CIMM Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Citizenship and Immigration

EVIDENCE

CONTENTS

Tuesday, February 4, 2003

Á

1105

The Chair (Mr. Joe Fontana (London North Centre, Lib.))

Mr. Sarkis Assadourian (Brampton Centre, Lib.)

The Chair

Mr. Jonas Ma (President, Chinese Canadian National Council)

Á

1110

The Chair

Mrs. Lynne Yelich (Blackstrap, Canadian Alliance)

The Chair

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

The Chair

Ms. Madeleine Dalphond-Guiral

The Chair

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.)

The Chair

Ms. Madeleine Dalphond-Guiral

The Chair

Mr. Jonas Ma

Á

1115

The Chair

Mr. Lorne Waldman (Lawyer, As Individual)

Á

1120

Á

1125

Á

1130

Á

1135

The Chair

Mr. Lorne Waldman

Á

1140

The Chair

Mrs. Lynne Yelich

Mr. Lorne Waldman

Mrs. Lynne Yelich

Á

1145

Mr. Lorne Waldman

Mrs. Lynne Yelich

Mr. Jonas Ma

Mrs. Lynne Yelich

The Chair

Mr. Lorne Waldman

The Chair

Mr. Lorne Waldman

The Chair

Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot, Lib.)

Mr. Lorne Waldman

Á

1150

Mr. John Bryden

Mr. Lorne Waldman

Mr. John Bryden

Mr. Jonas Ma

Á

1155

The Chair

Ms. Madeleine Dalphond-Guiral

Mr. Lorne Waldman

Â

1200

Mr. Jonas Ma

The Chair

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

Â

1205

Mr. Lorne Waldman

Mr. Jerry Pickard

Mr. Lorne Waldman

Â

1210

Mr. Jerry Pickard

Mr. Lorne Waldman

Mr. Jonas Ma

The Chair

Ms. Libby Davies (Vancouver East, NDP)

The Chair

Ms. Libby Davies

Â

1215

Mr. Lorne Waldman

Ms. Libby Davies

Mr. Lorne Waldman

The Chair

Ms. Libby Davies

The Chair

Ms. Libby Davies

The Chair

Ms. Libby Davies

Mr. Jonas Ma

Â

1220

Ms. Libby Davies

Mr. Jonas Ma

The Chair

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.)

Â

1225

Mr. Lorne Waldman

The Chair

Mr. Jonas Ma

Mr. Lorne Waldman

Mr. Andrew Telegdi

The Chair

Mr. Sarkis Assadourian

Â

1230

The Chair

Mr. Jonas Ma

The Chair

Mr. Jonas Ma

Mr. Lorne Waldman

Mr. Sarkis Assadourian

Â

1235

Mr. Lorne Waldman

The Chair

Ms. Madeleine Dalphond-Guiral

Mr. Jonas Ma

The Chair

Mr. John Bryden

Mr. Lorne Waldman

Mr. John Bryden

Mr. Jonas Ma

Mr. John Bryden

Mr. Jonas Ma

The Chair

Â

1240

Ms. Madeleine Dalphond-Guiral

Mr. Jonas Ma

Ms. Madeleine Dalphond-Guiral

Mr. Jonas Ma

The Chair

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CANADA

Standing Committee on Citizenship and Immigration

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NUMBER 016

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Tuesday, February 4, 2003

[Recorded by Electronic Apparatus]

Á  (1105)  

[English]

    The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Good morning, colleagues. We're resuming our look at Bill C-18, an act respecting Canadian citizenship.

    You'll notice on your witness list that one is between 11 and 12 and the other's between 12 and one. I think we will incorporate both within the same hour. If we have to go slightly over 12, that's not a problem for us, but I think if we could it's probably the best use of our time.

    I believe Mr. Jonas Ma has appeared before this committee before. He looks very familiar.

    I want to thank you, Jonas--and you as well, Lorne--for your past insight, acknowledgments, and input. I believe you've been here before our committee too, Lorne. So again, thank you so much for being here before.

    What I think we'll do, Jonas--I know we have your submission before us, as well as Lorne's--is not necessarily read it, but just take the time to highlight certain parts in the next seven to ten minutes with Lorne, because I'm sure we'll have all kinds of questions for you. I'd rather use the time in asking questions and going back and forth than essentially reading the submissions.

    If we could begin, Jonas, with you.... Actually, my apologies. As I understand it, the submission by the Chinese Canadian National Council has not been translated. I know that Lorne's has been. Yours isn't, unfortunately, Jonas.

    It has been the practice of this committee essentially not to accept anything that hasn't been done. I know that different committees do different things. Perhaps you could do the verbal presentation for us and we'll hold on the tabling of this until we get it translated for you, for future reading and reference. You may want to take a little more time then to go through it in detail, because we don't have it in French, if you could, please, Jonas.

    Mr. Sarkis Assadourian (Brampton Centre, Lib.): We don't have the presentation in writing for Mr. Ma, either. I don't have it with me. Nobody gave me one.

    The Chair: Yes, we do. We'll get you one. I thought they were distributed. Okay. All right. We'll make sure we get them for you.

    Okay. Go ahead, Jonas.

[Translation]

    Mr. Jonas Ma (President, Chinese Canadian National Council): Good morning everybody.

    I am sorry that the French translation of our presentation is not available today. We just finished drafting it in English.

Á  (1110)  

[English]

    The Chair: Excuse me, I'm sorry.

    As I just indicated to the committee members, if you're asking for Jonas' submission, I'm not accepting it, so you won't have it in front of you because it's not in both official languages. So you will have to pay attention and listen very, very carefully, and not refer to the document in your questions.

    Mrs. Lynne Yelich (Blackstrap, Canadian Alliance): Mr. Chairman, could we ask for the kind consideration of the committee to allow us to have the English version as it stands, so we at least have one copy? Because most of us....

    The Chair: Well, I have no objection if in fact.... I'm quoting the rules of the House. But if Madeleine were to be graceful and kind, maybe she would allow the thing to be at least circulated for the purposes of the non-francophone members on this committee. That's okay.

    Madeleine.

[Translation]

    Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Mr. Chairman, may I first congratulate you for your position on circulating submissions which are not available in both official languages. I do appreciate your attitude and I am pleased to say it for the record.

    The Citizenship Act is an important piece of legislation, however, and I understand that having a written submission, even in English, is better than nothing at all for a French-speaking member like myself. I do appreciate however that you insisted on that point and I hope Mr. Ma will make a point to remember that in the Canadian Parliament, we have two languages and very clear rules.

    So it is really because I am deeply concerned about this legislation that I think it is important that we have the submission, but I do not want you to take this as a sign of weakness.

[English]

    The Chair: Again, thank you so much for your kindness and graciousness.

    Ms. Madeleine Dalphond-Guiral: I'm more than kind.

    The Chair: I know you are. That's why we love you so much, Madeleine.

    Thank you. Now we can distribute--

    Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): I object to not having both official languages submitted.

    The Chair: Okay. That's it. Fine, there's no consensus. We won't accept it. That's fine.

    Ms. Madeleine Dalphond-Guiral: I'm nice, but you're doing this--

    The Chair: It's okay, Jonas, not a problem. We're going to be very attentive, then. We won't be distracted by reading your submission because we'll have to listen to you.

    Mr. Jonas Ma: Thank you. I guess I'll try to be as brief and accurate to the document as I can be.

[Translation]

Once again I wish to apologize for not having the French version of the submission, but I will be pleased to answer your questions in French.

[English]

    First of all, I would like to thank the committee for inviting the Ottawa chapter of the Chinese Canadian National Council to appear before you today.

    As you are aware, the Chinese Canadian National Council was founded in 1980, and its mandate is to promote equality and the full participation of Chinese Canadians.

    We are quite pleased with some of the changes that were introduced by Bill C-18, in the sense that it mentions in clause 16 that all citizens should be guaranteed by the Charter of Rights, and also under clause 12 that there will be equality among all Canadians regardless of where they are born. So those two are very welcome changes from previous versions of the act.

    However, these two elements seem to be contradicted by other clauses in the bill, which I will highlight. Those clauses somehow contradict the Charter of Rights, as well as create a sense of two classes of citizenship.

    Many of you are aware that our community fought to obtain citizenship for many years. Even though many generations of Chinese Canadians were born here before 1947, they were denied citizenship. It was only after they participated in the Second World War that they sought citizenship and received it. It's something we treasure greatly. It was a huge battle for our previous generations to gain that.

    We also put it into the context of many experiences of other communities, such as the Japanese Canadian community, the Italian Canadian community, and the Ukraine Canadian community, who suffered some inequality during times of conflict and turmoil. They were singled out as different from other Canadians. So I would like to put it in that context when I speak of the following clauses that we have some concern about.

    Clause 18 requires citizens to be treated differently for the first five years after they have obtained citizenship. That means the minister has the right to revoke citizenship if it is deemed to have been acquired under prohibited grounds or false identity. We see some merit in that, but at the same time we feel that during the process of applying for citizenship we can properly address these issues. We can properly conduct the security check to make sure applicants are not acquiring citizenship under prohibited grounds or under false identity. That's something that can be handled within the application process, so we do not see the need for clause 18 to create probationary citizens during the first five years of citizenship. So that's one point we find quite contradictory to the concept of equality under clause 12 and clause 16.

    We also have huge difficulty with clause 17, where it talks about revoking citizenship. It states that the Federal Court can revoke citizenship without disclosure of the evidence against the person and without their presence if it is injurious to national security or to the safety of any person.

    We're quite concerned about this clause, because it means that people who acquire citizenship as first-generation Canadians will not have due process or fair hearing. That's second-class treatment of citizens who are first-generation Canadians.

    We also have a lot of difficulty with clause 14, which deals with the children of first-generation citizens who live outside the country. We know for a fact that many Canadians who have been here for generations, for example in eastern Canada, have to move to the States for jobs. If their children are born in the States, they will never lose their right of citizenship. Why would first-generation Canadians who do similar things be treated differently? We find that again creates a sense of two classes of citizens.

Á  (1115)  

    The requirement of physical residence in Canada is imposed now under clause 7. We have difficulty with that because many members of our community have to travel for work, for business, in order to support their families here. It does not take into account the changing global economy that requires people to travel in order to be globally competitive. It's not for lack of attachment or lack of a sense of belonging to Canada; it's just the economic reality.

    We see that particularly in some regions of the country where the economy is not doing as well. They may find more opportunity in Asia and may have to travel there quite frequently. So we have some concern about that particular provision. We would like the clause amended to say “accumulate at least three years of residence in Canada” without defining it to be physical residence.

    So those are my key comments. I would be very pleased to answer your questions in both official languages. Thank you.

    The Chair: Thank you very much, Jonas. Again you give us very valuable insight and information. We appreciate it very much.

    Lorne.

    Mr. Lorne Waldman (Lawyer, As Individual): I'd like to thank you for letting me appear.

    I have to admit that my desire to appear was provoked by clause 17. I wrote a brief, which covers other clauses, and perhaps I'll touch on them briefly in my comments.

    As an opening comment, I just want to say that the major concern I have about the legislation in general is what I see as a significant erosion in the rights of certain categories of citizens. We're going to create in Canada two classes of citizens: those who acquire citizenship by birth, either because they are born in Canada or they are born of Canadian parents, in which case they are immune from the revocation proceedings, and those who are naturalized. I think this is not consistent with the overall stated purpose of the new legislation, which is to promote and encourage citizenship. I think it sends out a really erroneous message.

    I think that some of the procedures included in this legislation will certainly be challenged under the charter.

    Perhaps by way of introduction I can try in one or two minutes to explain the overall context.

    I've done a lot of charter litigation in the immigration area, and the use of security certificates has been hotly disputed. The whole idea of a security certificate is one that I think is contrary to the fundamental principles of due process. One thing I want to emphasize is that the only situation in which security certificates have been upheld by the courts is in the case of non-permanent residents; in other words, people who are either visitors or refugees.

    The Federal Court in the Ahani case--the name of the case doesn't matter--upheld it. This was decided because of the Supreme Court of Canada's decision in the Chiarelli case. The Supreme Court basically said that until you're a citizen, you can be deported at the will of the government as long as you're given due process, and the context of due process will vary depending on the circumstances. The key point about the Chiarelli decision was that it distinguished between citizens and non-citizens.

    What this legislation is now trying to do is distinguish between citizens who acquire citizenship by birth, who would never be subjected to these types of processes, and citizens who acquire their citizenship as a result of naturalization, who can be subjected to these security certificate processes. I firmly believe that because the Supreme Court made the distinction between citizens and non-citizens as the foundation for their conclusion that certain procedures were acceptable under the charter as applied to non-citizens, the same argument will not be available in the case of citizens.

    To give you some understanding of why I'm so concerned and why I came, let me just say that I felt it was really important that the committee understand what it's like trying to defend someone who has been made the subject of a security certificate. As not very many of them are issued and most of them tend to gravitate to a few lawyers, I think I'm one of the few lawyers who has a considerable amount of experience in this area.

    Clause 17, the revocation provision, requires that the two ministers sign a certificate. It's then forwarded to a Federal Court judge, together with the secret information. The Federal Court judge reviews the information, and he has only one decision to make here. He decides whether or not this information should be disclosed and whether or not disclosure would be prejudicial to our national security interests, the protection of confidential sources, etc.

    Once he decides that the evidence should not be disclosed, his hands are virtually tied. All he can do is provide a summary. My experience suggests that more often than not the summaries have been prepared by CSIS officers; at least that's what we have been led to believe. The summary cannot disclose any information that would be prejudicial to national security. Of course, CSIS is the overall decision-maker as to what gets disclosed and what doesn't.

    Let me give you the example of a case I'm working on right now, protecting the anonymity of the client. The allegation is that he's a member of a terrorist organization. CSIS says that he is so-and-so, who is a member of this organization. He claims that he's not.

Á  (1120)  

    So what does the summary say? It says that CSIS has reason to believe, from confidential sources, that he is so-and-so and he is a member of the organization. That's it. All of the rest of the information provided by CSIS is about the organization. We don't know where they got the information from, what their sources are. We don't know if it's confidential informants in Canada, confidential informants outside. We don't know how reliable the informants are. We have no way of challenging the information.

    So we end up in cases like this going through a charade where we ask the client, well, can you think of anyone in Canada who might have it in for you and who might be giving information to CSIS that you are so-and-so? He says, “Well, I had a fight with this guy last month and we had a dispute over money, and because there are informants perhaps he's the informant”, and so on. “Well, do you think they might have gotten information from the security services in your country?” “Well, they could have.”

    So then what you do is you call a witness. And he says that if so-and-so is the informant--and of course we never know if he is--then they had a fight last month, so you shouldn't put any reliance on the evidence that so-and-so gave you. Then if you want to track the credibility of the CSIS evidence from the security service abroad, you bring in an expert, and he says you can't rely on confidential information because it's not...all the things.

    At the end of the day, you engage in the most unsatisfactory form of shadow-boxing that you can possibly ever imagine. At the end of the day, because of all the security certificates that have been issued so far, only two have been quashed--unfortunately, neither of them were mine, so the ones I've been involved in I've lost--you come away feeling that you don't know what the evidence is. My client claims he isn't who they say he is. How can I defend this person? Did I do everything I could?

    The whole concept of a hearing is someone accuses you. You have an opportunity of confronting that person and asking, “Where did you get that information? Are you a reliable witness? What interest do you have that might be there to discredit the person?” When you use a security certificate all of that is gone, and you're really left relying on one organization, CSIS.

    It's such an insidious process that I hope I can convince you that you should give serious second thought to endorsing it.

    The other important point to note is that there is an alternative. Up until the previous immigrant act, IRPA, a different process was available to non-citizens. That was the one that had been upheld by the Federal Court of Appeal in the Ahani case, where they used the security certificates, and in the process used in the case of permanent residents. In those cases there was a hearing before the Security Intelligence Review Committee.

    What happens in those circumstances is the committee receives the confidential information. The committee has a lawyer who is its counsel. And I've been involved in those types of hearings. You're excluded from part of the process, but there's a lawyer who is counsel to the committee whose function is to make sure that the person who's providing the evidence....

    The committee hears the witnesses. So informant A comes in. I never see informant A. I may not even get a summary of what information A says, but there's a lawyer who is counsel to the committee who has met with me and who knows my client's position, who cross-examines informant A.

    That process, in my view, strikes a satisfactory balance between protecting national security and protecting the rights of the individual. When IRPA was debated I didn't hear any explanation as to why they did away with the permanent residents. We'll challenge that. Based on the Chiarelli decision, we may well lose, but I think when you try to apply the same types of processes to citizens, it's going to be a far different story, or at least I hope it will.

    I will give you one other example of how the balance in other situations has been struck differently than it has been in the security certificates as they will now apply to citizens.

    When the anti-terrorism legislation was before the House there were provisions in there that allowed for the same type of use of confidential information, but there was a fundamental difference in those cases. The Federal Court judge received the confidential information and he had to do what's called the balancing of two competing interests. One is the interest of the person for a fair trial. The other is viewed not as a personal interest but a societal interest: the person has a right to a fair trial, and society has a right to ensure the person gets a fair trial. That's one interest, as opposed to the interest of the state in suppressing the evidence.

Á  (1125)  

    So the judge has to balance these two interests. That's how it was done in the anti-terrorism legislation. There's no balancing here. Once the information is confidential, it's suppressed.

    I can tell you, where these provisions are implemented and security certificates are filed the odds are so stacked against the individual that it's unbelievable. Try to imagine defending someone in the context of a case where you have no clue as to what the charges are. That's what security certificates are about. That's why I came here, because I think until you actually have experienced what it's like, you have no idea.

    When I talk to lawyers who have never experienced them and tell them what we go through, they're shocked. Criminal lawyers would say they could never do this in a criminal context, and of course they couldn't. They didn't even try because the Evidence Act provisions are more balanced.

    I haven't heard any reason or any rational explanation put forward by the government as to why, instead of using the clause 17 security provisions, the government doesn't use the SIRC. There are other provisions in this bill where SIRC is used for a hearing. In other words, it's interesting that in the case of a person who is going to be denied citizenship based on national security, that person gets a SIRC hearing under clause 23.

    Listen to how strange our priorities are. In the case of a person who applies for citizenship and the government wants to deny citizenship to that person based on national security, the matter is referred to the Security Intelligence Review Committee, who have the hearing that I just described. In my view, this is a fair process, a fair balance. So persons who apply for citizenship get a SIRC hearing before they're denied their citizenship. Persons who already have their citizenship from whom the government wants to revoke it don't get that. They get the security certificate, which is as far removed from due process as anything I could possibly ever imagine.

    So what I would urge the committee to consider is an amendment that would amend clause 17 to provide that the review not be done by the Federal Court judge through a certificate but be similar to the process contained in clause 23. Now, I didn't draft an amendment because it would be rather complicated to do it. But if the committee is interested I'd be more than glad to help them with it, if they want me to.

    I'm just going to make a few other brief comments on some of the other clauses, but that was the main message I came to give.

    On clause 7, eligibility for citizenship, I have just one point. I'm not going to enter into all the debate. Other people have spoken about other concerns. There's one tiny little point I don't know if anyone else has made. It has to do with persons who have been granted refugee protection in Canada.

    Many of these people don't have other citizenship, or if they have other citizenship, they can't get access to passports. So although they can apply for and sometimes obtain refugee travel documents, it's very difficult to go anywhere on a refugee travel document these days, especially in the post-9/11 era.

    This is a serious handicap. It creates all sorts of hardships for people who are trying to re-establish their lives after having been forced to flee, hardships for people who need mobility to go to the United States for jobs, etc., or to travel to visit loved ones.

    What I would propose is that the committee consider adding to subparagraph 7(1)(b)(i) a clause that just basically recognizes, in the very special case of persons who have been granted refugee protection, that the counting of the days shouldn't be the same as it is for others--in other words, half a day for every day prior to permanent residence and then one day for every day after. Why not give persons who have been granted refugee protection credit for a full day for every day after they are granted refugee protection?

    I don't see any reason why it couldn't be done. It would allow those people who need our protection, who have been granted our protection, who need the protection of citizenship, to get it more quickly. I can't see any reason why the government would oppose that amendment. It would alleviate a lot of hardship.

    As for the other points I noted, I agree with what Jonas said on clause 14. It causes me a lot of concern. But I won't repeat what he said there. I'm concerned that what might happen is people might assume they're Canadian citizens, not even be aware that they're going to lose their citizenship, and not have citizenship elsewhere.

Á  (1130)  

    I think the committee ought to at least put in a clause saying that this can only apply to persons who have their citizenship. You don't want to revoke Canadian citizenship from someone and leave the person stateless, because Canada has signed the Convention on the Reduction of Statelessness, and we're committed to not creating stateless people. So even if someone has never been to Canada, and the only passport they have is a Canadian passport, it shouldn't be revoked unless they have some other option. So I think the committee should at least consider exempting stateless people from this provision.

    Under clause 16, dealing with misrepresentation, they could lose not only their citizenship, but also their permanent resident status. I noted that the Canadian Bar Association brief commented on the inequity that a permanent resident gets a right to appeal to the Refugee Appeal Division, but a citizen doesn't. It doesn't make any sense that there should be this inequity. I hope the committee would consider alleviating this.

    I echo the concerns Jonas has about clause 18. This is another clause that really, really makes me very nervous. I actually hadn't thought of it in the way Jonas had pointed out. As a result of what Jonas said, I think there are now three categories of Canadian citizens once this law is passed: persons born here or who can have citizenship by birth; naturalized Canadians who are in Canada less than five years, and who can be subject to revocation without a hearing; and naturalized Canadians who are in Canada for more than five years, who are immune from that process, but can still be subject to the security process.

    Do we want to send out a message...? When the government said it was amending the Citizenship Act, I thought it was going to strengthen it. But what I think the government is doing is diluting the meaning of citizenship for people who obtained citizenship by naturalization. In their zeal to prevent abuse, they've created processes that go far beyond what is necessary.

    I think any procedure in clause 18 allowing for revocation without a hearing would be struck down under the charter. I can't imagine that something as important as the right to citizenship can be taken away without a hearing.

    The other thing of concern is that clause 18, as currently drafted, doesn't even take into account the possibility that someone made an innocent mistake. In other words, let's connect clause 18 and clause 28. Let's say I applied for citizenship and got it, and at the time I applied for citizenship I wasn't aware there were charges pending against me in my country. I'm a refugee who left my country, and the charges are all politically motivated. After I get my citizenship, the Government of Canada finds out there is a pending charge.

    Clause 18 doesn't even allow for the concept of mens rea. In other words, it should at least say “If the minister is satisfied that the person has not knowingly, after the coming into force of this section, acquired citizenship...”. We should at least give the person the out of showing that it was an innocent mistake, and that there was no mens rea. If you're going to take away someone's citizenship, it should at least be based upon an intent to misrepresent.

    The other thing about clause18 is that it doesn't allow for a hearing. How can we contemplate taking away something as important as a person's citizenship based upon a written submission without any due process, and without a requirement for mens rea?

    I didn't put into my brief the whole idea of including a requirement for mens rea, or for having an intent. But I think it's important that the committee consider adding in clause 18 the word “knowingly”, so that a person who makes an innocent mistake is exempted.

    Clause 21 deals with demonstrating a flagrant disregard for democratic principles. We all know why the government introduced this clause; there has been one case that has been dragging through the courts for years, which I won't mention.

Á  (1135)  

    The Chair: Go ahead and tell us why. We're still trying to figure it out.

    Mr. Lorne Waldman: I think it's in response to the Zundel case, which has been driving the government crazy for years. I was told it's in direct response to their frustration over that particular case. But that's just what I was told; I may or may not be correct on that.

    I have a whole malaise about the clause in general, but I didn't really address that. If the government believes it needs this power, I suppose I'm not going to be the one to say that it shouldn't have it. I just can't accept the fact that it should not be subject to any judicial review. I don't believe it's necessary, and I leave it in the hands of the committee to determine whether it is or isn't necessary. What you have to understand is the way it is currently drafted, after the minister makes a recommendation and the Governor in Council makes a decision, there's no appeal.

    Normally a decision like that would be subject to judicial review in the Federal Court. What you have to understand is judicial review isn't even an appeal. When you get judicial review, the court will be very deferential to the minister and the Governor in Council. I go to the Federal Court all the time--I'm going tomorrow--and anytime you get a discretionary decision like this, they're going to be very deferential, and they're only going to overturn the decision if either the process that was involved was really unfair, and we can show that, or if the decision that was made was so unreasonable that there is no evidentiary foundation for it.

    So by allowing an appeal, what you're doing is ensuring that there is some scrutiny of this very broad power that the court has to deny citizenship for five years. If the clause is going to go through, I cannot understand and I cannot think of any argument the government could make that would justify denying access to the courts, given the very broad powers the clause contains.

    The final point is the same one that Jonas made, having to do with prohibitions about citizenship. I want to point out I'm not going through everything, just the ones that are of most concern to me. Again, it goes back to what I mentioned earlier: there has to be some recognition in there that people in certain circumstances may be innocent victims of trumped-up charges that are laid, especially for political reasons.

    We can take, for example, the case of a person who fled to Canada and obtained refugee status here. I'll just give you an example of how this clause could be applied in the case of a client I have, who will obviously remain anonymous. I'll just relate the facts. He fled his country using a false passport, came to Canada and was granted refugee protection here. Under our Immigration Act, he can't be charged with an offence of using a false passport to get into Canada, but he was charged, and tried and convicted in absentia in his country and sentenced to three years.

    If you don't make an exception, a person who used a false passport to leave his country as a way of escaping and was accepted here as a refugee after the fact, if the country then decides to take reprisals against the person by prosecuting him or her, that person will be denied the right of citizenship during the whole charge process, the trial process, and until the sentence is finished. So what that does is it gives the countries of persecution a lot of power to continue to punish people after they leave by initiating prosecutions, by dragging out trials for years and years.

    I have some clients who were charged in some countries, and the trial process in some countries takes 10, 12, 15 years. So what are we going to do? And then at the end they may be innocent. Even if they're not innocent, the charges may be totally politically motivated. We know there are a lot of governments that use prosecutions as a means of persecuting people. I won't name the countries, as I don't think it's appropriate for me to do so, but we all know them. So a client comes here, he's granted refugee status based on his being a victim of a trumped-up charge in his country, and they drag the charge out for ten years and he can't become a citizen during the whole process. The act is too black and white. There has to be some contemplation of some exceptions.

    Anyway, I've spoken for more than I was allotted, but thank you for the time.

Á  (1140)  

    The Chair: Thank you, Lorne. There are some very good things there, and had you taken some more time to look at this bill, I'd be worried that obviously.... You took a cursory look and you found some pretty substantive issues that you brought to our attention. Again, thank you very much, and thank you for giving us some tangible examples that give us some sort of reference point.

    Now we'll go to questions. Lynne, then John.

    Mrs. Lynne Yelich: Yes, thank you.

    Mr. Waldman, you talked about security certificates being filed. Can you give me an example of a security certificate? You told me the process: the ministers sign it, the judge, the reviews, and the disclosure. But what are some samples of when they get filed? What is the impetus of a security certificate?

    Mr. Lorne Waldman: Why do they file them?

    Mrs. Lynne Yelich: Yes, what are the circumstances that cause an individual to have a certificate filed?

Á  (1145)  

    Mr. Lorne Waldman: It's hard for me to answer that question--sorry, I have a bit of a cold--totally because I represent the clients once the certificates are filed. So I don't really understand why in some cases they choose to file them and in some cases they don't. They're generally filed in cases involving persons who are alleged to be members of terrorist groups, or alleged to have committed war crimes or crimes against humanity, or members of organized crime, things like that. So they're filed in the cases involving the most serious grounds for deportation of individuals.

    Generally speaking, I think the reason why the government feels they need the power is because they've received evidence in confidence from different sources and they have to protect the confidentiality of those sources. So the security certificates were introduced in one of the major changes to the last legislation, I think in 1989, and it was thought to be a balance between protecting the national security interest and protecting the individual. At the time, the government distinguished between non-permanent residents and permanent residents. They only used the security certificates for non-permanent residents. Last year, when the IRPA was passed, the certificates were introduced for permanent residents as well. Now we're seeing it extended to citizens.

    Mrs. Lynne Yelich: Yes, and I have a question for Mr. Ma.

    You talked about clause 7 and residency. What are the improvements you would like to see there? We have three out of five years. Would you like to see three out of six years, or what in particular?

    Mr. Jonas Ma: Yes, in the written brief that our national office has coordinated in putting together, we'd like to see an increase from four to six years to meet the requirement. Again, as I mentioned, in regard to the way it's interpreted right now in terms of the requirement for residence, we would like that wording or that interpretation to be maintained to allow some flexibility.

    Mrs. Lynne Yelich: Thank you.

    The Chair: How many security certificates that you know of have been issued since 1989, in total?

    Mr. Lorne Waldman: Fewer than a hundred, I would guess.

    The Chair: That's a hundred in thirteen years?

    Mr. Lorne Waldman: I think we usually see--and I can't say for certain--four, five, six a year, but I think it's been on the rise in the last year or two.

    The Chair: John.

    Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot, Lib.): Thank you, Mr. Chair.

    You raise an important principle with respect to clause 21. Let me ask you, do you believe, for the purposes of clause 21--which is the minister has the option of refusing citizenship based on a flagrant disregard of democratic principles--a sovereign country should have to prove that someone is in flagrant disregard of democratic principles in order to deny them citizenship, or is reasonable doubt sufficient? You would appear to suggest that the minister needs to prove it.

    Mr. Lorne Waldman: No. Let me make it clear. You're asking a question in international law. It's quite clear that under international law any sovereign state has the right to determine the criteria for granting citizenship to persons and can do so as long as it doesn't do so in a manner that's discriminatory. So if you're asking me whether under international law this provision is acceptable, I have no doubt that it is. Canada has the right to say we're not going to give citizenship to people who demonstrated a flagrant disregard.

    You raised an issue that I didn't discuss, which was what would be the standard, because it says here “reasonable grounds”. “Reasonable grounds” is a very low standard. That's in clause 21. So the question is are reasonable grounds a good standard, or should it just be that the minister is satisfied? If you took out “reasonable grounds”, you would be left with a standard that is known as the balance of probabilities, which is more than fifty-fifty. I didn't address that. My preference would be to take out “reasonable grounds”.

    What I was addressing was really the last clause.

Á  (1150)  

    Mr. John Bryden: I think I understood what you were addressing, but perhaps I may elaborate on the point I was making.

    If you feel that a government or a country has to prove reasonable grounds, I presume that's the reason you call for some sort of judicial review under clause 21. You do not want to ascribe to the government, the minister, the opportunity to, based on a doubt, refuse citizenship without going through some sort of judicial process.

    Mr. Lorne Waldman: It's a slightly different emphasis. I believe that the sovereign state has a right to deny anyone citizenship and it can set non-discriminatory criteria for doing that. I don't feel terribly comfortable with the wording, but the criteria, “demonstrated a flagrant and serious disregard for the principles and values underlying a free and democratic society”, are criteria that are non-discriminatory and acceptable.

    When the government decides that it's going to deny non-citizens, persons who are permanent residents, a right in our society...persons are entitled to a fair process. Even in the Chiarelli case the government accepted that.

    So what I'm focusing on is what is a fair process? It's not the right of the state to deny it, it's how the state does it. I'm suggesting to you that when the state decides that it's not going to grant citizenship to a person, it has to do it in a fair process. Part of the fair process is not a question of justifying to a judge. That's not what judicial review is about. Judicial review is about giving the courts the power to look at the decision. It's about giving the minister a very high degree of deference--because the courts have given a lot of deference--but only to look at the case from two points of view. Was this person given a fair process? And was the decision patently unreasonable, was it so unreasonable that it can't be allowed to stand? And that's it.

    Judicial review is a fundamental principle of a democratic system, because given the balance of powers, courts necessarily must be able to scrutinize the power of the executive. If you want to talk about the battle of the history of our jurisprudence and the history of administrative law for the last 120 years, it has been the battle between the executive and the courts.

    Mr. John Bryden: If I may say so, it's always in the context of citizens.

    I actually have quite a lot of difficulty with your position, because always the state has to balance national security interests against the need, certainly, to acquire new citizens.

    Perhaps you're deriving this from the Supreme Court ruling, the Singh decision, as I recall, which would accord due process to all people who are on Canadian territory. I think it raises a very important point, because the Singh decision, when applied to citizenship, creates a contradiction, that contradiction being the right of a sovereign nation to decide whether or not a person should be a citizen based on simple doubt.

    Let me go on to Mr. Ma for a second. In criticizing clause 18, particularly the fact that people could be challenged after five years as a citizen, you said that at the time of acquiring citizenship surely all the necessary security checks could have been done.

    Surely that's not reasonable, Mr. Ma, to think that our intelligence people are so perfect and our immigration people are so perfect that some false documentation might have been put over them at the time citizenship was acquired, if the window of opportunity is only three years in order to verify that this person hasn't come under false pretences.

    Mr. Jonas Ma: First I'd like to speak on clause 21, and then I will address your question on clause 18.

    We have taken a position in our written documents, which I didn't go into in detail. I totally agree with you that as a sovereign state we have the right to define who we would like to accept as citizens, that we would deny people who demonstrate a flagrant and serious disregard for the principles and values of a free and democratic society. But these are very vague definitions, and we give cabinet the power to define them.

    We felt this could be subject to abuse. We would like to see it changed to be defined under clause 28. What are flagrant and serious disregard for the principles of a free and democratic society? We recommend that be included in clause 28, so it would be clearly defined.

    Regarding clause 18 and the idea that we may not be able to have all the security checked in that process, as Mr. Waldman mentioned, there is a security certificate, and they have to go through a process of application and security checks. If there is any doubt, they have to ask for due process.

    The idea that people have to wait for five years before being assured that they don't have a second-class status I think is really difficult. I think in cases where we have doubt about an application process, we could give more time to complete the process.

    As Mr. Waldman mentioned, a security certificate is not...there wasn't a huge number before, in recent years. So if there are serious problems about security issues, they can be dealt with. There are fewer than ten cases. Why would we put the whole 200,000 applications for permanent residence on what we call “probational citizenship” for the maybe ten cases that may pose a security threat to the country?

    I really doubt that it would be useful to have to put everyone on hold because there are some cases where there may be a security reason.

Á  (1155)  

    The Chair: Madeleine, and then Jerry.

[Translation]

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

    Let me first thank you both for being with us. The Citizenship Act is an important legislation which needs to be updated for the third millenium. It is not perfect, but our witnesses will help us become more familiar with various issues.

    I have to say that in reading this bill, several of us were quite concerned by the fact that the bill does not allow for appeals everytime public security is involved, especially when citizenship is revoked. This clearly flies in the face of due process by the Canadian State, and we do intend to fight that provision.

    We might not win that battle; you know as well as I do that since September 11, a number of our democratic values that used to be written in capital letters are now written in very small characters.

    Based on your professional experience, do you believe that, if we do not win this battle, some sections of this legislation could be found unconstitutional? This is my first question.

[English]

    Mr. Lorne Waldman: I can tell you, it's difficult to predict in the post-September 11 era what will be the degree of tolerance of our courts, the Federal Court, ultimately the Supreme Court, and how deferential they will be on issues of national security.

    In my view, clause 17 is suspect. I try to explain that I think the whole foundation for the security certificate has always been the decision of the Supreme Court in Chiarelli, which made a distinction between citizens and non-citizens. What the government is now doing is making a distinction between citizens by birth and naturalized citizens. There's nothing I see in Chiarelli that would allow for that.

    I believe that if the process of a security certificate were subjected or used in a criminal court, it would be struck down. That's why the government didn't go that far in the anti-terrorism bill, and they provided for this balancing of the right to a fair hearing with the right to protect national security. So I think there are very strong charter arguments against clause 17 for that precise reason.

    As to what the courts will ultimately do, I can assure you that if I am involved in such a case, I will raise all those arguments very aggressively. I think it's a very strong position. I don't feel the same way, for example, with respect to applying security certificates to permanent residents. That hasn't been approved by the courts, but I think there's a fair likelihood that the courts would accept that. But when you try to take that process and apply it to citizens, given how fundamentally unfair it is, I think there's a good chance the courts will strike it down.

    I feel the same way about clause 18. The total absence of any right to a hearing and in clause 18 as it now stands the absence of any mens rea are serious flaws. I don't think the courts would sanction the removal of the right to citizenship, once you have acquired citizenship, without at least there being mens rea, an intent to misrepresent, and also without there being some due process where those issues can be addressed.

  (1200)  

[Translation]

    Mr. Jonas Ma: Let me first give you the historical background. I mentioned earlier the past experiences of various cultural communities who had their citizenship rights revoked during the war. Those kinds of situations have an impact on the entire population of the country. Besides, we know that there are organizations whose purpose is to seek redress for the hardships or the unfair treatments suffered by those communities.

    For the moment, it 's not only a matter of raising the problem; the second and third generations are also feeling the consequences of these events, and the government could eventually be subjected to compensation requests for damages or unfair treatments in these communities.

[English]

    The Chair: Jerry.

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

    I want to thank both witnesses for coming forward and raising the issues.

    Mr. Waldman, some of the issues you raised and examples you placed forward were excellent; however, I guess I would view things.... In trying to strike that balance there has to be a means by which the executive of this country can bring forth security and at the same time be legitimate in making sure the rights of individuals are protected. This is the tough kind of decision this committee has to make.

    When someone applies for citizenship, I guess there is a certain element of accepting the fact that the person is innocent, not guilty, unless there's evidence clearly showing a problem. That is the traditional Canadian way.

    I see in the Citizenship Act, where a person is granted citizenship, a problem that has been raised--and I don't think it's a great problem across the country--with people who have misrepresented a lot of things. There is no way the department or the government can act upon it in a reasonably easy way. This legislation was supposed to take that minor caveat and deal with it.

    I don't believe it does create a difference in the level of citizen outside the fact that if you achieve something through false reasons, false premise, the government or the country has a right to challenge it and change it, if the falsification is clear.

    I thought the process you put forward with regard to the Security Intelligence Review Committee was an excellent one, which could overcome some of the problems of getting around the court issue on security. But still I'm coming back to clause 18 and looking at an individual who has come in.

    You did point out a very valid, logical argument in regard to one of your clients; that is, a state that is persecuting people can continue that persecution if we don't protect the rights of people in Canada. At the same time, there should be some measured reason or logic within the legislation to apply in cases like that. I would guess that's really our goal.

    To say that someone who has violated the principles of good government in this country did it, I would assume--and that may be a difficult word to use--for personal gain, even though at the time the person may have seen it as the only way he or she could become a Canadian citizen.... That's different from a refugee status. We're not sending them back into a life-threatening situation; we're granting citizenship. That's a very valid thing. For someone who gets it inappropriately, I do believe someone should be able to act, if it was done to all elements in the wrong way.

    Maybe both of you could provide this committee with an alternative for dealing with somebody who we know has violated all of the principles, received citizenship unduly, and we now find all of this information out. How can we deal with it then?

  (1205)  

    Mr. Lorne Waldman: You have some very valid points. I'll take up two of them.

    With respect to clause 17, I hope the committee will seriously consider the option of SIRC, because, as I said, having dealt with both processes.... The SIRC process is frustrating too. You're sitting in the hearing room and all of a sudden they say “Mr. Waldman, you have to go out”. They hear all of this evidence and you don't know what it is. But at least you have the feeling that someone is in there who is an impartial person challenging the evidence that comes from the informants, so at the end of the day you get a sense of due process. Even though I may end up not knowing a lot more than I would know on the security certificate, I feel a lot more comfortable about that process.

    Mr. Jerry Pickard: Yes, but the other aspect....

    Mr. Lorne Waldman: With respect to clause 18, I'll be totally honest: I know why this was put in. The reason it was put in is because people, up until now, have been taking advantage--and I think some of my colleagues are going to hate me for saying this, but I'm going to speak the truth, because you've raised this.

    And I still owe you something, Mr. Bryden. There's a little point I want to make about something you said. I hope I'll have a chance to do that at the end.

    People have been taking advantage of the fact that it's very difficult to get rid of citizenship under the current act. There are lots of times when I'm involved in a case, and it will come up that the person misrepresented something and as a result got their citizenship. But the reality is, the department doesn't act. I've often wondered why it doesn't act. The only answer that has been given to me is that it's too much trouble. I understand that.

    With clause 18, I have two difficulties. As to the first one, independent of how you decide on the process, at least consider putting in the idea of an intent. Adding the word “knowingly” gives a lot of protection to people, because it means the innocent person, the guy who came over and didn't know the charges were pending in his country and only found out about it after he got his citizenship, can't have his citizenship taken away if he can satisfy someone that it was an honest mistake.

    The way the clause is worded now, it's not clear that the government has to show there was an intent to misrepresent. That's extremely important. If you don't do anything else, if you add that one word, you've done a lot.

  (1210)  

    Mr. Jerry Pickard: From an administrative point of view, I know that would give you, as a lawyer, a great crutch. They have to prove this person did that on purpose.

    Is that really what the issue is between individual rights and not?

    Saving the millions of dollars in costs of trials may not be the best motivation, but I have a feeling that is a part of it, too.

    Mr. Lorne Waldman: There's no question that this is behind clause 18.

    Mr. Jerry Pickard: That's right.

    Mr. Lorne Waldman: There could be ways of drafting this section that would allow the person to escape liability if he could satisfy the minister that it was not done intentionally. So you could draft this section in a way where the burden would be on the person to show that it wasn't intentional. It's not a difficult thing to do.

    In other words, the person shall have his citizenship revoked unless he can show the minister that it was not done knowingly. That would be the first thing.

    The second point with respect to clause 18 is really the hearing process. You asked me, is there some alternative to this very expensive Federal Court process, which is hopeless?

    There are two reasons why the Federal Court doesn't work: One is, it's very expensive when you already have all these judges and due process; and two, the Federal Court is hopelessly backlogged, so revocation cases don't get put at the top of the pile, and they take a long time.

    There might be the possibility of being a bit creative here and referring the matter to other tribunals that already exist under IRPA. Why not say the minister can refer this to a hearing before a member of a certain division of the Immigration and Refugee Board? There, you would have a relatively lost-cost, relatively expeditious process that would provide for more due process than this written submission but wouldn't involve the extreme expense of the Federal Court process, which is extremely costly.

    So there are other alternatives and other ways. There is nothing wrong with using the immigration division in this legislation.

    Sorry, Jonas.

    Mr. Jonas Ma: I just want to add to the questions of administration and implementation issues that are more complicated.

    I'm not as informed about the legal process as Mr. Waldman, and I think there should be creative ways that we can do this more efficiently and with due process.

    What we object to in clause 18 is that it creates such open-ended power for the Department of Citizenship and Immigration to make that decision. That's what we worry about, and we would like to see if a creative way can be found to do that without imposing on the system.

    What we don't want to see is the elimination of these fundamental rights for the sake of administrative efficiency. That's all we're trying to say.

    The Chair: Thank you both.

    Now we will go to our newest member of the committee. She will be a standing member.

    Welcome, Libby.

    Ms. Libby Davies (Vancouver East, NDP): Thank you very much, Mr. Chairman. I'll just take a moment to say that my predecessor, Judy Wasylycia-Leis, is no longer our citizenship and immigration critic. She has new duties, which you'll hear about later, in finance.

    The Chair: You start here and you could end up God knows where--or back here in purgatory, like John.

    Ms. Libby Davies: I've heard that, but it's a good fit for me, because the riding I represent, Vancouver East, has a lot of immigration issues, and I've been dealing with stuff locally anyway. It's good to be here, and I'll be jumping into this bill, where Judy has been before.

    The question I wanted to put forward is that it seems to me in this post-September 11 environment, where legislation is coming forward on the citizenship level, in terms of the anti-terrorism legislation, there has to be a very deep concern about whether we are losing certain democratic rights. We do have to look at this legislation in that larger context, and if we're in an environment where the government is under pressure to become much more restrictive in what it's doing, it seems to me the test should be even stronger in terms of whether there is a proper balance between protection of security issues and the loss of individual rights.

    The question I had was on looking at this bill in the context of other legislation. I don't know, Mr. Waldman, if you are familiar with this. You mentioned some of the other legislation. Are you of the opinion that there are adequate protections, in terms of security issues as they relate to citizenship, in those other bills? I know there has been a lot of concern about the other bills too, which have now been approved. Are they adequate to address those concerns that we're now seeing again reinforced in this particular bill?

  (1215)  

    Mr. Lorne Waldman: In my opening remarks I tried to highlight what I think is a fundamental distinction that the courts have recognized between non-citizens and citizens. The use of security certificates for permanent residents, which IRPA introduced, will probably be challenged under the charter. I'm not that confident it will be successful, especially in the post-9/11 environment.

    The legislation has introduced a whole series of other security provisions, and some of those will be challenged. I would expect that the court will give a lot of deference to the state when it deals with national security insofar as it deals with non-citizens, but the issue today really is citizens. The irony is that the act gives greater procedural protection, in some ways, to people who apply for citizenship, in terms of a SIRC hearing under clause 21, than it does to persons who are naturalized and who the government wants to revoke under clauses 17 or 18. These are strange distinctions that may not be sustainable in the long term.

    Ms. Libby Davies: If I could just follow that up, have we had any other examples of that happening, in terms of a provision whereby naturalized citizens have had something revoked, or is this actually the first time this has come forward? You're obviously involved in this field.

    Mr. Lorne Waldman: No, the revocation provisions exist in the current legislation. They're more restrictive. There are no security provisions in the national security certificates. There's no equivalent to clause 18. The only revocation provision in the current legislation requires a hearing before a Federal Court judge, so it is used very infrequently because of that process.

    The Chair: That's a very good question. I know that to be brought up to speed--

    Ms. Libby Davies: Between now and Thursday?

    The Chair: Some of the briefing material, as well as the chart that was created by us, or Ben in the department, talks about these very issues: what does the existing legislation say with regard to revocation, what's proposed, and so on. That kind of stuff will be very helpful.

    Ms. Libby Davies: Do I have more time?

    The Chair: I'll give you time for another supplementary question if you like.

    Ms. Libby Davies: I have a question for Mr. Ma. This issue of children leaving the country has been a long-standing one. I've dealt with that locally. Do you have any kind of proposal around that?

    Mr. Jonas Ma: We would like to see it eliminated.

  (1220)  

    Ms. Libby Davies: You'd just like to see it gone.

    Mr. Jonas Ma: Let's say that people are going to be happily settled in another country. For those who were born of naturalized parents, they can apply to revoke their citizenship. There is provision so that they don't have to maintain that forever. We can open up that process to them where they don't want to be a citizen, or we can ask them, would you like to continue or would you like to revoke your citizenship? The burden is on us to request the children of naturalized citizens to indicate their intention.

    The way it's presented right now, it will be automatically be revoked if you don't make an application. As many people have pointed out, people may not remember. They may not have known that. They may have just taken it for granted. They may have thought, I have a friend whose parents are Canadians and they've lived in this country, because this is a prosperous region, and they always kept their citizenship. I didn't know that I am treated differently.

    First of all, we'd like to see it eliminated. Alternatively, we at least have to make it very clear to these individuals that this is going to happen if they don't apply within a certain period. Also, for certain circumstances we may be able to extend that period. If they are ill in hospital and cannot physically make that application, are we going to deny them that equality?

    The Chair: Thank you.

    Next is Andrew, then Sarkis.

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

    Looking at the number of people who are looking at it and the price we are paying in terms of creating three classes of citizens, I think we're really going down the wrong path.

    Jonas, I think you probably captured it better than anyone else when you said do not eliminate fundamental rights for administrative efficiency. We have criminals, murderers like Olson, Bernardo, the pig farmer, Picton, who have fundamental rights beyond a reasonable doubt all the way to the Supreme Court, and we don't begrudge that. We say it exists because it's guaranteed by the charter. I don't begrudge those rights to those very worst murderers, because as much as we have them, we also have people like Guy Paul Morin, Donald Marshall, David Milgard, and Stephen Truscott.

    Under the criminal justice system, which respects the charter, we have hundreds and thousands of people going through it each and every day. Under the Citizenship of Canada Act, we're dealing with very few people, and the price we're paying by putting these draconian measures in is to create different classes of citizenships and to put citizenship rights outside the protection of the charter. And I think that is fundamentally flawed. If we do not change that, we're going to have a great deal of problems. The very least we should do, if we're going to keep on with this kind of a bill, is to look to clause 12. It says:

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

    If we're going to pass this bill, then we're going to have to amend that one, and we have to point out that we have three classes of citizens.

    Surely to God, given the history we have in this country of the mistreatment of newcomers to Canada and then we go abroad and we actively try to recruit the best and the brightest, let us not create legislation that provides an omnibus bill for the department to be able to come back at some point in time and revoke citizenship.

    There was an interesting case in my community, Mr. Waldman and Mr. Ma, and it related to a Romanian landed immigrant. She won the lottery. Two people from the same community were convicted of trying to extort money from her, and the way they were going to extort the money was by going to the Department of Citizenship and Immigration and saying to them that this woman lied when she came into the country.

    Having lived in places where people can get denounced and they can actually disappear because they're denounced, where the fundamental principles of justice do not apply, where there is no charter, that's not the kind of society I want.

    Would you not agree that something as basic as citizenship rights should be governed by the charter's legal section, section 7?

  (1225)  

    Mr. Lorne Waldman: I think it will be. The question the court will have to decide is whether or not this piece of legislation is consistent with section 7. I've tried to suggest that I believe there are very strong arguments to challenge at least clause 17 and clause 18. They are the two that I think have the biggest problems. So unless the government puts the notwithstanding clause in, which they're not doing, this bill will be subject to the charter, and obviously someone in the Department of Justice has already told the government, because they're supposed to, that this bill complies with the charter. Now, that's the opinion of--

    The Chair: That's standard. I don't believe it, but that's why you get paid the money you do.

    Mr. Jonas Ma: I would also add, Mr. Chairman, that I don't think clause 14, which affects the children of naturalized citizens, stands on firm ground.

    Mr. Lorne Waldman: I also think there is a section 15 issue here.

    Mr. Andrew Telegdi: There is under the equality section, yes.

    The other question I have is, if we pass this legislation, given the fundamental importance of citizenship, maybe we, as a committee, should consider making a reference to the courts on the charter.

    I say this because it is not easy to make a charter challenge. It's very difficult. It's very onerous. Few people ever have the resources to do it. And it really takes a great deal of time if an individual tries to get remedy, whereas, as the government, we can make the reference to the courts and it's much more expedient. We can get those questions settled.

    I think we have to underline that we really believe in citizenship and we're not going to repeat what we have done in the past and we're not going to embark on new excursions.

    The Chair: Sarkis.

    Mr. Sarkis Assadourian: Thank you very much.

    Yes, immigration of course is a very, very emotional issue for many, many Canadians. Both of you made very good presentations that have left me with some questions.

    First, Mr. Ma, you mentioned two classes of citizenship, the children of first generation, or second and third generation. Would you take a minute to clarify that?

    My question for you, Mr. Waldman, is about when I applied to be a citizen as an immigrant in 1970. At the time the form was one page. One side of the page was English and the other side of the page was French. So it was a very straightforward application: name, address, where do you live, where you are going, whatever, sign and testify that everything said above is correct information.

    Now, things have changed in the last 33 years. The application is four or five pages--I haven't seen one recently. My question is, do you think we have enough of a warning on the application to say to that person, “When you come to Canada and make a false statement, you may lose your citizenship?” Or do we just say there, “Information above is correct and accurate”? That's my second question.

    The third point you made was that in some countries they will come up with “charges pending for ten years”. But the charges pending are not legal grounds anywhere. It's not charges, charges pending. It could be charges pending for the next hundred years. Would that be a ground to disallow someone citizenship? That's my other point.

    And I know, everybody knows, it's not a big secret, that many embassies around the world are overworked, overloaded. They have 25, 30, 40 applications in Hong Kong, New Delhi, Damascus, maybe, whatever. Funding is an issue. In order for us to do the job right, before these people come from overseas to Canada, we have to do the job right over there. If we do the job right, we save money here, and we save lots of headaches too.

    Would you suggest ways we could do our job better overseas before they come over here with charges pending or security clearance, whatever the case may be?

    Thank you.

  (1230)  

    The Chair: You should know, Sarkis, that the committee has a copy of the test that one now has to pass. It might be an interesting exercise to pass it around and see how we all do one day in order to be citizens.

    Go ahead.

    Mr. Jonas Ma: I guess we have spoken strongly enough already, at least in my view, on the idea that this will create several classes of citizens. I thought two classes, but Mr. Waldman proposed three classes. Once again, I repeat that clauses 17, 18, and 14 are the ones we are very concerned about. Those are the clauses. Also, there are other issues with clauses 21 and 28.

    I agree with you that there is an inequitable allocation of resources in our overseas offices of immigration and citizenship. I know that, for example, if someone makes an application in Beijing, the length of the waiting period is six years to get that process through, whereas if someone makes an application in Europe it will take six months, because there are adequate resources in Europe to deal with the--

    The Chair: Well, not exactly. We were there. It takes two years, two and a half years. It's a little bit better, but not much.

    Mr. Jonas Ma: We definitely have to address that issue of administrative sufficiency, the sufficient allocation of resources in overseas offices. Perhaps, as you said, if these things are addressed with adequate resources overseas, we won't have to deal with it afterwards.

    Mr. Lorne Waldman: You asked me two questions. The first question is about the warning. My recollection from recently looking at a citizenship application makes it clear that there is a warning and people are advised. The issue I'm concerned about is what is the process whereby the government determines whether or not a person misrepresented?

    I think, first of all, there has to be an intent. It's possible that the courts may well read into the section an intent and say if there's evidence the person didn't intend to, they can't revoke the citizenship. But I think it would be a lot better if the committee were to include that word in the section, as I suggested.

    So the issue is finding the proper balance between administrative efficiency so that the people who abuse the system can be dealt with appropriately, but making sure that there's proper due process. I think there are ways of striking a balance that don't go as far as....

    Obviously, the bureaucrats, who are the ones who crafted this, love to have acts that are really easy to administer. There's absolutely no question that clause 18 is really easy to administer. They send you a notice, you get 30 days, and that's it--no hearing, no nothing.

    I guess my question is, is that really an acceptable balance? I would suggest, and I hadn't thought about it until you posed the question, but the more I think about it.... The immigration division or the appeal division of the Immigration and Refugee Board are two tribunals that already exist, so you don't have to reinvent the wheel, and they routinely deal with exactly the same issues that are being dealt with here. In other words, they deal with misrepresentations.

    I don't see why it would be difficult to refer those cases that are covered by clause 18 to the immigration division or one of the divisions of the Immigration and Refugee Board. You get a simpler bureaucratic process that isn't as costly as the Federal Court process, but you have a little bit more due process.

    On the last point I was asked about, paragraph 28(c) says “the person is charged with, on trial for, or subject to or a party to an appeal...relating to an offence outside Canada...”. So once the government charges you in country A with an offence, you can't get your citizenship until country A deals with the charges. There's no exception for refugees that says wait a second; these are political.

    You can have a situation where the refugee comes in, he's accepted, based upon these charges, because they're phony, trumped-up charges, and you get a decision from the refugee board saying these are phony, trumped-up charges that are politically motivated because this person is a political dissident in his country. Yet when he applies for citizenship and the charges are still sitting there, outstanding, he can't get it, because there's nothing in this section that allows the government to make an exception.

    Mr. Sarkis Assadourian: “Charges” are different from “pending charges”. Use the phrase “pending charges”, as already down here.

  (1235)  

    Mr. Lorne Waldman: Well, it says “the person is charged”. So once the person is charged, under paragraph 28(c) he's prohibited.

    The Chair: Sarkis, all charges are pending until such time as they're disposed of.

    How are we going to do it? Madeleine, quickly, one question, and then John.

[Translation]

    Ms. Madeleine Dalphond-Guiral: Mr. Ma, in your presentation, you mentioned Section 18 of course, and you said that you had great difficulty with the probation period. When my husband became a Canadian citizen, a long time ago, the waiting period to apply for citizenship was five years, and it has been reduced from five years to three years. I think it is somewhat excessive to provide for another probationary period of five years after citizenship has been granted. Would you be willing to say that it is somehow relevant, besides the fact that we are in effect creating citizens of different [Editor's Note: Inaudible], if the probationary period was the same as the waiting period before applying for citizenship, let us say three years?

    Mr. Jonas Ma: I believe it is not a matter of duration, but rather a matter of process. Are all Canadians entitled to the same process? It does not matter if it is five years or three years. I believe that once citizenship has been granted, all Canadians should be treated equally, regardless of their origins. It is a matter of principle.

    The process might require a little more time in cases where the answers are not clear. It might take six months to a year to check out all the evidence if the process is fairly efficient. As Mr. Waldman said, it could also take ten years or a hundred years. I believe it is a matter of equality. All Canadians should be dealt with in an identical fashion.

    The Chair: Thank you.

    John.

[English]

    Mr. John Bryden: In clause 21, where it says “the principles and values underlying a free and democratic society”, it appears to be a rather broad term to define the minister's power. As a lawyer, don't you think that citing the charter in that context rather than using such big terms would make that clause tighter? In other words, you would say “flagrant and serious disregard for the principles and values of Canada's Charter of Rights and Freedoms”. Wouldn't that be better?

    Mr. Lorne Waldman: That's certainly an alternative. It's more clearly defined, given that the courts have had a good many years now to try to define the values that underline our Charter of Rights. The current wording is far broader than that. Obviously if we were to restrict it to the charter that would restrict it and we would feel more comfortable with it. Certainly that's one thing the committee could consider.

    Mr. John Bryden: There is this question of two-tier citizenship, where you're not a full citizen because you still have to wait five years before section 18 no longer applies. Could we get around that problem by simply creating probationary citizenship, where after three years you'd become a probationary citizen, and after an additional five years you'd finally become a full citizen? Would that satisfy your concern about two-tier citizenship?

    Mr. Jonas Ma: That's exactly why I say it is a concern. By creating probationary citizens we contribute to the whole concept that there are different classes of citizens.

    Mr. John Bryden: But we could write it into law. Would you feel better if it were actually defined in law that there were two categories? There would be an initial category of probationary citizen. Then it would be legally tidier. Would you like that?

    Mr. Jonas Ma: I think I made my point quite clear earlier that our council does not feel this is necessary. The probationary period should be eliminated. Once you're granted citizenship you are a full citizen. As Mr. Waldman mentioned, if there is any false information or any reason to reconsider someone's citizenship, there are procedures for looking at that.

    Right now it's not publicly dealt with very seriously. If this is a concern in terms of national security, we may want to look at more creative ways of addressing those issues. We shouldn't be putting 99.9% of the people on probation when only 0.01% of newcomers may be linked to some issues of national security, or what we'd call flagrant and serious disregard for the principles of a democratic and free society.

    Those are the things we feel are over-exaggerated, in creating that kind of class of probationary citizen.

    The Chair: Quickly, Madeleine.

  (1240)  

[Translation]

    Ms. Madeleine Dalphond-Guiral: There are countries where people can apply for citizenship only after a much longer period of residence. Three years seems fairly short in my view.

    Would you agree if the period of permanent residence was made a little longer and this whole probationary period was lifted? Would you feel more comfortable with that? In this way, we would have the ability to find out over a period of five, six or eight years if the applicant complies with our values as a citizen, rather than doing so retractively. Would that be more acceptable?

    Mr. Jonas Ma: I do not know if two years would make a difference. I believe that…

    Ms. Madeleine Dalphond-Guiral: I said up to eight years.

    Mr. Jonas Ma: I do not think it is a question of how long. I think that whole bill is focused on national security. It makes no difference if someone was born here in Canada. They say that there is a Taliban member in the United States who was born in the United States but has taken part in terrorist activities. What you should look into is not the number of years that people spend in our country, but their values, their passions, the evidence that shows they have engaged in activities which threaten our national security. That is what we should really be looking at instead of saying that they are a class of citizens on probation and extending the waiting period necessary to obtain their citizenship.

    Time is too short to tell you more about our submission, but in conclusion I would like to say that when we talk about citizenship, we should also look at it in a positive way.

[English]

    We keep saying that we are a very diverse country, and the new census demonstrated we have people from all over the world and the diversity will be increasing. I wonder why I cannot see in the bill right now any mention of the value of a diverse citizenship and how it has contributed to the building of a nation. I think that's a positive message that is missing, and I think we focus too much on the negative issues of anti-terrorism and national security.

    We have to look at citizenship as a positive issue that we value as a nation, as a diverse nation, and I think there's something that needs to be added to it to make people feel it's not just to check them on all these grounds of possible wrongdoing or whatever but also to give people a sense of value in getting this Canadian citizenship. I think this is something that's missing in the current bill.

    The Chair: Thank you.

    Again, on behalf of the committee, let me thank both you, Jonas, and Lorne. They were exceptional presentations and provided some good food for thought. You presented some great ideas.

    Lorne, I'll take you up on your offer to write those amendments. I think they'd find them intriguing, whether it's the SIRC one or the one with regard to the mens rea. I welcome those.

    Jonas, I don't think I could have said it better, you're right. Not only the immigration bill, but the spirit and essence of immigration, and now the spirit of citizenship, is a positive. It's about Canada and it's about our values, and we ought not to cloud this and put everything through the prism of what the world went through on September 11. And unfortunately more and more we see that the focus is always on the negative or the security aspects, as opposed to talking about the value of citizenship.

    I can guarantee that one thing this committee is going to do is that we're not going to create two classes of citizens, or even three for that matter. At the end of the day, by birth or by choice, you are a citizen, and it doesn't matter how you got that citizenship, the system ought to be fair and equal for both sides. Because the moment.... The Americans pointed that out to us--and I think a saving grace is that they did it even though it's repulsive to us--when they started to choose who in fact they would stop at our border with the Canadian passport, which has one colour. All of a sudden they started to look at birth, and choice, and started to make the difference themselves as to who really is a good Canadian citizen.

    At the end of the day, it should not be for them or anybody else to say who's a good Canadian citizen or who's a bad Canadian citizen based on where you were born or where in fact you came from. And therefore at the end of the day I can promise you that in this citizenship bill, which is now five years in the making--three times we've tried this--not only do we want due process, because that's what we all stand for in Canada, due process and Canadian values, but at the end of the day we're going to make sure that there is only one class of citizen, and it's called “Canadian citizen”. And it doesn't matter how you get it or got it, it's of value. More and more people like yourselves are talking about how much that is of value to them, and we're not about to just let it go by the wayside and be able to get rid of it or whatever.

    So again, thank you so much for your passion.

    We will now adjourn till Thursday, when we have the minister and we'll be able to pose all these tough questions to him again.