Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 22 - Evidence, October 5, 2000

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, respecting Canadian Citizenship, met this day at 10:07 a.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Welcome once again, Minister Caplan, to the Standing Senate Committee on Legal and Constitutional Affairs. I am not too sure you think it is a welcome, but we are anxious to hear from you. I understand, minister, you do not have any speaking notes but will just talk to us.

The Honourable Elinor Caplan, Minister of Citizenship and Immigration: I am pleased to be back. I think the bill before you is important. I enjoyed the time we spent when I was here last, and I understand that you may have a great number of questions. However, there are a few things that I would like to deal with first.

As you know, I have been following your deliberations, and a number of issues were raised that I would like to take the opportunity to address. I appreciate that some aspects of this bill are very complex, and I hope that my officials have been able to clarify matters for you. I do understand that some representation by Mr. Sabourin was incorrect, so I would like to ask Ms Frith to begin today's hearing by correcting the record. Particularly, it was mentioned that this bill is modelled on British parliamentary tradition, and that is correct. However, the example of Australia was used, which is not correct. I would ask Ms Frith to correct that.

Ms Rosaline Frith, Director General, Integration, Department of Citizenship and Immigration: Essentially, Mr. Sabourin mentioned in his testimony that in other countries such as Australia, if you wish to take away someone's citizenship, you must first ask the advice of an independent body. That in fact is true, except that, in the case of Australia, a court proceeding is used to decide whether or not a person is guilty of citizenship or immigration fraud, and that is somewhat different from our process. Our process is very similar to that of the United Kingdom or Ireland, where a finding of fact is sought. In the case of the United Kingdom and New Zealand, it is done through a committee appointed by the minister, and in our case we refer it to the court for that fact finding. That is the only thing that we wish to correct.

Ms Caplan: I think it is important that we have the facts, and I understood that there was a need to clarify that for the committee.

I should like to address four specific issues. Before I do that, I will stress my belief that, under this bill, and in our system in Canada, citizens are citizens are citizens. They are equal under the law. Whether they were born here or anywhere else, this bill, and our system, treats all citizens equally. It is important to put this issue in perspective. Well over 150,000 persons are granted citizenship each year, in addition to the new citizens who are born here, and the issues that you are focusing on around this table actually have an impact on a handful of cases.

I should like to address the issue of revocation. I know we discussed this at length when I was here last, but there have been a number of presenters since then, and perhaps I can help clarify this complex area for you.

Essentially, the same procedure has been in place since 1947. There was one significant amendment in 1977, and the provisions of Bill C-16 change nothing from 1977. It is important to note that since 1977, we have granted Canadian citizenship to over 3 million people. During that same period, citizenship has been revoked 37 times. That is all. Three million received citizenship, and 37 had citizenship revoked.

The necessary provision for revoking citizenship addresses cases of false representation or fraud. Again, this has been in place since 1977. The test, which is a high bar to meet, is knowingly concealing important information which, had the government been aware of it, would have resulted in citizenship not being granted, because that individual would not have been entitled to it in the first place.

It is important, above all, to point out that this process of revocation has been challenged in our courts all the way to the Supreme Court of Canada, and it has been found to be not only in line with our Constitution, but also with the obligations of our Charter of Rights and Freedoms.

The government's view is that there is no reason to change that which is working and clearly necessary, and therefore we are not recommending any change in revocation proceedings. What is in Bill C-16 has been in place since 1977 and has met the test of our Constitution and of our Charter.

The second provision that I would like to mention is the annulment provision. This is specifically for individuals who were never entitled to Canadian citizenship in the first place, and where there is clear, documented evidence, within the first five years of having received citizenship, of a criminal conviction or use of a false identity. Since these individuals were not entitled to citizenship in the first place, annulment deals quickly with those cases where the department can produce clear, factual information to that effect. In all of those cases, the individual reverts to permanent resident status.

Again, this is a limited authority, because it grants the right to annulment within the first five years. It is the department's view such information would likely come to light fairly quickly, within the first year or two. There is an opportunity to seek judicial review, so you can be confident that there is oversight of the process to ensure fairness. Also, there is yet another procedure under the Immigration Act, should it be determined that that individual was not entitled to that permanent resident status.

The public interest provision has been much debated here, and there were a number of questions raised. I have given a great deal of thought to it since I appeared before this committee previously. I referred to it then as a "safety valve." I think I would like to give you another sense of why I think it is important. It is a "time-out" provision. I think it will be used in a limited number of cases, likely for security interests or for integrity concerns. If we value our Canadian citizenship -- and I think we do -- then we have a responsibility to guard the integrity of that citizenship.

Authority for government to use a public interest provision is well established in Canadian law. This is not the first piece of proposed legislation to enshrine the authority of government to act in the public interest. In fact it is the role of government to do just that. The department, in including a recommendation for a public interest provision, is articulating a principle that has existed since democracy itself began. We elect people whom we expect to act in the public interest, and when it is determined that there may be some difficulty in doing that, then we have a responsibility to clearly state that that is the authority Canadians expect of their government.

The courts protect individual rights, and there are some who would give the courts more and more legislative authority. I am not one of those. I believe that it is the responsibility of those who are governing to act in the public interest and to stand accountable for the decisions that they make. It is for the people to judge whether or not the public interest has been protected on that government's watch. That is what elections are about.

I was asked to provide some examples, but it is important to know that no one can predict with certainty what kind of circumstance might lead to invoking a public interest clause. As I mentioned, it is a time-out provision -- a safety valve. I have also mentioned the concerns about national security and the integrity of our citizenship.

The prohibitions under this bill are aimed at people who have recent convictions, or are facing criminal charges here or in other countries. The reality is that there are places in the world where there is no functioning criminal justice system, and where the rule of law has unfortunately ceased to exist. There are places where even murder may not be treated as a crime, particularly if it involves avenging family honour. These events are often highly publicized. If a well-known person, normally a resident of Canada, were in one of those places where murder had been committed -- perhaps that individual even boasted of the crime -- the public interest safety valve, or the time-out provision, would allow us to deal with the determination of citizenship. It would provide an opportunity to grant or deny citizenship to that individual in a thoughtful way, and the government would be accountable for that decision.

Let me emphasize again that I see this as an extraordinary authority to be used in rare cases, and where the government would stand accountable for those decisions. The time-out provision has a five-year limit, thereby allowing the individual to apply for citizenship again at the end of that period.

It should also be noted that the individual is deemed to be ineligible for citizenship because granting it would not be in the public interest. The individual would continue to be a permanent resident, with the rights and obligations of permanent resident status.

The fourth provision I will address is the oath. Not surprisingly, you have heard a range of opinions from witnesses on the wording of the oath. All of you know, from your experience with reports and documents, that wording issues are always a challenge. If I were to ask 20 individuals, or you were to ask 20 people, to write an oath, it would be unlikely that we would receive the same recommendations from all of those individuals.

However, at some point we have to move on, with the best consensus that we can achieve. We have done this. I believe the oath contained in Bill C-16 is a good one, in that it centres on Canada, on our institutions, and on the values of Canadians. It has 100 per cent of my support. It represents the views of a majority and it will be a meaningful oath at the citizenship ceremonies that will take place across this country.

My comments on the oath lead me to one last point, Madam Chair. Let me be clear about the extensive consultations that went into this bill. It might be interesting for the committee to know that the previous government identified a need to update this in 1987. Our government has worked steadily towards this bill since 1994. We heard about possible changes from Canadians in many ways. The legislative processes leading to Bill C-16 involved substantial hearings, in which many groups participated, and to which many more submitted briefs, letters, and documents.

I have had the opportunity to meet personally with Canadians to hear their views, and I believe there is a general consensus -- never unanimity, but a real consensus -- on the provisions of Bill C-16. We have had a great deal of guidance from almost 25 years of judicial decisions, as well as the experience within the department. Our goal in Bill C-16 is to capture what Canadians want their citizenship to mean and how they want their citizenship law to work. Our goal is to bring Canada's citizenship laws as much in line as possible with the values of Canadians. We have achieved these goals, and the bill reflects what Canadians feel about citizenship issues. We want people to become citizens, and we want to encourage participation in Canadian society. However, we also want to be able to clearly say no to those who are not entitled to Canadian citizenship. We want to do so in a way that is fair and that has stood the test of judicial review throughout the 25 years since 1977.

I will introduce members of my department who have worked long and hard on the bill: Mr. Michel Dorais, Ms Joan Atkinson, Ms Rosaline Firth, and Mr. Eric Stevens. They are prepared to answer your questions in the hope that the committee will see to the timely passage of this bill.

Senator Beaudoin: I listened very carefully to what you said about the public interest. I agree that the executive branch of the state, which has the government in its hands, should have the discretion. What worries me, however, is the theory of vagueness that has been created around the interpretation of the Charter of Rights and Freedoms.

In the same manner as we have the theory of interpretation for the division of powers, the Supreme Court has stated certain theories. The term "public interest" is not defined, although it is used often, and jurisprudence is of the opinion that the interpretation of that broad expression may vary from one circumstance to another.

In criminal law, of course, it must be clear. However, in this case, we are concerned with administrative law. In the case of R. v. Nova Scotia Pharmaceutical Society, the court referred to the fact of the interpretation.

The Chairman: Does the minister have a copy of this document from the people at the Library of Parliament? We had them research, over the weekend, judicial consideration of the term "public interest."

Senator Beaudoin: The third paragraph states clearly that this theory applies not only to criminal law, but also to administrative law. We all agree with that. There is no problem. We also know that the executive is subject to the Charter of Rights -- the cruise missile case is clear-cut.

Do you not think that the term "public interest" as in clause 21 and the third paragraph of subclause 22(3) is a little too vague? It says:

The order is final and, despite any other Act of Parliament, is not subject to appeal or review by any court.

There are many cases that will never go to court. I agree with that. There may be one case every ten years. I do not know. However, the minister has broad discretion concerning reasonable grounds. We find that in law very often. "In the public interest" may vary according to the circumstances. The Charter of Rights applies, even to acts of the executive.

Do you not think it is a little too vague? I am afraid that it will be challenged in court because it is drafted vaguely. Subclause 22(3), on the other hand, is very clear. "Despite any other Act of Parliament," the order is final and is not subject to appeal or review by any court.

We do not often see access to the courts refused in our legislation. That is not very often stated in statutes. I have come to the conclusion that if we do not define "public interest," the courts will define it for us. Is it not better for Parliament to define it more clearly?

Ms Caplan: Senator, let me share with you what the Supreme Court has said about the concept of public interest, because I think that it is helpful to the discussion. They have said that the general meaning of the phrase is a reference to a special set of values which are best understood from the point of view of the aggregate good and matters relating to the well-being of society.

Senator Beaudoin: Excuse me, which case is that?

The Chairman: I was going to ask the minister to clarify the case.

Mr. Eric Stevens, Counsel, Legal Services, Department of Citizenship and Immigration: The comment is from a dissenting judge in the Morales case, where there was a split on the issue. In this instance, the judge reviewed how "public interest" has been used over the years to give an indication of its meaning.

Senator Beaudoin: Was that the majority judgment or the dissenting opinion?.

Mr. Stevens: There were three dissenting opinions. It is a dissenting judge speaking, but I would also note that it is a highly respected member of the bar. The Supreme Court of Canada judge is trying to summarize how the concept has been used and understood over the years.

I would also note that while it is true that the constitutional vagueness was discussed in Morales, it was also discussed in an administrative law context, which I find interesting. We in Justice have looked at this carefully.

There are other cases in other contexts that are also referred to in the parliamentary paper. At the very bottom of page 4, and on page 5, they talk about the Daigle case. I realize the interest at stake was different there, but that is an administrative law context. The court was looking at an important right, the right to privacy, and then at balancing that right against the public interest.

Departments are called upon, usually at the deputy minister level, to make a judgment call as to whether a disclosure may or may not be authorized in the public interest. In this instance, is each member of the Supreme Court willing to take a look at public interest and talk about whether it is a discretionary decision? Of course. Is it a broad discretion? Yes. Does it have limits? Yes. All of the judges go on to say that abuse of process or ignoring of relevant facts would lead to the striking down of a decision.Thus I find it interesting that in 1997, all the judges seemed to be willing to look at public interest in an administrative law context.

Ms Caplan: My understanding from the Department of Justice is that that phrase is a standard provision in our law. However, all of the laws, as you pointed out correctly, senator, are subject to our Constitution and our Charter, and we fully expect that any new provision, if used, will be tested.

Our advice from the Department of Justice is that everything in Bill C-16 meets our obligations and that we would be able to successfully defend its use, should we be challenged.

The test for that is always the grounds in the individual case. We said that we expect a test to be rare.

It is important, in my view, that when it is the responsibility of the government to defend the integrity of Canadian citizenship, to not have to say: "I am sorry, there is nothing we can do," because technically, all the provisions of the legislation may have been met. There would thus be no ability for the government to act in the public interest. I think that would be wrong. I think it is absolutely essential, on something as important as Canadian citizenship, for the government to be able to act and to be held accountable for decisions in those exceptional and extraordinary cases.

Senator Beaudoin: The mechanism does not worry me. I agree with that. It is not the government. We need a strong executive, of course. I agree with all of this.

My problem is that the power is nearly unlimited. Who will say that it is in the public interest? It is in the bill, but it is not precise. Perhaps it is difficult to be more precise. Who is going to do that? The courts. However, access to the court is barred.

Ms Caplan: As you pointed out, the courts, particularly as it relates to the Charter, will hear cases if they believe that that is their role. Therefore, there is no bar when it comes to the Charter of Rights and Freedoms or the Canadian Constitution. The provision in this bill is consistent with standard provisions in other pieces of legislation.

Mr. Stevens: Senator, I would make a point on the privilege clause, subclause 22(3). The Supreme Court of Canada, as perhaps you know, has referred to that as a full privative clause.

What does that mean? According to Sopinka in the 1997 case of Pasiechnyk, if a full privative clause is applied, then the decision of the tribunal is only reviewable if it is patently unreasonable or the tribunal has made an error in the interpretation of a legislative provision limiting the tribunal's powers. In either circumstance, the tribunal will have exceeded its jurisdiction.

My point is that, yes, there is a privative clause and I do certainly agree that Sopkina is saying, "Show deference, court. Do not interfere. Give deference to cabinet in deciding public interest matters," although there is still a role for the courts to play in the reviewing of decisions.

Senator Beaudoin: I agree with that. Of course, the court may intervene.

Ms Caplan: I would add one last thing. This is important as a question of principle. In our democratic procedure, and in the British parliamentary tradition, the question of who decides on the granting of citizenship is fundamental. The first Citizenship Act in Canada was passed in 1947 and it gave authority to the government to grant citizenship. We make the laws, and according to those rules, the government grants citizenship.

The courts have never been able to grant citizenship. It is a prerogative of the state, of the government. That is an important principle to maintain. That is the reason for the clause, because if it is important for government to be able to grant citizenship, and it is important for government to be able to deny, delay, revoke or annul citizenship under certain circumstances.

The provision in this bill of the ability to deny or delay citizenship in the public interest underlines that principle of the right of the state, rather than of the courts, to decide who will become a Canadian citizen.

Senator Andreychuk: Perhaps I could follow up on the public interest clause, but from a public policy point of view. It seems to me that public interest decisions, in all of the cases that I have been able to find, have been made in some context. We have known the subject matter, and we have said, within that subject matter, the executive has the right to exercise power in the public interest.

This bill is extremely troubling to me. It contains all the national security clauses where the executive can exercise its discretion in our national interest. If Canada is in any way threatened, if our security is threatened, if our national interest is threatened, clause 23 and following would cover that.

We go even further and add clause 28, with a whole host of other reasons, some of which I think are public interest and some of which are national security.

Then we have a new clause for public interest. You have said again that the kind of case to be addressed in the public interest would be a security problem. We have already got that covered in the national interest clauses, in clauses 23 and 28, so I ask you, what on earth will clause 21 be used against?

You have given us one more reason today. Someone may have committed a horrendous crime in a country where the judicial system does not maintain the rule of law. Are we now to analyze criminal justice systems elsewhere? That is not a test of security. That is a test of how we analyze other people's judicial systems. Is that what we are after? If so, why not define it that way? If we do not believe that a particular country's system falls within the rule of law, and if anyone commits a crime in that state, then we can say we will prohibit their gaining Canadian citizenship under this clause.

We need some context for public interest. Witnesses and committee members have been discussing occasions where governments quite rightly exercised the right to act in the public interest of the day. Popularly elected, democratic governments have made decisions on the basis of public interest, but time has proven that there were injustices committed in our own country. We had examples of the kinds of things we did in Canada which seemed very popular at the time. There was pressure to do certain things, those actions did not stand the test of time.

The courts will only analyze whether the law was followed after the fact. It is actually Parliament which is giving this carte blanche to the executive. I am concerned about giving any government carte blanche. I would rather have a context, a framework. I want to know exactly how the government will exercise this power in the public interest. My understanding is that this is the first time any piece of legislation has given a blanket power to defend the public interest without also giving a context.

Ms Caplan: I will give the example of a personal experience. Many years ago, I had the privilege of serving as Minister of Health in Ontario. There was a piece of legislation which required a public interest evaluation before a minister could grant a licence. It was clearly understood that a public interest evaluation was the obligation of the minister. The process and the procedures worked well.

That is why I said I am familiar with the approach. I understand the responsibility. I also understand the need for accountability, because in that case, anyone who was denied a licence was given reasons, and it was up to the applicant to decide to go public or not and have questions asked in Question Period if the decision was seen as unfair. It was up to the minister to state why the decision was made and why it was not in the public interest to grant that licence. Appropriate accountability existed.

You mentioned some moments in our history. I too look back over time and see our dark days. Those came before our Charter. Today we have not only the Constitution, we also have the Charter of Rights and Freedoms and an activist court. If any government dared to infringe on those rights and freedoms, Canadians would rally round to protect and defend the Charter.

In the context of decision-making, pre-Charter and post-Charter, there are two very different environments for testing public interest statements made by the government.

Senator Andreychuk: In 1947 we passed an act which left to the Crown the right to grant citizenship. I do not think anyone who came before this committee disagreed with that. In fact many said they came to this country because the rule of law made them feel safe and secure here.

How do you square this broad public interest with taking away a citizen's right to the security of living in Canada? I thought it a rather bold step by our government in 1977, and in keeping with our leadership on these issues, to say that since citizenship is an entitlement, we will not take it away simply by broad discretionary powers. We will not take away rights without people having access to a hearing and to due process. I was looking for this bill to raise the bar even higher, so that the distinction between those of us born here and those who come here is narrowed rather than widened.

How do you answer those people who say, "Yes, I was not born here. Yes, I came here. Yes, I know what a privilege it is -- not a right, but a privilege -- to live in this country. All I am asking is that whatever case is made against me, that I have a right to answer it"? That is, there must be due process of some sort.

Ms Caplan: Those provisions are in this bill. There is due process, and I am happy to go over it with you.

Senator Andreychuk: I am talking about the public interest issue.

Ms Caplan: There is a public interest due process provision, and that is that the individual is notified by letter. They are able to make representations. They are presented with all of the facts and reasons why. The information that they submit is then forwarded to the cabinet and the Governor in Council. All of that, of course, as I said, must respect the Charter provisions. To suggest that there is no due process in the time-out provision is an inaccurate statement, in my opinion.

On another point that you made -- and I want to restate this -- what we are doing with the public interest provision is delaying access to citizenship. We are saying there is no constitutional right to citizenship. You are a permanent resident of Canada. If there is reason to believe that you acquired your permanent resident status fraudulently, there is a whole other procedure. Just because you are a permanent resident, you should not be able to get your citizenship on a technicality. We should not be required to give someone citizenship when we do not believe that person would uphold the integrity of the values of Canadian citizenship. The courts have also stated that there is no constitutional right to citizenship. I have described the public interest provision as a safety valve. Very few cases are anticipated, but I can assure you that, one, there is due process, and two, there is accountability for the use of that provision, and that is in accordance with our parliamentary tradition.

Senator Andreychuk: It seems to me you are talking about due process provisions in other clauses of the bill. I am talking about the public interest clause. You are informed of the grounds upon which your citizenship will be denied, but a case is made against you and deliberated in cabinet. How does one then try to make one's case? Only in writing, I suppose, with a letter saying, "I think these are the things you are discussing, and here is my assessment of it."

This is certainly not raising the bar. The changes in 1977 raised the bar, I think quite rightly. We said we wanted those not born here to have some security that citizenship would not be taken away from them and that there would be some due process. Lack of definition of the public interest and denial of access to the court unless there is a Charter violation reduces people's ability to make their case against an unknown charge.

Ms Caplan: I fundamentally disagree with you. I think that it is really an obligation of the Government of Canada to assure Canadians that there is value and integrity in Canadian citizenship and to stand accountable to those to whom we are not prepared to grant citizenship. They still have the ability to live in Canada as permanent residents. No one is taking that security away from them, but we are not prepared to welcome them into the Canadian family under certain circumstances that could become public if the individual chose to make it public. They would have the right to do that. The government would then stand fully accountable for making that decision. I think that is the role of Parliament. I think it is the role of the executive council. I do not think we should be turning decisions over to our courts which rightly belong, in a democratic process, with the democratically elected officials.

I do not share your concern. I see this as a clause that would be used rarely. The need has been identified. If you deny an opportunity for the government to delay citizenship, then what you are saying, senator, is, "Come on in. Let them in. Come here. You can be someone whom Canada does not want to accept." We can make the case, but we then have to say, "I am sorry, but technically you meet all the provisions of the act. You may not have a criminal conviction, but you could be a hate-mongerer. You could be a person who will incite hatred. We have not been able to convict you, and because you meet every technical aspect of the legislation, the government is required to grant you citizenship."

I do not think that is in the interest of Canadians. I think the majority of Canadians would say that the government must have the ability, in those rare cases, to say, "We are not ready to grant you citizenship yet." It is a time-out provision. We will review it again in five years. We will stand accountable for it. I think that is what Canadians expect of us.

Senator Andreychuk: I do not believe someone convicted of a major crime, or someone who is a security risk, or someone who does not meet the standards in clause 28 for eligibility, or someone who is under CSIS scrutiny, or someone who is the subject of RCMP scrutiny, or someone who is a risk to the security of Canada, should be allowed in. However, I --

Ms Caplan: We are saying there may be some who fall between the cracks in the existing legislation, and therefore it is in the public interest to have a clause that catches those situations. Then, using a mechanism that is fair, you would be able to stand publicly accountable and to state that this person has not been convicted of a crime, but he or she is not yet worthy of Canadian citizenship. These people fall through the cracks, but it is in Canada's interest to ensure that, even though they may not be clearly inadmissible according to the provisions of the legislation, we do not welcome them into the Canadian family. The government of the day would stand accountable for that decision. That is the public interest test, and I believe that it is appropriate for government to be able to act in the public interest.

We have identified a problem. We believe that there may be an occasional case, albeit rare, where we should have the legislated authority to deny Canadian citizenship for a period of time. This is for someone who falls through the cracks and does not meet the exact definitions of the other clauses. That is the intent.

Senator Andreychuk: I think our difference of opinion lies simply in the fact that I believe "public interest" should be defined, and not a subjective test that is unknown to the citizen.

Ms Caplan: It is not a question of being unknown. It is known, and the case is made known to the individual under subclause 21(3). There is a requirement for the minister to notify the individual of the reasons and for the individual to then respond.

Then the case goes to the cabinet for determination after the individual has had a chance to respond.

Senator Poy: Did you say that those who are denied citizenship on the grounds of public interest can remain in Canada as permanent residents?

Ms Caplan: Yes, that is correct.

Senator Poy: If that is the case, how would the public interest of Canadians be served if the offender is still here, whether he or she has citizenship or not?

Ms Caplan: We uphold the integrity of Canadian citizenship by not granting it to an individual we believe does not deserve it -- someone about whom we would have real concerns accepting into the Canadian family. People come here as landed immigrants, and the ability to apply for citizenship is defined in this bill, but it is not a constitutional right. An individual does not automatically receive citizenship. There are certain requirements -- knowledge of the country, language, and attachment to Canada. This also represents the authority to prevent an individual -- someone who, in another part of the world, committed a heinous crime that went unpunished because there was no judicial authority -- from dishonouring Canadian citizenship. We must be able to give value to Canadian citizenship by saying, "Time-out: We are not prepared to grant citizenship to this individual at this time because it is not in the public interest to do so." I believe Canadians expect us to be able to do that.

Senator Poy: If such individuals are so undesirable, why are they allowed to remain permanent residents of this country?

Ms Caplan: There are specific criteria for permanent resident status and for maintaining it. We will have an opportunity, when we discuss the immigration bill, to look at the provisions for revoking permanent resident status if someone has committed a serious crime for which he or she has been convicted in Canada, or elsewhere. We can then take steps to see that the permanent resident status is revoked.

This bill states that an individual will revert to permanent resident status. However, in this particular case, we are talking about someone who has not been convicted. It is unlikely that there would be an inquiry to remove permanent resident status. The question then becomes, are we prepared to welcome that individual as a full-fledged, equal member of the Canadian family -- welcomed not only to the rights and privileges of Canadian citizenship, but also to call themselves Canadian; to represent Canada individually; or to run for public office?

Senator Poy: I will follow up on that with a hypothetical situation. Someone who is termed a "terrorist," from a foreign country, comes to Canada and wants Canadian citizenship, but is denied. The person then stays in Canada as a permanent resident. In the meantime, or perhaps a few years down the road, a revolution occurs in that foreign country, and a new government is formed. Suddenly, the person is on the "right" side of the government. What happens then, when everything is overturned? How does one then define "public interest in Canada?"

Ms Caplan: Senator, we live in a world that is not free from conflict. The department relies on CSIS, the RCMP, and other international agencies to share information with us about who might be inadmissible. The Citizenship and Immigration Act has specific provisions on inadmissibility -- criminal inadmissibility and national security inadmissibility. It is always a challenge to respond appropriately, because times do change. However, one of the reasons that the public interest provision in the Citizenship and Immigration Act includes a five-year limit is so that we can respond to those changing times.

Senator Poy: Can it be reviewed every five years?

Ms Caplan: Yes, it can.

Senator Cools: My question is about the oath of allegiance in relation to the public interest. Can you tell us why the term "public interest" is not included there? I understood that you spoke about inherent rights and stated that citizenship is a privilege. It is, quite frankly, a discretionary act of Her Majesty under the royal prerogative.

Ms Caplan: The legal opinion from the Department of Justice is that we may be in a position, if we do not have the public interest test, of being required to grant citizenship on technicalities. I will ask Mr. Stevens to expand on that. I agree it should be a discretionary act.

Senator Cools: Her Majesty's minister, or any minister of the Crown, is expected to exercise the crown's prerogatives only in the public interest. Those are the conditions of the royal prerogative.

Ms Caplan: That is correct.

Senator Cools: The law of the prerogative contains many prescriptions that the sovereign must exercise in the interests of the public. I wonder why the term "public interest " is in the bill at all. It seems to me that it could say, "If a minister is satisfied that there are reasonable grounds to believe that a person may not become a citizen." The clause should say, "The minister is satisfied that there are reasonable grounds to believe that a person ought not to become a citizen." Why have the drafters added "not in the public interest?" The minister is already commanded by Her Majesty to exercise the prerogative in the public interest.

Ms Caplan: For the same reasons that unanimity is never achieved on any document that is produced. There are a number of different ways to say the same thing. We chose the "public interest " provision because we believe that people understand public interest responsibilities and the discretion of elected officials in government. I will ask Mr. Stevens to answer that further.

Senator Cools: Specifically, why does it not simply say, "The minister having reasonable grounds," and then move on to the denial of citizenship?

Mr. Stevens: I think that that would be taking it a step further. It would be creating an even a broader discretion. There has already been talk about whether this discretion too broad. We think the phrase "public interest" has some meaning in this context. As you say, if it is implicit in the nature of the exercise of a prerogative power, then there is no harm in stating it explicitly.

Senator Cools: There is a whole set of problems with putting that phrase in the bill and then subjecting it to review by the courts. I am wondering why it is here. I am not convinced that it is especially prudent to include it, but that is not my main point.

I will move on to the oath of allegiance. I have been struck by the fact that Bill C-16, and you know that I have been fussing with this for a while, refers to the oath as the "Oath of Citizenship." The oath of citizenship, which is really supposed to be an oath of allegiance, is not a statement of values. It is not a statement of sentiment. There has been a lot of discussion on what the oath should say.

My understanding is that the oath of allegiance is only supposed to have the newly created citizen declare allegiance to the supreme magistrate of the nation. In other words, individuals are swearing to accept the authority of the sovereign to raise taxes, to call them to war, or to put them in prison.

Senator Grafstein: What do you propose, senator?

Senator Cools: I propose that the original oath of allegiance was fine. There was no reason to alter it at all.

To come back to my original proposition, the oath of allegiance, as it has existed in Canadian citizenship for more than 130 years, is perfectly adequate. I must harp on it again -- there is no need to change it.

I have traced these oaths over several years. I discovered that the 1977 act calls it an "Oath of Affirmation," yet it is exactly the same oath as in the 1946 act. However, the 1946 act calls it the "Oath of Allegiance." The 1868 act, which was the act of the Parliament of Canada respecting aliens and naturalization, says clearly in subsection 4(2) regarding the oath of residence that every such alien, in order to become entitled to the benefit of this act, shall also take and subscribe the following oath of allegiance.

The previous incarnations of the act said clearly that to acquire the benefits of the legislation, every alien person naturalized shall take and subscribe to the oath of allegiance. The Naturalization Act of 1868 refers in section 9 to the "Oath of Allegiance" and is in exactly the same form as the oath of allegiance embodied in the 1977 act and the 1946 act.

Therefore, minister, I am saying that during the drafting of the bill, somehow or other the term "oath of allegiance" became the "oath of citizenship." Many people now do not seem to know that the oath of citizenship is supposed to be the oath of allegiance. Now that it has become the oath of citizenship, other words are being injected. Perhaps in the interests of clarity, in historical continuity, and in the interests of unanimity on to whom Canadians owe allegiance, I say once again that the oath of allegiance should be clear, short, and untouched.

I followed Senator Joyal's argument as well. The Bill C-16 version of the oath of citizenship, which is supposed to be the oath of allegiance, contains a duality. It is two oaths in one. I am renewing my plea to the minister to leave the oath of allegiance as it was.

Ms Caplan: I addressed that in my opening remarks. I think that we have achieved a consensus. The oath now reflects the need to simplify and be concise. I think that it reflects the values of Canadians. I think that it is a good oath.

I do not think you will ever achieve unanimity, senator. I do not think there is unanimity on leaving it as it is. I do not think there is unanimity on changing it. We have been consulting on it for many years, and I think that what we have decided upon is good. It is important that we move forward with a new oath that enhances the role of Canada in the world.

Senator Moore: Minister, in clause 34 of the bill, the wording is "the form of the oath." Why do you say "the form of"? Is not a form something that we are completing for filing under the Income Tax Act or something? It is the oath. Why do we say "the form of"? To me, that implies something can be changed.

Personally, I think that the oath is a foundational document within the concept of Canadian citizenship. Your bill proposes to change it now, but if it were to be changed, it would need to be brought back to Parliament. Why are we saying "the form of the oath"? Why is not just "the oath is"?

Ms Caplan: My officials inform me that that is a technical drafting provision. The French is slightly different. It says, "dans les termes."

Those are drafting considerations in order that the French and English be consistent. They use drafting forms to make the drafters happy.

Senator Moore: I do not accept that explanation. I want a reason. I can read as well as you or anyone else in this room. Do not tell me that it is a matter of drafting.

Ms Caplan: That is what they told me.

Senator Moore: That is not acceptable. It does not give me a reason.

Ms Caplan: I would also point out, senator, that it is exactly the same as in the existing act.

Mr. Stevens: That is the additional point I was going to make. I do not think that we are talking about a matter of substance here. Everyone will be able to understand what the oath is. It was in the original version, and the drafters saw no need to change it.

The Chairman: Is it perhaps written in that manner because when Her Majesty the Queen dies, the oath itself will have to be changed? Will it not still be in the same form with the addition of the sovereign of that time?

Senator Beaudoin: There is no emphasis on when a king or queen dies.

Ms Caplan: When I asked that question, I was informed that this was exactly the same as was in the previous act and that it was a drafting provision.

Senator Joyal: There is one additional element that I want to add to the views that have been expressed on the issue of the "public interest."

Essentially, public interest is linked to the elements that define a society, while national interest is linked to the elements that define a sovereign country.

The difficulty is that in dealing with issues related to society, it becomes a very delicate matter to frame a legal certainty for citizens when they apply for citizenship, or when they have to defend themselves in a case of revocation.

The court states in the Nova Scotia Pharmaceutical Society case that a delicate balance must be maintained between societal interests and individual rights.

For me, that is essentially where the question lies. I personally have an uneasiness, which I believe other senators share, about ensuring that, as much as possible in a country where the rule of law is a fundamental principle, people understand the extent of their rights and the implications of decisions they may make to go beyond the norm. "The norm" is a fluid element, but how do people fight or argue against norms that are totally left to the discretion of one person? That one person is advised by the administration. You as the minister are advised by the administration -- in this case by Mr. Stevens, Mr. Dorais, and Ms Frith. You must make the final decision, though, so you are both the judge and a party to that process.

That leaves the issue of due process in some doubt. There is an element of uncertainty. What are the norms that you would be applying? What norms are suggested to you by your own officials? You make the final decision.

There is a sense that a lot of personal input is expected. As a previous minister, there was nothing I disliked more than making a decision without reliable, objective criteria to guide me.

I agree with you that such cases may be very rare and may never happen in your tenure as a minister, but that is not the point. The point is that we are dealing with the organization of a society that we praise as being based on certain fundamental principles.

Even if there is only one case, the significance of the decision lies in its power as a precedent. Society must be consistent in giving rights to people. That is why we feel so uncertain about your reassurance that there are few such cases or that the court is there to review a decision. That is not how we want to approach the definition of our rights. We are discussing revoking the citizenship rights of a person. The whole objective of the proposed legislation must be consistent with those fundamental principles.

My second point is on the oath. I recognize the prevailing sentiment that we should make the monarchy less visible. That is the talk. I am not afraid to say that. A serious question arises when we look at the citizenship oaths of other countries. The American oath is contained in their Constitution, so the terms cannot be changed on a whim.

An oath must say two essential things. The citizen must promise to abide by the rule of law as provided for in the Constitution. Second, the person is pledging allegiance to the political structure as enshrined in the perpetuity of the state. That is the purpose of the oath.

Because we tried to please everyone, we did not use a rational approach to defining the content of the oath. We tried to make it as neutral as possible to please as many people as possible, but this is not the proper approach to an oath which is bound to our very Constitution.

Our oath states that we are pledging allegiance to Her Majesty the Queen in right of Canada. In the Interpretation Act, a reference to Her Majesty the Queen, or His Majesty the King, or the Crown, is a reference to the sovereign of the United Kingdom, Canada, the other realms and territories, and the head of the Commonwealth.

The citizenship ceremony clearly contains a pledge of allegiance to the principle that our country is a constitutional monarchy. That must be reflected in the very wording of the oath.

I am sorry, minister, that you are laughing while I am addressing you, and I would like to have your attention. I would like to receive that respect from you.

Ms Caplan: Keep talking. I will be happy to answer your question.

Senator Joyal: Madam Chair, I understand that the minister has made up her mind and feels that I do not need to express anything.

The Chairman: Senator Joyal, I would appreciate it if you would continue with your question.

Senator Joyal: Thank you, Madam Chair. At your request, I will continue. When we do something which is so important to the definition of our rights and the symbolism of this country, the rationale should be well understood, not only by new citizens, but by all Canadians, because it is linked to the very respect for and understanding of how Canada is organized.

Pledging allegiance only to Canada is so general it could mean anything to anyone. The oaths of other countries always refer to the constitutional structure. We are pledging allegiance to the Constitution of Canada, because that is where our rights reside. The terminology should not be so broad that one does not understand exactly to what one is pledging allegiance.

Essentially, this bill should have had a preamble or a clause explaining what is encompassed in the meaning of citizenship and what rights and responsibilities are included. We must understand that this is not an ordinary bill, drafting rules for the use of an airport or a harbour. This bill is linked to the very nature of our country and how we understand it.

Ms Caplan: On the issue of individual citizenship rights, I repeat that there is no constitutional right to receive Canadian citizenship. Citizenship is a privilege extended by the state to those who are welcomed into the Canadian family. Requirements exist and are set out in this bill. There is a concern that individuals may fall through the cracks of the proposed legislation, and that, in the government's view, it would not be in the public interest -- that is, in the interest of all Canadians -- to grant citizenship to those people.

Those individuals would be notified of our intention not to grant citizenship. The department has identified this "crack," if you will, in the existing legislation. We believe, as Senator Cools said, that it is our prerogative and privilege to ensure that Canadian citizenship is granted only to those who meet all of the requirements that Canadians would expect. That is why we have added the provision on the public interest test. I think most Canadians will understand that, and that they will support the fact that the government will be fully accountable for any decision made under that provision.

I do not think you, senator, or any other thoughtful senator, would feel that we should have to grant citizenship on a technicality because an individual met all of the obligations of the law. The courts have clearly stated that citizenship is not a constitutional right. While we have tried to be as clear as we can on who is entitled to apply for Canadian citizenship, we have also identified the exceptional circumstances where we would want to be able to delay granting it.

You also mentioned revocation. It is important to restate that citizenship will not and cannot be taken away from people unless they knowingly lied or misrepresented the facts in order to receive it, and where, if the truth had been told, they would not have been eligible.

I say those who talk about second-class citizens are wrong. There is no such thing in Canada. When you rightly receive Canadian citizenship, you are equal to those who were born here and those who have chosen Canada. However, if you lied in order to receive Canadian citizenship, if you knowingly falsified documents, if you did not tell us who you were, if you deliberately came to this country to hide, then we, senators and colleagues, have an obligation to ensure that the law allows us to take citizenship away from those not entitled to it in the first place. Canadians expect that of us.

The system has been in place since 1977 and has been tested. The courts have said it meets the test of the Constitution and of the Charter of Rights and Freedoms. It is fair. There is due process. It works. This bill does not change it in any way, and it should not, in my view.

As to the oath, we just have a disagreement. I believe that the oath represents a consensus of Canadian opinion. I have said it is not unanimous. I respect your point of view. I simply do not agree with you. I do not think we could find unanimity on an oath at this time, and I think it is something that, as part of our development as a nation, will always plague us. Everyone has a different view on what the oath should say. However, I think there has been sufficient consensus and sufficient scrutiny of the oath that is proposed in Bill C-16. I think it is worthy of support and passage. I attend the citizenship ceremonies. I know how meaningful they are, and I know how meaningful it will be for people to repeat this oath as part of becoming a Canadian citizen.

Senator Grafstein: I am not a member of this committee, but I have a lively interest in the subject matter. First, perhaps your officials could give us a written reference on the question of the translation of subclause 18(1). We came across what we thought was a drafting error. I do not want to take up your precious time now by having you elaborate, but some of us felt that the French translation did not really reflect the English version. Perhaps you might give us some thoughts about that in writing.

I have one new topic, and then I will return to the public interest question. The new topic is very simple. It is clause 14. I listened carefully when you talked about citizens not losing their citizenship without notice, but under clause 14 they do. They can lose it without their knowledge and without notice. That strikes me as being unfair. When your officials were asked about that, they said, "Well, someone can check with us, and we would let them know." However, essentially, people could discover at age 28 that because they were not resident for three years previously, according to that provision they will have lost their citizenship, and they will have no way of restoring it other than by a specific application to the Crown. Perhaps you could deal with that, because there is no notice. The only notice is a public document.

I want to turn to the more intriguing question of public interest. Again, minister, you have us at somewhat of a disadvantage. We asked you and your officials to present us with a very careful analysis of the public interest. To this time, unfortunately -- I have to criticize myself -- I have not had an opportunity to read all the cases dealing with public interest, particularly McAllister, which was referred to this morning. Therefore, I am at a disadvantage in whatever I say here through not having looked at all the law. However, that has not prevented me from venturing forth in the past.

I listened very carefully to your interpretation, or your officials' interpretation, of the Supreme Court of Canada decision in Morales. In Morales, the majority, including now Chief Justice McLachlin, felt that the public interest definition was so vague that it ended up, as senators on the other side said, creating exactly the situation that you did not want -- nor do we. I am sure that no one on this side or on the other side wants to give the judiciary the full right to define what we consider to be the public interest. That is the role of legislators. As a matter of fact, former Mr. Justice Lamer said precisely that. He said:

The term gives the courts unrestricted latitude to define any circumstance as sufficient to justify pre-trial detention.

That was the subject matter of the case.

The term creates no criteria to define these circumstances.

In effect, you have not spent time defining, curtailing or establishing what is meant in the context of the bill. Senator Joyal made a very good suggestion about a precise preamble, which would help. Even Mr. Justice Gonthier agreed with the Chief Justice in that decision. He said that that there has to be a balance between society's interests and individual interests, but even in that decision he agreed with the final conclusion.

By the way, I never like to talk to you as the minister. I like to talk to the ministry, because when this matter comes forward again, we may be around, but we have seen seven or eight -- maybe nine -- ministers of the Crown in your chair since I have been here. I am not so interested in your good intentions, although I respect them and I know your heart is in the right place.

I am not really interested in your fine intentions or your responsibility, but rather, I am interested in what the law says to guide a successor minister who may not have or maintain your philosophy, which I respect and admire. That is my concern. My concern is not to give the ministry such a discretion over the highest honour we can confer in this country -- the right of citizenship. There is no higher honour.

Again, the courts are saying, "Please, Parliament, constrain yourself and give us guidelines. Give us some determining factors; do not let us be "free wheeler-dealers."

I have a one or two suggestions, because it is easy to criticize but more difficult to encapsulate what is necessary. For instance, Justice Gonthier said that flexibility and vagueness are not synonymous in this test, and therefore it has the dual requirements of public interest and necessity. Perhaps the word "necessity" might be more prescriptive. "'Necessity" has some very interesting definitions under the law. Perhaps the word "integrity" might be included.

I understand that it is a problem to deal with those cases that impugn the integrity of citizenship and yet are difficult to define. I understand that. Minister Caplan said it so eloquently: "The public interest shall include security, integrity, public necessity and respect for our citizenship." I do not want to be a fellow citizen with someone who is an untried war criminal. I do not want to sit beside Mr. Milosevic, who will not have been tried in any criminal court. I do not want Mr. Pinochet to come to this country. I agree with you, but we are different from the likes of Mr. Milosevic and Mr. Pinochet because we have the written rule of law.

I urge you, minister, and your creative officials, to help us in this, because we all want the same thing. The problem is that we are a country of the rule of law, and we have seen an explosion of human emotion in Canada about precisely this issue in the last few days. Thus, I hope that your officials will give you some greater guidance on grappling with it.

The Supreme Court, based on the facts, does not currently support your contention in my view. Your officials even had to refer you to a minority judgment to sustain your position. Surely, we need stronger support for such an important piece of proposed legislation.

Ms Caplan: I will speak to clause 14, to which you referred, on the loss of citizenship. It is important for us to understand exactly what we are dealing with, and I quote:

A person who acquires citizenship because the person was born, outside Canada, and of a parent having, at the time of the person's birth, citizenship either as a result of the parent's birth outside Canada after February 14, 1977 or as a result of the registration under prior legislation, after that date, of a parent's birth outside Canada loses citizenship on attaining 28 years of age, unless the person applies to retain citizenship and has resided in Canada for at least 1,095 days during the six years before so applying.

Clearly, we are dealing with an individual with potentially no attachment to Canada -- born outside Canada, and parents born outside Canada. They have an inherited right to apply for and to maintain their Canadian citizenship, provided that they have an attachment to Canada. It is required that at some point in their 28 years, they have lived in Canada for three years -- 1,095 days -- out of six. That same rule applies to those who come to Canada and apply for citizenship. We are saying that by virtue of your parents' citizenship, we will give you citizenship until the age of 28, but then you have to choose to establish an attachment to Canada.

Senator Grafstein: It is 22, minister, because the clause indicates six years before the age of 28.

Ms Caplan: They apply by the age of 28, so by the age of 25, or six years before that. It does not have to be 1,095 consecutive days, but some time within the six years. For example, if a person comes to Canada at the age of 25, lives here for three years, and has a strong attachment to and establishment in Canada, citizenship is maintained in perpetuity. If, on the other hand, the person has the opportunity to maintain citizenship, but does not take advantage of that by establishing any attachment to Canada -- by never contacting, or registering with, a consulate, embassy or high commission -- what is our obligation to that individual?

In my view, we have to advertise to inform them of their obligations if they wish to maintain their citizenship -- we do that. Anyone who enters an embassy, high commission or consulate is given information, especially if they say, "I am the child of a Canadian citizen and I came in to pick up my citizenship papers, because I have to apply." They are told then what the requirement is for maintaining citizenship. That is because one of the values in Bill C-16, as in the legislation before it, is a requirement for "attachment to Canada."

We have said that we want people who know our country, who have lived in our country, and who have an attachment to our country. We have planned a special publicity campaign in conjunction with this proposed legislation, and we send out information from time to time to let people know what the rules are for maintaining their citizenship.

I can assure the honourable senator that I have visited our consular posts abroad. Anyone who walks into one of our consulates has the opportunity to speak with an official who has responsibility for the citizenship file. They can receive the citizenship certificate at one of our overseas posts. This happens several hundred times each year in most of the posts for children born abroad. At that time, information is given about the requirements for maintaining citizenship.

Notification can always be improved and advertising can be undertaken. The goal is to encourage those people to come and live here and form an attachment to Canada, so that they will be able to maintain their citizenship. Canada is very generous in granting citizenship to the second generation of those born outside Canada. We ask in return that they establish an attachment to Canada by living here for a three-year period. It is eminently reasonable.

I find it hard to imagine that anyone falling under this provision would never have had contact with an embassy or a consulate. You have to make contact with a citizenship officer in one of our embassies, high commissions or posts around the world in order to receive citizenship in the first place.

We in the department have an obligation to ensure that when that contact is made, individuals are fully informed, not only of their rights, but also of their responsibilities and obligations.

There are only 20 cases.

The Chairman: Those will likely be the difficult ones.

Ms Caplan: There is a safety valve for those difficult cases whereby the person may present arguments. Citizenship could be reinstated as a result of petitioning the cabinet.

The Chairman: I have a supplementary point to the first part of Senator Grafstein's question before you move on to the second part.

Imagine that a person enters a Canadian embassy overseas and is informed of the right to have citizenship reinstated if that person were to live in Canada for three out of six years before turning 28 years old. Imagine that a person returns to Canada at age 25, and at the age of 30 discovers that he or she is no longer a citizen. Is this right retroactive? Could the person then say, "I have been here since I was 25 years old, three years before I turned 28. This was not advertised in Canada and I did not know about it."

Ms Caplan: Yes. That is exactly the type of case involving resumption of citizenship. A person could make a petition and state the case. It would go to the cabinet, and the cabinet could reinstate citizenship. The safeguards are there.

You should also know people that who have lost citizenship under this provision could pursue another avenue. They could come to Canada as permanent residents and become eligible for citizenship after one year.

Therefore, we do have a number of safeguards within the bill to ensure that no one is inappropriately disadvantaged. The rules are clear. The implied value here, of attachment to Canada, is expected. We expect Canadians to have an attachment to this country.

The Chairman: Would you address the remainder of Senator Grafstein's question?

Ms Caplan: I would like to thank the senator for that question.

I am persuaded of the need for the public interest clause. Every circumstance is different and it is difficult to foresee or understand what might occur.

It is important for any minister to make judgements on the adequacy of proposed legislation in a way that would withstand public scrutiny. I cannot imagine a case that would not potentially be a subject for Question Period. Any case could potentially be referred to the court through the Charter. Therefore, all of the provisions that you have stated would be taken into consideration. Those that would apply in a certain case would depend on the circumstances of that case.

I am comfortable that we need the clause, because Canadians expect us to be able to act in the public interest and delay citizenship when it is appropriate to do so. You used words such as "respect," "integrity" and "values."

You would not want to welcome some of the individuals that you named. I presume that the reason that you would not welcome them is not only because of who they are. It is probable that their reputations would not bring honour to Canada, nor enhance the integrity of Canadian citizenship.

We must be able to stand firm. We must have the discretion to delay citizenship in the public interest. We do not want to be in a position where a technicality requires that citizenship be granted to some of those individuals whom you mentioned.

The department tells me that this is a concern. It would be an exceptional case, but it is a concern.

We would not be carrying out our responsibilities as parliamentarians if we were to leave this provision out of the bill. We must give the department, the minister, and executive council the ability to use this discretion appropriately in the public interest.

Senator Moore: Minister, under subclause 21(3), the public interest clause of the bill, it states that the notice must include a summary of the grounds contained in the report, yet in subclause 17(2), dealing with revocation, that provision is not there. It says that the notice must state that the person to whom it is sent may, within thirty days after the sending, request the minister to refer the matter to the Federal Court Trial Division. It is considered there without right of appeal. That notice, however, does not contain the grounds. Why is that?

Mr. Stevens: First, we are speaking about quite different processes. I recognize your point that in the reference to notice of revocation, it does not go on to describe what will be in that notice.

Unlike public interest cases, we have case law dealing with revocation. The case law has emphasized to the government the importance of describing its case in the notice. The court has gone on to say that if you do not state it up front, you cannot then somehow rely upon it farther down the road.

Senator Moore: I agree. However, you did not include it.

Ms Caplan: The answer is that there are different processes because of existing case law.

Senator Moore: I understand that.

Mr. Stevens: The case law in this area would cause the notice to include all the necessary information if the revocation were to be successful.

Senator Moore: I am thinking about it from the point of view of an individual caught in this situation. There is no appeal, according to this bill. Why would that person not have full notice of the case against him or her?

Ms Caplan: They do have notice because the revocation procedures in Bill C-16 are identical to those that have been in place since 1977. There is case law on that process stating what is required and the steps that must be followed in order for revocation to be successful.

Every court, including the Supreme Court of Canada, has tested this issue. It has been found to be in compliance with the Charter, as well as the Constitution. Given the fact that we are not making any changes to the revocation procedure, what you are suggesting is not necessary because it is already included in case law.

The Chairman: There is no change in this part of the act?

Ms Caplan: There is no change in this part of the act.

Senator Moore: Why did you include it in the public interest clause?

Ms Caplan: We included it because it is a new provision and there is no case law on that process.

Senator Moore: There is no case law?

Ms Caplan: No. It is a new provision.

Senator Moore: Yes, I realize that. I do not understand this. Just as a matter of consistency, and in a situation where there is no appeal, I do not know why that would not be included.

Ms Frith: The drafters wanted to be absolutely clear when they were working on the bill. They would make a more precise statement where we do not have case law than in the other situation, where we do. That is why it appears in one place and not in the other.

Senator Andreychuk: I thank Senator Moore for raising that point. I wanted to follow up on that also.

The explanation seems to be that what is in clause 17 has existed since 1977. It is tried and true and has passed tests in the court. However, we have heard evidence that people felt that, somehow or other, it was unfair. You receive a notice and you have to make your case, but it is not until you get right into the trial division that you actually know what case is being made against you. Is that fair time-wise? Does it fall into line with public perceptions? You certainly receive more notice on very elementary criminal cases. While this is an administrative matter, having your citizenship revoked is very significant. There was a lot of concern about why notice was not given earlier. I should like some response to that question.

The section has not been changed, but the problem is, there is no appeal. Therefore, we were told that -- and apparently the case law supports this -- given almost the same facts, one judge has decided one way and another judge has decided another way. Let us take fraud as an example. It then goes back to cabinet, the Governor in Council, to decide on the actual revocation, but the finding of fact is made by one judge. The case has been made rather eloquently that an appeal should be allowed, for the government's sake as much as for the individual's, because judges are not infallible. Now there seems to be a bit of "judge-shopping" in the Federal Court on the basis of which judge will decide which way. For the sake of consistency, there should be an appeal allowed because the facts are "trapped" in the trial.

Leave aside the fact that there is probably valid reason for the executive to have the power not to revoke citizenship on humanitarian grounds. Technical determinations of such things as fraud and false representation are left to the court, and quite rightly so, but there should be an appeal because judges are not infallible. Why would we not improve upon our experiences since 1977 and offer a better appearance of justice?

Ms Caplan: The courts have spoken on the issues of fairness, which is what you are addressing. They have said, on three separate occasions, that our system is fair and just. The highest courts have had the opportunity to call for changes to the revocation process and have chosen not to do so. The courts have also, from time to time, made unequivocal pronouncements on the nature of this process, which conforms to the inherent fairness of the provisions of the current Citizenship Act. Those judgments have been made. The courts are already involved in reviewing decisions.

The Federal Court of Appeal, in the Luitjens and Katriuk cases, ruled that the existing system is compliant with the Charter, and in particular, due process concerns. In the Dueck case, Mr. Justice Noël stated that the revocation process in no way diminishes the respondent's right to be treated fairly and in strict compliance with the principles of natural justice. In addition, the courts have held that there is no absolute right to an appeal. Both Luitjens and Katriuk appealed to the Supreme Court of Canada on these points, and leave was denied.

Bill C-16 further respects the Charter. The process has been challenged in the courts, all the way to the Supreme Court of Canada, and was found to be in line with the Constitution and the Charter of Rights and Freedoms. There is no breach of the Charter because the Federal Court Trial Division's decision determines nothing but facts and has no effect on the individual's citizenship rights per se.

When examined objectively, it is clear that the revocation process spelled out in Bill C-16 guarantees due process and offers ample opportunity for those affected to defend themselves and to have their cases carefully considered. Three separate authorities must look at the case under the current process: The Federal Court must look at the facts to find that the fraud took place; then both the minister and the cabinet consider the circumstances of the case; and government policy to decide whether or not citizenship should be revoked is then considered. There is judicial oversight of the key administrative decisions as they are made, and the current system allows for discretionary decision-making by the cabinet in favour of an affected individual.

The courts rule strictly on points of law. Including a judicial appeal would not improve the revocation process. Under judicial appeal, the courts can only focus on points of law. It does not allow for as broad a perspective as is currently possible through the cabinet review. The Governor in Council looks at the law and the human element, and has room for compassion. The current process is advantageous in that it allows for flexibility and discretion. The cabinet, in rendering a decision on a particular revocation case, can always invoke humanitarian and compassionate grounds for not proceeding.

Every year, citizenship is granted to thousands of individuals who come to Canada ready to share fully in the rights, obligations and opportunities of our society. Yet over the last three decades, only a handful of individuals have had Canadian citizenship revoked -- some 37 cases since 1977 -- while 3 million people have received Canadian citizenship. I think this attests to the fact that such action is a very rare event.

Protection of Canadians and the value of Canadian citizenship is enhanced by the current process. It has been tested by the courts. It works, and it is the government's policy decision that it does not require change. The courts have said it is fair, and that it meets our constitutional and Charter obligations. Those who enter Canada do so with a commitment to honour and observe Canada's laws and to uphold the values of our society. Consequently, we must have an effective process in place to deal with those who enter Canada fraudulently, who do not play by the rules, and who knowingly deceive us. Such a process is spelled out in Bill C-16. It is essential to ensure the integrity of the law and to safeguard the value of Canadian citizenship.

As I said, the grounds for revocation are very difficult to prove. The government must prove that someone knowingly lied. I state, once again, that Bill C-16 does not change what has been in place in this country since 1977. That process has been tested in our courts. It has withstood the test of time; it has withstood the test of court approval. We believe there is no need for any change, that it is fair, that it offers due process, and that it ensures the integrity of Canadian citizenship.

This allows Canada to state that it will not be a safe haven for war criminals, for those who committed crimes against humanity, for terrorists, or for those who have come to us and lied their way in. Such people cannot expect safe haven in Canada, and we have a process which allows us to revoke citizenship that was obtained fraudulently, where material information was knowingly concealed, and where individuals lied their way into Canada. The courts have said that this process is valid. There is no need to change it.

Senator Andreychuk: I am not sure what statement you were reading. Do we have a copy of it?

The Chairman: No, we do not have it, but it is now on the record.

Senator Andreychuk: I understood from your first appearance here that you believe clause 17 need not be changed. My point was that one court, one judge, may make a determination allowing a war criminal or a terrorist to retain Canadian citizenship because all of the evidence was not presented or because of the particular point of view of that judge. If the judge makes no finding of fraud, there is no appeal from that fact-finding and the person can stay.

Equally, others have argued that an appeal is necessary because of fact-findings against the citizen in question. It seems to me that safe haven for war criminals and terrorists is more of an immigration than a citizenship issue.

Again, we agree to disagree on whether this bill is adequate to ensure the objectives you are discussing.

Ms Caplan: I would say once again that we have had 25 years of experience. Cases have been reviewed all the way to the Supreme Court of Canada and the law is clear. We have in place a due process which is considered fair. The department knows full well that it must make its case before the Federal Court. The bar and the standards are known. If a case cannot be made, that is the end of it. When a case can be made, the decision is still subject to cabinet discretion.

Because the individual is notified, one could say that the appeal is to the cabinet. I believe that is appropriate. That is where the decision should be made.

Senator Andreychuk: You continue to say that there are 37 cases to which this applies. We were told that about 3,000 cases have come under the department's scrutiny. Of those, 37 have gone before the courts. Is that your understanding also?

Ms Frith: Essentially, we reported the number of cases that might come under consideration because of phone calls or written submissions or other reasons requiring follow-up under the war crimes section. Other cases could be brought forward for immigrations reasons or because people have lied about residence. In the end, we have only had 37 cases over the last 23 years where people have had their citizenship revoked.

Senator Andreychuk: Bill C-31 is somewhere in the House of Commons, I understand. That is the immigration bill. It has been said that there are more safeguards and better access to due process for people under that bill than there are in Bill C-16. What is your comment on that statement?

Ms Caplan: I disagree.

The Chairman: With that, we will move on.

Senator Joyal: I have a legal question for you. The oath states, in part, "From this day forward I pledge my loyalty and allegiance to Canada..."

Mr. Stevens, what is the legal definition of "Canada"? What do we understand legally by the word? Section 35 of the Interpretation Act, for greater certainty, states that "Canada" includes the internal waters and the territorial sea of Canada, so the definition in that act is more of a geographical or territorial entity than a political structure of a nation or the Constitution.

Legally, how is this understood? Where can I look, in the statutes of Canada, to be sure that when I pledge allegiance to Canada, I am pledging allegiance to something which is well understood and well defined?

Mr. Stevens: The oath of citizenship has certain legal as well as symbolic aspects. The National Anthem Act is found in the statutes and includes the song O Canada. That act probably contains a better symbolic image such we are discussing here, including all the meanings of "Canada," rather than the geographical entity only.

Senator Grafstein: To respond to your final answer, then an oath is not an oath?

Also, can you tell me the legal difference between my duties and my obligations as a Canadian citizen? What is the legal significance of the words you have added -- "and obligations"? What is the difference between legal duties and obligations?

That is a technical drafting question or a legal question. Perhaps your legal advisers might answer.

The Chairman: We will let the minister go about her business then and her staff can remain to help us.

Thank you very much, minister, for appearing before us. This is the second time you have been thoroughly grilled on this bill. We appreciate the time that you have spent here.

Mr. Stevens: Is this an oath? The simple answer is that when Parliament legislates a certain text as the oath of citizenship, then it becomes the oath as a matter of law. I would say yes, it is an oath. I will certainly take more questions to develop your line of thinking, if I am misunderstanding this aspect.

Duties and responsibilities of citizenship are contained in the common law. I am a citizen by birth, but I know that, by law, I owe allegiance to the Crown and that certain duties and responsibilities are tied into that allegiance.

In some instances, they would be set out in the statute. An example of a responsibility might be to serve on a jury in Ontario.

Senator Grafstein: It does not say "responsibility"; it says "obligation."

Mr. Stevens: Then that would be an obligation.

Senator Grafstein: I thought it was a duty.

The Chairman: It is jury duty, at any rate.

Mr. Stevens: Duty or obligation.

Senator Joyal: I have a technical question. When the oath mentions Her Majesty Elizabeth II, Queen of Canada, if we look at the definition of that in the Interpretation Act, it states, "Her Majesty, His Majesty, the Queen, the King or the Crown means the sovereign of the United Kingdom, Canada, and other realms and territories and head of the Commonwealth." In other words, there are no heirs or successors in that definition. That has been common understanding, but if we look at the wording of the oath, it is essentially linked to the Interpretation Act. If I want to know exactly what kind of oath I am taking, I read the Interpretation Act, which does not include the heirs or successors. Essentially, it is the sovereign of the United Kingdom, Canada, and her other realms and territories, and the head of the Commonwealth. Technically, that is what it is. Am I right or wrong?

Mr. Stevens: Included in that definition you just read is the word "sovereign." I would argue that it includes the sovereign of the day. That is implicit. Whether it is Queen Elizabeth, or whoever it might be in the future, that is the sovereign, according to the Interpretation Act.

Also, common law principles concerning the demise of the Crown led us to believe within the Department of Justice that it was not necessary to require each person to say "heirs and successors" for that to remain the legal effect.

When you think about these things, I as a Canadian citizen have taken oaths to become a public servant, but I have never taken my oath of citizenship. Yet the law provides that I owe allegiance to Her Majesty the Queen, her heirs and successors.

Senator Joyal: In other words, if I understand the interpretation correctly, although the previous oath included "heirs and successors," it was left out here because it was redundant.

Mr. Stevens: It was a policy decision to simplify it for the person standing up to take the oath. That was the intent. It was not intended to have any legal effect.

Ms Frith: Perhaps I might interject. The only reason for removing "her heirs and successors" was to make the oath easier to read. When that decision was taken, we referred to a well-established principle of common law, and that is the obligation to be loyal to the sovereign, regardless of who wears the Crown. Therefore, there was no need to specify "heirs and successors." That is why the oath was drafted that way. It was in no way meant to imply that you were pledging allegiance just to Queen Elizabeth II.

Senator Joyal: I agree with you that the oath is for citizens, for instance, who would have pledged allegiance to Her Majesty, Queen Elizabeth II. When she is replaced by a successor, there is no doubt that the oath is still valid. It does not fail because the person who bears the title has changed. The title remains constant.

There is an element of continuity with the very nature of the words "heirs and successors" that no longer exists here. As I said earlier, we are a constitutional monarchy. That is a fundamental character of Canada. This is what distinguishes us from other countries. My reading of citizenship oaths from other countries clearly shows that they contain an element of their constitutions. If you look, for instance, at the oath of the United States, it speaks of a pledge to the Constitution of the United States of America.

We live with two political systems in a symbiotic structure whereby the definition of our system of government is partly constitutional and partly prerogative. That is why we are a monarchy. Of course, this prerogative has been further framed by Parliament over the years, but it still exists, and that is why we are still a constitutional monarchy. I try to understand the exact legal meaning and constitutional elements included in the oath and how well they are reflected. Besides the symbolic aspect and how we understand it individually, what in fact is the legal meaning of the words that are used there?

Ms Frith: Such considered thoughts as you have raised were taken into account in the writing of the oath. We looked both at what we would be doing legally, and also at how we could express things that are important to this country in a short, concise form that will be easy for people to read and to recite. We had to deal with whether or not we would mention aboriginals, whether we would mention languages, and whether we would mention the cultural diversity of the country. We had to look at all the different issues surrounding the different ways people see themselves in the country. We consulted broadly. We had several writers working with us. In all of that effort, we said, "We must respect our legal character. We must be able to make it very clear that part of what we are is a monarchy." The clear message from the people of Canada was that they wanted loyalty to Canada, respect for its rights and freedoms, and respect for its laws to be stated unequivocally in the new oath.

As the minister has said, this is a compromise. It is the best that we can do. We certainly believe that legally, in terms of representing our country, it is correct, and that from the more poetic perspective, that we have captured what people told us. It is the best that we can do.

Senator Andreychuk: Mr. Stevens, one of the witnesses mentioned that she had difficulty understanding what the "presumption" in subclause 16(3) meant. I have read it and read it again. It says that for the purposes of this section, a person is deemed, let us say, to have committed fraud, if they in fact came to Canada by fraud. What does the word "deemed" mean in that case? What is the presumption?

Mr. Stevens: The presumption is simply to make it clear in the bill that a lie in the immigration process leading to citizenship would also be a basis for revocation.

Senator Andreychuk: So subclause 16(3) is limited to the immigration process?

Mr. Stevens: The clause refers to a person who was admitted to Canada as a permanent resident -- that is the immigration process. If the person became a permanent resident fraudulently, then that is a relevant matter and could form the basis for revocation of citizenship. That is the provision.

The Chairman: There were questions on two of the clauses of the bill about errors in drafting -- errors in translation. I believe there was one in subclause 18(1) and one in clause 30. Are you prepared to reconcile the problems today, or to send us some material?

Ms Frith: We are prepared to discuss clause 30. My memory fails me on subclause 18(1).

The Chairman: In the French version of 18(1), the word "nulle" is used, as compared to "void" in English.

Senator Beaudoin: Is that in 18(1)?

The Chairman: Yes.

Senator Beaudoin: I will read it again.

Ms Frith: Perhaps we could discuss the issue of material error.

Senator Beaudoin: Someone took notice of the clerical error previously. Are you sure it is in subclause 18(1)?

The Chairman: Perhaps we could deal with clause 30 first and then return to subclause 18(1).

Ms Frith: My understanding on clause 30 is:

[Translation]

Senator Joyal was alluding to the interpretation given to the expressions "material defect" and "erreur importante." Correct?

[English]

I can answer in several ways, but we consulted with our drafters, who told us that the two terms have the same meaning in English and in French.

[Translation]

The identical phrasing is used in English and in French. For example, some federal acts use expressions similar to the ones found in clause 30 of the bill, in both French and English versions. The meaning is the same.

[English]

In the Bankruptcy and Insolvency Act, "material omission" has the same meaning as "omission importante" in French.

Under the Canada Business Corporations Act, if the error or misstatement is "material" it is the same in French as:

[Translation]

"d'une erreur ou d'un renseignement inexact à son avis important."

[English]

Under the Bank Act, a statement of material facts, in French, is "un exposé des faits importants."

Under the Canadian Broadcasting Corporation Act, the error or omission is "material":

[Translation]

..."d'une telle erreur ou d'une telle omission importante."

[English]

In law -- article 10 of the current Citizenship Act -- we talk about "by knowingly concealing material circumstances":

[Translation]

..."de la dissimulation intentionnelle de faits essentiels."

[English]

We were given advice in a report that was done for us specifically on clause 30 and how it should be implemented. We were told that "a material defect " means "an error that is clear on the record, has a significant influence on the decision and raises serious doubts about its correctness."

[Translation]

A material defect means an error that is clear on the record, has a significant influence on the decision and raises serious doubts about its correctness.

The following examples illustrate "material defects": the improper application of proof requirements or tests under the Citizenship of Canada Act; a fundamental mistake about the operation of foreign law where the correct application of the foreign law is a required element of the decision; a complete absence of evidence to support the citizenship official's finding or findings of fact; the evidence is contrary to the delegated citizenship official's finding of fact; or the official failed to consider relevant facts or based his finding on irrelevant facts. The term "material defect" would not include an opinion formed by the delegated official following an examination of evidence, especially where oral evidence was presented to the decision-maker, unless the decision was clearly unreasonable.

Nor would the term include an alleged defect in the Minister's written policies or procedures.

[English]

I can continue, if you would like.

The Chairman: Not as far as I am concerned.

Senator Joyal: That is very important because the witness has referred to a number of statutes. We can refer to them and understand them in the context of the legislation, and what is actually meant by them. It will give us an avenue for looking into that.

[Translation]

Senator Beaudoin: I enjoyed the answer to your question because it comes down to the beauty of the language. The important word is "entaché d'une erreur." In English, the expression used is "material defect in the decision." The French version, on the other hand, says "la décision est entachée d'une erreur importante."

The word "material" is often rendered in French by "important" or "importante" and I am not entirely satisfied with this solution. However, the initial reaction that I and Senator Joyal had was that a material defect was a material error, that is a visible error. Now you are talking about a "major defect" or "erreur importante." If that is the terminology that has been used in other statutes and if the courts have already ruled on this, than I will go along with it. How long has this particular translation been used?

Ms Frith: Since I am not a lawyer, I will defer to my colleague Mr. Stevens.

[English]

Ms Frith: Has it been in effect for a long time?

Senator Beaudoin: If it has been used often in the statutes, and the courts have ruled on it, then I am satisfied.

Mr. Stevens: Are you including the words "material" and "defect" in the decision?

Senator Beaudoin: The word "material" is a little surprising.

Mr. Stevens: On that point, there is case law coming out of the revocation context, or it may be the immigration context, that a "material" misrepresentation is a misrepresentation that matters. Also, I am unsure, in insurance law, whether or not the insurance company is liable if you make a material misrepresentation on your insurance claim. I have seen a little insurance law, but I am certainly not an expert. Those are general reactions.

[Translation]

Ms Frith: The terminology has been in use for some time now, at least since 1977.

[English]

Senator Beaudoin: The words "of consequence" may be translated into French with "important." "Quelque chose qui est important." I do not have any problem with that.

The Chairman: We will now go back to subclause 18(1). I am informed that the transcript of that particular meeting indicates that it was a discussion as to what was meant by "nulle" in the French and "void" in the English.

Senator Beaudoin, do you have any problems with that? I gather it was a discussion rather than an assertion that this may be an error in drafting.

Senator Beaudoin: "Void" in English; what line is this? Null -- void. In French, "nul." That sounds all right.

The Chairman: The problem is solved. We say "null and void," but not in this bill.

I wish to thank you very much for staying and helping us with some of these problems. We have completed this session.

I wish to alert senators that when we meet again, it will be for clause-by-clause discussion of this bill. I suggest that it be at our regular meeting time, either next week or as our respective leaderships decide.

The committee continued in camera.