CITI Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, April 28, 1999

• 1537

[English]

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

Just to record part of our activities in the House, with the permission of the committee, a House of Commons photographer would like to take a couple of shots before we start the proceedings of the committee.

Mr. Leon E. Benoit (Lakeland, Ref.): I would move we bring the cameras in full-time, anytime. That's the way it should be.

• 1537

• 1539

The Chair: Thank you.

Now we will proceed with the meeting of the committee. Pursuant to an order of reference of the House, we are resuming study of Bill C-63, an act respecting Canadian citizenship.

Before us we have again the departmental officials. We thank you all. I understand Mr. Fyffe will be making brief opening remarks.

You may proceed, Mr. Fyffe. We have seen the names of your officials, so that should be understood.

Mr. Greg Fyffe (Assistant Deputy Minister, Policy and Program Development, Department of Citizenship and Immigration): Thank you very much, Mr. Chairman. We welcome the opportunity to appear before the committee and to answer questions members have, and in particular to respond to some of the issues that have been raised by witnesses.

Mr. Sabourin is our departmental authority on the current Citizenship Act and on the proposed act and will be able to answer most of the detailed questions on the Citizenship Act. He has officials with him who, as you noted, you have the names of.

Joan Atkinson is DG of selection and can answer the questions on adoption, which I believe have come up a number of times.

• 1540

I'd like first of all, Mr. Chairman, to recognize the points that have been made in some of your deliberations about the very important links between the Citizenship Act and the proposed changes to Canada's immigration legislation and policy. These two pieces of legislation together form the legislative base for immigration and citizenship policy, and it's important that they are drafted to respond to the same principles. We're making every effort to ensure this happens. There's a substantial overlap in the people working on these two pieces of legislation, and both fall within the policy and program sector, for which I'm responsible.

The citizenship bill has been under development for some time, and several of its provisions have been the subject of comment by parliamentary committees. Some questions it deals with, particularly the definition of “residence” and the role of citizenship judges, need to be addressed in law fairly soon.

We are in a different stage of development with changes to immigration legislation, which is extremely complex. Consultations have been completed on the report of the Legislative Review Advisory Group and on a document made public by the minister in January of this year, called Building on a Strong Foundation for the 20th Century. We are well advanced in the follow-up policy work from these consultations. We found the consultations extremely helpful in considering refinement to the proposals. Of course during these consultations comments were made on citizenship as well.

However, there is much work to be done in finalizing policy proposals and proceeding to drafting. I would also note that when the Immigration Act was extensively revised in 1976, it required a further two years of work before the act was actually proclaimed.

The Citizenship of Canada Act and changes to immigration legislation and policy will emphasize the same principles. There will be a continuum of citizenship, moving progressively from temporary status, where applicable, through permanent residence to citizenship, with different requirements at each stage.

We recognize in doing this the imperatives of the global economy, which again have been mentioned by a number of your witnesses. Both will emphasize the responsibility of intending immigrants to be truthful in supplying application information, while recognizing that inadvertent error does occur.

We want to enhance our capacity to deal with criminals who wish to come to Canada and become citizens when they have not demonstrated a capacity to obey the laws of this country. We recognize that immigration and citizenship policy must maintain a complex balance of openness to newcomers of all origins, procedural fairness, an appreciation of the national interest, protection of the public, humanitarian objectives, and administrative efficiency.

The bill before us is the culmination of efforts over many years by the government, by officials, and by parliamentarians. Many rounds of consultation have taken place, including the 1994 consultations on immigration and citizenship policy, the comments on citizenship made during the Legislative Review Advisory Group consultations, and of course the work of this committee.

The current citizenship legislation came into force in 1977. There have been many changes in the world and Canada since then. Those provisions have also become subject to the charter and therefore the scrutiny of the courts. This judicial scrutiny presents us with a need for specific changes but also makes it imperative that legislative proposals be put forward with a clear sense of possible future charter issues. As the committee will know, staying up to date on future judicial interpretation possibilities is not at all simple.

Let me comment briefly on some specific items raised before the committee. I'm sure we'll come back to many of these items and to other items in the detailed questioning. I'm not trying to be comprehensive here; I just want to touch a couple of the points that have been raised.

Many witnesses have commented on the discontinuance of the provision whereby an applicant for citizenship could count time before permanent residence status towards the time needed for citizenship, effectively to a maximum of six months—that is, half of the one-year attributable time. This proposal is based on the belief that there are different expectations on the part of both the prospective citizen and Canada during the different steps towards citizenship.

A visitor, student, or temporary worker has consciously applied for a temporary status and at this stage has made no commitment to Canada, nor has Canada fully evaluated the potential contribution of a temporary status to the Canadian community.

• 1545

A refugee claimant is in an analogous but slightly different position in that there's a desire to achieve permanent residence in Canada, but it can still be maintained that a full commitment cannot be reasonably expected before a judgment is made on status.

Persons with a temporary status may be living and working in Canada but would not normally feel the same commitment as a permanent resident to understanding the Canadian culture or the Canadian political system or to acquiring one of Canada's official languages. In fact language lessons for adults are not available to people who haven't acquired permanent residence.

Once permanent residence is achieved, prospective citizens already have most of the rights of citizens, excepting in particular the right to vote and protection against removal from Canada in certain circumstances, such as criminality. However, it is still recognized by Canada that the permanent resident may be out of the country for a substantial period of time, may not in the end wish to make the commitment of citizenship, or, from Canada's perspective, may not have fulfilled all the expectations of a prospective citizen.

In qualifying for citizenship—full membership in the Canadian family—immigrants have demonstrated, through their residence here, through the acquisition in most cases of an official language skill and a knowledge of Canada, through their adherence to the laws of Canada, and, most important, through their conscious choice, that they are ready to become citizens. We feel this progression to citizenship is necessary in underlining the importance of Canadian citizenship.

Additionally, it is very difficult to decide on and administer exceptions to this general principle. I appreciate that the primary concern of people who came before the committee and probably of the committee itself is not the technical difficulties, but the technical difficulties of trying to decide who would get the credit for their period here before permanent residence are quite complex.

In this context we feel the ending of the credit for time spent in Canada before applying for or receiving permanent residence status is appropriate.

Concern was also expressed about the circumstances in which persons would not be eligible for Canadian citizenship. The public interest provision is set out in clause 21. Concerns about this are understandable, but the intention of this clause is that it would only be used in exceptionally rare instances where conferring citizenship on a specific individual would be seen as bringing citizenship itself into disrepute. This power rests ultimately with the Governor in Council, and the person affected would have a chance to make representations.

This provision might be used against a person such as a notorious criminal figure who might otherwise qualify, or a holocaust denier, for example. It is not likely that many of either will wish to subject themselves to the scrutiny of the citizenship process. Therefore we don't feel this would come up very often, but we feel it is important that this power exist in the rare cases where it would come up.

A number of witnesses also mentioned the fact that an interpreter could not be used for answering the knowledge-of-Canada questions under the proposed act. My colleagues will be happy to answer detailed questions on this, but I would point out first that persons 60 and over don't have to fulfil the language and knowledge requirements. Second—and I'm sure you'll want to pursue questions on this—the test is designed so that very simple language can be used to respond, and the responses are to questions taken from the booklet given to applicants in advance for their study.

Finally, let me comment on a provision that is not in the bill but that several witnesses thought should be. This is the issue of the historical and current Canadian practice of granting automatic citizenship to all those born in Canada.

Two groups in particular are at issue here: unsuccessful refugee claimants to whom children have been born while they have been in Canada, and visitors to Canada who intentionally seek to have a child here. Some witnesses have expressed the view that automatic citizenship at birth should be terminated as a policy. The committee is also aware that many people are in favour of the current policy and opposed to any change. Before entering into this debate, we feel we should have a solid knowledge of the extent of the problem. This is something we don't have at the moment.

Statistics on births in hospitals are not required or kept in a manner that would allow us to determine whether there is a significant number of births to non-residents. We do feel this is an important issue—too important to proceed to policy choices without a solid sense of the dimensions of the phenomenon of non-resident births and the extent to which abuse and manipulation are an issue.

We do intend to work with the provinces to develop a database that will allow us to understand what is happening and to consider what the appropriate response should be. This is an issue the department does intend to pursue.

• 1550

Mr. Chairman, I would like to conclude my opening remarks at that point. My colleagues and I would be happy to respond to your questions to the extent of our ability to do so.

Thank you.

The Chair: Thank you, Mr. Fyffe.

The clerk has just advised me that we will have to go for the vote just shortly after 4 o'clock.

Mr. Benoit, we'll start with you.

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

Good afternoon, ladies and gentlemen.

My first question will be a very general one, and it's an issue you touched on: the timing of the citizenship legislation when there's such an intricate connection with the immigration legislation. When you're looking at the two and the logical order of whether the new immigration legislation should be presented before or after the citizenship legislation, wouldn't you consider that it would make a lot more sense to have the changes to the Immigration Act made first, because the Citizenship Act in fact refers to the Immigration Act in several places? In actually putting together the citizenship legislation, you had to anticipate in several areas what would be in the new Immigration Act.

Mr. Greg Fyffe: There are a number of responses to that, and I certainly acknowledge that this is a legitimate concern.

As a department, we started work on the Citizenship of Canada Act quite a significant time ago. In particular we felt we had to deal with some specific issues, the most important of which was the question of residence. We felt the original parliamentary intent of having residence of three years reflect actual residence in Canada was lost along the way by court interpretations, which left us in a situation in which residence could in fact be acquired by somebody with an unacceptably short period of time in Canada as a resident. Being in Canada and absorbing the Canada milieu is an important part of eventually becoming a citizen. Therefore, in terms of the work already done and in terms of the importance of some of the issues, we felt we were ready to proceed with the Citizenship of Canada Act.

However, these two acts operate in partnership. The most important thing is that the principles that drive them be totally compatible. In point of fact, we're working on them together. As I said, a lot of the people are working on both. They both fall under my general responsibility, as ADM for policy. As we've gone through our changes in the Immigration Act, we constantly refer back to the connection with citizenship.

Joan Atkinson no doubt will be addressing questions about adoption, and this is another area in which the discussions on the policy are proceeding almost simultaneously, from an immigration perspective and from a citizenship perspective.

However, the time period it takes to amend a very long piece of legislation such as the Immigration Act would leave us, if we were to wait for both of them totally in tandem before the House, for example, with some of the key issues we have to deal with on citizenship unresolved. As I say, the important thing is that we consider them together, that they're driven by the same principles, and that we constantly make those links back and forth as we're working on them.

Mr. Leon Benoit: What are some of these urgent issues you say are so critical that you would put the new citizenship legislation before the immigration legislation, other than the one you've talked about, the residency requirement?

Mr. Greg Fyffe: Residence is certainly the most important.

The need to clarify the status of what are now called citizenship judges is very important, and not only to clarify their status, but to make a change towards an administrative process that we think will allow us to deal with applications much more quickly.

Some of the criminality provisions are overdue, although I won't say they're as critical as some of the others.

We have to respond on the issue of adoption, because we're being driven by some court cases that require certain actions of us, which we have to be able to reflect in legislation.

Those are the most important that we're dealing with.

Mr. Leon Benoit: So you feel citizenship judges just haven't done the job in terms of determining—

Mr. Greg Fyffe: No, the complexity of dealing with citizenship applications and the extent to which it's potentially a paper-driven process make it fundamentally a bureaucratic activity. The kinds of activities that judges have the potential to help us with are some possible appeal provisions that come to the final stage, giving the appropriate weight to citizenship, and publicizing what citizenship is all about.

• 1555

We certainly did look, for a period, at the possibility of not having citizenship judges at all. We didn't think that would give the appropriate weight to the final acceptance of citizenship.

Mr. Leon Benoit: Maybe I'll get into that one at a later stage. Again, you're still saying there's urgency in moving away from citizenship judges determining eligibility for citizenship, and yet on the other hand, you've said it isn't that they didn't do a good job in determining citizenship. So I don't understand then the sense of urgency in regard to that issue.

Mr. Greg Fyffe: At one point you have to go either one way or the other. We were in limbo for a long time. We had nominally a system of citizenship judges, but in fact we were trying to move to a system in which it was an administrative judgment, which would—and this is very important for us—allow us to get to the attribution of citizenship much more quickly.

I don't think it's a question of citizenship judges not doing their job, although I leave that judgment to you. It's a different kind of work, which we feel is fundamentally administrative in nature and is more easily and efficiently done by people who have come up through the process of learning the citizenship processes from the inside, as it were, and progressively assuming greater and greater responsibilities in making the kinds of judgments that are required.

Mr. Leon Benoit: Why would you think the change was made away from the department determining citizenship to giving that control and authority to citizenship judges in the first place, 10 years ago or so?

Mr. Greg Fyffe: I don't know the history of that.

Mr. Leon Benoit: Were any of the people here in the department at that time? Could you just explain what the reasoning was back then?

Mr. Norman Sabourin (Director and Registrar of Citizenship, Department of Citizenship and Immigration): I can explain how citizenship judges have been part of the citizenship process from time immemorial.

Going back to naturalization legislation that was enforced from the turn of the century onward, final decisions respecting citizenship were made by provincial court judges. It's only since 1977, with the current legislation, that the role of citizenship judges was formalized in the legislation, because the federal government had discovered that more and more provincial court judges had a lot of work to do and could not focus on citizenship work without some proper recognition of their role.

Mr. Leon Benoit: Before 1977, though, was it the judges who actually made the decision, or was the decision really made inside the department, as you're proposing now?

Mr. Norman Sabourin: Before 1977, a very big difference existed in citizenship legislation, in that citizenship was considered a privilege that could be granted at the discretion of the minister of the day. So in effect what a provincial court judge did was recommend to the minister whether or not a person should be admitted to citizenship. Then the judge was required to do the public aspect and the ceremonial aspect of obtaining citizenship that Mr. Fyffe alluded to.

In 1977 citizenship became defined in the legislation as a right, in that the obligation was defined for the minister to grant citizenship to any person who meets the requirements listed in the legislation.

Mr. Leon Benoit: Mr. Fyffe, in your statement a little earlier, you said you thought it was important to maintain the judges at least to lend proper credence—

The Chair: Excuse me, Mr. Benoit. I am really in a bind here. We have been advised by the clerk that we will have the vote in about eight minutes from now. You still have two minutes of your time.

I will suspend the hearing of the committee. I would also like to seize the opportunity to tell those who are here that we hope to do the clause-by-clause starting Wednesday, May 5, and going through May 6 and 7.

Can you wait for us or return as soon as the vote is over?

The meeting is suspended.

• 1559

• 1632

The Chair: I would like to resume the meeting of the committee.

Mr. Benoit, who was on the floor when interrupted, has two minutes.

Mr. Leon Benoit: I was not on the floor, Mr. Chair. I was right in my chair.

The Chair: On the chair that was on the floor.

Mr. Leon Benoit: Oh, okay.

Thank you, Mr. Chair.

Welcome again.

I think I'll leave for the time being what I was asking about before. I'll come back to it.

I'd like to get on to something else you mentioned in your comments: your justification for leaving it in this legislation that any child born in Canada is automatically a citizen. Your justification for that was that you really don't have enough information or evidence to determine that this is a problem.

My comment is that we've had this minister in place for over three years now. The Liberals have been in government now for over five years. There's been ample time, I would think, to gather that information.

In fact if you refer to the committee report on citizenship back about five years ago, they actually called for a change to that very clause of the current act. The change would require that one parent be a permanent resident or a citizen of the country. So that was something that was actually proposed by an all-party committee dominated by Liberals.

• 1635

You would think the background work that would be necessary to determine whether it's a real problem, whether it's being abused by some people who are coming to this country and having children here... You would think that could have been determined by now. I'd just like you to comment on that if you could.

Mr. Greg Fyffe: In fact it's become more difficult. I'll ask Mr. Sabourin to comment in more detail, but I think some of the necessary statistics used to be collected. We particularly need to know from hospitals the cases in which both parents are non-resident—the number we're dealing with—and they simply don't keep those statistics any more. So what's required from us is to go and negotiate with the provinces and the hospitals whether they can in fact get those statistics for us.

We believe it is an issue. Sometimes it's appeared to be an important issue, and sometimes we're not so sure. We think it's an issue, but it's very difficult to get a hold of. Our conclusion was that it's one we have pursue. We don't have the information in front of us now, but we have to negotiate with the provinces to get the information, and then we'll just have to come back to it.

The Chair: Thank you, Mr. Benoit.

Mr. Bryden has the floor.

Mr. John Bryden (Wentworth—Burlington, Lib.): Thank you.

I'll follow on that line of questioning. What I don't understand about the need to get more information on this particular issue of children being born of tourists or failed refugees who are essentially in transit to the country is this. We know it's wrong. We all agree it's wrong. Whether it's a large problem or a small problem, why don't we do something about it?

Mr. Greg Fyffe: Part of our difficulty is that we simply don't know the extent of the problem. There is an attachment among some people to the notion, which is historically present in Canada, of birth on Canadian soil entitling people to Canadian citizenship. If we knew we were dealing with hundreds or even thousands of cases, I think the point would come at which we would want to take that on. That's what we're trying to determine.

It's not an easy question to make rules around. It's my impression that there's not a unanimous sense among the people of Canada that they want a change.

Mr. John Bryden: I was on that committee, you see, when that recommendation came up. I was very much a part of the testimony around that. Again I submit to you with great respect that determining the wishes of the people of Canada is of course a matter for the elected representatives, the Parliament. I'm fearful that you are stalled on this issue because you have inadvertently taken upon yourself the role of making political judgments.

So in leaving this—and you don't need to comment on this—I would present to the chair that I think this is an area the committee should discuss in camera. We might want to make recommendations to the minister as parliamentarians, because I just don't think it is properly a decision of the officials about whether or not we should proceed on this.

I would think you would get nearly unanimous support in Parliament, and that's about as close as we can ever come to knowing what the people of Canada feel.

Mr. Grey Fyffe: You're quite right.

Mr. John Bryden: Thank you. I didn't want to put you on the spot, but I do think we have to move forward.

Do I still have some more time, Mr. Chair?

The Chair: Yes.

Mr. John Bryden: I have just a couple of quick questions.

I'm very concerned, after the testimony here, that we've changed the citizenship court judge to a citizenship court commissioner. I'm concerned because the word “commissioner” connotes hydro commissioner or other posts of officialdom of little consequence. Can you give me some background on why we wanted to delete the word “judge” from the Citizenship Act and replace it by another bit of nomenclature?

Mr. Greg Fyffe: To speak specifically to nomenclature, there was a strong feeling in the judicial community, particularly from people involved as judges, that the role of a citizenship judge was not of the same nature as their function and that it was misleading, if not improper, to call people citizenship judges. “Commissioner”, in our view, seemed to capture more appropriately the nature of the function.

Mr. John Bryden: So again it's a case where you're making a value judgment based on something that, if you wouldn't mind my saying, is not really in your province.

• 1640

To me, having “judge” in the Citizenship Act connotes the rule of law when you take the oath of citizenship or when you become a citizen, because we as a democracy are very much a part of respect for due process and the rule of law. One of the reasons for having “judge” in there is to convey to the new Canadians the nature of the country.

I'm very pleased you told me the background, because we had heard hints of that. To me, that is not a sufficient reason—because one pressure group in society feels its label has been usurped by people it doesn't consider of the same stature as themselves. In fact they're doing damage to the dignity of the ceremonial process.

So I would suggest to Mr. Chairman that may be something else we can put before the minister, which is again not something you can do anything about; you can only tell me how it came to be.

I have more questions, and it will take me a little while. I know Mr. Wappel has a couple of questions.

Mr. Tom Wappel (Scarborough Southwest, Lib.): Oh, thank you.

Mr. Chairman, first of all allow me to thank you for the opportunity to be here. I'd rather have my own slot, if you will, because as you know, one question sometimes develops into two or three. But I do thank my colleague. He might as well finish his time, and I'll wait in due course.

Mr. John Bryden: I will be coming back, but I'll ask one other question on this round, so that we can carry on and other people can have a turn.

Can you just give me a little background on how you came up with the text of the oath in Bill C-63? How far back does the text of that oath go? How did we get that wording?

Mr. Norman Sabourin: The wording of the text is the result of many, many proposals and texts developed over the years, I would say since 1979 at least. Several texts were presented to the minister, along with results of certain surveys conducted of the Canadian public, to provide her with options on text. The text of the oath was finalized by the minister.

Mr. John Bryden: I'm glad to know that, because we can deal with that, but can you just give me a little bit of further background? The oath hasn't changed much. Bill C-63 has just added a few words, with some redundancies, I might point out. What was the origin of the earlier version of the oath?

Mr. Norman Sabourin: The origin of the oath of citizenship is found in the oath of allegiance that was required to be pledged by various people, including naturalized British subjects, under the British Empire. Naturalized subjects were required to pledge an oath of allegiance to the reigning monarch. That oath of allegiance was set out in legislation, and that oath of allegiance was incorporated into the first naturalization statutes enforced in Canada many years ago under the British regime.

It's in the 1947 legislation that the words “and fulfil my duties as a Canadian citizen” were added. There have been no real changes since then.

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

The Chair: Mr. Telegdi, this is now the five-minute round.

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

I want to get back to the question about the judge and the commissioner. I was wondering if perhaps the name “magistrate” would be more appropriate to put forth the dignity of the office.

I agree with my colleague that “commissioner” tends to be somewhat pedestrian at times. We also have the commissioner of sanitation. That's not to say the commissioner of sanitation doesn't have an important function. But I think “magistrate” might be a very nice compromise, because when you look at the salutation given to a magistrate, you refer to them as “Your Worship”. All the mayors in municipalities are referred to as magistrates and they are then addressed as “Your Worship”. That would be a more dignified name for that position.

• 1645

The other issue is, we had some representation before us about the role of the commissioner. This person was the head of the multicultural community from Kitchener—Waterloo. The point she put forth—and she made her point very well—is that the commissioners should have a strong role in public education as to what it means to be a Canadian and some of the history surrounding the values of being Canadian.

I know it's fairly open in the legislation, but certainly it's an emphasis we should be looking at, because clearly this nation has gone through crises at different times because of the ignorance of our own history as a nation. The citizenship commissioner can fulfil that function for both new Canadians as well as existing folks in Canada who aren't as up on citizenship as they should be.

The Chair: Who would like to comment on that?

Mr. Sabourin.

Mr. Norman Sabourin: Thank you, Mr. Chairman. I would like to comment on the two points.

First of all, on the suggestion of “magistrate”, I'm sure it will be the subject of much discussion in this committee what the title of the proposed citizenship commissioner should be, but I would like to clarify something, just to complete the points made by Mr. Fyffe.

In addition to many representations made by the legal community, there have been repeated requests by the head of the Canadian Judicial Council to the Prime Minister to change the title “citizenship judge”, because of the nature of the word “judge”. It is the only title found in federal legislation that refers to a judge who is not covered by the Judges Act.

So in making proposals for policy determination to the minister, we put forward several different titles. For any of the titles that had a very legal or judicial connotation, we did have to point out the possible adverse reaction from the Canadian Judicial Council on this.

“Commissioner” is simply one title amongst many. I didn't know about the commissioner of sanitation. I do know about the Commissioner of Official Languages and other positions that are very eminent in nature that carry the title “commissioner”. It's just one title amongst many that deserve the attention of this committee.

With regard to the comments of Mr. Telegdi on the role these commissioners, whatever they end up being called, could fulfil, these are very pertinent and pointed comments that the department intends to take into full consideration. It is one of the intentions of the department to continue efforts in promoting active citizenship in the community and fostering better integration of newcomers into Canadian society. Your comments will be very helpful in that.

Mr. Andrew Telegdi: Thank you.

The Chair: Thank you.

Now we will go to Mr. Benoit again.

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

I want to get on to clause 6, but before that, I want to pursue a little bit more the issue of citizenship judges and commissioners.

Mr. Fyffe, in your comments you said one of the main reasons for retaining the position at all as commissioners rather than judges was to preside over the citizenship hearings in a fashion that would give proper stature to the proceedings. Why should we have a commissioner or a judge do that? Why not a local politician, an elected official, such as a mayor of a town, village, or city in the area the ceremony will take place? Or if some feel it's more appropriate that it's a federal representative, then it could be a member of Parliament. Many members of Parliament take part in citizenship hearings already. Why couldn't they preside over the hearings?

• 1650

So I guess my question is, why is this position being kept at all, other than for the propose of allowing patronage appointments to be readily available?

Mr. Greg Fyffe: I'll answer part of that, and I'll ask Mr. Sabourin to fill in some details.

A proposal was on the table at one point that we would not have citizenship judges. We wrestled with the question of, if we did not have citizenship judges, how exactly we would give the appropriate weight to citizenship in citizenship ceremonies.

We looked at the possibility of having it done by senior officials, and we didn't think that was appropriate. We didn't think that would give it the appropriate weight. We looked at different possibilities that would use Order of Canada appointees, for example, but because of the volume and the need to be able to schedule them, it did not appear practical not to have a group of people who were specifically dedicated to that purpose.

There would be many advantages to having members of Parliament, but I don't think you would react terribly well to being scheduled the way we have to schedule citizenship hearings. That's a practical difficulty we had to deal with.

Mr. Leon Benoit: That's why this responsibility could be spread out quite widely. In the case of large cities, either the mayor or council members certainly would be appropriate. In the case of rural areas, such as the one I'm from, it could be mayors of towns or cities, members of Parliament, or whatever the case might be.

Instead of having this position that is a high-paying position and a patronage appointment, we could hire administrative people to set it up, to make sure there will be an appropriate person at the hearing. What better person to welcome new citizens than someone who's been representing their local communities? It seems a completely reasonable way to go.

But I do want to get on to clause 6. I have a lot of questions on the residency thing.

First of all I'd like to point out that in the list of recommendations from the committee that dealt with citizenship, they have at least four recommendations regarding residency. They did say residency should be defined in the new act so as to require physical presence in Canada preceding the application for citizenship, but then they also said measures should be introduced to enable accurate monitoring of periods of time that permanent residents are absent from Canada. This is an issue I find quite disturbing about the way this legislation has been put forth.

It says in the legislation the intent is to ensure that people applying for citizenship have been in the country three years out of the past five years—physically present. But there's absolutely no explanation of how that will be determined. I have come to the conclusion that there just is no reasonable way to administer this law.

Surely when you're making a law, you'd want to be sure it can be reasonably administered. We've had people tell us it would be very difficult. Others say we can do it, until you mention, for example, the problem of going across the border into the United States and back. You don't stop at a checkpoint.

To put onto these people who want to become Canadian citizens the burden of proving they have been in the country three years out of the past five is completely unreasonable when you look at the reality of the way we cross borders nowadays.

As I mentioned at another committee meeting, I've been into five countries, such as Romania, and I had to ask for a stamp on my passport even to those countries. They don't even stamp passports any more, going into many countries. So it would be a great burden on people who want to become Canadian citizens to administer this, unless your department has figured out some way of doing it in a reasonable fashion.

The Chair: Mr. Fyffe, how do you respond to that?

Mr. Greg Fyffe: This is obviously a serious concern when we're in a position of having and desiring to have a very open border with the United States. It can't come primarily from border crossing information, especially in today's world. It can, however, come from other information people can show us. We're only talking about a small group that there would be questions around.

I'll ask Mr. Sabourin to outline some of the ways in which it would be practical to determine whether a person had in fact spent that time as a resident of Canada.

• 1655

Mr. Norman Sabourin: Thank you.

There is no question that without any regimented border controls in place in Canada, there will always be a challenge in assessing whether or not a person was in Canada. But as Mr. Fyffe pointed out, only a few people travel so extensively that it becomes necessary to obtain a lot of evidence about their time in Canada. Most people—in our experience, 95% to 97% of applicants—spend all of their time in Canada before becoming citizens.

This being said, there is still a sizeable chunk of people we need to worry about. Even today, under the current legislation, we do have to establish where a person has been in the qualifying time to obtain citizenship. So the department has developed a lot of expertise in assessing documentary evidence that supports and outlines whether or not a person was in Canada.

These same types of documents could be used under the new legislation to document whether or not a person has been in Canada. These include, for example, passports. Many countries do have border controls, and passports document this. Also, whether or not a person has been attending school or has been in a job and whether or not somebody can vouch for that fact are all ways in which we can document a person's presence in Canada.

Finally—and maybe this is the most important part of the equation—we do have in place a quality assurance program that allows us to verify the quality and the integrity of information provided by applicants. As part of this program, we do target randomly certain applicants to verify the information they've provided and explore in detail whether or not the information is accurate. We also are able to develop profiles based on indicators of certain types of applicants who might be less enthusiastic than others in providing a complete picture of their presence in Canada.

Mr. Leon Benoit: There's exactly my concern.

The Chair: Mr. Benoit, your time is up.

Mr. Leon Benoit: Could I just ask one more short question?

The Chair: No, you are three minutes past.

Mr. Mahoney.

Mr. Steve Mahoney (Mississauga West, Lib.): Oh, I thought you were going to Mr. Wappel.

The Chair: It's up to you.

Mr. Steve Mahoney: You go ahead, Tom. I thought you were next.

The Chair: Mr. Wappel.

Mr. Tom Wappel: Thanks, Mr. Chairman.

Thank you, Mr. Mahoney.

I really am here specifically on the issue of ending the credit, but I can't help but pick up on some of the themes that have been mentioned while I've been sitting here.

Mr. Fyffe, as ADM of policy, you develop proposals for policy determination by the minister, as Mr. Sabourin said. As I understand the process, you kick around a bunch of policies over a period of time, you give the minister a series of choices, and presumably the minister, with the advice of the ADM and the DM, comes up with the policy that they take to cabinet. But presumably at some point in time, parliamentarians at this committee and in Parliament itself can have some input on whether or not that policy is appropriate. Wouldn't you agree?

Mr. Greg Fyffe: Yes.

Mr. Tom Wappel: On the issue of children and the inability to get the stats, I don't quite understand the problem. Presumably the only children we're concerned about with respect to this issue are the children of people who are not Canadians. Isn't that correct?

Mr. Greg Fyffe: That's right.

Mr. Tom Wappel: We don't even care about people who are not Canadians unless they wish to stay here and become Canadians. Isn't that correct? If people have children here and then move to Australia because they don't want to live in Canada, what do we care, technically, whether or not their children are Canadians? The real issue is people who want to remain here. All of those people have to make applications, don't they, at some point in time, if they wish to remain here?

Mr. Greg Fyffe: Yes.

Mr. Tom Wappel: Part of that application must be their family details, including their children and when they were born, and it would also include when they set foot in this country. So surely your own statistical base from the applications from these people would tell you which children were born here of people who were not Canadian citizens or landed immigrants at the time they were born. So what's the problem with gathering stats?

Mr. Greg Fyffe: The groups you referred to... The particular problem people are concerned about is people who come and have a child here and then don't in fact stay, either because they can't stay or because they never intended to stay. One point of view is that none of those children should have Canadian citizenship.

• 1700

Traditionally, a person born in Canada has Canadian citizenship. I understand the argument for changing it. I don't particularly object to the argument for changing it. I just say we did not feel we had a sense of how many people were involved in this. In looking at that group and changing the policy that had been in place, we wanted to know how big this problem was and what kinds of numbers we were dealing with before making any kind of conclusive decision.

Obviously, in anything like this, we do discuss it with the minister. We do present the pros and cons. In this particular case, it was felt that not all the pros and cons were able to be put on the table.

Mr. Tom Wappel: Okay. My only point is, I don't think it's as difficult for you to get stats as you're saying.

Now I want to deal directly with the residency. It is, I agree, a policy decision as to whether or not you cancel the credit. You said you feel that ending the credit is appropriate. Well, good. We parliamentarians may not feel that ending the credit is appropriate. I'm not going to take a position on that.

I do take a position, however, on the traditional, historical pattern of the Liberal Party of not having retroactive legislation.

I have a person in my constituency who in fact is on my Liberal riding executive. He had five years' residence in Canada prior to becoming landed; became landed on September 24, 1997; obviously, with the credit, only has to put in two more years; and becomes eligible for citizenship application on September 24, 1999, having lived in this country for seven years.

If this citizenship law passes as is, as I understand it, notwithstanding that he has been making his plans in anticipation of the law as it currently exists, he will lose his one-year credit and will have to wait, for no apparent reason other than a change in the law, until September 24, 2000 to apply for Canadian citizenship. That to me is retroactivity. That to me is taking away from people who have relied on an existing law, and that is un-Liberal.

I'd like to know why you recommended that to a Liberal immigration minister and why you don't simply say, “Fine, we'll take away the credit, but that will begin for people who set foot in this country the day the law is passed.”

Mr. Greg Fyffe: The reason for the proposal was, as I set out in my remarks, we felt it was consistent in the progressive development towards citizenship. I fully accept the point that has been put forward that it's possible to make a different decision according to different principles, and it's clearly the committee's right if they wish to consider an alternative.

Mr. Tom Wappel: You would have no policy difficulty then, would you, with cancelling the credit, starting with those people who enter Canada from the day of royal assent of the new citizenship act?

Mr. Greg Fyffe: I understand the point. I haven't had a chance to consider it and, as you say, kick it around, but offhand I can say it's obviously a completely defensible position.

Mr. Tom Wappel: I would greatly appreciate it if you would kick it around and discuss it, because retroactivity is, generally speaking, anathema to the Liberal Party.

Mr. Andrew Telegdi: Ask them why it was made retroactive.

Mr. Tom Wappel: They have really no reason for it, as I understand it.

Can you give us a reason as to why it was made that way? Is there a reason? I'm using the word “retroactive”. The nature of it occurring in the way I've described does make it retroactive. Is there some policy reason that was brought forward in that way?

Mr. Norman Sabourin: Just to make sure we speak the same language, so as not to confuse the debate, I don't believe retroactivity is contemplated in the bill. There is, however, in clause 55, a provision that when royal assent and proclamation takes place, the new provisions kick into force, so to speak. So in that sense, I think I understand your point to mean that then somebody has been waiting for two and a half years, perhaps, and the new rules apply to that person.

Mr. Tom Wappel: Exactly.

• 1705

Mr. Norman Sabourin: An important consideration with the transitional provisions is actual implementation and operationalization of the legislation. If we want to make sure that anybody who has been planning to get citizenship is going to continue benefiting from the rules that have been in place over the years, we're going to have to maintain, for a minimum of three years, probably four years, two distinct parallel systems in place to administer those applications from people who have been landed at one point and those applications from people who have been landed at another point. It would be possible to do that, but there would certainly be some very significant cost implications.

One of the ways in which we have sought to temper this is to make sure that, number one, any applications received before the new legislation comes into force will get processed, as much as possible, before the new legislation comes into force. Number two, for any application received before the new legislation comes into force, we will make sure we give the benefit to that applicant down the road, once they are ready to come for a citizenship test and a citizenship ceremony, of updating the information on their application so that they can benefit from that period of time when the government has been processing their application.

The Chair: Thank you, Mr. Wappel.

Mr. Mahoney.

Mr. Steve Mahoney: Mr. Chairman, thank you very much.

A couple of positions were put forward by some of the presenters. I think it was the Mennonite Central Committee who expressed some concern in relationship to the oath. I was just looking for it, and I can't seem to find the actual terminology, but it has to do with defending the country as opposed to upholding the principles or the rights. I guess it was to defend the democratic principles, and their concern was the connotation of that as somewhat militaristic. It might be appropriate these days, but it's not generally a normal position for Canada. I wonder if you had a chance to think about their concern and their suggested change?

Mr. Greg Fyffe: I don't think anybody, when this was discussed, saw the word “defend” in quite that context. We saw defending democratic values as a wide variety of actions, including participation in citizenship in a general sense. The issue of it being militaristic simply never came up, in my recollection.

Mr. Steve Mahoney: Would you have any concern about changing the word to “uphold” instead of “defend”? Is there any negativity or difficulty to that?

Mr. Greg Fyffe: None strikes me, without the benefit of kicking it around.

Mr. Steve Mahoney: Well, maybe you could kick that around too.

The other issue was taking an oath to the Queen, and the option of affirmation that is available in the justice system. Was that looked at as an alternative?

Mr. Norman Sabourin: Yes. If I can speak to that point, a lot of work was done on the meaning of the word “oath”, on whether or not the word “swear” would have to be included in the text, and on the difference between “oath” and “affirmation”. The general conclusion of this work and research was that the oath of citizenship, even if it doesn't include the word “swear” in it, can be, for the person taking it, held to be in conscience an oath, if that person wants to bind his or her conscience.

Mr. Steve Mahoney: It was particularly in reference to the monarchy. People who come from countries that, in the old days of imperialistic England... They feel slavery and that kind of thing is synonymous with the British monarch. I'm not espousing that view; I'm just saying that's what they said to us. They were claiming they would have some difficulty.

In fact many of them said that when their parents and other family members had taken an oath that had any reference to the monarchy, they would mumble it or stay silent during the ceremony. You would hope that when someone is taking an oath or celebrating the day of getting what has to be considered one of the finest privileges in the world—to become a citizen of this country—they would want to say so loudly and clearly. If they can't do it because of a reference to the monarchy, would the option of an affirmation be acceptable in your view?

• 1710

Do you want to kick that around too?

Mr. Norman Sabourin: No. I believe, like you, that if somebody takes an oath and makes a promise, they should do so conscientiously and they should say all the words that are contained in that promise.

Mr. Steve Mahoney: So I take it affirmation is not an option you would necessarily recommend as an alternative?

Mr. Norman Sabourin: That's how I understood your question initially, but I realize now I misunderstood. If we change the word “promise” to something else, then we probably have to come up with alternative text—for example, “I swear” or “I affirm” or something else. But as a general comment, I can say my experience is that you put any 20 people in a room and ask them to kick around an oath of citizenship, and you are certainly going to get 20 versions.

Mr. Steve Mahoney: On the issue of the judge versus the commissioner, I wonder if we could focus a little more on the job itself and the differences that would occur. I have some concerns with it being done by mayors and councillors, and MPs even. In fact I think the point was made that members of the Bloc might have some difficulty in participating in a ceremony of that nature in their constituency. It concerns me somewhat.

On Canada Day we have a wonderful celebration in my constituency and in my city. It's held in the council chambers. It's a great day. The mayor is very high-profile. My wife is a member of the council. Why would I object? But it seems to me that, notwithstanding that this may not be happening with the current occupants of those offices, the potential for abuse by politicians using it for their own promotion is there, as opposed to it being independent and presumably at arm's length.

I know the concern about it being a partisan appointment, but I frankly and candidly admit that any government is going to appoint people who hopefully meet the standards and are competent and, you would think, friendly. It should never come as a shock to any of us that that actually happens. But I just have concerns about politicizing this thing by doing it that way.

Maybe you could focus on the differences in the job between the judge and the role they play now and what you would anticipate a commissioner or commissionaire doing.

I don't think there's a commissionaire of sanitation—not that I've seen, anyway.

Voices: Oh, oh!

The Chair: Mr. Fyffe or Mr. Sabourin.

Mr. Greg Fyffe: I'll start and then ask Mr. Sabourin to go on.

There's a fundamental shift in the involvement of the citizenship judges in actually processing files, processing applications, for some of the reasons we mentioned before, but also because these applications are now centralized in the Sydney operation, which makes it practically much more difficult, and also because they've become much more complex. Many more things have to be weighed as time goes on.

So the shift is away from actually working directly with the files to the other end, which is the citizenship ceremony itself, the education, the promotion of citizenship—really a lot more capacity to talk to people who are becoming citizens about the value of Canadian citizenship and what it involves, and by their presence, to give some weight and some union, I suppose, between the representatives of Canada, as they are, and people who are becoming Canadians. It's really a shift away from an administrative role to more of a promotional role.

I'll ask Mr. Sabourin to give you a bit more of the detail.

Mr. Norman Sabourin: Thank you.

To echo what Mr. Fyffe said, it's very true that the role of the judges today has become very administrative in nature in some respects. Judges today I think all agree that this part of their work does not need to be conducted by people in their situation, quasi-judicial people. When we consider that 95% of applications are routinely approved, you do not need an independent decision-maker to do this sort of work. So judges themselves have seen that the real value they can bring to the process is to the promotion activities and underscoring the symbolic importance of becoming a citizen.

• 1715

If I may, Mr. Chairman, it may be helpful for me to describe the policy in place regarding the participation of members of Parliament at ceremonies today. There is a policy in place that suggests that members of Parliament who attend ceremonies be reminded to keep their remarks non-partisan in nature. Number two, there is also a policy in place that whenever an election is called, no members of Parliament be invited to citizenship ceremonies to address new citizens.

So there is an issue in managing citizenship ceremonies, as Mr. Fyffe alluded to earlier. If we have only volunteers or eminent Canadians attending, it is a very difficult job to manage these volunteers and make sure they are in, day in, day out, Monday to Friday, four ceremonies a day, and to make sure the business goes on.

The Chair: Before I yield the third round to Mr. Benoit, the chair would like to pose a few questions.

One, on the residency requirement, you made an analogy, Mr. Fyffe, that students and tourists, for example, are here on a temporary stay, and that is correct, and they have a country to return to, and that is correct. But refugee claimants are here, but they have no country to return to, by definition. Once accepted, the country will have made a determination that indeed they are being persecuted, or they would not have been accepted as refugees.

Why is it that for certain groups, the years you stayed in Canada can be counted, when in fact the years you stayed could be of a variable period, as a consequence of the process itself or delay in the process? Why could there not be room for such circumstances?

Mr. Greg Fyffe: This is clearly possible if the committee wishes to pursue it.

Clearly the principle is stronger for people who have themselves adopted a temporary status. The principle behind the proposal is that it's when people become permanent residents, however they become permanent residents, that they really are focused on becoming citizens, on getting to know Canada. But you could certainly adopt a different principle that says people who've been here for a long time, particularly if they fall within a certain category, are focused or deserve to have that credit. We have followed one principle in the proposal, but others are possible.

The Chair: With respect to the language and testing for the adequacy of knowledge of Canada, when you pass paragraph (a), adequacy of knowledge of English, then you are testing for the adequacy of knowledge of Canada. The provision as proposed requires that you demonstrate this knowledge of Canada via the adequacy of your knowledge of English, because you must convey it in English. Why will the applicant be tested twice for adequacy of knowledge of English? If you have passed (a), why should you be tested again in (b) for (a)?

Mr. Norman Sabourin: I think the answer there, Mr. Chairman, is it's more for legal certainty that the text is separated into these two paragraphs. It is not intended that there be two different tests administered in sequence or two different assessments. Rather, for certainty in the text itself, we wanted to make sure it is clear that there are these two components to the same test.

The Chair: I can see the two components, because they are joined by “and”. It's not “either...or”. But if indeed one, during the ordinary conversation, is deemed to have passed adequacy of knowledge of English, the worry I have is this. When we test for knowledge of Canada using the language of Canada, then we may be confusing which we are testing. The person indeed may have a thorough or more than thorough knowledge of Canada, but if the intent is to test for both using the examination setting as the way to test that, that is another story. But why should it be?

• 1720

Mr. Norman Sabourin: Mr. Chairman, the rationale behind this is really to make sure that new citizens are able to fulfil their duties in the Canadian community, that they are able to function in their community, and that they are able to exercise their responsibilities as new citizens, including one of the most important responsibilities of citizenship: participating in the political process. The policy objective is to make sure that person can do so at a basic level in one of the official languages.

The way the process is envisaged at this stage is that the citizenship test would be administered in English or in French and would ask primarily questions about the responsibilities of citizenship and of Canada, but through those questions that would be asked at a certain level of language, we would also be able to assess the person's level of language.

The Chair: Thank you.

Mr. Benoit.

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

It's interesting that the chair is suggesting we go to clause-by-clause on this bill as early as next Wednesday when I feel we've had very few witnesses, and clearly there's a lot of concern, by government members even, on several key issues that are part of this legislation. I do think there's a need for more witnesses and also a need for more time with departmental officials.

I'm concerned that we were given less than a week's notice that we would have departmental officials here. Originally Thursday and Friday was the intent. MPs, I would suggest, mostly schedule well ahead of time, and I find myself in a conflict in terms of time, both for this week and next week; I had booked Thursday and Friday somewhere else.

I do think there's a need for a lot more discussion on this, and I would suggest to the chair that we postpone the clause-by-clause a substantial amount of time.

The Chair: Mr. Benoit, since you addressed the chair on a specific proposal, let me state that this committee as a whole made a decision that we should terminate the hearing of witnesses by April 22. It was a decision of the committee. On March 31 we put a deadline for the appearance of witnesses. That was the decision of the committee.

I'm sorry. A decision had to be made. The decision was made. The committee members must comply.

Proceed.

Mr. Leon Benoit: Even if it's completely unreasonable.

The Chair: It is not unreasonable. It is unreasonable to your frame of mind. That does not mean it is unreasonable to the majority of the committee.

Mr. Leon Benoit: I'll go back to clause 6. In the committee report from, I believe, 1994—a committee of which Mr. Bryden was a part—in the list of recommendations, recommendation 7 suggests that measures should be introduced to enable accurate monitoring of periods of time that permanent residents are absent from Canada. That's on page 12 of the report.

That concept is reasonable. Certainly people who are applying for citizenship and expect to become Canadian citizens should be willing to make a very serious commitment to our country and to citizenship. Residency, physical presence in Canada, is certainly one reasonable criterion to measure that by. But my concern again is that there really doesn't seem to be a reasonable way to administer this. Clearly there is no reasonable way to administer this.

I believe it was Mr. Fyffe who made a comment just at the end of my last round of questioning—no, it might have been Mr. Sabourin actually. He said this is only aimed at a few people where there isn't a clear indication of residency, or something to that effect. I think the suggestion is that for the majority of people who apply for citizenship, somehow it will be easy to determine that they've been in Canada all of the time. I don't know exactly how that would happen. I don't know how you would judge that easily and quickly.

So you're aiming this only at a few people. This is a concern I wrote down some time ago. I wondered, from the start really, about this particular clause requiring physical presence, because of the apparent inability to administer it, other than on the honour system, pretty well, or, if you get into particular cases, by administering it through a lot of work on the part of the department. I wondered from the start if that clause wasn't there to deal with individuals where the department had determined there may be a particular problem.

• 1725

In other words, it isn't there to deal with the vast majority of people, but it is there as a way for the department to deal with the issue, which is a problem right now, of determining whether a person really has been a resident of the country and what the requirements should be.

We've had the courts say that in fact just paying taxes in the country and some other superficial requirements like that would determine residency. I don't think the department was very happy about that. They felt there should be a little stronger commitment than that, including physical presence. Again, that's reasonable, but how...

Again, you have to wonder if that wasn't put in there to just allow the department to get at certain cases and to have the legal clout that would be required to deal with those few cases where they felt there was a problem with this individual. Is that the case?

Mr. Greg Fyffe: The intention obviously is that this be the requirement for everyone. I think what Mr. Sabourin was alluding to is that in fact the overwhelming evidence is that most people come and stay, or they leave for a very short time. The number of people who would be gone for long enough that it would be an issue, whether it was just under two years or over two years, would be a relatively small number of people. You can, from experience in dealing with citizenship cases, begin to build an image of who some of these people might be, or what some of their characteristics might be.

Mr. Leon Benoit: Using what kinds of criteria? How would you realize who you should target for careful examination?

Mr. Greg Fyffe: Well, I can give the example of some people in the entrepreneurial class who travel a lot. Clearly they can travel a lot, but there comes a point when you wonder whether they're travelling a lot from Canada or travelling a lot to Canada. That would be one example.

The department, as Mr. Sabourin said, builds up a sense over time of what kinds of people might be an issue and what kinds of indicators might be an issue, and has a number of ways of going after it in more detail.

People do leave a very detailed track in modern society, in terms of paper and electronics and so on, as to where they've been. As he said, it's very difficult for somebody to pretend they've been in the country for a long period of time when there's nobody who can attest to that, no paper trail that can be shown, and every reason to think they might have been elsewhere.

But as you point out, we have no sense that this is by any means the bulk of people we would be dealing with. It would be a relatively small group, and it would have to be a group that was not only away a lot, but apparently away more than two years out of five, which is a long time.

The Chair: Thank you, Mr. Benoit.

Mr. Mahoney has the floor, but before I allow him to start, I should say Ms. Atkinson has to leave by 5.30, but I understand the others can stay.

Mr. Greg Fyffe: We could stay for a few minutes, yes.

The Chair: Mr. Mahoney.

Mr. Steve Mahoney: Thanks.

Just to follow up on that issue, the residency requirement under the current legislation I believe is three out of four years. Is that right? So it's changing to three out of five, which would seem to make it somewhat more lenient. But I don't imagine it changes in any way the difficulties that might surround administration. How do you prove they've been here three out of four, versus three out of five? What's the difference?

Mr. Greg Fyffe: I'll leave the bulk of the answer to Mr. Sabourin, but in fact it's much easier, because now we're dealing with concrete fact rather than intention or where their residential base is, as opposed to their actual residence. Conceding that it's not always 100% easy and that there are things you have to do, when it is a firm residence requirement that you must be in Canada, rather than that where you normally live is Canada, there's a fairly—

Mr. Steve Mahoney: You have to have an address, postal code, and things like that. That would be easily traceable, if someone wanted to trace it, as to whether or not you lived there.

Mr. Greg Fyffe: But you'd have to go beyond that, because with a small group of people, there are lots of instances of multiple people at the same address and difficulty in contacting them virtually within any time period.

Mr. Steve Mahoney: But it seems to me the vast majority of people who would be applying for citizenship would live here. Do you agree?

Mr. Greg Fyffe: Yes.

• 1730

Mr. Steve Mahoney: So when one complains about the difficulties in administration, we're dealing with some kind of unstated suggestion, I suppose, that somehow we set up some kind of politburo or some damn thing to source out where these people are and follow their visa cards or something.

Mr. Greg Fyffe: No, but there are specific groups that have been problematic. Picture areas of the world where there is a lot of instability, as was the case for a long period in Hong Kong, when people weren't sure what exactly the nature of the transition would be. There was certainly more than ample evidence that at least some of the number coming from Hong Kong were more interested in a passport from Canada than actually coming to Canada as residents.

You have on one side of the dividing line someone who really wants to come to Canada who maintains business interests in whatever their country of origin was and has to be back there frequently, but is visiting that country, not visiting Canada. You have on the other side—and this is the group that is particularly problematic—someone who never really intended to take up residence in Canada, but they very much want a Canadian passport in case the worse comes to the worst.

Mr. Steve Mahoney: And you feel these changes will address that problem?

Mr. Greg Fyffe: Yes. As I said, I concede that you have to take certain measures, but when you're dealing with the actual hard fact of going after whether they were or were not in Canada over a specific period, rather than whether they had established their base of residence in Canada, one is much more easy to go after than the other.

Mr. Steve Mahoney: Let me go back to the language issue. Groups have come before the committee and expressed a concern—and I'd like your reaction to it—that, notwithstanding that people over 60 are grandparented, if you will...

Over the years, people have arrived in this country with no English or very limited English or French skills. To go back to the 1950s, our major influx was from places such as Italy and other parts of Europe, and some of them even today speak primarily their native tongue. What's your reaction to their concern that this somehow discriminates against people simply because they don't speak English or French? And could you specifically address the issue of whether or not they should be allowed to use an interpreter?

Mr. Greg Fyffe: The principle this is based on is that when people come to Canada as immigrants—and this was discussed in the context of the Legislative Review Advisory Group—we understand they may not have a very significant level of English or French, but there is a period of three years, in which there's help through LINC grants and so on, to become at least minimally proficient in a language. It's not unreasonable, as a qualification for citizenship, to have a minimal language knowledge.

The point Mr. Sabourin was addressing and could address in more detail is, how low is that bar, and is it reasonable to combine the two? We certainly went over this ourselves, and we feel that, together with the fact that the person would get a book of the basic knowledge of Canada and would have access to language in a period of time, it's a minimal language requirement, and it's not unreasonable in the context of—

Mr. Steve Mahoney: Can they answer orally instead of in writing?

Mr. Norman Sabourin: Certainly if a person needs to answer their questions orally, that's available to them.

Mr. Steve Mahoney: I asked that because I had an experience with a gentleman from Lebanon. You can communicate extremely easily with him. In fact his French is excellent, and in English, you know what he's talking about. But he's never been trained in the written language, and to answer in a written form would frighten him beyond belief. So if he could do it orally...

I suspect there are many people like that. If they could answer yes or no or whatever in an oral capacity, that might alleviate some of those concerns.

Mr. Greg Fyffe: It is definitely a minimal level of language we're talking about. We're not trying to substantially raise the bar here. It's just some knowledge of French or English.

The Chair: But may I submit to you that if what we require is a minimal knowledge of English, and knowing that the examination room for a test of knowledge of Canada is another dimension, why don't we separate the two? What I am worried about is that one may have a knowledge of Canada far more than the other, who is fluent in the language, but that person would fail, and the one who has fluency in language could also fail because of the knowledge of Canada. But that's okay.

• 1735

I would like to see that the examining rooms for knowledge of language and for knowledge of Canada be separated. As a teacher, I would like to see separate classrooms to test the two distinctly.

I would like to ask a second question. Which is more important: the minimum knowledge of language or the knowledge of the country?

Mr. Norman Sabourin: Mr. Chairman, the way the legislation is written today and the way Bill C-63 is written, both criteria are equally important. Obviously this can be the subject of debate, but that's the way the legislation reads now and is administered. So a person must meet a certain language requirement in order to be eligible for citizenship.

Our challenge and what we are working on is this. In building the tests for assessing that language level, are we able to incorporate, without raising the level, questions relating to knowledge of Canada and citizenship, so that the person who has the language can answer questions on citizenship and Canada within that language level? For example, instead of asking a person, “Could you explain the enumeration process to me?”, the question might be, “How do you vote in Canada”?

The Chair: Mr. Bryden.

Mr. John Bryden: Thank you.

I'd like to be very specific now. We had testimony before this committee from constitutional lawyers who were very concerned about paragraph 43(i). They actually used very strong language. They considered leaving it to the Governor in Council to define a spouse for the purposes of this act, in their words, an abrogation of the rule of law.

I'm not going to put you on the spot as to why it was left as a definition for the Governor in Council. I would presume this is a political decision based on the fact that it would derail this legislation to attempt to define “spouse”, because of course that properly belongs to the Canadian Human Rights Act and an amendment in that context.

It is a problem, however, and in my view, we have to respect the concerns of the legal community when they use language of that strength. So I examined it.

Are you familiar with my line of questioning? Good, so I can take some shortcuts here.

My feeling is that we could possibly avoid the problem of not defining “spouse” and leaving it to the Governor in Council if we replaced it with the word “dependant” as it relates to the clauses that paragraph 43(i) relates to. Those are the clauses that pertain to a person seeking citizenship who is involuntarily residing with a person who's a resident abroad on official business, with either the Canadian Forces or the diplomatic community. Just in case you're not sure where it is, the relevant provisions are subclause 6(2) and subclause 19(2). Subclause 6(2) is good enough, because they're identical.

I suggested in the last committee hearing that in subclause 6(2), we put, “a permanent resident residing in a dependent relationship with a person who is a citizen”, rather than the word “spouse”. What if we were to do that and change the wording in paragraph 43(i) to define who is dependent for the purposes of this act? Can we, within the parameters of this act, use that wording rather than “spouse”, without setting a precedent for “dependant” that goes way beyond into other legislation, given that the problem we're dealing with here is very narrow; it's a single type of case?

The Chair: Who would like to take the question?

Mr. Sabourin.

Mr. Norman Sabourin: Thank you, Mr. Chairman.

I'm certainly prepared to review with our legal advisers whether there is any weakness in using the word “spouse” in that provision of the legislation. It would certainly be possible, as you suggest, for the purposes of the Citizenship of Canada Act, to use a different word—for example, “dependant”—on the basis that we would define “dependant” to mean a person toward whom we aim in subclause 6(2) and subclause 19(2).

• 1740

Mr. John Bryden: Related to that, if we use the word “dependant”, does that not give the minister some humanitarian options?

We should be candid here. What we're trying to do is address homosexual relationships. But if we used the word “dependant” rather than “spouse”, would that permit people in the Canadian Forces or in the diplomatic community to put into the citizenship process dependants who are not necessarily sexually connected with them at all? They could be adopted children. It could be any other type of relationship, so long as it can be confined to this act, at the minister's discretion, provided we change paragraph 43(i) in the way I'm suggesting. Would it open that possibility as well?

Mr. Norman Sabourin: I believe it would be possible to do that. As for whether or not it would be discretionary, I don't believe it would be discretionary at all. It would have to be very explicitly defined.

I would have to say that when I think of relationships other than spousal, only a very few examples come to my mind. Children, for example, unless they're adult children, would be entitled to receive citizenship by other means, whether they are adopted or natural-born. So I don't think there would be—

A voice: How about parents?

Mr. Norman Sabourin: In principle I think your idea certainly is feasible from a technical and legal point of view.

Mr. John Bryden: Could they report on that to the committee, Mr. Chairman?

The Chair: Could you report to the committee on that?

Mr. Norman Sabourin: We'd be pleased to do that.

The Chair: Mr. Benoit.

Mr. Leon Benoit: I'd like to pursue some more clause 6 and my concern that the requirements under clause 6 could be completely unreasonable in terms of the onus that would be put on the person applying for citizenship, and that really there isn't a suitable way of administering this.

I've had some explanation from both of you, Mr. Fyffe and Mr. Sabourin, about how you might do this, but I certainly don't feel it's been explained to my satisfaction. What I would like to ask next is just how much of the onus, as you see it—because it doesn't indicate in the proposed legislation, I don't think—will be put on the applicant in terms of providing the necessary information to prove they have been physically present in the country three years out of the last five?

Mr. Norman Sabourin: I guess the best way to explain it is to say really there is no change between the current legislation and the proposed legislation with regard to the onus placed on the applicant and the way the evidence is to be presented by the applicant. The onus is always on the applicant to demonstrate that they meet the requirements of the legislation, and the onus is always on the applicant to furnish evidence to demonstrate that that is the case.

What changes significantly—and I will echo here the comments made by Mr. Fyffe earlier—is that instead of assessing something that is extremely difficult to assess and on which the Federal Court bench is unable to agree on how to assess, we're going to move from a very subjective and difficult system to an objective system of presence in Canada. That is the big change, not the evidence to be presented by the applicant or the onus on the applicant to prove he has been in Canada.

Mr. Leon Benoit: But you've said you're only going to apply this requirement in a relatively small percentage of the cases. You're saying that in most cases, somehow you'll be able to determine very quickly that the person has been a resident of Canada. So I guess I'd like to ask next for you to give a careful explanation of how you will determine that in the majority of cases, where you won't really ask people to provide information.

• 1745

Mr. Norman Sabourin: As a general answer, all applicants are required to provide evidence of their presence in Canada. That's the case today and will continue to be the case. All applicants are required to provide copies of their passports, their immigration documents, and any other supporting documentation regarding residence in Canada.

What I was suggesting about numbers is that most people—a very large proportion of people—are able to give a fairly complete picture and give lots of supporting evidence that they have been here the whole time, short of a couple of weeks here or there.

A smaller proportion of applicants are not able to provide this complete picture, and for these applicants, we will have to go back to them and say they need to provide additional evidence. Or, in the same way, the applicant will fall within a group of people for which we have an indication that they are likely to have been absent from Canada for extended periods of time.

Mr. Leon Benoit: Again, what type of evidence would the majority of people provide that would give you the ability to assess very quickly that they have been physically present in the country? You've mentioned just a couple of things, and I don't think that is enough to explain, really.

Mr. Norman Sabourin: I'd answer your question with the end of the answer, by saying that if somebody wants to commit fraud, they will find a way to commit fraud, and our job is to have a process in place that makes sure we catch those people, ideally before they commit the fraud, or that we take away their citizenship if they have committed fraud.

But this is the real exception. At the beginning of the process, in addition to passports, immigration documents, employment records, school records, and declarations by colleagues and by neighbours, not a lot more is available to document whether an applicant has been here, other than his sworn declaration or a declaration by solemn affirmation that they have been here. That, I would say, is perhaps the most important piece of information we have.

We're not trying to assess, through a lot of different means, whether they have been here, but we are trying to ensure the applicant is bound by the information he or she gives us. If any information is discovered, through quality assurance programs or otherwise through information sources, we will be able to take sanctions against that person, including the revocation of citizenship.

The Chair: Thank you.

Mr. Telegdi, you have the floor.

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

The Chair: Yes.

Mr. Leon Benoit: Our meeting was scheduled until 5.30. I move that we adjourn. I have another commitment that I just have to go to, and I'd like to be present during questioning.

The Chair: Well, that's not fair. If you wanted to move that, you should have moved it at 5.30. Mr. Telegdi has the floor.

Mr. Andrew Telegdi: Thank you, Mr. Chair.

One point I would—

The Chair: You'll just have to stay, Mr. Benoit.

Mr. Leon Benoit: Mr. Chair, on a point of order, I did mention to the clerk that I had to leave at 5.30.

The Chair: You can leave, but—

Mr. Leon Benoit: I think it's only fair that there be at least one member of the opposition here during questioning. All we have is two government members besides the chair.

The Chair: Are you telling me you can stop the work of the committee by deciding to leave?

Mr. Telegdi.

Mr. Leon Benoit: No, what I'm saying is I had a prior appointment. Maybe, Mr. Chair, you don't have anything important to do, but I have other important things to do as well.

The Chair: Thanks for your kind remarks.

Mr. Telegdi.

Mr. Andrew Telegdi: Thank you very much, Mr. Chair.

I'd like to point out to our friend that he can go and see our officials at any time, as the opposition critic, and get a briefing, be it yesterday, tomorrow, or in the future, on the particular act. It's important we keep that in mind.

I'm looking at a couple of issues. I have a lot of sympathy for Mr. Bryden's suggestion. Just as we do not want to decide on the monarchy based on the oath to the Queen, we don't want to decide on that particular question based on a small part of the proposed act. The only thing I would take exception to is that, instead of “dependence”, I would rather say “interdependence”. I discussed it with my wife. She says “interdependence” is much better than “dependence”.

Mr. Greg Fyffe: You're very correct.

• 1750

Mr. Andrew Telegdi: Mr. Bryden talks about different timeframes and different issues on this. Another issue I am concerned about is that we had a lawyer making a presentation to us last week—

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

The Chair: Yes?

Mr. Leon Benoit: I'd like to ask now, just for clarification for committee members, whether or not the posted end time for meetings will mean anything in the future. Clearly it doesn't today. Will it in the future? Is it something we can count on to any extent in our scheduling, or is it something to be ignored?

The Chair: Yes, we can count on that, but from time to time there will be flexibility. The votes were called. From time to time the chair will use some discretion to compensate for time lost because of the call of votes in the House of Commons, because of the lateness with which we start meetings, or because a quorum couldn't be established for any reason. The chair has to be given some discretion, and I think I'm using my judgment graciously, Mr. Benoit.

Mr. Telegdi.

Mr. Andrew Telegdi: Thank you very much, Mr. Chair.

Last week we heard evidence from a lawyer, I believe from Toronto, who told us of the case of his client who is a senior executive at Placer Dome. He was recruited specifically for his international knowledge, and he made the commitment to come to Canada and become Canadian. But because of the requirements, the best he'll do is be a permanent resident forever, or at least while he works for this particular corporation. I hope you review that particular issue, because he also made some suggestions. That will be in the minutes from last week.

Another issue that causes me some concern relates to revocation. It's not often that we get the Canadian Bar Association, the B'nai Brith, the Coalition of Non-Governmental Organizations, and the Organization of Professional Immigration Consultants all agreeing. So I would suggest we give special notice to their request.

Basically, under revocation, they argue that there should be a leave to appeal from Federal Court. The rationale is that there aren't that many revocation orders, but it would also allow for clearing things up when you have conflicting Federal Court rulings on an issue.

I say that as a person who was not born in this country. I belong to a group of about 5 million to 6 million people who were not born in this country. To us, our citizenship in Canada is very fundamental. I certainly would have difficulty seeing my right to citizenship being treated that lightly.

Revocation is an area that should be examined, and again I refer you to those witnesses we heard before this committee. Those are my comments.

The Chair: Do you have a comment in response?

Mr. Norman Sabourin: Yes, thank you, Mr. Chairman.

We certainly are going over all the testimony that has been given and all the comments that have been made in this committee, and we're very mindful that a lot of helpful suggestions have been made about several issues.

I have a point of clarification on why Bill C-63 does not provide for a right of appeal of decisions by the Federal Court in matters of revocation. It is because the determination of the Federal Court serves as a factual determination only of whether or not the person formed the intention to commit the fraud. Once this determination of fact is made as to the person's intent and whether or not they did something fraudulently, then kicks in the process by the minister of making a report, and by the Governor in Council of making an order of revocation.

These processes, administrative in nature, are subject to judicial review by the Federal Court, and therefore possibly to appeal in the Federal Court of Appeal, and even appeal to the Supreme Court of Canada. We've seen that happening in one revocation case in fact, on points raised by the subject regarding the order of the minister and of the Governor in Council.

• 1755

Mr. Andrew Telegdi: Another suggestion I was going to make is that B'nai Brith suggest that the decision be totally removed from the political arena and be left to the judiciary, because it would cause a different reception, if you will, for their order—to remove politics from it as much as possible.

The Chair: On that point, just before I yield the floor, one of the witnesses talked about the word “knowingly” being dropped from the provision. Is there an intent, or potentially an unintended effect, that unknowingly doing the thing could be penalized?

Mr. Norman Sabourin: By removing the word “knowingly”, the prime objective was to address the comments made by the Federal Court that to prove a case of revocation of the citizenship of an individual, the government has to meet a very high standard of intention, almost akin to the criminal standard of beyond a reasonable doubt. The intention of removing that word is to lower the standard somewhat. But it doesn't mean a person who made a mistake is suddenly going to be subject to immediate revocation of citizenship.

The Chair: So on the surface, it was not the intent that non-intentional concealment would be penalized?

Mr. Norman Sabourin: If you are thinking of a situation where a person makes an honest and genuine mistake on an application for citizenship, then my view is that it would not fall within that revocation provision as interpreted by the Federal Court.

The Chair: Thank you.

Mr. Bryden.

Mr. John Bryden: I have just a very quick point, actually on the issue of revocation.

This act was prepared before Kosovo came upon us, so it didn't make provision for something I feel maybe it could have made provision for, and that is the situation where young men who have dual citizenship attempt to serve in foreign armies that may in fact find themselves in conflict with the Canadian Forces, which as you will know is actually treason. It falls under treason, whether we're in a state of war or not.

To me, given that these young men may sometimes be under overwhelming pressure, I would like to see, if possible, that at least a study be made and a recommendation made to the minister on whether or not this act should provide for revocation in the event that somebody with dual nationality—they have to have dual nationality, because you wouldn't want to take citizenship away from somebody who's not a dual national—goes over and serves in a foreign army. If it's a case of somebody who does not have dual nationality, of course the treason properly applies.

I'm a little concerned in that case. I only suggest this for you to study and make a recommendation to the minister as you see fit. I'll leave it at that.

My final comment to Mr. Chairman is that, as a member of this committee, I appreciate the candour and expertise of the witnesses who have appeared before us today. Thank you.

The Chair: Do you have any comment in response, Mr. Sabourin?

Mr. Norman Sabourin: Thank you, Mr. Chairman.

We will certainly follow up, as you suggested, to study this. I'd like to make a point that may be helpful.

A person who is a citizen of Canada is subject to Canada's jurisdiction in certain respects, including crimes of treason and crimes against humanity. Therefore, by having a person be a citizen of Canada, they can be subject to the jurisdiction of Canada for these types of crimes. It's something to balance with the dual citizenship issue.

Mr. John Bryden: Thank you very much.

Mr. Andrew Telegdi: On that issue, I have a question. I was thinking about that before. In the Second World War, if you were a Canadian citizen and you went back to the country you originally were born in, enlisted in their armed forces, and ended up fighting Canada, since you were a Canadian citizen, you would be subject to treason. But if you had dual citizenship, what would happen?

Mr. John Bryden: That's the point.

Mr. Andrew Telegdi: What would have happened if Tokyo Rose had still been a citizen of Japan, or had been allowed to be a citizen of Japan, at the same as she was allowed to be a citizen of the U.S.?

• 1800

Mr. Norman Sabourin: Well, I can easily say what would have happened in those days, because there was a provision in the legislation that said the citizen who engaged in the armed forces of a country at war with Canada automatically lost Canadian citizenship.

Mr. John Bryden: Oh, that's interesting.

The Chair: On that note, I would like to adjourn the committee until tomorrow, when we'll meet from 3.30 to 6 o'clock.

I thank the officials. We look forward to seeing you again tomorrow.

The meeting is adjourned.