'au fait de sa

[English]

On pages 6 and 7 we talk about some wording on humanitarian and compassionate considerations in subclauses 7(2) and 15(2) of the bill. The French and the English don't correspond. We think the French is better, and we suggest that the English be modified. The French speaks of the minister and the minister's discretion in exempting a person from certain requirements on compassionate or humanitarian grounds; in English it says “If the Minister believes....” Jurisprudence says discretion doesn't give you the power to be arbitrary. The courts can supervise you. You have to behave fairly, you have to follow all the rules of natural justice. The word opinion gives the minister more of a right to be wrong. We think supervision by the courts of you, me, and everybody, including the minister, is a good idea.

On page 8 I come to clause 16, which is really the heart of what I want to say to you today. This is the new system for the removal of citizenship, or not. We say it's very good, a great improvement, but it could use further improvement. For us the two most important clauses are 16 and 56, which says to what extent the new system will apply to existing cases. We've spoken with some bureaucrats about this, and they said they liked a lot of our changes to clause 16, but they didn't want to apply it to existing cases. I thought about it and decided the problem is that the new system is still imperfect. If the new system could be improved to the point of being excellent, so that everybody would wish to be under it, both prosecutors and defence counsel, then we can also amend clause 56 to make the new system apply to existing cases. The reaon we're setting up a new system is that the old one wasn't working very well for anybody. It was unfair to everybody, it took forever, and it should be improved.

On page 8, 5(a) in my headings, I address the fact that the minister may commence an action. That could accidentally--and I'm sure this wasn't intended--create a statute of limitations. There are two pieces of legislation that are in effect, the Federal Court Act, section 39, and the Crown Liability and Proceedings Act, section 32. They both say the law relating to limitation of actions in a province applies, unless another law says otherwise, to everything in front of the Federal Court, in particular if the cause of action arises otherwise than in a province, for instance abroad, and the action should be taken within six years.

¾ (0825)

[Translation]

The wording in French is: “... la procédure se prescrit par six ans”.

[English]

This has been raised with you by the Canadian Jewish Congress, and I'm saying the same thing in a little more detail. On pages 9 and 10 you'll see my specific draft wording. Instead of saying “The Minister may commence an action”, say “The Minister may at any time commence an action”.

[Translation]

We suggest replacing “Le ministre peut intenter une action” by “Le ministre peut en tout temps intenter une action”.

[English]

On page 10 you'll see draft wording for a subclause 16.(1.1) that would make this totally clear, with no prescription or limitation on action. It always helps to be clear on what it is you want.

The Acting Chair (Mr. Yvon Charbonneau): Mr. Narvey, could I interrupt you? You have been talking for almost 13 minutes now. Try to summarize what's left.

Mr. Kenneth Narvey: Okay. From page 10 on you will see only headings, each one followed by “details to follow”, and details will follow in writing as soon as I can write them. I will just say what I think the most important of these is.

It's on page 11, paragraph (f). It says:

Clauses 16(2) and 16(4) should be amended to provide as exceptions that the Court may, on humanitarian and compassionate grounds, refrain from revoking a person's citizenship or from ordering the person's removal.

So it would say say a finding of fraud is an order removing citizenship unless the court decides on humanitarian and compassionate grounds that the citizenship ought not to be removed, the same thing going for “removal” in subclause 16(4). We're building on what was said by both the Barreau du Québec and the Canadian Bar Association: there should be a humanitarian and compassionate phase and there should be an independent adjudicator, not the minister. We think this will work.

A member of the minister's staff said to me, but the courts have no experience with humanitarian and compassionate grounds, and I have two answers for that. One is that they have no experience issuing removal orders either, but the bill has that, giving the courts new tasks. This is something the bill is already doing, this will be another new task. Also, they do have experience in this. The courts have been supervising both the minister and the immigration appeal division in their action on humanitarian grounds. You can seek and get leave to judicially review, and in the course of supervising, the courts come to have a lot of knowledge and to have laid down a lot of rules as to the way to deal with humanitarian and compassionate grounds.

I should mention that another thing about this bill we like very much is that it consolidates, instead of everything taking forever because first you have to be in this court, then you have to be before that board, and there are appeals to the Supreme Court of Canada for both of them. It puts humanitarian and compassionate into clause 16 and gives it to the courts and, I say later, makes it clear that everything that happens in court is appealable: whether you've committed fraud, whether you should keep your citizenship anyway, whether you are inadmissible, and whether you should be allowed to stay anyway would all be appealable together.

Those are the main points, but I look forward to your questions. I will also be writing to you again.

¾ (0830)

The Acting Chair (Mr. Yvon Charbonneau): Thank you, Mr. Narvey.

[Translation]

We will now go to Mr. Brunet.

Mr. Patrice Brunet: Thank you, Mr. Chairman.

The immigration lawyers of Quebec are in an unique position, because of their expertise and experience, to analyze the federal immigration and citizenship system.

Our organization enjoys a privileged role as an actor in the Canadian immigration system. It is made exclusively of lawyers who are members of the Barreau du Québec and who practice immigration law. As such, our representations are intended to protect the public, and preserve the integrity of the Canadian and Quebec immigration programs respectively. The objectives of the association include protecting and enhancing individual freedoms and fundamental rights. We are fortunate in that the experience of our members as legal practitioners gives us a valuable perspective on how the proposed amendments might affect different laws and regulations. Our comments on the proposed legislation will be limited to the concept of residence, as well as the loss of citizenship.

Let me deal, first of all, with residence. Like Bill C-18, its predecessor Bill C-16 attempts to define residence in Canada as physical residence.

Moreover, section 28(2)(a)(i) of the IRPA defines physical residence as being “physically present in Canada”, and, in French, as “effectivement présent au Canada”.

If it is the intention of the legislator to require days of physical presence in Canada in the counting of days of residence, the appropriate wording should used in order to avoid any concerns regarding a future interpretation by the courts.

Clause 7 of Bill C-18 refers only to residence in Canada. We are all aware of the extensive, and sometimes conflicting, case law emanating from the Federal Court on the concept of residence in Canada in relation to citizenship, and we are concerned that the wording used to define residence in the bill is not sufficiently specific with regard to the notion of residence.

We are concerned that the proposed wording in clause 7 might lead to some creative arguments in an attempt to justify non-physical residence in Canada on behalf of applicants who have chosen not to reside physically in Canada, but who have established a “virtual” residence in Canada.

If it is the legislator's intent to require 1,095 days of physical presence in Canada within a six-year period, then we suggest that the legislator use precise terms such as physical residence or presence in Canada in order to remove any doubt as to the interpretation of this clause by the courts.

Secondly, subclause 7(3) allows a permanent resident residing outside of Canada with a Canadian citizen to obtain citizenship only if the Canadian is a civil servant of a government in Canada or a member of the Canadian armed forces.

In our view, it does not seem justified to favour these employees to the detriment of Canadian citizens who work outside of Canada for Canadian businesses. If the legislator considers that permanent residents who are the spouses of Canadian citizens employed in the civil service and who reside outside of Canada obtain sufficient knowledge of Canada for them to be granted Canadian citizenship without their de facto presence in Canada, then there appears to be nothing that would allow us to conclude that the spouse of a citizen employed by a Canadian multinational could not obtain the same level of knowledge about Canada in order to enable them to obtain Canadian citizenship.

Such a broadening of the definition would be consistent with sub-paragraph 28(2)(a)(iii) of the IPRA, which allows permanent residents to maintain their status if they remain outside Canada as the spouse of a Canadian employed in the civil service or by a Canadian entreprise.

In addition, we regret that Bill C-18 does not allow for more flexibility with respect to the residence requirement, as other witnesses have already suggested. For example, a student who studied for five years at the university level in another country would have to return to Canada, if possible of course, and remain here for many years before being entitled to citizenship. If the student has spend almost all of his childhood, including attending elementary and secondary school in Canada, then why would only one of his five years of schooling be taken into account? Does that student have less of an attachment to Canada as a result of going abroad to study? Is it not the case that one of the objectives of a primary and secondary education is to train good citizens for Canada?

¾ (0835)

For instance, why not grant—it is our suggestion—a half day of residence for each day the applicant was present in Canada in the course of a year during which this person was physically present for more than 183 days outside of the six-year period, as opposed to limiting it to the six-year period?

That being said, I will give the floor to my colleague, Mr. David Chalk, who will speak to the issue of the loss of citizenship.

Mr. David Chalk (Lawyer, Association québécoise des avocats et avocates en droit de l'immigration): Thank you very much.

Allow me a preliminary observation. You will notice that our submissions are fairly brief. We have read the testimony given by the various other groups and we felt it would be useless to repeat what some of our colleagues have already eloquently expressed. We support most of what they have said to you.

Today, we would like to address two aspects with regard to the loss of citizenship. The AQAADI welcomes sections 16 and 18 of Bill C-18 which should lead to the preservation and the integrity of the system for the granting of citizenship. All the same, we believe that reflection is required with regard to the procedural rights granted to parties under the above mentioned clauses in order to ensure that citizens who are subjected to their procedures are able to know the accusations against them and to respond adequately and that any decision rendered regarding their citizenship may be reviewed by an independent body.

Many of our members have heard stories about Canadian citizenship obtained via false declarations made by the applicant regarding his days of physical presence in Canada. Unfortunately, some have obtained citizenship having set foot in Canada for a few days.

As Canada does not control exit through its borders, it is virtually impossible for the State to verify with exactness the declarations of an applicant through a data base.

In addition, the resources allowing for an inquiry by Immigration Canada to verify such declarations are very slim.

These serious deficiencies result in the denigration of the Canadian immigration program and, more seriously, of the foundations of Canadian society.

The AQAADI believes that it would be advisable for the Canadian government to increase the resources to verifications of the declarations of applicants for citizenship, though we recognize that this forum is not ideal for such a proposition. The present resources are insufficient and make significant abuses possible.

While we recognize the importance of program integrity in the granting of citizenship, the AQAADI must also express its disagreement with the tendency—already noted in RRPA—to eliminate the submission of the law to humanitarian considerations. The example of a refugee claimant who has been accused or convicted of a penal infraction abroad has been raised by several witnesses. It would be more than ironic if a person could be recognized as a Convention refugee for having been the victim of a false prosecution, on the one hand, only to be forbidden the granting of Canadian citizenship due to the same conviction—perhaps notwithstanding the granting of a pardon in the country in which the conviction occurred. The recognition by the Protection Division of the false and persecutory nature of an accusation or a conviction abroad is only one example among many where it is necessary to blunt the effects of the law with compassion and common sense.

Presently, the only tool that the law provides to soften its application is section 10, which allows the Governor in Council—at the instigation of the minister—to order the granting of citizenship “in order to alleviate a situation of special and unusual hardship or to reward services of an exceptional value to Canada.” No procedure is specified to bring such cases to the attention of the minister. This procedure will remain opaque and incomprehensible to the majority of people.

Given the rigid nature of certain rules established by the bill, it is foreseeable that a significant number of meritorious applications should be made to the minister to exercise his discretion and to bring these applications to the attention of the Governor in Council. Such a volume appears to us to be incompatible with the normal functions of the minister and of the Governor in Council. Such a volume appears better suited to the exercise of a discretionary power by an immigration officer or by an independent tribunal, such as the Appeal Division of the IRB.

Thank you.

¾ (0840)

The Acting Chair (Mr. Yvon Charbonneau): Thank you very much. You could not have been more precise: it took exactly 9 minutes and 59 seconds. I thank you for your presentation.

We just have to hear now Mr. Patrick Apikan's testimony.

[English]

Mr. Apikan, I invite you to give your presentation.

Mr. Patrick Apikan (As Individual): Good morning.

Thanks for inviting me here. I'm unfamiliar with being a witness in standing committee hearings, but I thought it was important that I try to convey some of my views and insights. I've been very active in Canada and the United States dealing with indigenous rights and indigenous people. My brief explains a lot of what I have to say. I won't be reading the whole brief, but I'd like to start off this way. Throughout my life and the lives of my family members and my ancestors we've been asked about our citizenship in Canada and the United States. It's a fascinating part of our history, and today, as I said, I'm going to try to provide some views and insights, with the hope that they might help the Standing Committee on Citizenship and Immigration.

We are most often asked about our citizenship in Canada at Canada and U.S. border points. This is the way it usually goes, and it's something that happens thousands of times every week when we're going back and forth across the border. The first query is usually, sir, you are a citizen of what country? The standard answer is, I am a North American Indian, sir. The second question usually is, are you all North American Indians? The answer is usually, yes, we are. Then a border guard usually says, very well, then, have a nice day, on your way.

Of course, this is not the only time we're asked about our citizenship, and it often becomes an issue in either country, depending on our situation. My brief explains exactly how it is that I am not a citizen of Canada, but a registered Indian in Canada.

My 10-page brief gives, I believe, members of Parliament a more complete picture of the evolving relationship between Canada and its citizenship laws and indigenous people and our citizenship in some of the oldest democracies in the world. These democracies include the Mohawk and Algonquin nations, the two nations of my parents and many others in North America.

My few opening comments will centre on the eight recommendations I've made to the standing committee, and whether it's today or some other day, I'm prepared to expand upon or clarify what I consider to be some modest proposals.

I explain how it is that thousands of North American Indians with deep roots in Canada share three circumstances. First, we are not citizens of Canada. Second, we do not need to become citizens to enjoy rights and freedoms in our own homelands, even though they may be divided now by a Canada-U.S. border. The third circumstance is that if we did apply for citizenship, we would have to become willing accomplices to a legal fabrication, that after 8,000 years of uninterrupted possession, occupation, and evolution in North America we are somehow, through law, landed immigrants in our own homelands. The bill prompted my curiosity, particularly in the interpretation section dealing with deeming registered Indians who are not citizens permanent residents. I'll say something more on that later.

¾ (0845)

It's my hope that the standing committee is willing to consider recommendations that might address our citizenship issues through Bill C-18, and most importantly, through it's implementation. I'm not going to spend very much time on previous Canadian law and policies that shape relations between our nations and try to dictate our legal status in Canada, except to say this, and I think it's really important. Enfranchisement, the legal termination of our status rights and freedoms as Indian people in exchange for citizenship in the Canadian state, dominated such matters from 1857 to 1985, when enfranchising was finally removed from the Indian Act. The enfranchisement regime lasted 127 years, and even today hundreds are still applying for reinstatement as Indian people. In the past 18 years about 127,000 people, out of 233,000 applicants, were reinstated as Indian people in Canada. The objective of the enfranchisement laws was to remove all legal distinctions between Indians and non-Indians, until there were no Indians. The following treatment of Indian people as wards or children of the state has been eclipsed by political discussions and court cases attempting to reconcile our rights, our status, our freedoms with Canadian status, rights, and freedoms. This reconciliation has just started, and it's far from over. Most of the reconciliation has started since the patriation of Canada's Constitution in 1982 and the subsequent amendments to the Constitution.

Because of what happened in the past, there remains a strong belief that to accept the offer of Canadian citizenship would mean giving up all rights of self-determination and status as free, independent people in North America. I believe on this point history is on our side. It's in the brief for those who want to look at it; I laid out some of the evidence there. But in the future this may not be the case. As we speak, historic covenants between our nations are being revitalized and new agreements are being reached and may be honoured. Time will tell. I just don't think it's going to happen in my lifetime.

As I said earlier, there are thousands of North American Indians, like me, with Indian status in Canada who are not citizens. Some of us were born in the United States, as I was. Others were adopted by U.S. and European parents, particularly during what they call the sixties scoop. Now efforts are being made to reunify these people with their families in Canada. Still others will never be recognized as registered Indians in Canada, even though they may be “full-blooded Indians” and married to a registered Indian woman or a man. All these people will have to wrestle with issues caused by problems in Canadian law, especially, I believe, with the emerging demand for more identity and citizenship papers post-9/11.

So what can be done, and does it matter to anyone besides us? Well, I'm reminded of an old legal maxim: the laws hate those who are vigilant, not those who sleep upon their rights. To summarize, my recommendations are as follows.

Bill C-18 proposes in paragraph 2(2)(b) that registered Indians who are not citizens will, on their registration, be deemed permanent residents, this allowing them to begin the naturalization process. I recommend that if this provision is intended solely to eliminate complications for those individual Mohawk or Algonquin persons who choose to become citizens of Canada, it should also include those individuals who are recognized members of these nations or communities, because some may never be entitled to registered Indian status, but do have rights in Canada.

¾ (0850)

Second, it is recommended that a new clause be added to make clear that nothing in the Citizenship Act of Canada be construed to deny our ancestral and treaty rights in Canada simply because we are not citizens of Canada or choose not to become citizens.

With respect to the Royal Commission on Aboriginal People's view that Canada should recognize aboriginal people as enjoying a unique form of dual citizenship and take steps to ensure that Canadian passports explicitly recognize this dual citizenship, it is recommended that in the first instance, it be up to the indigenous nation to decide whether dual or multiple citizenship is allowable under its law. If it is, an individual can choose to become a Canadian citizen.

With respect to national identity cards, passports, and the like and whether the carrying of these documents should be voluntary for some and compulsory for others in the wake of 9/11, it is recommended that the Haudenosaunee, or six nations, passport be recognized by Canada as a national identity card for the peoples of the six nations. In addition, it is recommended that identity and citizenship documents of the Mohawk and Algonquin governments be recognized by Canada. Thus the identity and citizenship documents issued by these governments would be sufficient proof to enter, remain in, and leave Canada, thereby ensuring that Mohawk and Algonquin citizens freely enjoy their rights and freedoms and uphold their responsibilities to their peoples and governments.

Should the circumstances require it, an exception to paragraph 53(c) of Bill C-18, the taking, acquiring, holding, or disposing of property only by citizens in Canada, should be added, so that Mohawk and Algonquin people who are not citizens of Canada will be treated in the same manner as a citizen.

It is recommended that special care and attention be given to circumstances faced by thousands of Indian children adopted by U.S. and European parents in the past, and perhaps in the future. This special care and attention should also be given to their children and spouses. The standing committee should consult various repatriation offices set up for these children to find solutions, through implementation of citizenship laws and regulations, for their unique situations. The standing committee should adopt special measures to assist the repatriation offices, especially since federal financing was terminated last year. The reunification process takes a long time, and there are a lot of quite substantial problems and predicaments for families and family members when they try to rejoin their communities in Canada.

Finally, it is recommended that Canada acknowledge that while enfranchisement was the only expressed route to Canadian citizenship until 1985, when it was removed from the Indian Act, the lack of citizenship in Canada will never be construed to limit, alter, suspend, or diminish Mohawk or Algonquin citizenship or their rights and freedoms in Canada.

Thanks very much.

[Translation]

The Acting Chair (Mr. Yvon Charbonneau): Mr. Apikan, thank you for your presentation.

[English]

We'll go to our first round, starting with Diane for five minutes.

Mrs. Diane Ablonczy (Calgary—Nose Hill, Canadian Alliance): Thank you, Mr. Chairman.

We appreciate the presentations today. Some of you make the drafters look bad--I don't know if this is good or not. Not being any kind of expert in French--and that's an understatement--I leave it to some of my colleagues to comment on Mr. Narvey's suggestions for better congruence between the French and English in the act.

There are so many recommendations here, Mr. Narvey. I know you did highlight the one on page 11, and we'll be looking at the changes you recommended, but if you had to emphasize to us just one or two, what would they be? What are the most important ones, in your view?

¾ (0855)

Mr. Kenneth Narvey: I think I can say there are four things that are most important. It should be clearly stated that there is no time bar, statute of limitations, or, as is said in French and in English in Quebec, “prescription”. Second, the courts should have the power, after having found that you can lose your citizenship, to find on humanitarian and compassionate grounds that you won't. Likewise with removal. It should be clear that everything is appealable; though we would prefer that it be with the leave of the Federal Court of Appeal, we can live with its being as a right. And the new system should apply to the existing cases. For instance, there are three people today whose citizenship the courts have found the Governor in Council can remove, but years later, the Governor in Council has neither removed nor announced that it will not remove. Also, these people have no appeal from the decision that they're removable. We say it should be in clause 56, the transitional provision, that they will lose their citizenship unless the court says they shouldn't. If the court doesn't say they shouldn't, they can appeal that. If the court says they shouldn't, the Crown can appeal that. We tried to bring everything together into a fair system that doesn't take forever. The government can appeal when it loses, and the person can appeal when they lose.

I don't know if I've done more than four, but those, I think, are the most important. I will try to give you specific draft wording for all the others by getting the name of the court right and so on.

Mrs. Diane Ablonczy: It is helpful to have your sense of what we need to concentrate on the most if we have a limited ability to suggest amendments.

I noticed that Mr. Chalk and Mr. Brunet made similar representations. We have heard other concerns about the lack of procedural fairness, sometimes called due process, in this whole matter of refusal of citizenship.

I was interested in your concern about resourcing by Immigration Canada to verify declarations of residency. Because we take our citizenship so very seriously in this country and because this act is designed to make sure our system respects our country and reflects the value we place on citizenship, this potential for abuse and the lack of resources to deal with that would be a concern for the committee. I would be interested in your just expanding a little bit on this matter of resourcing and the need to make sure verification of declarations is undertaken.

Mr. Patrice Brunet: Thank you for asking that question. As practitioners, we hear and see many things. I'll give you an example to illustrate this comment we've put into our text.

A few weeks ago I was speaking with a client who was very excited about receiving his citizenship. Of course, he had spent the required amount of time in Canada, but he was flabbergasted to hear, while he was waiting to present his oath, someone saying in a foreign language next to him, I can't believe this: I just flew back on a plane yesterday, and here I am, and I'm returning home in a few days. That was it. He was receiving his citizenship without having been in Canada for virtually more than a few days since he acquired permanent residency.

If you look at the process of acquiring citizenship, it is a system that opens up these types of abuses. Many hundreds of applications are filed every day. People are herded into the ceremony, if you excuse the expression. The interview with the citizenship judge is extremely short. It does not give the time to ask questions about the schooling of the kids, about the job, about the adaptation. The questions are extremely limited, because of the time constraint. And the next thing you know, they received Canadian citizenship. In Quebec--I don't know how it works in other provinces--health insurance is known to be a lot more investigative of the individuals who do not comply with the residency requirement. They call at any hour of the day, and if they do not get a return phone call within 24 to 48 hours, a red flag goes up.

These are the types of things, spot checks, we would like to see integrated into the citizenship attribution system, so that it does not simply become a matter of filling out a form, putting it in, and showing up for a five-minute interview. I wanted to expand on this and share with you these experiences that in our day-to-day practice we hear about more frequently than we would care to.

¿ (0900)

The Acting Chair (Mr. Yvon Charbonneau): Mr. Jerry Pickard.

Mr. Jerry Pickard (Chatham—Kent Essex, Lib.): Thank you very much, Yvon.

Mr. Narvey, you have presented a lot of detail, which I think someone has to look very carefully at and make some decisions on. Much of it is wording change, much of it will create a difference, obviously, but at this point in time we need to study what those wording changes will alter in the bill and how they will affect the ultimate outcome. We do appreciate everything you have put forward, but I think we need more time to look at those recommendations. As you said, you're going to expand from page 10 on, and we will look forward to getting that from you. Thank you.

Mr. Brunet and Mr. Chalk, you were very concerned about people slipping through the cracks, where people can get into Canada fraudulently, one way or another. I think you are also suggesting that there are steps we must take to provide more scrutiny on people receiving citizenship in Canada. Obviously, with citizenship come a tremendous number of rights and a lot of expense. Although we really would love to collectively have people become Canadian citizens in many respects, the responsibility and cost to the government are equally high. We look at health care, we look at other very strong services Canada and the provinces of Canada supply to citizens. That in itself is very expensive.

Do you make your recommendations to put in more staff to scrutinize citizenship, to educate better, to have much better interviews based upon your experience with regard to people applying? Do you feel it would save Canada numbers of dollars, or will it just clarify your legal work and make it easier for you to achieve presentations for the people you represent, not seeing gaps in the system?

¿ (0905)

Mr. David Chalk: There are different kinds of verifications, from technological means to keep control of the borders to phone calls. I can give you an example most lawyers are familiar with, what has happened in the last year and a half or so regarding passports in Canada. As lawyers, we are all frequently called upon to serve as guarantors for people who are applying for passports. In the past it was extremely rare, when I was a guarantor, that any verification would be made with me, whereas now it is absolutely routine that when I am the guarantor for a passport application, I will receive a call, and I'll have usually a two-minute conversation with the passport office. That does not seem, to me at least, to be a particularly expensive safeguard for the citizens. Obviously, budget concerns are there, but I think the concern that was expressed in our submission is a real one. There are ways within the means of Canadians to deal with those concerns. We may not be able to create an ideal system, but we can do better than what we've been doing up to now.

Mr. Jerry Pickard: Is there a clear list of recommendations laid on the table that would result in better and fuller processing? Obviously, we want to have a better system not only with the applicants for whom you sign as guarantors, but for all people coming to Canada. The example of somebody walking in, getting citizenship, and walking out without any due process seems problematic.

Mr. Patrice Brunet: As mentioned in our brief, we're not sure this is the forum to have this discussion. We wanted to raise it before the members of the standing committee, but it is not something we see as a problem in this bill. We believe the bill has sufficient teeth to go after those who fraudulently use the system to acquire Canadian citizenship. However, we feel the mouth has gums, but no teeth--the teeth are there, but they're not chewing. Without the appropriate resources the department may appropriate to put in effect different provisions of the actual law or the projected law, all this discussion is moot. What we see as a reality today is that the government has the tools to go after those who fraudulently use the system, but they're just not using them.

So in answer to your question and to complete what my colleague has presented to you, we don't believe, in our limited analysis, it is really a question of resources, because those phone calls can be placed at a very cheap cost. Those additional questions to the interviewed candidate at the time of acquiring citizenship can be asked. They can ask which school the kids go to, what the name of the teacher is. Those are simple questions. Believe me, an eight-year-old kid will not be able to give the name of his teacher if he hasn't gone to school for the past three years in Canada.

[Translation]

The Acting Chair (Mr. Yvon Charbonneau): Thank you, Mr. Brunet.

I now give the floor to Ms. Dalphond-Guiral, who is also vice chair of the committee.

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you Mr. Chair.

First of all I would like to thank all three of you for the work you have done.

Mr. Narvey, I have been a member of Parliament for 10 years and I have on occasion taken part in the clause by clause study of a bill. Since the laws are in both languages, one of the things I had to do was to check whether the French and English versions were in agreement. Generally speaking, I can tell you that the government would easily accept such amendments. When contradictory statements are made in the two versions, it is rather awkward. I would like to thank you then for the work that you have done on this point. That means there will be a little bit less for me to do. But taking into account all the points you have made, it will add up to a lot of work for us.

Mr. Brunet, in your statement you did not refer to a concern that is to be found in Quebec concerning Canadian citizenship for adopted children. I would like you to clarify for us your position with respect to the present act. We know that under the new act, an adopted child will automatically become a Canadian, which is quite sensible, but in Quebec, I believe it is the Civil Code which will make this adoption official.

Do you have any amendments to suggest to the bill or do you consider it to be satisfactory in this respect?

¿ (0910)

Mr. David Chalk: I think that there are other people, wiser than us, who have already spoken to you on this point. Mr. St-Pierre, from the Quebec Bar and perhaps Mr. Maynard, talked to you about the inconsistencies from one province to another with respect to adoption.

I believe that someone from Citizenship and Immigration Canada explained to you that the department's policy was to respect the application of the Civil Code in the case of Quebec, which we consider to be quite natural. I do not think we have anything special to add to that.

Ms. Madeleine Dalphond-Guiral: If the specific legislative nature of Quebec is properly respected, there will not be any problem. It should be easily settled.

Mr. David Chalk: Exactly.

Ms. Madeleine Dalphond-Guiral: At least, that is what we think.

There was a debate on the kind of distortion that appears to exist in C-18 with respect to two types of citizens, those that are entitled to appeal and those that are not. As I see it, this is certainly one of the things in the bill that must be corrected.

Reference is made to a free and democratic society, that is Canadian society, but there is not really any definition of this society in the act. The words are there but in a constitutional state, the right to appeal exists and in order to make an appeal, one must know what the accusation is and what evidence there is. Do you think that the whole part of this law that seems to merely dismiss the rights that we consider to be the rights of all citizens could be invalidated because it is unconstitutional?

Mr. David Chalk: I think it would be fair to talk about a two-tier system. Is there any justification for court intervention? In my opinion, the matter is not yet clear. However, as a lawyer who looks after immigrants and as someone who became a Canadian citizen at the age of 24, it is a cause for concern to me. Why would we have two rules for people who have acquired citizenship in different ways? It seems to us that a citizen is a citizen.

Mr. Patrice Brunet: We could discuss your question to great length.

Ms. Madeleine Dalphond-Guiral: The chair will not let you do that.

Mr. Patrice Brunet: I know, even if we only had one second left in order to make our presentation.

We have to be clear about one thing. When we talk about a Canadian citizen, regardless of how this person may have obtain Canadian citizenship, the bill, as it is drafted, may leave the door open to different interpretations. False statements that may have been made in his application for permanent residence may be viewed as being fraudulent by some and as an oversight by others.

When you examine the permanent resident application form, you can see that it is possible to forget some things inadvertently. For example, there is the part that deals with addresses over the past 10 years. I can tell you that I myself would find it somewhat difficult to indicate accurately in which month I moved in 1995.

If a combination of these factors can be deemed fraudulent by a judge, I share your concern: the Canadian citizen whose Canadian citizenship has been withdrawn, who may as a result be expelled from Canada, perhaps leaving his family behind, is not benefiting from fundamental freedom, namely the right to appeal to the Federal Court. The drafters of this bill should give some serious thought to this question and re-instate this safety net.

¿ (0915)

Mr. David Chalk: May I add something to what my colleague was saying?

Mr. Paul Yurack, from the Citizenship and Immigration Canada legal department, appeared before you and, more or less summarized our concerns when he said:

[English]

If somebody acquired citizenship by fraud, misrepresentation, or knowingly concealing material circumstances, the government has an absolute right and duty to take that away in accordance with the law.

[Translation]

This is very harsh. We do not see enough flexibility in this to account for flaws, even if they are technical in nature. The only recourse is judicial review, and there is only one way to mitigate the effects of the legislation, namely the appeal under clause 10 of the bill and direct intervention by the Governor in Council.

The Acting Chair (Mr. Yvon Charbonneau): Thank you, Mr. Chalk.

Mr. Pacetti.

M. Massimo Pacetti (Saint-Léonard—Saint-Michel, Lib.): Thank you, Mr. Chairman. I would like to put a question to Mr. Brunet and or Mr. Chalk.

Does your association represent immigration lawyers exclusively? Are there any criterion? Do your members have to have a minimum number of years of experience?

Mr. Patrice Brunet: There are approximately 160 members in our association. Our members have to be members of the Barreau du Québec. In addition, they must be lawyers who represent clients. A lawyer who is working for Citizenship and Immigration Canada in the field of immigration could not be a member of our association.

Our members are always in contact with clients, for example, in matters pertaining to refugee protection, economic immigration or work permits. Membership in our association is voluntary, as is the case with most associations.

Mr. Massimo Pacetti: So there is no specific criterion such as having a minimum number of immigrant clients.

Mr. Patrice Brunet: There is no accreditation process. We rely on membership in the Barreau du Quebec as proof of competency.

[English]

Mr. Massimo Pacetti: Okay.

Mr. Apikan, you've remarked “we Indians do not wish to become citizens of your government”, and I think you say it again: “I do not believe the laws of Canada unilaterally declare that a Mohawk should be a citizen of Canada.” But in the end, you're making recommendations that we should try to find some of the children. Should we find them so that they qualify under the Citizenship Act? Is that the intention? I just want to clarify that.

Mr. Patrick Apikan: These children, who are now probably adults with their own children, were adopted out into the United States or Europe. If the Citizenship Act is giving them difficulty in reuniting with their families in Canada, the act should be interpreted in such a way that it won't deny them the ability to come into Canada and reunite with their families. There have been situations where children of these adopted children were having a great deal of difficulty getting into Canada, because they didn't have citizenship and because they had to apply for reinstatement as Indian people. They were being denied services when they got into the country.

¿ (0920)

Mr. Massimo Pacetti: Did they apply for Indian status?

Mr. Patrick Apikan: They have to do both. They have to apply for reinstatement as an Indian person first, because during the time they're adopted out, they're not on the registered Indian list. But they may come across the border on their own and just say they're visiting or whatever, and then they try to find their communities. If those individuals see it as a clearer process of reuniting with their families and their communities and they choose to apply for citizenship, that's their prerogative, but I'm concerned that the Citizenship Act may actually prevent them from reuniting with their families and their communities.

Mr. Massimo Pacetti: So to sum it up, you want them to have a choice.

Mr. Patrick Apikan: Oh, yes.

Mr. Massimo Pacetti: You don't want them to be obliged to fall under one of the two, registration as an Indian or the Citizenship Act.

Mr. Patrick Apikan: Say that again.

Mr. Massimo Pacetti: You don't want them to choose one of the two, but to voluntarily ask for citizenship or ask to be registered as an Indian.

Mr. Patrick Apikan: As I said, my understanding is that they apply for reinstatement first.

Mr. Massimo Pacetti: Okay. This is an education process for me as well.

Mr. Patrick Apikan: As you all know probably better than I do, bureaucracy is mind-boggling, but my understanding is that they have to apply for reinstatement first.

They have a birth certificate that says, for example, they were born in Manitoba, and they start looking for their families. They don't know where in Manitoba. Their adoptive parents may tell them they have Indian status in Canada or they may not. It gets a little complicated. Some of them do come back and start the process of going back home. You're right, they should have the choice.

I mentioned in my brief that the Immigration Act does treat registered Indians as citizens. So they can come across the border without the other requirements, as Indian people, not by visa and things like that, and there are very few questions asked. The problem is with their children, who also may have been born in the United States.

The Acting Chair (Mr. Yvon Charbonneau): I would like to raise a question about your brief. I confess that I will have to read it again very carefully, because there is very complex historical and juridical argumentation, and it's not easy for us to understand at first glance all you've said.

Let's start with one simple question. At the beginning of your brief you come up with an example. The customs officer asks, are you a citizen and from which country? The answer is, I am a North American Indian. He says, go. To my knowledge, it's not an answer at all. You don't say whether you are a citizen or not, and as far as I know, North America is not a country, it's a continent. Are you satisfied with this situation, or would you like it to be modified? It is satisfactory for the customs officers apparently. Are you satisfied with that flexibility, or would you like it to be modified?

¿ (0925)

Mr. Patrick Apikan: I don't have any problems with their letting us through because we tell them we're North American Indians, and the reason is--

The Acting Chair (Mr. Yvon Charbonneau): What is the citizenship answer and the country answer?

Mr. Patrick Apikan: My answer, if they asked that question, would be that I'm an Algonquin and Mohawk citizen and I was born in North America. They've never asked me that question, because most border and customs people are very familiar with our travelling back and forth. They've never asked me specifically if I'm a Canadian citizen, but I can tell them categorically I'm not. But my whole point is that it's not necessary for me to be a U.S. or Canadian citizen to enjoy my rights in North America.

There may be additional problems coming up, and that's why I came before the committee, simply because there are greater and greater requirements for identity and citizenship papers because of 9/11. That's my principal reason for coming, so that we can try to anticipate those problems and deal with them before they get any worse.

The Acting Chair (Mr. Yvon Charbonneau): Monsieur Pickard.

Mr. Jerry Pickard: I believe your travel back and forth across the border is covered by the Jay Treaty rights we have in Canada. If you are authorized by the chief of a band in Canada, you can legitimately say you're a citizen of that band and you have a right to travel the border. With the reserves we have in our area, the Jay Treaty rights are used for people to travel back and forth across the border. As a matter of fact, there is a major debate between the Métis and the customs officials, because the Métis are restricted and are asking for Jay Treaty rights as well.

However, I wanted to get to appeal and revocation. There are those who feel revoking citizenship should not be done--a citizen's a citizen, no matter what. There are other views to do with if you achieved citizenship through extreme wrongdoing, and I'm not just talking about not knowing your address, the example Patrice pointed out. Just not knowing your address for the past ten years was not considered by department officials. Clear questions were asked. What are we talking about? How serious is this issue? What should we be dealing with? The department officials said there are a few cases, but they are relatively extreme cases, where somebody has got something fraudulently. They felt it was the responsibility of the Canadian government to correct things if they were done wrongfully. If you stole a car, someone caught up to you, and you have possession of the car, we could take the car back.

As to the other part about operating in a structure that allows people to go to court, some of these cases could cost millions of dollars to settle in court. If it's a person's right to remain a Canadian citizen, they will go to whatever level they can to maintain it. There are those issues where national safety can be a concern. Other people's endangerment could be a concern. I don't think we're talking about frivolous things, and possibly the concept that is being given is not clarified enough in the legislation. Possibly they need to work at corrections in order to give the proper message. You could take it as a very frivolous thing, and they could take your citizenship away, but I don't think that was ever the case. I don't think they're talking about a lot of cases , but we do know there are cases in the system where the government will not move forward in the courts because of the millions of dollars they know those cases are going to cost in the long haul.

How do you resolve those very obvious cases that are extreme without drawing huge amounts of dollars from taxpayers of Canada? I guess that is, in part, the question. I know some people in the legal system will say they want everything dealt with in the legal system, and that's it. Due process is a right of everybody. Are there any other means by which, in your mind, these issues could be resolved? An Order in Council means the Prime Minister and his cabinet make a certain decision where national security is involved, where some people have to be protected. Those are very extreme cases, but they do exist.

¿ (0930)

Mr. David Chalk: The difficulty I think many of us have with the law is that it is too blunt an instrument. The problem with it is exactly that it can cover cases of crimes against humanity and mistake of address. Maybe in respect of the minister's intervening there is some indication that the person should have acted in a way that would contravene the spirit, say, of section 1 of the charter, but there is nothing that says the government cannot take away someone's citizenship for a trivial misrepresentation. I think we can all, if we put our minds to it, identify, at least in a general way, the kinds of intentional omissions and misrepresentations we would find objectionable. I believe the representative of CIC said they had seven cases over 20 years, and they expected more. What they didn't say is how many more. That is what is bothersome.

A lot of our problems with this act are exactly of that nature. We create a general principle and a very hard line and nothing to deal with the nuance. The same thing can be said about the residency requirement. We all know how a person becomes a citizen through naturalization. I think the example we gave is one of the best. People become citizens in school. We learn about the geography of our country, the history of our country, we learn the national anthem, we learn all kinds of things in school, yet it's entirely possible that a person who arrives at a certain stage in their life gets no credit whatsoever for the fact that they did all their schooling in Canada. That, intuitively, doesn't make sense. I think, in the haste to make a system that's easy to administer, we've forgotten some of the things that were important to us about what we are administering.

Mr. Jerry Pickard: I very much appreciate your candid answer, because we are moving in the direction of writing legislation that is a skeletal, rather than a detailed, approach. Much of the detail falls within regulations, as you well know. That's always the debate: how much do you put in the bill and how much do you put in the regulations? What I'm hearing on this issue is that the bill is not clear enough. It needs a better skeletal system, it needs more filling in, rather than leaving it to the regs. At least, that's what I think I'm hearing.

¿ (0935)

Mr. David Chalk: The only thing I would add is that the law does not even state clearly that there will be regulations to flesh out the aspects we're discussing.

[Translation]

The Acting Chair (Mr. Yvon Charbonneau): Thank you, gentlemen, for this interesting exchange. Ladies and gentlemen, we have now used up the amount of time we had set aside for this first part of the meeting. Thank you for your presentation. It will motivate us to give further consideration to this bill, drawing upon all the clarification you have provided.

We will suspend the sitting for two minutes so that the next group of witnesses can take their places. Thank you.

¿ (0935)

¿ (0946)

The Acting Chair (Mr. Yvon Charbonneau): Colleagues, ladies and gentlemen, we will resume our deliberations. We will now hear from Mr. William Sloan, who will speak on behalf of the American Association Jurists, Canadian section. We will then hear from Ms. Rivka Augenfeld, Mr. Stephan Reichhold and Ms. Louise Carrier, who will speak on behalf of the Table de concertation des organismes au service des personnes réfugiées et immigrantes. We are also expecting Fo Niemi, director general of the Centre for Research-Action on Race Relations. He should be here in a few minutes.

We will hear from our witnesses in order, beginning with Mr. Sloan, for 10 minutes, if possible, in order to leave time for a discussion. Mr. Sloan, you have the floor.

Me William Sloan (“Association américaine des juristes, section canadienne”): I will not quote an old poem written by an American poet, in which he refers to parliamentary seats.

In 1941, in England, a man was suspected, under the special rules which were enforced during the Second World War, of being too close to certain groups, Nazis, Germans, it was not quite clear. Under the law, the Secretary of State had the right to issue a warrant ordering the detention of this person for security reasons. He had to indicate in the warrant his belief that the person in question had links with suspicious associations. But under the law, it was also possible to conduct a review. The review was based on habeas corpus and went all the way to the House of Lords, to the Judicial Committee of the Privy Council, where five lords studied the case. Four lords felt that the mere opinion of the minister, the Secretary of State, was reason enough to authorize the Crown to detain this person.

The fifth judge, lord Atkin, in what is possibly the most famous dissenting opinion in English case law, said that the idea that the warrant and the minister's opinion were valid per se, without further investigation, as stated in the law, could only find legitimacy in Through the Looking Glass by Lewis Carroll, in which Humpty Dumpty said that the question was to know who the master was. Which had precedence: the word or the man? Later on, English case law ruled that the four lords were wrong. However, there was consensus that the ruling came as a result of the circumstances of war.

This was the House of Lords; only one of the five judges had had the temerity to disagree. He found his colleagues' conclusion so horrible that he called them Humpty Dumpties.

What would happen if such a situation arose if this bill is passed?

I will not repeat what other legal groups have said before this committee, but would simply like to draw your attention to the following sentence: “It cannot happen here.”

Briefly, let us go back to 1919, just after World War One. There were major social upheavals in Canada, beginning with the events that took place in Winnipeg. The Winnipeg general strike quickly spread throughout the country. There were strikes everywhere. Fifty thousand people even went on strike in Quebec.

What is interesting is that when it all was over, many Canadian citizens born in the United Kingdom were deported. They lost their Canadian citizenship after the Winnipeg general strike and they were kicked out of the country. It was done for purely political motives.

During World War Two, the Communist Party of Canada managed to elect a member of Parliament only once. Of course, this person did not run under the banner of the Communist Party, since it was illegal, but under another party name. He was Fred Rose, a Polish Jew from Montreal. He was running against many high profile opponents in his first by-election, one of whom came to lead the NDP. He was re-elected during the general election which followed the war. But what happened to him?

He was declared guilty of passing information to the Soviet Union, information which, it seems, was available in scientific journals. But because it was wartime, his actions were illegal. He was stripped of his parliamentary status and jailed; he was stripped of his citizenship and deported. I imagine there was no doubt that no one wanted a man of his ilk to sit in Parliament.

How did this play out at the time? A man appeared before the courts wearing a pillow case over his head, with holes for the eyes. It was Gouzenko. He was testifying against several people wearing a pillow case over his head because he apparently had had plastic surgery to protect his identity.

Today, with what is being proposed, you won't need a bag. You won't need hearings. It will all happen behind close doors, without the benefit of an attorney and without hearing from the accusing party; even the judge would probably not know who is laying the charges. It may be an RCMP officer who may or may not appear in person, or may simply submit something in writing to inform the judge of what is perceived to be the information. Gouzenko would not even need to wear a bag over his head.

People are talking about applying a national security doctrine. If you want to see how far that doctrine can be taken, just look at Latin America, where all matter of dictatorships used this doctrine to justify every conceivable kind of abuse. Even today in Canada this type of abuse continues. Repression tactics are applied to excess during demonstrations, as evidenced by the mass arrests of hundred of people in Montreal. This has been started to happen in the last few years. You saw what happened in Quebec City. I not only work in the area of immigration, but I also defend demonstrators who have been jailed. I find they sometimes come across as refugees in their own country.

National security concerns are increasingly invoked by prosecutors to prevent evidence from being revealed to the accused or to withhold evidence during the trial which would follow to examine the issue of national security. I have had the honour of having Judge Hugessen say to me: it is time to hear the evidence, please leave, sir. It is strange for a lawyer to hear this, but that what is happening. And this particular case did not even involve terrorism; it just dealt with a demonstration in front of the hotel where, in October 2000, two people were charged with inciting a riot. A window was smashed. We had asked for the names of the Quebec provincial police intelligence officers who were in the crowd. They were tailing Jaggi Singh and a couple of other people. We were told in no uncertain terms that there was no way we would receive that information. And we didn't. But national security was not at stake.

I think that the interpretation of the police and of security services of the notion of national security has not—or barely—been defined. Judges who don't toe the line get into trouble, as did Judge Létourneau of the Federal Appeal Court. He lost his security clearance after the Somalia Inquiry and no one knows why. It is extremely worrying that a Federal Court judge as respected as Judge Létourneau could lose his security rating.

¿ (0955)

There are matters of judicial independence that are essential when political issues are involved. I won't attempt to tell you everything I know about Latin America. The American Association of jurists is not a US Association but one representing the Americas. The last two presidents were from Brazil and Nicaragua and the present one is from Argentina. They know what is happening in these countries. I myself I've taken part in about a dozen human rights missions in various countries. There are many things I could tell you. So these are some of my concerns.

As far as refugees go, I wish to stress once again that I have had personal experience with clients who were acknowledged to be refugees and who have links or who may be in contact with militant organizations here, sometimes in solidarity with their own countries. I'm thinking of Mexico, a particular example where SIRS actually wanted an individual to become an informer and he was given to understand that in order to obtain SIRS approval, something that was necessary for permanent residence, he would have to cooperate. With this bill, it would be possible to extend this kind of pressure upon citizens in an attempt to find new spies.

It even strikes me as being a legislative reaction to certain reprimands from the court to the police. But that does not reflect us.

À (1000)

The Acting Chair (Mr. Yvon Charbonneau): Thank you, Mr. Sloane.

We'll now continue with the Concertation Group of Agencies providing services to refugees and immigrants.

Ms. Rivka Augenfeld (President, Table de concertation des organismes au service des personnes réfugiées et immigrantes): Good morning, thank you for giving us this opportunity to appear. Mr. Chairman, I think that the committee knows our organization: we have been to Ottawa on a number of occasions. We very much appreciate the fact that the committee has travelled to where we are.

Our organization, La Table de concertation des organismes au service des personnes réfugiées et immigrantes, has a long name but it tells you what we are. We are a grouping, a coalition of agencies in Quebec that, in different ways, provide welcome and settlement services to immigrants and refugees, and are engaged in advocacy, public education, training and research. We have members everywhere. We can speak in greater detail this afternoon when we talk about settlement.

Our colleague Louise Carrier-Corriveau is a member of one of the organizations in Sherbrooke, le Service d'aide aux néo-Canadiens. It is a service that for a long time now has been involved in the reception of immigrants as well as in the defence of their rights. Mr. Stephan Reichhold is our director and I am the Chair of the board of directors. Our organization has been in existence since 1979 and I think that we have taken part in almost all the debates that have occurred since then with respect to various bills, regulations and other committee studies.

As a coalition we are also members of a greater coalition, the Canadian Council for Refugees, and a good many of our organizations are also individual members of the CCR. As such, we take part in the development of CCR positions. We fully support the briefs are really submitted to you by the CCR and we will not be presenting a brief of our own, I think you have enough things to read already, but we thought it was important to come to speak to you this morning about certain aspects that are a cause of great concern to us. You may have heard these comments before but in our opinion, they bear repetition.

One of the things I find very positive in the bill is clause 12, in our view, it should be an important one, it refers to the rights and obligations of citizens and says that “all citizens have the same rights, powers, privileges, obligations, duties, responsibilities and status...” This is a very positive development, it establishes a standard we consider to be very important but there are several clauses in the bill where this principle is not completely upheld. It is clear that some citizens have fewer rights than others. We see that citizens who obtained citizenship upon their arrival to this country, and this is an increasingly large number of persons, do not always have the same rights as citizens born in Canada. We think that should be the basis.

We also like to note that in our view it is important for Canada to sign the Convention on the status of stateless persons adopted in 1954. I hope that the committee will also make this point and make the appropriate recommendation. It is quite surprising that Canada has never signed this convention since we have signed almost everything relating to human rights. It has been discussed for years now and it is difficult for us to understand why Canada, after signing all these conventions, has not yet signed the convention dealing with the status of stateless persons, particularly in view of the fact that there are increasing numbers of such persons, people who find themselves stateless. Some of these people are found here in Canada for example, people from the former Soviet Union—it is an example you have already heard about but it is worth repeating. I am talking about those people who are born in the former Soviet Union in a country that is now become a Republic and where they are not recognized as citizens for all sorts of complicated reasons. These people have thus become stateless because of significant political changes over which they had no control

It also happens to other people. There are a good many Palestinians, for example, who are stateless because of all sorts of geopolitical considerations and the fact that the country where there are born does not grant them citizenship when they leave the country. So as a new country that believes in citizenship and citizenship rights, it is important for us to work on this.

À (1005)

We would also like to support the recommendation to amend clause 14 to avoid statelessness, in cases where this could be the result of removing a person's citizenship.

This morning, as others have surely done, we would like to draw your attention in particular to clauses 17, 21, 22 and 28.

Clause 17 talks about the revocation of citizenship by means of a secret certificate. This is very disturbing, Mr. Chairman, and I think that under our justice system in Canada, a person is deemed innocent until proven guilty.

Once again, a process is being proposed that we have already deplored in the case of immigrants. Now, the government wants to be able to take action against people who are already citizens, without their knowing the evidence against them. This would be done through the certificates. We must not forget that an individual who has been granted citizenship has already been checked twice. When the person applies to become a resident, there is a criminal security check. Subsequently, when they apply for citizenship, another criminal check is done.

Of course, there is always a possibility that individuals may nevertheless have cheated or defrauded the system. We are not saying that that is impossible and we do not want individuals who are not entitled to citizenship to get it. If they are criminals, they must be brought to justice. But to have this done in secret, in such a way that people do not see the charges against them and do not really have an opportunity to respond in any way, to require only that the minister be satisfied—this is a very low level of proof. What is meant by this word “satisfied”? There is no reference to “beyond a reasonable doubt”. The word used is “satisfied” and that is a strange word. I think that sometimes in our daily lives, satisfaction is sometimes very objective, and this is truer still in the case of legal matters.

Therefore, if we are talking about revocation, at the very least, this should be done before an independent, competent decision-making authority, and natural justice should be respected in such procedures. The same goes for issues involving the loss of citizenship. Clauses 21 and 22 also contain a definition that leaves something to be desired as regards its possible interpretation. It refers to individuals who have demonstrated “a flagrant and serious disregard for the principles and values underlying a free and democratic society.”

We may think that we know what this means. Obviously, we are all in favour of democracy and freedom. However, the ways of interpreting “a flagrant and serious disregard” are also sometimes quite subjective, in my opinion. In this case as well, there is no appeal possible or way for persons to defend themselves. This is decided in secret by Cabinet. Today, the government party may trust Cabinet. However, this is a democratic country, and someday, there will be a different government. We never know how Cabinet's secrecy will be used.

Finally, there is the whole issue regarding clause 28. We are very concerned about paragraph 28(c) and 28(d), particularly as a group that defends refugees' rights. There is a whole issue of charges and convictions for crimes committed outside Canada. Here too, of course, if someone is a murderer and we find that out, there is no problem, we would take steps against the person. However, people are often persecuted in a number of countries precisely as a result of false charges brought against them.

For years, people in the USSR were convicted on all sorts of grounds, which, on the surface, had nothing to do with politics, but they were political in nature. Today, some people who belong to Falun Gong in China are charged with things that seem to have nothing to do with their religion. Nevertheless, this is religious persecution. In other countries, people may be charged with stealing a bicycle, but the charges may in reality be politically motivated. It would be extremely ironic if someone were to arrive in Canada and be accepted as a refugee after basing his or her application on these false charges, and later, perhaps, was accused of committing crimes that were not really crimes at all, but rather the false charges that led to his or her refugee claim being accepted.

À (1010)

As we see other recommendations made by the Canadian Council for refugees, we therefore think that this committee should make some significant recommendations. We know that in the past, this committee has made many recommendations, which, so far, have not been accepted by the minister. However, I hope you will have the courage to continue to express your views about doing the right thing. We would encourage you to take very seriously this issue involving fundamental rights and natural justice.

Thank you, Mr. Chairman.

The Acting Chair (Mr. Yvon Charbonneau): Thank you.

Diane.

[English]

Mrs. Diane Ablonczy: Thank you very much for these presentations. You have eloquently put what we have heard from others, the concern about due process or procedural fairness in an exercise where people might lose such a fundamental thing as citizenship, and also the concern about how to defend against an accusation of “flagrant and serious disregard for the values underlying a free and democratic society”.

I was interested in some of the examples Mr. Sloan gave. I have been thinking of another one. I haven't had time to research it. You seem to be somewhat of a student of history. Is there an analogy to be made with an British institution that formerly existed called the Court of Star Chamber? I wonder, if you do have some knowledge, if you could help me know whether there's an analogy that might be helpful for us to consider.

Mr. William Sloan: The Court of the Star Chamber was used to get rid of political opponents of the king, and it was famous not for judicial process, but for arbitrary process. We would hope that kind of process is something we've lost.

Mrs. Diane Ablonczy: My understanding is that the abuse perpetrated by this kind of behind-closed-doors hatcheting was one of the things that led to the downfall of at least one king in Britain. It became a much hated and much feared institution.

Mr. William Sloan: Certainly. One of the basic precepts of a country where you have the rule of law is the right to know what case is held against you, as well as the right, generally, to face your accuser, the right to hear the witnesses who will testify against you and to be able to question them to attack their credibility. I didn't have anything written today, because I just came back from Zimbabwe. I was there observing the treason trial of Morgan Tsvangirai. The major assault by the defence on the prosecution's case is on the credibility of the witnesses. If you can't see the witness, if you don't know who the witness is, if you don't know what the source of the information is, sometimes you have no defence; because this supposed information stands by itself, you can't get the court to doubt the source of that information. That is what I was seeing in the court, an attack on the credibility of the witness. It becomes so fundamental. Is this someone who is a fair witness or someone who, on the part of the government, is helping to set someone up? It is so essential, and this basic right is absent from this process.

À (1015)

Mrs. Diane Ablonczy: It strikes me that as politicians, we are sometimes vulnerable to characterizations of our actions that aren't always accurate. We, of all people, should be very sensitive to the need for the establishment of clear and incontrovertible evidence before a person is judged, especially in matters of their intention, what might be in their mind, what might be their hidden agenda,or whatever. We see in our own lives how that can be hurtful and destructive, and surely we would want to protect others against that.

I was struck, Ms. Augenfeld, by your comments on the word satisfied--“if the minister is satisfied”. To your knowledge, is there any judicial interpretation of the word satisfied? Is it used in jurisprudence, or is this a pretty stark departure from the kind of language that is usually included in legislative clauses?

Ms. Rivka Augenfeld: I'm not a lawyer, and I'll defer in a moment to Mr. Sloan, but “satisfied” is a very low level of proof. I don't think it's something you find in most legislation. I don't think, when you have a criminal case, when somebody is accused of murder, the fact that the police are satisfied and say so is, in and of itself, any kind of proof. We've seen cases where, on the face of it, there was evidence, and the police may even have believed this person to be guilty, but our whole system of justice is based on the fact that you have a right to face your accused, you have a right to hear the evidence. Even a person accused of the most heinous murders or of serial murders or of chopping people up or whatever is entitled to their day in court. In fact, I think in very heavy criminal cases many precautions are taken, because they want to make sure the burden of proof is there. They don't want to fail because of sloppy evidence.

Justice is there for everyone, not just people we find are angels. Justice is there for all citizens. Here we're talking about citizens, people who have the right to hear what they've been accused of and to defend themselves, and “satisfied” is totally unsatisfactory. I don't think it's anywhere in the laws that govern other legal procedures a word that you will find.

Also, in subclause 22(5), if we're talking about the principles of a free and democratic society and all the things that fall from it, they say “Despite anything in this Act or any other Act of Parliament, the order is conclusive proof of the matter stated in it.” Again we have a situation where, because something is written on a piece of paper, that makes it true. This is very worrying.

[Translation]

The order is conclusive proof of the matters stated in it.

[English]

It's a circular argument: I wrote it down, therefore it must be true. There's nothing anyone can bring as proof that will make it untrue, because I don't even know what's in it. I think it's very frightening, and it seems to us that we have enough in our laws and enough in all these statutes to protect Canadian society, to protect Canadian citizens, to act against people who may well deserve to have their citizenship stripped.

Again, I'm not saying it's not possible, it's certainly possible. I'll tell you, we defend refugees who have met their torturers here in Canada. We have no problem with people who are accused of crimes against humanity and war crimes being brought before their accusers to be judged and, if there's sufficient proof, to be sentenced and punished appropriately. We have always taken a very strong stand against war crimes and crimes against humanity, and we don't believe everyone who comes here is an angel, but we believe even a person accused of such crimes has the right to hear the evidence, has the right to defend themselves. I don't think our country is served in any way by making all these procedures secret. What is the need for all the secrecy? What is the need for the Department of Citizenship and Immigration to surround themselves with all these fences--they know best, nobody can look at what they have? I think of all of the departments in government, on issues of basic human rights, it's the one that makes itself the most inscrutable and the most secret.

À (1020)

Mrs. Diane Ablonczy: Mr. Sloan, did you have anything to add on the “satisfied” jurisprudence question?

Mr. William Sloan: Perhaps if the minister is a lawyer, he can say, trust me, I'm a lawyer.

Mrs. Diane Ablonczy: That'll go over really well, we know that already.

Mr. William Sloan: It goes back to that case from 1941 where Lord Atkins said that kind of reasoning could only be supported by Humpty Dumpty logic.

When they brought in security certificates, we had the case of Victor Regalado, who was a journalist from El Savador. Someone had convinced the minister that he was a security threat, and he was never able to find out exactly what it was. There were a number of petitions signed by prominent people who knew him, and it took just about an act of Parliament for him to eventually get landed, and he never did find out what it was all about. It's Kafkaesque.

Mrs. Diane Ablonczy: When we asked the department why this closed process was necessary, they said citizenship is not a right, it's a privilege that the government extends. Therefore, the government's responsibility for process and establishment of entitlement has a much lower threshold. I wonder if either of you two has any response to that rationale.

Mr. William Sloan: I think the distinction between rights and privileges is one that is usually used to deny people rights. You start by qualifying something as a privilege, and then you say, now we can walk on you, because it's not a right. With the granting of any status in Canada, we have to look at how people get that status, whether they're joining families or abandoning their country to immigrate to Canada or coming and asking for protection or have been accepted in Canada on humanitarian grounds. Whatever way, there's always a human element, and that approach tries to deny the human element, as though we were dealing with a licence to have a stall in the flea market or something. When you're dealing with people's lives, you're always dealing with rights, not just with privileges.

[Translation]

The Acting Chair (Mr. Yvon Charbonneau): Would you like to add something, Ms. Augenfeld?

Ms. Rivka Augenfeld: Yes. As I said at the beginning of my remarks, we come back to clause 12, which is supposed to be the cornerstone of this legislation. It states:

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

That is not innocuous; it is important. I think it is a very fine statement, but what comes later is a contradiction of it. On a number of occasions, the bill refers to the differences between citizens, and talks about how citizens can lose their citizenship without having an opportunity to defend themselves.

We do not speak about our personal lives very often, but I would like to tell you that when I came to Canada at the age of two, I was a stateless person. I am a Canadian citizen, but if tomorrow morning I no longer had my citizenship, I would be stateless. My citizenship is precious to me. Regardless of our different political convictions, I can assure you that many people who have Canadian citizenship... There are countries in which citizenship can be purchased. In some countries, you can become a citizen by paying $50,000. That is not the case here. We have to go through a number of checks. Of course, no step in the screening is foolproof. Mistake could be made in the security screening carried out before a person can become permanent resident. Subsequently, when we charge the individual, why are we so sure that the evidence is accurate and unattackable and that no other evidence can be presented? It is this attitude of certainty and arrogance that I find... There are some officials who think they know everything. Who will ultimately make a recommendation to the minister? The officials. It is as though the will of Parliament as a decision maker had been short-circuited. And if there are regulations later, the will of Parliament will be by-passed even more. That frightened us.

One of our colleagues, a famous jurist from Montreal, always says that Immigration Canada tends to want to keep the power. I have been involved in debating these issues for close to 30 years. And I have noticed the same thing. Even when the Department wants to be nice, it also wants to keep the power when it wants to act more harshly. It does not like having people seeking out other remedies. It does not like having people go to court. The court is there for that. Why are we doing everything we can to prevent Canadian citizens from going to court? It is unthinkable that we could agree to that.

À (1025)

The Acting Chair (Mr. Yvon Charbonneau): It is your turn, Madeleine.

Ms. Madeleine Dalphond-Guiral: Thank you, Mr. Chairman.

Mr. Sloan, you stated very clearly the danger facing all legislatures in making decisions because of a context. Since September 11, a sort of paranoia has become prevalent among developed countries that may be considered close to the United States. Since we are right beside the U.S., we cannot avoid this problem. Since the famous events of that day in September, laws have been passed that limit our rights and freedoms.

It is rather astonishing that in the course of the debates on these bills—and I am thinking of the Antiterrorism Act, among others—there was of course discussion, but people never really became aware of the issue. We had the impression that people wanted us to do anything at all, provided we would ensure that people would be safe. Even today, the Act respecting Canadian citizenship, which is not an innocuous piece of legislation, is not causing a passionate outcry. We have been travelling since last Monday, and we are having difficulty finding people who want to speak to us. And yet, this bill provides for some extremely serious infringements of certain fundamental rights. I will not go back to the issue of the right to appeal, but in this whole bill, this is definitely the issue that is the most glaring. We must absolutely find a way to get the government to bend on this.

Canada is located right beside the United States, and we are seeing tighter and tighter screening procedures. These procedures are being called for by the Americans. Do you think that we are agreeing to include provisions in our legislation that almost run counter to Canada's renowned legal system in order to please the Americans? We have heard all the propaganda: they were saying that our border was porous, and that there were far more criminals here in Canada than people might imagine. We know it is not easy to change the decisions made by officials. They are very competent, they know everything, and we know nothing. We are just passing through, as everyone knows. This is an ethical problem, is it not?

À (1030)

Ms. Rivka Augenfeld: Contrary to your claims, I think that what this department lacks is a corporate memory. I am not saying that to boast about people in NGOs, but I always say that as grass-roots workers, we have a sort of genetic distortion. We have no choice about that. Do we get up one day when we are a teen and wonder what we are going to do with our lives and whether we will work for a cause? Maybe not, but we do discover that we do not feel as good when we do nothing as when we do something. It is sometimes difficult to defend everything we defend, but we have gone through all of that, and we do have a corporate memory. We are noticing increasingly that this department, like others, has no memory. However, some people have been there for a long time.

I would like to say that initially, my position was somewhat similar to yours. I think that in any department, there are some more liberal tendencies and others that are more rigid. I think there are some people who waited for the right time to do what they always wanted to do in any case.

Some things are being done at the moment, whether in the Immigration Act, or now in the Citizenship of Canada Act, that are exactly what some officials would have liked to have done for a long time. However, until now, the time was not right. Now the right time has come. It is as though September 11 has become an excuse that can be used to do what some always wanted to do in order to have more control.

In 1993, I believe, during discussions on another bill, one of our colleagues...

Ms. Madeleine Dalphond-Guiral: [Editor's note: inaudible]

Ms. Rivka Augenfeld: As I was saying, one of our colleagues who is now in Vancouver, a lawyer, came to talk about the bill that would amend the act; it was an amendment on ineligibility. A host of provisions that were not in the act before had been added. To try and show parliamentarians just how ridiculous this was, he said that he and his colleagues had studied all the provisions and that they had all finally understood who was targeted by that. However, they said that they did not understand the last provision, because it seems to them that everything was already covered in the other provisions, but in the end they saw the light: it was designed to cover aliens. It was a way of saying that a host of extraordinary powers would be granted in the event that... Aspects that are unnecessary had been put in the act, because the Government wants to provide for everything that is unpredictable, but in doing so, it is infringing upon the rights of people who are not guilty of anything at all.

Ms. Dalphond-Guiral, this is the third draft of the bill, is it not? This bill was not introduced with much fanfare. It is as if the Government wanted to slip it in with other major initiatives. The general public is not even aware that there is a citizenship bill in the system.

I am sorry, but your deliberations have not been widely advertised. To know that you were coming, we had to contact you. There maybe other people who would have wanted to appear here, but who did not even know that you would be in Montreal today.

The information provided says that this is the third version of the bill, that all Canadians have been heard, and that everything has been said. However, as Committee's members know, since many of you were members of the Committee that studied previous versions, there have been substantive changes. These changes concern us, especially since each time changes are made, there are designed to restrict rights to a larger degree.

The Acting Chair (Mr. Yvon Charbonneau): Thank you. Do you have a question Mr. Pacetti?

[English]

Mr. Massimo Pacetti: I have no question for Mr. Sloan, just a comment.

The last time I saw you was 10 or 15 years ago.

Mr. William Sloan: Something like that.

Mr. Massimo Pacetti: On a rugby field.

À (1035)

Mr. William Sloan: Yes.

Mr. Massimo Pacetti: I like to see that you're trying to protect people's rights, because on the rugby field I had no rights with you. I hope you turned over a new leaf.

Mr. William Sloan: Well, it's all a question of context.

Mr. Massimo Pacetti: Ms. Augenfeld, before we revoke citizenship, what process would you like to see? This is when new facts come to life, when more information comes out. I know you discussed the review and all this, but when the new facts come out, what would you like to see, an appeal process?

Ms. Rivka Augenfeld: I think it's very simple. It's like any other accusation. I don't think it's that mysterious. If there are accusations against the person, if there are new facts, you send them a letter or you confront them. They have to be able to come to a hearing or in front of an independent person who is competent and knows the law, to be able to prepare, to have the right to a lawyer, and to defend themselves against the accusations. As in any other court, if the accusations are serious and if the proof supports the accusation, the person will be found guilty, if you will, and appropriate action can be taken. But the person has to know what the proof against them is. It seems to me that's the fundamental thing.

Mr. Massimo Pacetti: Would it be just a arbitrator, or would you like to see it go to court?

Ms. Rivka Augenfeld: I don't know. It could be an arbitrator who is competent in these matters. We have very good arbitres here, adjudicators. They have changed their name, so it's totally confusing.

[Translation]

Some commissioners are appointed politically, and others are adjudicators.

[English]

Why this has to be I don't know--just so all we old troglodytes are forever going to be talking about arbitres. But it could be that or a judge, it depends on the gravity of the accusation, but there has to be somebody who is outside the process, who is not the accuser, and who's not the defendant to hear the evidence. It doesn't seem that complicated. People have rights for things that are far less important. They have the right to hear the evidence, they have the right to defend themselves, they have an appeal.

This is really serious. We always imagine this is going to be somebody nobody cares about--don't ever accuse anyone who doesn't deserve to be accused--but that's not how it happens.

[Translation]

We always think that it is someone else until it happens to our neighbour, until it happens to one of us. As in the case with other pieces of legislation on security, people who travel now know that their names will be on the list somewhere for six years. They are starting to get worked up about it. Before, it was theorical.

[English]

I was discussing this yesterday with somebody, and It's very difficult to get people excited about future harm. Future harm is hard to prove. Later on, when it happens, you say,

[Translation]

“Oh, if I had only known”, but

[English]

it's a little late. So we are constantly the messengers, trying to come with safeguards for people's rights.

Mr. Massimo Pacetti: Mr. Sloan.

[Translation]

Mr. William Sloan: I can give you a little example. Two or three years ago here in Montreal, a Bangladeshi family was called to an immigration office.They thought they were going to be receiving permanent residence. The man went with his wife. He works in a large clothing factory in the east end. He was there with one of his granddaughters; the others were in school. The immigration officer shows him a picture while telling him that he has put in a second refugee claim. So he would have had to have left the country to go and do it at the border. The immigration officer also says that the gentleman requested refugee stated a third time in the U.S. and that he had even been deported from U.S. and that he had successfully returned. All that to say that the gentleman had left the country over the past three years, which made him ineligible for permanent residency under this program. So he was arrested for fraud. He tried to say that the person in the picture had a beauty mark and he did not; the photo was hidden, put in the file, and the gentleman was arrested.

Fortunately, I was able to take care of the matter quickly, otherwise, the entire family would have left a few days later. The other children were arrested the same afternoon, and in a mad rush we were able to prove that a mistake had in fact been made. He had been fingerprinted. The prints that had supposedly been made when he claimed refugee stated a second time at the border were black; there was too much ink. The other one, which came from the U.S., had white spots in the middle of each fingers, there was not enough ink. The pictures were really... It was hard to think that it was the same person. However, the officer who made the decision had decided to deny permanent residency, to detain the entire family and to deport them.

It is not effective. If we are working with the system that allows someone to denounce someone else on matters of security, I can tell you that as a lawyer for refugees and immigrants, this often comes in the form of an anonymous letter, a telephone call, people blow the whistle out of jealousy, or for 50 other reasons including political ones. People from other parties blow the whistle on someone. If we look at the example of the Bangladeshi today, people who are critical of what is happening to the Hindus in the country are discredited in comparison with those who support the government and who will do almost anything to discredit those people.

So there are a host of variables that require safeguards, and systems without safeguards is not the rule of law, it is arbitrary. Generally speaking that is the word I think we must bear in mind, and which is not in the bill. This is not something that is going to enrich our society; it will impoverish it.

À (1040)

The Acting Chair (Mr. Yvon Charbonneau): Up until now, those of you who have examined the three versions of the bill, especially Ms. Angenfeld, have quickly told us that you have noticed a shift toward more constraints, fewer rights, and more rigidity. Could you give us an example or two of the shift that you have identified from one version to the other?

Ms. Rivka Augenfeld: The whole issue of their minister's satisfaction, the annulment of citizenship based on the minister's mood. The bill talks about revocation and then annulment. As I said, I am not a lawyer, but I have been involved in this for a long time. If you look at the exact difference between revocation and annulment, there are problems in both cases. But why has the minister been given so much power? Why does the minister bring the charge and make the decision? That does not exist anywhere else in our justice system. Since when can a minister, even the most brilliant and the most angelic one, have this authority? Moreover, we know full well that when it says minister, it means other people, people who prepare that for the minister. It is a figure of speech.

So who prepares these files? Who explains them? Who convinces the minister what his opinion should be? I am obviously not saying that the minister does not think. He reflects, he thinks. He is an intelligent person, with his own ideas. That is quite worrisome to us, as is the whole question of losing citizenship, the second generation, that too is very worrisome.

We can also imagine that this is all very distant, that there are people living outside Canada. Why should they continue to be citizens? But in its brief, the CCR tried to provide a touching yet very realistic example of the fact that someone can easily lose his Canadian citizenship and have no other citizenship to fall back on, without having wanted to leave Canada. The example provided is that of a person who is born in Canada and who comes back to leave in Canada. Do you think that these people would know when they are 28 that something have to be done? A person can easily lose his citizenship after having lived almost his entire life in Canada.

The other day there was the issue of people who have gone to the U.S., who lost their citizenship without knowing it, who came back, and who now face this problem. Someone may believe he has a citizenship and then learn that because of an act that was adopted several years ago and that he was never made aware of, he lost his citizenship. And all of a sudden the person has no citizenship. That is why we would like to see everything possible done to avoid stateliness, because stateliness in the world today is increasingly difficult to cope with.

À (1045)

The Acting Chair (Mr. Yvon Charbonneau): I have another question for you on the procedure used for hearings. You pointed out that it was somewhat difficult for you to find out that we were sitting outside Parliament, that the committee was traveling, and you had to look into the matter yourself. Do you really think the information provided about this hearing was lacking in comparison with what is normally done? Did you notice anything strange, or were the procedures more or less the same as they always are?

Mr. William Sloan: I got a call. The Civil Liberties Union was contacted and suggested my name. So I was contacted by the Civil Liberties Union.

The Acting Chair (Mr. Yvon Charbonneau): I want to know if you called each other, or if you got a call from Ottawa. Because sometimes...

Mr. William Sloan: No. From Ottawa.

The Acting Chair (Mr. Yvon Charbonneau): Our services called you.

Ms. Rivka Augenfeld: Let us just say that sometimes we get a call from Ottawa. However, as I said, the problem is that the bill itself was tabled without much fanfare. Sometimes, bills are introduced with a lot of fanfare, and there is a lot of publicity surrounding them. Ministers make statements, and there are press releases. But not this time. Obviously, sometimes the government tries to publicize it, but the media do not buy it. But I do not think that this bill was announced with much fanfare. It has to be perceived as something important.

This time, the CCR alerted all of its members early on. The CCR advised us very early on. Then, when I found out that the committee would perhaps travel, we called, and we took a proactive approach. We asked to be put on the committee's list of witnesses. After that we met with our members to take stock of the situation and to ensure that everyone agreed with what we were going to say.

The Acting Chair (Mr. Yvon Charbonneau): I am not trying to contradict you, but I simply want to remind you that the minister delivered a major speech on the matter in the House of Commons.

Ms. Rivka Augenfeld: But not all of these speeches are covered.

Mr. Stephan Reichhold (Directeur, Table de concertation des organismes au service des personnes réfugiées et immigrants): I might add that there was nothing in the French media; it was never or hardly mentioned.

The Acting Chair (Mr. Yvon Charbonneau): All we can do in Ottawa is talk. We cannot write the newspapers on top of that.

Ms. Rivka Augenfeld: Having tried unsuccessfully on several occasions to get our letters and our opinions published in the papers, I know that it is not because you did not try. I would just like to say that, as you say in English, the issue is not even on the radar screen for most Quebeckers.

The Acting Chair (Mr. Yvon Charbonneau): Fine. We have about 10 minutes left, colleagues, if you have any further questions.

Madeleine, Diane or Massimo, you each have five minutes if you want.

Ms. Madeleine Dalphond-Guiral: I would like to comment on the hearing of witnesses.

Every time we know that hearings will be held, and regardless of the topic, I think that on our side at least, we do our utmost to contact the various groups we think will be interested in appearing and that we absolutely want to hear from. I know that for Bill C-18—my assistant is so efficient: he brought everything—we contacted 11 groups. And you know what contacting these groups means; we never call at the right time, and we never talk to the right person. So when the deadlines are relatively short, it becomes even more difficult, but we try to do what we can as parliamentarians.

The Acting Chair (Mr. Yvon Charbonneau): Ms. Louise Carrier.

The government is committed to bringing in people from elsewhere, and we all know why. I do not need to explain that to you. But at the same time, I find that we are very quick to single people out, by trying to say that they may be criminals. And when that hits the papers, the media jump right on it. But when someone does something that is not necessarily right, we are very quick to point the finger at people who are from somewhere else, people who I do not call immigrants but newcomers. We single out a specific community, but that is not the reality. Most of these people do absolutely nothing wrong, and we need to emphasize that more often. We should attempt to include in our laws provisions to defend the rights of people, and not necessarily look at them as if they had committed a crime.

I think that we are very easily led to do that and that the media picks up on it very quickly.

À (1050)

The Acting Chair (Mr. Yvon Charbonneau): You mean specific cases rather than an overall view of the system.

Ms. Louise Carrier-Corriveau: Yes, an overall view ,of course. People have told me that when they appeared before the Immigration Refugee Board, among others, it was very difficult because they were considered criminals. They told me that they had the impression they had committed a crime. They were only requesting refugee status, because they faced death in their own countries, because they had been threatened, because they had been tortured, but they are considered criminals, and often they are treated that way. I find that sad for a country that says it wants to accept new comers.

The Acting Chair (Mr. Yvon Charbonneau): Thank you, Ms. Carrier.

Diane.

[English]

Mrs. Diane Ablonczy: I just wanted to make a point in our discussion about the committee's travelling and people's desire to appear before it. I've just been doing some reading on how to make politics more important to citizens. Of course, there's this concern about the falling level of participation in elections, never mind the level of participation in political parties, and one of the suggestions was to make politics more relevant to people through new vehicles for meaningful debate and discussion, like parliamentary committees travelling out to communities and engaging in discussion with people who are actually working on the ground. So I think what we're doing is very important. And we ourselves only had leave from Parliament to travel at the end of January, so this was put together more quickly than we would have liked. But we've heard this from others, that we need to give more notice time, so that there is opportunity for people not only to indicate they'd like to appear, but also to prepare their briefs. Some of them literally threw something together overnight. Many of them were very good, but it would be better to have more time.

The question I wanted to ask goes back to this concern about the minister making decisions based on his being satisfied. Ms. Augenfeld mentioned that. Of course, it would be based on information provided by officials, and although in the beginning that information would probably be very carefully put together, there could be a tendency for it to become more arbitrary and, quite frankly, more political. We've seen how officials became more political, for example, in awarding certain grants or contracts, and that has become an issue in our country. So I think we want to guard against that.

One of the other rationales we received from officials when we raised these concerns was that the process we're all talking about today, what we really call due process, where there's a full trial, with proper representation for the individual in question and a right of appeal, has become extremely costly. We know, for example, the Province of Ontario is becoming extremely alarmed at the cost of legal aid, because some of these processes are causing a difficulty. I myself am not persuaded that cost is a legitimate issue, but I would like to have more information on this rationale.

Mr. William Sloan: In 1985, April 4, the Supreme Court of Canada stated in the Singh decision, where the issue was whether refugees would get a right to a hearing and one of the major arguments raised by the government was that it would be too expensive, that costs versus fundamental rights was not a valid argument.

Ms. Rivka Augenfeld: We're not talking about thousands of people here--I certainly hope so. I think, as I said before, when people have been vetted twice, you're talking about cases that might arise now and again. Therefore, there's even more reason they should have due process. One of the arguments is, well, it's only ever going to be a few people, so what's the big deal? Even for one person it's a big deal. You're not going to have thousands of people being brought before these kinds of hearings. I was just thinking as I was listening to this that there could be an argument made, which I accept with great difficulty, that the proceeding itself should be kept confidential because some matters of terrible national interest are at stake, but the accused should still be in those proceedings and have all the evidence and a lawyer. You want to put a publication ban on it, you want to keep it secret, for whatever reason, but to keep it secret from the accused is totally unacceptable. We've always been against this, no matter at what level of proceeding. An accused must have the right to hear the evidence against him or her. It just boggles the mind. How can anyone defend themselves if they don't know what the accusation is? We're told, they know what it is. I said, how do they know what it is? It's always as if the accusation is true, therefore the person knows what it is, therefore they don't need to hear it. Well, what if it isn't true, what if it's false, what if it's a mistake? How can you defend yourself if you don't know what you're being accused of? So there just doesn't seem to us to be any justification not to allow the accused to know what the case is about.

À (1055)

Mr. William Sloan: I just came back from Zimbabwe, where I was observing the trial of Morgan Tsvangirai for treason. Monday last week the government presented a security certificate saying that certain evidence should not be heard by the court. Arguments were made by both sides, and the judge decided that according to section 18, paragraph 12, of their constitution, he would hear the evidence, but he would hear it in camera. But in Zimbabwe in camera is with not only the defence attorney, but the accused present. In Canada we have these in camera hearings where not even the defence attorney is present. So Zimbabwe, with all the criticisms one can make of it, has conserved, even in a situation where someone is charged with trying to assassinate the President, what appears to be a higher degree of respect, at least in the judicial system, for the accused's rights than Canada. That's not the kind of example we want to set.

Mrs. Diane Ablonczy: It strikes me there's kind of an analogy in what's happening in the debate over Iraq, where Secretary of State Powell presented evidence that could be covered by national security prohibitions, and in spite of the fact that it was persuasive with the U.S. government, it proved to be far less persuasive with other governments and other citizens. So even evidence that could be covered by security and can be persuasive in some circles, when it's examined in the broader context, cannot be persuasive. So I think that's an example of why it's important to have a broad examination of evidence, especially when somebody's future and rights and fundamental civil liberties are at issue.

Mr. William Sloan: Yes, there were a few people in the streets here last Saturday who told everyone what they thought of Mr. Powell's convincing evidence.

It seems like a no-brainer. You're looking to take away someone's most fundamental rights. You have this secret information. Kafka is supposed to be a fantasy about these horrible dictatorships, not about Canada. We're seeing the creeping aspects of Nineteen Eighty-Four, Brave New World, and Kafka's The Trial coming into our legal system. As in most cases, the first assault on rights is made with the most vulnerable people, the people who are on the periphery. So you take criminals and immigrants and you put that together, and you have this secret process, you get it approved by the Supreme Court, in the Chiarelli case, and then you start applying it to other people.

Á (1100)

Mrs. Diane Ablonczy: I just have one quick follow-up on that. I have been concerned that although this act may start to use these kinds of processes to deny citizenship or to remove citizenship in certain cases, they can be expanded to deny citizenship for flagrant disregard of values, whatever that might be. Instead of just refusing citizenship, it could be used to strip people of citizenship, in which case I think we would all become extremely alarmed. Have you been able to do an analysis of the act to see whether that principle could, in fact, taking the sections of the act all together, be applied so as to remove citizenship from citizens for flagrant disregard of values?

Mr. William Sloan: Starting with Jaggi Singh, I suppose, throwing too many teddy bears.

Mrs. Diane Ablonczy: I haven't either, but I am having trouble explaining that to various people.

[Translation]

The Acting Chair (Mr. Yvon Charbonneau): Ladies and gentlemen, thank you for coming, thank you for presentations, and thank you for having engaged us in a very interesting and enlightening debate. We are going to adjourn. We will resume at 1:30 p.m.

The meeting is adjourned.