Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 17 - Evidence - June 11, 2014
OTTAWA, Wednesday, June 11, 2014
The Standing Senate Committee on Social Affairs, Science and Technology met this day, at 3:15 p.m., to give consideration to the subject matter of Bill C-24, an Act to amend the Citizenship Act and to make consequential amendments to other acts.
Senator Kelvin Kenneth Ogilvie (Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
I am Kelvin Ogilvie, chair of the committee and a senator from Nova Scotia.
I will ask my colleagues to introduce themselves, starting on my right.
Senator Seidman: Judith Seidman from Montreal, Quebec.
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
Senator Eaton: Nicky Eaton, Toronto.
Senator Enverga: Tobias Enverga, Ontario.
Senator Tkachuk: David Tkachuk, Saskatoon.
[Translation]
Senator Chaput: Maria Chaput, Manitoba.
[English]
The Chair: Thank you very much, colleagues. I want to introduce my deputy chair, who was temporarily detained.
Senator Eggleton: Art Eggleton, senator from Toronto, deputy chair of the committee.
The Chair: This is a pre-study of Bill C-24, An Act to amend the Citizenship Act and to make consequential amendments to other Acts.
By video conference, we have from the Centre for Immigration Policy Reform, Martin Collacott. Welcome.
From the Canadian Bar Association, we have Barbara Jackman, Member, National Immigration Law Section by video conference. Welcome. In the room, we have Kerri Froc, Staff Lawyer, Law Reform and Equality; and Barbara J. Caruso, Executive Member, National Immigration Law Section.
I will start with the Canadian Bar Association. I understand all three of you will make a presentation within the total five-minute time frame. I believe, Ms. Froc, you will begin.
Kerri Froc, Staff Lawyer, Law Reform and Equality, Canadian Bar Association: Thank you, Mr. Chair and honourable senators. The Canadian Bar Association is pleased to appear before this committee today to address Bill C-24.
The CBA is a voluntary association of 37,500 lawyers across Canada. Our written submission before you today was prepared by members of our Immigration Law Section and approved by the CBA as a statement of that section.
I am here with Barbara Caruso, Executive Member of the CBA's Immigration Law Section and Barbara Jackman, Member and a Past Chair of the section. I will turn things over to them.
Barbara J. Caruso, Executive Member, National Immigration Law Section, Canadian Bar Association: Good afternoon. Bill C-24 should be entitled "An Act to Discourage Canadian Citizenship."
Citizenship plays a critical role in encouraging permanent residents to contribute financially, socially and politically to our country. We want permanent residents to take the next step and "have some skin in the game." This law will discourage and/or significantly limit persons from applying for citizenship.
Bill C-24 adds layers of requirements to the citizenship criteria, making it harder for people to qualify and more time-consuming and costly for CIC to process applications. Any potential reduction in processing times as a result of redefining residence as "physical" will be severely negated by these other new requirements.
The new criteria include: four years of physical residence out of six, not three out of four, as it is currently; the elimination of the ability to count days in Canada as a temporary resident; the requirement of 183 days of residence in a calendar year, in addition to the four years of physical residence; filing proof of tax returns; and having an intent to reside in Canada.
What does it mean to have an intent to reside in Canada and how will an applicant prove their intent? Ownership of a home? Not everyone owns a home. Employment in Canada? What about those who are self-employed, those who stay at home with children or persons with disability that don't have employment? Will it just be as simple as checking a box on a form and declaring an intent to reside? What happens if that intent changes after the application is approved?
The minister says it doesn't matter what you do after you become a citizen because the Charter says citizens have the right to mobility, but citizenship can be revoked for misrepresentation, and subsequent travel outside of Canada may be used to prove misrepresentation.
What if those citizens born in Canada were required to have an intent to reside here? Would Wayne Gretzky still be Canada's "Great One"?
Inequalities between citizens weaken Canadian citizenship, not strengthen it. The government should be encouraging citizenship, not discouraging it. Amend this bill and remove the intention clause.
The Chair: Thank you.
Barbara Jackman, Member, National Immigration Law Section, Canadian Bar Association: I will deal with the revocation of citizenship. Just as the intent clause and the other aspects of the bill do not strengthen citizenship, the revocation of citizenship in fact undermines it.
If there's one thing we have as Canadians, when we're born and grow up here, it is the certainty that we belong to this country. This is our home. That will go with this legislation. It is being taken away without any kind of national debate being encouraged by the government about such a fundamental change.
We have never taken citizenship away from people born in Canada. This legislation purports to do that for those who have engaged in certain forms of criminality.
Another aspect of it is that this is the beginning. Once you start taking citizenship away for some kinds of criminality, it is a matter of just adding. That's what happened with deportation of permanent residents over the years. The grounds for taking away residence from permanent residents have been broader and broader. Will we come to a point five or ten years from now when young Canadians will be deported for a six-month sentence, the same as permanent residents? It takes away the certainty of citizenship.
On another level, it appears to be fundamentally a human rights breach. Canada is not allowed to exile people or to banish them from the community. By taking away citizenship, that's what's being accomplished: Canada is ultimately exiling or banishing its own citizens just by saying that they're not citizens. You can't bring through the back door what you can't get through the front door.
The legislation is retrospective, in effect. It will cover people who have been convicted in the past without any notice that they will now lose their citizenship as a result of actions taken many years before. The act discriminates in the sense that Canadians who don't have claim to a second citizenship are safe. They will not be penalized by losing their citizenship no matter what they do. That goes for both Canadian-born Canadians as well as naturalized Canadians under this legislation. It's only those who can claim a second citizenship who will lose their citizenship. So it's discriminatory, not based on the nationality of the person but the nationality of their parents.
The last point is that in addition to those kinds of constitutional discriminatory practices, such as exile and discrimination, it may well be beyond the constitutional framework that we presently have to be able to do it.
The Chair: Thank you very much.
Martin Collacott, Spokesperson, Centre for Immigration Policy Reform: First, I would like to thank you, chair, and members of the committee, for inviting me to speak before you today. I'm pleased to be able to contribute my views on this comprehensive overhaul of Canadian citizenship legislation which, in my view, is long overdue.
I might mention in this regard that prior to my careers overseas with the Canadian International Development Agency and the Department of Foreign Affairs I served as citizenship adviser to the Ontario Department of Education, and therefore have a long-term interest in matters relating to this topic.
My comments on specific provisions of the proposed legislation are as follows:
I support the extension of the residency requirements for citizenship applications from three out of four years now to four out of six years. I would have preferred that it be extended to the five-year residency requirement, which had been in effect prior to 1977 and which I had recommended in a paper published in 2008. I understand that compromise may be required in order to get agreement.
It should be noted that no other immigrant-receiving country, at least none that I am aware of, has as short a residency requirement as Canada does at present. Australia's is four years. The last time I checked, it was five years in the United States, the United Kingdom, New Zealand and Ireland; seven in Norway; and eight in Germany and Switzerland.
The argument has been made that the sooner a newcomer can get their citizenship the more attached they will feel to Canada. While this may be true in some instances, far more often one hears of cases of those who want to acquire citizenship as quickly as possible in order to move back overseas without delay and who regard their Canadian citizenship primarily as little more than an insurance policy.
It is true that some of those who want to be able to return to work abroad as quickly as possible may be high-flyers with particular capabilities who are well placed to function in today's global economy. To what extent they constitute a net gain for Canada, however, is very much open to doubt.
In many cases, they park members of their families in Canada, where their health care and education is subsidized by the Canadian taxpayer, while they themselves work and pay taxes elsewhere. If they return here to retire, they will cost taxpayers an additional $300,000 in health care and social transfers, based on the estimates I made before this committee on May 28.
I think we have to look carefully at claims that easing residency requirements for some immigrants will benefit Canadians. If anything, I think newcomers will value their citizenship more if they know it is not something that can be acquired quickly or without meeting certain standards.
I strongly support the provisions in Bill C-24 aimed at ensuring that residency requirements are actually met, particularly in view of evidence that thousands of people have obtained their citizenship fraudulently by claiming they had spent the requisite time in Canada when in fact they have not.
Bill C-24 includes greatly increased penalties for such fraud as well as requires the filing of income tax returns in Canada. While these are all useful measures, I believe it is also important that Canada proceed as quickly as possible with plans to introduce comprehensive screening and recording of the entry and exit of all non-Canadians on to or from our soil. Only in this way will we have an accurate picture of whether residency requirements have been met.
By the same token, I'm glad to see the bill includes measures to speed up the processing of citizenship applications and reduce the large backlog that has developed. Once someone has met the residency and other requirements for the acquisition of citizenship, it is important that they receive it without undue delay.
In other areas, I fully support those parts of the bill designed to enhance the value of the citizenship, such as expanded language requirements — ability to communicate with some fluency in English, or French if you're going to Quebec. These are clearly key factors enabling a newcomer to become a contributing member of Canadian society and feel at home here, as well as fully realize their employment opportunities here.
I would, however, add that the level required, Canadian Language Benchmark level 4, is quite low, and for immigrants hoping to find employment in professions and managerial positions significantly higher levels of competency are necessary. The benchmark for most jobs will be 8 or 9: much higher than what's required for citizenship.
With regard to other sections of the bill, I support those that provide for the revocation of citizenship for those who obtained it on the basis of providing false information in such areas as the length of time they spend in Canada, concealment of criminal inadmissibility, identity fraud or the commission of acts of terrorism.
I note in this regard that the United Kingdom is pressing ahead with much tougher legislation that would provide for revocation of citizenship acquired through naturalization even if the individuals affected would become stateless, which is further than we are going.
There is strong public support for the imposition of tougher measures for revoking citizenship. Eight out of ten people polled in a 2012 survey agreed that Canadians convicted of treason or terrorism should lose their citizenship, while another survey found that three out of four Canadians would support revoking the citizenship of people who are granted it and went on to commit serious crimes.
Chairman, as my time is just about up, I will conclude by mentioning the good many other elements of the bill that will contribute to more comprehensive and equitable citizenship legislation, such as the provisions dealing with the so- called Lost Canadians and refinements to current first generation cut-off rules.
I also support efforts to do away with the anomaly of allowing birth citizenship and appreciate that this is not dealt with in the current bill because of complexities that have to be examined carefully before legislation is presented to Parliament. I trust that continued priority will be given to eliminating current provisions for granting birth citizenship.
The Chair: Thank you, Mr. Collacott.
Senator Eggleton: One of the provisions in this bill that concerns me the most are the procedures involved in the revocation of citizenship. Up until now it has been fraudulent information that can result in a person losing their citizenship or also being involved in the armed forces against Canada in some respects.
Now there will be a lot more criminal penalties that could be considered as part of them, some of them imposing a life sentence. Terrorism could be a five-year sentence and could be something given outside of Canada.
There is a journalist in Egypt on trial for terrorism. He is a dual citizen, but if he is found guilty, would that be the basis for making a decision that he should be deported from this country to Egypt? Maher Arar is another case of somebody that might have been caught under this particular clause.
The other thing that concerns me about this particular clause, and I think Ms. Jackman also said this, for the first time it would mean somebody born in Canada could be deported. Until now, we have talked about naturalized people possibly being deported, but now somebody born in Canada, but only if that person has dual citizenship. The onus is on them to prove that they are not a dual citizen if they get brought before the minister.
I say "brought before the minister" because that is the other part of this. It is really the minister that makes the decision. There is very little opportunity to go to a court. There is no appeal process to the Federal Court, except on two limited cases. The only thing the court can do is to look at it as a matter of legalistic provisions, based on an error in law, and the leave to appeal has to be provided before you get there, and that doesn't happen too often.
It strikes me that the provisions by which cases are considered have not only expanded enormously, but for the first time Canadian-born people can be deported, creating a two-level ranking system for citizens; and at the same time, it provides little opportunity beyond the minister for appeal.
I would like to get your comments on that. Is that a correct way of characterizing it?
Ms. Jackman: Yes, I think that's a very good summary of it. I think the provision is self-fulfilling. The exemption from terrorism barring immigration has existed since 1992. We know through cross-examination of senior officials that there have been ministers who have not given any exemptions because politically they didn't want to be seen to be helping terrorists by giving an exemption even though they were not terrorists; it is membership.
That is what will happen here, you can be sure, if it doesn't go before a court to decide the issues. The minister will take away citizenship for anybody who has a five-year sentence whether or not the offence itself is objectively serious.
Take the example of Greenpeace activists who climbed the Russian ship. Had they been convicted they could have lost citizenship. That is how broad it is. That is just a protest, but it can be characterized as terrorism.
In addition, what comes next? Once you open the door, you are on a slippery slope. Citizenship is not secure for any Canadian. That is not the understanding that Canadians have of their citizenship.
Senator Eggleton: These criminalized situations — treason, terrorism, et cetera — with a five-year possibility, maybe you could comment on what kind of terrorism charge would get you five years outside or inside of the country?
In terms of the impact some of these people might have on this country, and whether they are citizens or not citizens, if they are found guilty in this country they can go to jail, so there is punishment, but why would we stop there? People like Robert Pickton or Paul Bernardo, I don't know if they have other countries they can go to, but why are their crimes any less than others?
Ms. Jackman: They are far worse, some of them, but it doesn't matter what Canadian you are talking about. If they have been born and grew up here, it is exile; you are effectively banishing them.
England got rid of banishment in 1868. It is contrary to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights; it is contrary to our Charter, and that creates a lot of serious problems.
Objectively speaking, a terrorism offence is any crime where the person has done it for some political or religious or whatever motivation, and it has an impact in terms of damaging property or harming people. It doesn't even require that you harm someone or engage in violence. If you are doing it for a political or a religious purpose you can be caught by it. It is a very broad provision.
The Chair: Mr. Collacott, would you like to comment?
Mr. Collacott: Yes. First, the issue of whether we are having two tiers, we bend over backwards to try and treat all Canadians equally, whether they are naturalized or whether they have the right by being born here. I think we have a right to be demanding of people when they are not yet Canadians and tell them what the rules are. If they are likely to commit terrorist acts after they get here, or get involved in terrorism, I don't think we should be shy about saying that you have to leave. I think many Canadians would like to get rid of Canadians who have done that, but the fact that we can't do that to people born here doesn't mean we shouldn't make it clear to people coming in.
Ms. Jackman: But we are doing it to people born here, Mr. Collacott. The act covers people born here. It is not just the ones who came; it is people born in Canada who are going to lose their citizenship. If they have access to another —
Mr. Collacott: But you are still talking about a double standard. I think the double standard can be justified, to some degree. We are facing major problems with people being jihadis in Syria. Britain just took away citizenships for 20 such people, and I think our legislation is relatively mild compared to theirs, when you are looking at it.
The Chair: We are not going to get into an internal debate between the witnesses. You can answer the question and interact with the senator.
Senator Eaton: Thank you, witnesses.
Help me, Ms. Jackman, Ms. Froc and Ms. Caruso. We have many citizens now who, on becoming a Canadian citizen, choose to keep their other citizenship or who take on a second citizenship. I can understand why; it's a very attractive proposition if you want to work in the EU or have access to the U.S. employment market. I can understand why perfectly.
On the other hand, some people choose to go abroad and involve themselves in situations such as war crimes or terrorist activity in Syria, Somalia, Rwanda, Egypt or Iran. What would you do to people who use the Canadian passport in that case as a convenience or as a safe harbour? "Oh, well, I can run over to Egypt, work in a war situation and then, when things get uncomfortable or I'm picked up, I can wave my Canadian passport and people run to get me."
I think that happens a lot. If you're one of those nationals where your country does not recognize that you've taken on another citizenship, like we know Iran does — you're always an Iranian citizen — why would you go back to Iran to get involved if you really feel that Canada is your home? Why would you go back to Iran and place yourself in a situation of being picked up as a terrorist or for demonstrating against the government, and then wave your Canadian passport very conveniently and say, "Quick, quick, come and get me"? If I'm charged in Iran for terrorism and found to be guilty, my understanding of the act is that before the Canadian government can revoke my citizenship, I do go before a judge. My revocation can go before a judge. Is that not your understanding?
Ms. Caruso: Under Bill C-24, no, you won't have a procedural —
Senator Eaton: Well, it says right here in my book that you can: ". . . would instead be decided by the Federal Court," and you can appeal right to the end.
Ms. Caruso: Barb, do you want to respond?
Ms. Jackman: No, you can only go to the Federal Court if it's a misrepresentation and you're alleged to be a member of a terrorist organization, or if you're engaged in war against Canada. You can't go to the Federal Court for any other instance, so it's very limited. Now everyone goes to the Federal Court, but not under this new law.
But you don't pass a law simply because we have 27 Canadians in Somalia, Syria and other countries. This law will apply to all Canadians who may have access to a second citizenship. By far more common are people like Mohamed Fahmy who goes to Egypt as a journalist and gets charged with a terrorism offence. So you want him stripped of his citizenship because he was a journalist?
Senator Eaton: No, I think, according —
Ms. Jackman: And Egypt prefers to call him a terrorist? That's the problem with this legislation: It applies to everybody.
Senator Eaton: I guess according to the way I've read it, Ms. Jackman, his citizenship would not be stripped or revoked. The Federal Court would look at the circumstances and decide whether an Egyptian court is giving justice or not.
Ms. Jackman: He doesn't go to the Federal Court; it goes to the minister. I'm sorry. I don't know where you got — whoever did your book — maybe you're reading it wrong, or whoever did your book didn't give you what's in the act. He doesn't go before a judge.
The Chair: On this point, senator and Ms. Jackman, this is not productive. This will be clarified; we have officials coming who will clarify this. You have both made your points on this issue.
Is there another question, senator?
Senator Eaton: Yes. I think the ladies started off their presentation by saying that this is going to discourage citizenship. Do you have any data to back that up?
Ms. Caruso: I have a whole office full of executives who work for multinational companies and who are often transferred abroad, and this will impact them. Before, as permanent residents, I could say to them, "Well, you're working for a Canadian company and your time away will count as if it's time in Canada." Now when they look to take an international assignment on behalf of a Canadian company in China, Mexico or wherever, I will have to say, "You will need to consider whether or not you checked a box that said you had an intent to reside in Canada when you applied for citizenship, because if you take this assignment now, you could be viewed as having misrepresented your application for citizenship."
It's a whole different set of rules now. It's going to be very difficult to advise people. People will have to think twice about their employment assignments. Companies may not get to send the best person to develop the Canadian business abroad.
Senator Eaton: I see. My understanding was that if you do your four out of six years' residency in Canada, you become a Canadian citizen and you have the mobility — you do. You wouldn't become a Canadian citizen if you did not have the intent to reside in Canada. Why would you? And if you're called abroad to work or to look after your mother, you have the same mobility as any other Canadian citizen. You don't agree that when you've gone through the process of those steps that your intention is really to live in Canada? You're going abroad to work for a Canadian company, follow a fellowship at a university or to look after your parents, but your intent was always really to live in Canada.
Ms. Caruso: But how do you prove that intent? How will anybody prove that's what they intended at the time? If they become a citizen on December 31 and on January 1 they get on a plane to another country on assignment, how will anybody be able to prove that they didn't intend to leave on January 1? That's the problem. There's no point in having this intention in the box if you can't enforce it. It's going to make it very complicated. People are going to have to think twice about whether or not they want to apply for citizenship.
Senator Seidman: Mr. Collacott, you have pretty much answered my question, which I asked yesterday but couldn't get a response to, and that had to do with international comparisons.
With regard to the intent to reside and the issue of revocation, I believe you made a comparison with the U.K., the U.S. and Australia on the period of time necessary to reside in the country. I wonder if you had anything more to add in terms of international comparisons when it comes to the intent to reside and the issue of revocation.
Mr. Collacott: No, not really. I just found out yesterday that this had become an area of interest at yesterday's meeting.
The U.K. is perhaps the most detailed, because they are going through the process right now; the U.K. Commons has voted for very tough measures. The House of Lords isn't so sure about revoking citizenship from people who don't have dual citizenship. The Commons has come back and said, "Well, if they are in a position to apply for citizenship somewhere else, let them do that." That one is still being played out.
But there is no question that at least the British House of Commons think they need much more tough legislation than what we're looking at here.
Ms. Caruso: I'm not a U.S. lawyer, but from time to time, the issues come up and I consult with U.S. counsel. My understanding for U.S. citizenship is that it is two and a half years out of a five-year period, so fewer residency years are actually required.
The U.S. also has a requirement that the individuals reside in the U.S. while the application is being processed. We'll often have individuals looking to transfer to Canada on a work assignment. They are a green card holder. Their citizenship application is pending, but we can't get them across the border until they have their citizenship in hand because they have to have that physical residence in the U.S. while the application is pending.
Senator Seidman: Actually, Ms. Caruso, I was going to ask you about the residency requirement. If I understand correctly, the current system is three out of four years, which would be 75 per cent of your time. The current bill is four out of six, which would be 66 per cent of your time. The Canadian Bar Association proposal is three out of six, which is 50 per cent of your time.
I'd like to hear what you have to say about it, but my sense is that in many respects we are giving applicants more flexibility — two years of flexibility. So out of six years, you have to reside in this country for four, and that gives them the flexibility to attend to a sick relative if they need to or to travel outside the country for a job. It is more flexibility than exists under the current system.
Ms. Caruso: The difference is that residence is not defined under the current system. Under Bill C-64, residence would be physical. So every day counts. Currently, residence is not defined, so lots of applicants apply for citizenship. They don't have physical days here, but their children are here. Their job is here. Their spouse is here, but they may be travelling one week a month on business and then returning. When you start to add up all of the days of travel, or if they take a three-month assignment somewhere, currently there's flexibility in the system to count that time away as if it were time in Canada.
Under the proposed legislation, there would be no flexibility because it's physical. So there was a suggestion about border control. To make the physical aspect work, we are going to have to move to a system of exit control, otherwise it will be impossible for officers and even applicants to try to calculate their physical days.
Senator Seidman: Okay, thank you.
Senator Enverga: Thank you for your presentations.
Mr. Collacott, you mentioned that thousands of people have obtained their citizenship fraudulently by claiming that they spent the requisite time in Canada when in fact they have not. Do you think this will be totally diminished with this new legislation? Do you think that this will totally help the process and that there will be no more fraudulent claims?
Mr. Collacott: It certainly should reduce fraud and misrepresentation. As I've pointed out, though, and as the CBA witnesses said, until you have exit screening controls so that you know when someone has left and when someone comes back in, it's very hard to pin this down.
The mere fact, though, that the bill is much firmer on this and has fairly heavy penalties I think will make people think twice about whether they misrepresent the situation.
Did that answer your question, senator?
Senator Enverga: Yes, in a way.
Some people believe that citizenship is a right and not a privilege. Do you believe that this new legislation will help to tell people that being a citizen of Canada is a privilege and not just a right?
Mr. Collacott: That's been part of the problem, that it has been used as a fig leaf, and I think most of what's in the legislation simply says that you've got to earn it. You've got to put in time. You've got to meet language requirements, which are another issue, and I find just about everything there pretty reasonable.
Immigration lawyers won't like it because it means their clients are going to have a harder time getting citizenship quickly and easily. But I think most immigrants would welcome it, and the vast majority of Canadians would support it.
Senator Enverga: Do you have anything to say, Ms. Caruso?
Ms. Caruso: One of the things that needs to be pointed out is on the issue of residence and physical days. It is very difficult to prove physical days, and the backlog that's being caused right now is because the government has initiated reviews of applicants. It's not just applicants who fall under the 1,095 days and are short but also applicants who just have a pattern of travelling frequently, maybe a two-day, three-day pattern. I have cases in my office that have three and four inches thick of documentation: OHIP documents that we have to get showing that they saw doctors here; travel records from CBSA that we have to request and then cross-reference; children's report cards showing how many days their kids were out of school; tax returns and so forth. The list goes on and on. This is really, really cumbersome, and I think that's why the Bar Association is advocating that there needs to be some flexibility because, for the most part, people are honest and do abide by the rules. I'm a Canadian and I'm a taxpayer, too. I don't like fraud and I don't think the CBSA advocates fraud, but what we want is a process that is fair, flexible and accessible to people. And I have real concerns that this misses the mark on that.
Senator Enverga: When you say "flexibility," what kind of flexibility do you want? We still have to have the intent to live here, right?
Ms. Caruso: The Canadian Bar Association has put forward a couple of suggestions. One is the three out of six because that is consistent, right now. When an application is approved in favour of the applicant and they have less than 730 days, which is 50 per cent of the current four years, the department will appeal those cases. They will take those cases to Federal Court. So, right now, we have a tolerance for 50 per cent. So a three-out-of-six-year rule would give flexibility to a businessperson who needs to travel, the musician, the artist, the athlete who needs to travel, the person who needs to take a course at Harvard, the person who needs to care for their sick parent back home and is gone for a period of time. That's one suggestion.
The other suggestion was to align it with the IRPA legislation, which governs permanent residency, and there are some exceptions there. If you're outside of Canada with a Canadian-citizen spouse or outside working for a Canadian company, you can count your time away as if it's in Canada for the purposes of maintaining your permanent residency status. That was one other suggestion that we had.
The other suggestion we had was the section 5(4) special grant. The Governor-in-Council has the authority, where there are exceptional circumstances — someone might have contributed greatly to the cultural component of Canadian society or to the economy — to ask for special approval. Those could be widened, in conjunction with a physical test, to accommodate these cases that exist.
Senator Cordy: Thank you to our witnesses.
I think it's a good thing that the Citizenship Act is being revamped and looked at because it's been a long time since we looked at it, but there are a few areas within the bill that cause me great concern. I will just talk about two of them, and one would be the intent to reside issue, which we've spoken about. The second one is the ability of the minister or of an officer to revoke someone's citizenship. I have great concerns with those.
First, let's look at the revoking of someone's citizenship. This could, in fact, be someone who was born in Canada but who has chosen to become a dual citizen and take the citizenship of one of their parents.
Allowing dual citizens to have their citizenship revoked, to me, creates two classes of Canadian citizens — those who can be sent out of the country, exiled or banished, and those who can't.
I know, Mr. Collacott, you said that the double standard can be justified, but I don't believe that there should be two standards for Canadians. A Canadian is a Canadian, and if they have committed a crime they should be punished through our judicial system. I wonder if you could expand on that.
Ms. Caruso, you've spoken about what this will do.
I think one of you mentioned that there's a Universal Declaration of Human Rights, under which this shouldn't be allowed. I wonder if one of you would care to expand on that.
Ms. Caruso: I think Barb Jackman is better.
Ms. Jackman: The Universal Declaration of Human Rights doesn't permit exile. I think if you were to interpret section 7 of the Charter of Rights and Freedoms in a way that is consistent with the universal declaration, Canada can't exile people. Then, if you look at the International Covenant on Civil and Political Rights, everyone has a right to return to their own country.
So, for Canadians born in Canada or Canadians who were naturalized when they were little children, Canada is their country. Just because the law will say that you can take away citizenship, it still amounts to exile or banishment. That's one big problem with it, and that is a breach of human rights. It is. We don't banish people from communities, but this will be doing that.
The second thing is discrimination, that only certain classes are affected by it, those whose parents or grandparents can pass citizenship on to them. They may never have been there. I know the concern about the young Canadians who are over in Syria and Somalia and other African countries. They have left and chosen to leave, but this law is a broad law.
One thing you learn from practising law is that regardless of who the intent is to get, if it applies to everybody, eventually it will be used for a lot more people than just those 27 people who are out of the country. People like journalist Mohamed Fahmy in Egypt or the Canadians on the Greenpeace vessel that tried to climb the Russian vessel, those people will be caught by it because it is axiomatic. You have the law in place; you apply it.
Senator Cordy: Do you believe that this bill creates two classes of Canadian citizenship?
Ms. Jackman: Yes, I think it does create two classes for sure. It undermines the very fabric of our Canadian society if you can't count on citizenship. If it is really a creature of statute, the right to vote, the mobility rights that we have in the Charter are just taken away by an act of Parliament? It is a fundamental change.
Senator Cordy: If someone is accused or convicted of terrorism within another country, we have this dilemma that one person's terrorist is another person's freedom fighter. I guess the example that most Canadians would understand would be Nelson Mandela.
Senator Eaton: He wasn't a dual citizen.
Senator Cordy: I didn't say —
The Chair: Never mind. Please continue.
Senator Cordy: The example that most people would recognize would be Nelson Mandela who, by people within his country, was sent to jail for being a terrorist, whereas most people around the world would have considered him to be a freedom fighter. My concern with charges being laid and the person being jailed within their own country is that there isn't always a system as we have in Canada. I believe people who would get caught up in this would be those who would have contributed to Nelson Mandela's party, because they would have been supporting somebody who was put in jail. Does it cause concern that they could be accused of terrorism outside of the country of Canada?
Ms. Jackman: The irony of it is that Nelson Mandela is an honorary Canadian. He could conceivably be covered by this legislation, too. It is retroactive.
If you go back in British history, for example, they used to exile criminals to Australia. They stopped that. This is essentially doing the same thing. It is tacking on another penal consequence to a criminal conviction.
We have a criminal justice system. We should use the criminal justice system. We don't let our judges order that people be deported, but now we are going to allow an elected politician to do it without reference to any court in the process; just a politician deciding to take away a fundamental right such as citizenship.
The Chair: Mr. Collacott, I think you wanted to come in on this?
Mr. Collacott: I would like to comment on some of the comments that have been made.
The cases of Mohamed Fahmy on trial in Egypt and the Greenpeace activists were raised. I cannot imagine this revocation provision being used against them. We are concerned about fairly hard core terrorists who are likely to come back from places like Syria and Somalia. I think if the government ever started taking citizenship away from Mohamed Fahmy because he had been accused in Egypt or against Greenpeace activists, we wouldn't have any democracy. We would have to move to a very undemocratic government before anyone would even consider using that.
You are giving worse case scenarios and saying we are bound to get to those worst case scenarios if the legislation is passed. By saying that, you are preventing us from dealing with some serious terrorist issues that will come up more and more frequently as Canadian jihadis come back to Canada, as they almost inevitably will.
Senator Cordy: Unfortunately, that would be part of the law.
I wanted to speak about intention to reside, but I understand Senator Tkachuk would like to ask a question.
Senator Tkachuk: You mentioned in your brief that the Canadian Bar Association needs to have "some skin in the game." Don't these new provisions allow you to have some skin in the game? Shouldn't it be an effort to be a Canadian citizen or do people just land on the shore?
Ms. Caruso: No, I think that is right. The comment is that we want people to be applying for citizenship because if people are citizens of Canada, they are more committed. When you look at the Citizenship Act and the rights and responsibilities of citizens, it talks about looking after one's self, looking after one's family, the community, environment and the heritage. Those are all pieces in the regulations to the Citizenship Act that talk about that. We want to encourage Canadian citizens. We want people to see it as a commitment and be part of it.
I think this legislation discourages people. We have had increases in fees. We have tougher language —
Senator Tkachuk: What are the increases in fees and how do they compare to the rest of the countries? We are quite low on the totem —
The Chair: Senator Tkachuk, let the witness finish.
Ms. Caruso: It is $400 an adult and $200 a child.
Senator Eaton: Three.
Ms. Caruso: It is $400.
Senator Eaton: Three.
Ms. Caruso: Okay. Then there is a tax.
Senator Tkachuk: Okay, $300 or $400.
Ms. Caruso: But if you add it up and you are a family of four, it is not insignificant.
Senator Tkachuk: Should it be free?
Ms. Caruso: No, I don't think it should be free.
Senator Tkachuk: So it is just a matter of opinion here?
Ms. Caruso: Well, it is what the impact will be and —
Senator Tkachuk: How do you know what the impact will be?
Ms. Caruso: Because I have clients every day and I give them the outline of what the costs are and what is involved. It is overwhelming for many people to do these things.
Senator Tkachuk: Okay, that' fine. Thank you.
I have a couple more questions. Could I ask another one or is it just only one —
The Chair: If it is a short one. I interrupted Senator Cordy to make sure you got in, senator, before we had to leave for the vote.
Senator Tkachuk: Okay, she can go ahead.
Senator Cordy: I was being very kind, Senator Tkachuk.
Senator Tkachuk: I know you were but you only asked a couple.
Senator Cordy: My other great concern is the intent to reside in this provision. Again, I think it goes back to creating two classes of Canadian citizens: Those who can travel outside the country and those who can't.
We heard yesterday from witnesses from immigration and refugee organizations. They have great concern about this. They gave us examples of somebody who has had to turn down a fellowship. Their Canadian-born, single Canadian class 1 — I guess you would call it — Canadian citizen partner had been offered a fellowship and they wouldn't be able to travel to the United States with their partner because they wouldn't be able to leave the country for that period of time.
I don't think anybody in the room or any of our panelists would agree we should have Canadian citizens of convenience. We should do whatever we can but unfortunately the net that has been cast in this bill will, I believe, have an effect on people who are Canadian, who feel Canadian and who are Canadian citizens. In fact, I had an email from someone who is an engineer and will not be able to travel with his job because he will be outside the country for periods of time. Am I right in reading that this will create two classes of Canadian citizens?
Ms. Caruso: That is how we interpret it. You have it right; the constitutional issues are equality — because you have the two distinctions — and mobility. It puts a restriction on the second class, the lesser class, the naturalized citizen and their ability to travel, whatever their purpose may be.
The Chair: Colleagues, I will take a moment to tell you how we will proceed. I am going to suspend the meeting shortly and give Senator Tkachuk —
Senator Tkachuk: No, I am okay.
The Chair: We will break until 4:50. By agreement of the steering committee, the next session will be 30 minutes long. We will deal with that session and then we will go into our third session.
Given the fact that senators are anxious to get back for the vote, I will suspend the meeting.
I want to thank our witnesses for being here and for contributing to this discussion, which sometimes went a little off onto small points. Nevertheless, this is obviously an emotional issue for a lot of people and there are very different points of view on it. I thank you for being here and thank my colleagues for their participation.
I hereby suspend the meeting.
(The committee suspended.)
——————
(The committee resumed.)
The Chair: Honourable colleagues, we are resuming our meeting this afternoon of the Standing Senate Committee on Social Affairs, Science and Technology dealing with the pre-study of Bill C-24.
Before I start, I want to remind everyone that because of the events here today, this session will end at 5:20, so I will go immediately to our witnesses.
By video conference, representing the Asia Pacific Foundation of Canada, we have Yuen Pau Woo, President and CEO.
Welcome, Mr. Woo.
From the Canadian War Brides, we have Melynda Jarratt, Historian.
Welcome, Ms. Jarratt.
We did not have time to discuss who would go first. Ms. Jarratt, perhaps you can go ahead, followed by Mr. Woo. Following that, I will open the floor up to questions.
Melynda Jarratt, Historian, Canadian War Brides: Thank you very much because I am leaving at 10 after 7 by airplane.
Bill C-24 is supposed to correct ongoing discrimination in citizenship law. While many people will benefit, including Canadian war brides and their children, problems remain.
This is what I am going to suggest to you today: Parliament must be in step with the courts, recognizing citizenship existed legally in Canada since Confederation; appoint a citizenship ombudsman; allow all first generation, born- abroad Canadians the right to prove their substantial connection to Canada; and create an amnesty program.
Both the House of Commons and the Senate must conduct in-depth studies on Canadian citizenship. We are a major G8 country, with parliamentarians elected to represent Canadian citizens, yet I am afraid you really don't know what one is.
I will start with a little history lesson about war brides and citizenship. In August 1946, the war brides and their children were welcomed personally to Canada by Prime Minister Mackenzie King. Some of them were war widows and their children whose Canadian husbands had been killed overseas during the Second World War, some of them on D- Day. He called them Canada's newest citizens, as did the immigration branch.
There were Privy Council orders granting the war brides and their children the same status as their husbands and fathers; namely, Canadian citizenship. Only decades later did that status change. Why? Because the bureaucrats changed their minds, and the parliamentarians remained indifferent and grossly deficient in their knowledge of citizenship law. It is the same thing today.
In the mid-1800s, Canada adopted British legislation, making married women chattel of their husbands and children chattel of their fathers if born in wedlock and chattel of their mothers if born out of wedlock. The Scarlet Letter "A" was and remains alive in Canada. Why? Because the 1977 Citizenship Act is not yet Charter compliant.
In 2008, Bill C-37 received Royal Assent. Its purpose was to correct the ongoing discrimination, including that against war brides and their children. The all-party unanimous committee report, specifically Recommendation No. 4, states that all first generation, born-abroad children born to a Canadian parent, no matter if the parent was the mother or the father, no matter if the child was born in or out of wedlock, and no matter when the child was born, should be a citizen. But on the bill's implementation, the bureaucrats ignored the will of the committee, justifying their actions by saying that Canadian citizenship didn't exist before 1947. That kept the offensive wording on the books, but only against people born before 1947, like war bride child Jackie Scott.
Thus, age was added to the discriminatory equation, with CIC denying citizenship based entirely on age as well as gender, family status and even race, as it did to Heather Harnois, a First Nations woman who has an Ojibway blood line so long that her grandmother can't even put a date on it. Some victims were war bride children like Jackie Scott, who was born out of wedlock. After more than half a century living as Canadian citizens, they were told to "get lost." Real law was ignored, like the 1920s legitimation act, saying that if your parents subsequently married, your birth was legitimized.
Bottom line, bureaucrats and parliamentarians do not understand citizenship law. For example, section 1.1 of Bill C-24's legislative summary says that two major pieces of legislation formed the basis for Canadian citizenship law: One is the 1947 Citizenship Act, and two is the 1977 Citizenship Act. This is simply not true.
Only 14 months ago, the Attorney General of Canada argued in the Supreme Court of Canada, saying Metis were full citizens of Canada in 1870. The court agreed. There are many court decisions confirming pre-1947 citizenship, including Shin Shim v. The King, in which the words "Canadian citizen" appear no less than 63 times in a document that was written in 1938.
There is another one from 1946 in reference to the validity of orders in relation to persons of Japanese race, involving the deportation of Japanese Canadians, in which the word "citizen" is mentioned 46 times and "Canadian citizen" mentioned 9 times.
I will speed this up because I want to get my points in here.
There is a profound question that needs to be asked: Do we recognize our Canadian war dead? Many of our war brides were widows of Canadian servicemen.
Were their husbands Canadian citizens? What about our Chinese veterans who died before 1947? Douglas Jung was Canada's first Chinese member of Parliament, and on his registration of birth it says, "This certificate does not establish legal status in Canada."
Finally, I want to say that I am disgusted that Don Chapman was not allowed to testify before this committee and the House, even though the legislative summary to Bill C-24 contains no less than 20 references to "Lost Canadians." Partisan politics has no place in citizenship law. Mr. Chapman's testimony wasn't about him or about you; it was about doing what is right for Canada. The Senate is supposed to be the chamber of sober second thought. By not allowing free discussion, you undermine the free democratic process.
War brides, their children and countless hundreds of thousands of people have been victims of discriminatory citizenship legislation. It is your job — nay your duty as senators — to seek knowledge and truth and to uphold the Charter. It is disgraceful the way the leader of The Lost Canadians has been treated by this committee and the house committee as well. As is, in my opinion, Bill C-24 is a disaster.
The Chair: Thank you. Before I turn to you, Mr. Woo, for the record, Mr. Chapman and several others were invited to provide written submissions.
Mr. Woo, please proceed.
Yuen Pau Woo, President and CEO, Asia Pacific Foundation of Canada: Thank you, chairman and members of the committee, for inviting me to speak. I would like to comment specifically and only on the increased residency requirement for landed immigrants to accede to citizenship. I have four points that are specific to that issue and one general point on the thrust of the policy.
My first point is that the increased and more onerous residency requirement of four years out of six will lower citizenship accession rates. There already are many complaints about the current rule of three years of residency out of five, and I have every reason to believe that raising the requirement to four years will make it more difficult for landed immigrants to become citizens and will result in lower rates of accession to citizenship.
My second point is that lower citizenship accession will lead to lesser economic benefits for Canada. Immigrants who see a doable and relatively easy path to citizenship are more likely to invest in their human capital to increase their skills and, as a result, to improve their earning power, which will lead to benefits for society as a whole, including, of course, payments to the federal treasury.
My third point is that the intent of the more stringent requirements is not clear to the extent that I can divine two intents. Both, I think, will lead to contradictory outcomes. If, for example, the intent of the more stringent requirement is to, shall we say, punish immigrants for not demonstrating sufficient physical and emotional attachment to Canada, the result will be precisely the opposite effect. Immigrants who choose to leave the country because they have to and therefore cannot become citizens will indeed become less attached to Canada, in part because they will not have the right to vote; they will not be citizens.
If, on the other hand, the intent is to curb abuse of social benefits by immigrants who don't spend much time in Canada, the policy again will not achieve its objectives. Landed immigrants, as you know, do have access to all of the social benefits that Canada provides, and these immigrants can retain their status indefinitely with a certain residency period not as onerous as a citizenship requirement, and they can retain these benefits indefinitely as landed immigrants, even if they don't become citizens. If the purpose was to somehow reduce usage of social benefits by Canadians who don't spend much time in this country, I think that, too, will not be accomplished.
I do, however, want to affirm the intent of the bill, which is to say that citizenship accession is a good thing and that it should be encouraged. My view is that if Canada has carefully chosen who we want as immigrants, the objective should be to encourage Canadian citizenship and to make it relatively easy, not the opposite.
The correct and the best policy mix, in my view, is to set a high bar for entry — that is, choose very carefully who we want to become landed immigrants — but then to have a low bar for citizenship accession.
Let me now make some general comments on the thrust of the bill.
I think the increased requirement for residency has an implication that citizens resident in Canada are more highly valued, perhaps seen as more Canadian, than citizens living outside of the country. This way of thinking is outdated in a world where there is high mobility of labour, especially high mobility of the highly talented. The Asia Pacific Foundation of Canada has done research on the number of Canadians living abroad, and we have found that this number is as much as 2.8 million, which is 9 per cent of the Canadian population, a very large number indeed.
One of the goals of citizenship policy should be to increase the attachment of these overseas Canadians to Canada, even if they don't live in Canada, rather than to push them away. This would include, by the way, restoring voting rights to Canadians who have lived abroad for more than five years. I would hate to think that Mark Carney, when he finishes his five-year term as Governor of the Bank of England, will not be eligible to vote in a Canadian election.
Finally, Mr. Chairman, let me say that the recent reforms in immigration policy have moved in the right direction of attracting highly skilled workers from around the world. By definition, though, the highly skilled are highly mobile. Requiring that would-be immigrants declare their intent to stay in this country four out of six years will discourage from the get-go some of the best likely immigrants to apply for immigrant status, and by insisting that landed immigrants stay for four out of six years, we will reduce both the economic benefits to this country and lessen the attachment of people who have already landed. We will lessen the attachment they have to Canada. Thank you.
The Chair: Thank you, Mr. Woo. I will now open up the floor to questions from my colleagues.
Senator Eggleton: Ms. Jarratt, on this question of "Lost Canadians," this is the second effort, I think, for a piece of legislation to try to take those people into consideration. How many people are still left out? You've tried to describe who is left out. You might want to reiterate a bit of that, an example or two of the people left out. How many do you think are in that category?
Ms. Jarratt: Actually it's not the second time; it's probably now the fifth or the sixth time.
Senator Eggleton: Well, two that I'm aware of.
Ms. Jarratt: This is it; the history of this legislation is not known, or changes to legislation. It is estimated that there are about 1 million Canadians who fall under that. Just as our other witness said, there are 2.4 million Canadians living outside of the country; there are 1 million Canadians who are estimated to be "Lost Canadians" whose citizenship is in doubt. It's a large number of people.
Senator Eggleton: This legislation supposedly brings some more in.
Ms. Jarratt: Yes, the legislation captures about 95 per cent, but there is still the 5 per cent who are left. The 5 per cent includes children, especially pre-1947 in my war brides scenarios, born out of wedlock. They are specifically affected by that.
The Chair: Did I understand you to say this legislation will bring 95 per cent of the remainder in, which leaves 5 per cent, and you're saying that's going to be 1 million people?
Ms. Jarratt: No, right now it's about 1 million people.
The Chair: Thank you very much.
Ms. Jarratt: I stand to be corrected on that. If I'm incorrect, I will get the correct figures to you.
The Chair: Ms. Jarratt, you've clarified that. I misheard you. Obviously, if it were the other way, it would be an astronomical number, so I needed to clarify. Thank you.
Senator Eggleton: Probably it's about 50,000 people we're still talking about being left out, if 95 per cent are covered.
Ms. Jarratt: Again, if I'm incorrect in that, I would like to clarify it. My understanding is it's about a million to start off with and then you're looking at about 5 per cent, but 50,000 people is still a lot of people.
Senator Eggleton: Oh, it is.
Ms. Jarratt: Especially when they're elderly.
Senator Eggleton: These are people born before 1947. Could you describe a typical case for me?
Ms. Jarratt: A typical war bride scenario is a child, for example Jackie Scott born out of wedlock pre-1947, who comes to Canada after 1947 and her parents get married. She then recently applies to get everything sorted out in the post-9/11 world, where everything has changed so much. In the days gone by you could pick up a phone and talk to a human being on the other end of the line. Now it sets off a whole bunch of alarm bells when they ask where you were born, and you say, "I was born in England." Then you get sent down another path altogether and end up in the lineup, the queue, which is another issue.
Senator Eggleton: Is this relevant to the fact she is born out of wedlock?
Ms. Jarratt: Yes, it is, entirely. Because she's born out of wedlock there's discrimination built into the 1947 act, which was not corrected in 1977, and not corrected again in this bill. Bill C-24 will capture a lot of people who were born out of wedlock, yes, for example the Eric Claptons of the world who were born out of wedlock to a Canadian serviceman and his British girlfriend.
In fact, you will get these people born out of wedlock being embraced by Canada, but there are still so many other people, like Jackie Scott, who are being denied. You can say, okay, they can apply for a special grant, but they are continuously refused.
Senator Eggleton: Why are they continuously refused?
Ms. Jarratt: That's a question that I think you should start asking CIC. Why are they being refused? It just keeps on happening.
Senator Eggleton: Is there any other route they could take?
Ms. Jarratt: Not if you're trying to become a Canadian citizen. There's only one way to do it, unless you know someone with a lot of pull. I don't think anybody has enough of it these days.
It becomes a matter of an administrative quagmire that they get stuck in, and there's no way out. As a result, Jackie Scott has to go to Federal Court, and she presently has a case before that court.
You're looking at tens of thousands of persons who fall into that trap, including Heather Harnois who is a First Nations woman who has been told that she cannot become a Canadian citizen. She's a young woman with children.
Senator Eggleton: Where was she born?
Ms. Jarratt: She's tied up in knots because of the changes that were made to Bill S-3 with the First Nations women who were then given their citizenship. Do you remember that just recently? Her grandmother was born in Canada and her mother was born in the United States. She was born in the United States to a first-generation born abroad.
Senator Eggleton: That's not a war bride situation.
Ms. Jarratt: No, but she falls under the trap of "Lost Canadians."
Senator Eggleton: What kind of an amendment to this bill would cover the situation you're concerned about?
Ms. Jarratt: I think the bill needs a lot of work. I don't know if any amendments would be considered.
I would say that all those 5 per cent that remain need to be brought into the fold. Even more concerning to us is the fact that all these people who are pre-1947 are not considered Canadian citizens. That means all the war dead, all of our First and Second World War veterans who died for this country are not considered Canadian citizens. That means that all of these people who we are honouring this year and over the next four years were not, in fact, Canadian citizens. You can't have it both ways. It's either one way or the other. They either are or are not Canadian citizens.
Senator Eggleton: Can you give us written information on this?
Ms. Jarratt: I will submit my presentation.
Senator Eggleton: Thank you.
Senator Eaton: Mr. Woo, do you not think that four out of six years might discourage more people from seeing Canada as a passport of convenience?
Mr. Woo: I believe that we try to attract the best and the brightest from around the world based on their skills, experience and knowledge.
Senator Eaton: Yes.
Mr. Woo: Many of these individuals have global careers, and they are successful precisely because they have global careers. I think if we artificially limit their ability to pursue their careers using their global contacts and skills, we will end up not attracting the right kind of people, the people we want in the first place.
I think that's a far more important concern than trying to weed out the relatively small number of applicants who are simply interested in being a citizen of convenience, whatever that might mean, and I would welcome your definition of that term.
Senator Eaton: I think it's someone who comes, gets a Canadian passport, and it's a safety valve. In other words, they really have no intention of ever living here and ever paying taxes here, but it's very convenient. If something blows up in their country, like Lebanon, or China decides to move into Hong Kong, or what's happening in the Gulf states, they can raise their Canadian passport and come running back.
Mr. Woo: Let me address that, if I may.
The Lebanon issue has often been raised as a reason to not allow or to make sure that Canadians abroad have lesser rights. In fact, the evacuation of Lebanon could have been paid for by the individuals who were evacuated, and the Government of Canada chose not to do so.
Second, some of you will know that when you apply for a Canadian passport you pay a fee that essentially goes into consular services. The Attorney General has pointed out that the Government of Canada collects far more in this consular service fee than it pays out in consular services. In effect, Canadians who have passports have paid for a kind of insurance policy that they are entitled to call upon when they do get into trouble. The issue of the abuse of Canadian citizenship abroad is overstated.
Third, I would say that there are many Canadians born in Canada, not foreign-born, young Canadians who dream of living abroad and getting out of Canada to pursue a career in São Paulo or London or Nairobi or wherever it may be. We shouldn't disparage them either. If they want to pursue global careers, we should encourage them. They are no different from foreign-born Canadians.
Senator Eaton: I don't think anybody would disparage a Canadian going abroad to seek job opportunities.
Mr. Woo: We wouldn't call them citizens of convenience, though.
Senator Eaton: Well, if you come to this country never having lived here, get yourself a passport and go back to your country — anyway, I don't want to argue with you. We have a difference of opinion.
You said that Canadians living abroad are very advantageous to Canada. Can you explain to me why Canadians who don't ever live in this country are advantageous to Canada?
Mr. Woo: I'm not referring to Canadians who have never lived in the country. I'm referring to Canadians who live abroad.
Senator Eaton: Yes.
Mr. Woo: There are 2.8 million of them. Most of them are Canadian-born, not foreign-born.
The committee will be aware that our economic future is very much tied to the United States. Most of our trade is linked to just the one market. You will all be familiar with the challenge of being tied to one market, a market that is not only sluggish in its economic outlook but in many ways quite resistant to deeper economic ties with this country. We only have to look at the example of oil exports to the United States.
It's imperative that this country expands its global markets, and one of the ways in which we do so is to have contacts around the world.
Senator Eaton: I don't disagree about that. Because you seem to feel strongly that Canadians should be able to live abroad, if they wish, for their life, do you think that Canadians should pay worldwide taxes? You brought up the question of voting; Canadians lose the right to vote after five years. What if Canadians paid worldwide taxes to Canada, the way the Americans do, but they kept their right to vote? Do you think that's a fair trade?
Mr. Woo: There should be discussion about access to social benefits by Canadians who have lived abroad for a very long time.
I'm very encouraged by a recent court case in British Columbia where the court denied health benefits to a family that really had not lived in B.C. for a very long time. That's the kind of approach we should be taking with our citizens abroad, not to indulge those who are looking to exploit the system, but on the one hand embrace the fact that there are Canadians abroad and then put in place protections against abuse of the system.
The question of worldwide tax is a little more complicated. I don't think we need to mimic the Americans. The idea of "no taxation without representation" is an American idea; it's not a Canadian idea. A lot of Canadians don't pay taxes, and yet they are still allowed to vote.
The general principle you raise is a good one. We need to re-think how we create attachment for Canadians abroad through various fiscal and regulatory measures rather than ostracizing them as Canadians.
Senator Enverga: Mr. Woo, you mentioned that we should put immigration on a high bar and then lower the bar on citizenship. What do you think about refugees who come in without due process and about family reunification? Don't you think it should be the other way around — put the high bar on citizenship and lower the bar on immigration, or maybe have both as a high bar?
Mr. Woo: To be honest, I haven't thought much about the refugee situation. Because that has to do with humanitarian instincts and policies, that bar, if you will, or that number should be set at a generous level. That's a political decision. And then it's really a question of meeting that target; so it's not a bar in the same sense as the immigration of skilled workers.
To the extent we're talking about immigration of skilled workers or independent immigrants, we should set a high bar. We should be choosey about who we want, but the whole idea of being choosey is that we should make it easy for them to become a citizen; hence, the high bar for entry and the low bar for citizenship accession.
Senator Cordy: Mr. Woo, I would like to ask you about intent to reside. People can have the greatest intentions in the world, but your comment early on was that there's a very high mobility rate of labour within Canada, particularly among our young people. We all know people who have gone to teach in Asia or are working as accountants in the Grand Caymans or Bermuda or outside of Canada.
Those who have become new citizens, do you not believe that what we're doing is creating two classes of citizenship — those who are free to follow their career and travel outside the country and those Canadian citizens who are unable to do so because they've signed an intent to reside? The determining person in that intent to reside would be the minister or an officer, and there would be no chance for them to appeal that decision. I wonder if you could comment on that.
Mr. Woo: Yes, I think it does have the effect of having some discrimination between those who are Canadian-born and have the freedom and right to pursue global careers and those who are immigrants who will not have that right.
Now if you express your intent to stay in Canada and you are determined to become a citizen, you will have to follow through with the four to six years; but the effect of that is that we will get a pool of applicants that are less likely to belong to this class of globally mobile, highly talented individuals. We will get what we ask for and what we define. If we are prepared to have that outcome, that's the route we go down.
Let me say it's not simply that we are creating two classes between the immigrants who can go global and those who are Canadian-born who can travel freely. Any Canadian, whether foreign-born or Canadian-born, who lives overseas is a second-class Canadian citizen because they lose their voting rights if they have lived abroad for more than five years. You can say we are creating these categories: landed immigrants who are tied down for four out of six years, and Canadians abroad who have lesser rights than Canadians who live in this country.
The Chair: Thank you, Ms. Jarratt and Mr. Woo.
As our final panel of witnesses, we will now hear representatives from the Professional Association of Foreign Service Officers, Timothy Edwards, President, and Ron Cochrane, Executive Director; and from the Foundation for Defense of Democracies, we have Sheryl Saperia, Director of Policy (Canada).
Sheryl Saperia, Director of Policy (Canada), Foundation for Defense of Democracies: Good afternoon, distinguished members of the committee. On behalf of the Foundation for Defense of Democracies, thank you for inviting me to appear here today.
My comments will focus exclusively on the provisions in Bill C-24 that deal with the revocation of citizenship for terrorism, treason and armed conflict against Canada. As I have stated in previous testimony, I support these provisions conceptually. They amount to a 21st century updating of the social contract that has always existed between Canada and its citizens. This contract broadly refers to the understanding that citizens consent to abide by certain obligations towards the state in exchange for other benefits.
Bill C-24 suggests that Canadian citizenship is predicated on a most basic commitment to the state: That citizens abstain from committing those offences considered most contrary to the national security interests of Canada. Treason and armed conflict against Canada are actions clearly intended to damage the country as a national entity or political community. It is, therefore, fitting that one consequence of these crimes may be the loss of citizenship to the country the offender seeks to harm.
What about terrorism? In previous testimony and articles, I recommended that the bill be amended to stipulate a tighter connection between the crime and the consequence of losing one's citizenship. Specifically, I suggested that the revocation of citizenship for terrorism be triggered only by terrorist offences either in Canada or against a Canadian target or in association with a listed entity. Listed entities have been publicly designated by the Canadian government as terrorist organizations and, in effect, become public enemies of the state. Committing a terrorist act that meets one of these three criteria is a clear attempt to damage Canada for which loss of citizenship is appropriate.
I still believe this to be a reasonable amendment, in line with the famous Oakes test, which requires, among other things, the limitation of a right to be rationally connected to the objective of the law in question. If the terrorist act committed has nothing to do with Canada, should revocation of citizenship be the consequence?
In fact, there are compelling arguments to be made. The Canadian courts have very clearly considered terrorism to be unique: One could argue that terrorism, as a unique crime, is so antithetical to Canadian values that anyone choosing to embrace such violence has effectively declared his or her allegiance to lay elsewhere.
Moreover, an individual deliberately using his or her Canadian passport to travel abroad to cause fundamental harm to innocent civilians, choosing to leave Canada to commit these illegal acts, is arguably demonstrating, through his or her actions, the little value he accords his Canadian citizenship. His or her actions represent not only a premeditated abuse of the privilege of citizenship but the weaponization of citizenship in the commission of terrorism. This may warrant the government acting to prevent further violations by removing the weapon — in this case, Canadian citizenship — that facilitates entry into virtually any country in the world.
The bill provides that revocation can stem not only from a domestic terrorism conviction with a sentence of five years or more, but also from a foreign conviction. When the conviction comes from a like-minded country with legal standards similar to Canada's, this makes sense. But what about a country whose legal system we do not generally trust?
Testimony from earlier hearings in the House of Commons indicated that Minister Alexander envisions a two-step process:
The first step would be to examine the substance of the foreign offence, and whether it is equivalent to a Canadian Criminal Code terrorist act. This is set out in the legislation. But the second step of the review, which was described as an examination of the fairness of the process by which the conviction was achieved, is not mentioned anywhere in the bill. I would recommend an amendment in this regard. . . . the minister's two-part analysis to be codified in the legislation: to be explicit, in other words, that both the substance of the act and the fairness of the conviction would be factors taken into account when deciding on a terrorism revocation case.
One last comment which seemed to interest the house committee on immigration and citizenship:
If this bill goes through, perhaps it should be accompanied by a change to the application for a Canadian passport. Anyone who is 16 years old or over should be required to acknowledge on paper the terms of citizenship. The document would clarify to the applicant that engaging in treason, terrorism or armed conflict with Canada entails the possible revocation of citizenship. It essentially becomes a contract: if you break the terms of the agreement, you are subject to the penalties.
Honourable senators, if the citizenship revocation provisions in Bill C-24 help prevent bloodshed from being exported to or from Canada, they are worth parliamentary consideration.
Thank you again for inviting me to appear here before you today. I look forward to your questions, and if you've read the articles in The Globe and Mail today that pertain to Bill C-24, I'd be happy to discuss those as well. Thank you.
The Chair: Thank you.
Timothy Edwards, President, Professional Association of Foreign Service Officers: My name is Tim Edwards. I am the President of the Professional Association of Foreign Service Officers. I am accompanied today by our executive director, chief negotiator and the head of our office, Ron Cochrane. We would like to thank the chair and the members of this committee for the opportunity to appear before you.
PAFSO has been the bargaining agent for Canada's non-executive diplomat since the inception of collective bargaining in the federal public service in the late 1960s. We represent nearly 1,400 employees of the Government of Canada, working mainly in Foreign Affairs Trade and Development Canada, Citizenship and Immigration Canada, and the Canada Border Services Agency.
At any given moment, around 55 per cent of our members are on long-term assignment outside the borders of our country in one of Canada's 173 missions abroad.
I'm here today to express the strong support of PAFSO's members for the amendments contained in Bill C-24 to section 3 of the Citizenship Act, which will restore full citizenship rights to children born abroad to diplomats, soldiers and other Crown servants. If passed, these amendments will ensure that such children born abroad are able to transfer citizenship to their own children if the latter are also born or adopted outside the country.
Some background: In April 2009, the most recent major amendments to the Citizenship Act came into force. Their primary purpose, as you know, was to grant citizenship to the so-called "Lost Canadians." However, they also introduced a one-generation cut-off for the transfer of Canadian citizenship by decent to children born or adopted abroad. This was intended to ensure that children born to Canadian citizens abroad maintained a substantial, meaningful connection to Canada and that citizenship would not be passed down endlessly through generations living abroad with minimal ties to Canada.
However, many individuals who continued to have a substantial and very meaningful connection to Canada were unintentionally captured in the wording of this amendment. Specifically, this amendment failed to exempt, from the one-generation limit, the children of diplomats, soldiers and Crown servants posted abroad at the direction of their employer — the Government of Canada.
This meant that if those children went on to live or work abroad as adults and then had children with a non- Canadian partner abroad, their children would be denied Canadian citizenship. This would have especially egregious consequences if the child was born in a country which does not automatically confer citizenship to babies delivered on their soil. In such a case, the child would be rendered stateless.
While we do not have exact statistics on the number of individuals disadvantaged by this 2009 amendment, consider for a moment that from 1983 to 1994, there were 3,943 children born to Canadian Forces personnel based in Lahr, Germany. Today, Canada has about 1,700 federal public servants deployed abroad. Even if only, for example, 2 per cent of these employees have or adopt a child in any given year, that means there are already, as of 2014, 170 children born to federal servants since the new law was enacted who enjoy second-class citizenship, to say nothing of the many hundreds more born to diplomats and soldiers before 2009 whose citizenship rights were downgraded retroactively by the amendment in 2009.
You can see the disincentive this would present to service abroad for officers who might be planning family expansion. It undermines the government's ability to recruit, retain and assign Crown servants abroad, to say nothing of the extra costs the government would incur to repatriate expectant mothers who might, understandably, insist on given birth on Canadian soil.
PAFSO has been seized of this issue since the legislation was first passed. Senator Munson, who is sadly absent today, will recall speaking at a joint news conference that PAFSO organized in April 2010 to draw attention to this issue with the Canadian Expat Association.
Successive PAFSO presidents, including me, have written to the Prime Minister on several occasions, and as far as we can ascertain in our interactions with officials, this was simply a grave oversight that never should have been permitted to enter into law.
Since 2009, we have encountered cross-party agreement that the grandchildren of Canada's loyal and dedicated Crown servants should not be deprived of Canadian citizenship simply because their parents were born abroad.
We are pleased that, after years of pushing for this egregious drafting error to be corrected, the government has finally followed through in January 2013 on a commitment by then-Citizenship and Immigration Minister Jason Kenney to address our concerns. If this bill is passed, the children of federal, provincial and territorial public servants and of Canadian Forces personnel will be exempted from the one-generation limit to the transfer of citizenship to individuals born abroad.
We hope that these amendments will be moved swiftly through the legislative process. In this way, Canadians who serve our country overseas with pride and distinction can rest assured that regardless of where their children are born, their grandchildren will all rightfully be deemed Canadian citizens.
Senators, I would be pleased to answer any questions or help the committee obtain any additional information you might require. Ron Cochrane is also here to assist with any answers.
The Chair: Thank you very much. I will open the floor up to questions from my colleagues.
Senator Eggleton: I have no quarrel with Mr. Edwards' and Mr. Cochrane's presentation, and you are happy. If we can pass that portion of the bill and kill the rest, that would be fine.
Let me ask Ms. Saperia something, because I have a concern about the revocation process here. Up until now, it has been just on the basis of fraudulent documents or if you are in armed conflict, but there was a precise procedure that it would go to the Federal Court for a full hearing.
This will be dealt with by the minister, and it expands the whole area to add all these criminal activities, including treason, terrorism, et cetera.
But the process is different. As I said, the process involves the minister; it involves a written statement, actually. If it is a revocation, a written statement would be sent by the minister and it could be responded to. There is no provision for oral testimony or appeal to the Federal Court, except on very legalistic limited grounds of an error in law. You have to get leave to even go that far. Still, there is no testimony, and there are no humanitarian or compassionate grounds. It really has severely restricted the opportunity for a person to make their case for an appeal. Does that not concern you?
Ms. Saperia: I must say that the procedural process is not within my area of expertise. I have been focusing more on the concepts themselves. I do understand there to be an opportunity for the person to present their case to a court. I don't think they are suddenly stripped of their citizenship and shipped off somewhere, so I do think there is a process in place.
There is quite a bit of ministerial discretion. When it comes to armed conflict with another country, it is actually a determination by the Federal Court. It goes outside of ministerial discretion.
Senator Eggleton: Yes, it would on that one.
Ms. Saperia: Ministerial discretion, when it works properly, is actually a good tool. The question, then, is whether you trust a particular minister to be able to exercise that discretion appropriately.
When it comes to these issues, the discretion is really important, because automatic revocation would be far worse than any of the flaws you have pointed out in the procedure. Especially when it comes to the fairness of a foreign conviction, that is crucial for a minister or for someone — and, frankly, whether a minister or a court weighs it is not as important. Both could do a good job. There are certain countries where a terrorist conviction is purely political; it has nothing to do with terrorism other than the fact that the person has different politics than the government in question.
That is really the issue: making sure the right factors are considered by whoever the decision maker is, whether it is the minister or the court. That is what I would be most focused on.
Senator Eggleton: Well, I am afraid there is not much court opportunity other than judicial review. There is no real opportunity for a person to present their case to a court, other than through the very limited way this bill provides.
Let me give you a real case. Mohamed Fahmy is a Canadian; he's actually a dual citizen of Egypt. He is presently facing charges of terrorism in Egypt. It has been written about quite a bit. Before that, there was Maher Arar. Mr. Fahmy's case is before the Egyptian court. What happens if he is convicted of terrorism? This provides an opportunity for the minister to say, "I will revoke your citizenship and you can continue to live in Egypt where they are not likely to want you, but you can continue to live in Egypt."
Another interesting factor about this demonstrates this issue of two-tiered citizenship. If someone by the name of John Smith, a journalist who was born in Canada and had absolutely no connections to any other country, had been swept up in this arrest in Egypt, he would be fine. Absolutely nothing could be done to him by the government here, but with Mr. Fahmy, there is the issue. That clearly indicates two-tier citizenship is involved here. Would you comment on that case?
Ms. Saperia: Sure. I will begin with Mr. Arar because he was mentioned in The Globe and Mail today as an example.
Imagine if this law had been in place when Mr. Arar was still considered a bad guy and how quickly he would have been stripped of his citizenship. That is not true in that particular case because he was never convicted. That was one of the problems; this was purely on suspicion. So Mr. Arar happens to not be a good example.
However, this Egyptian case is a good example. This is exactly where, again, whether it is ministerial discretion or a court overseeing the process, it is absolutely crucial that the revocation not be automatic but that this two-step process of evaluating the foreign conviction be put into place. The two steps would be, first of all: Would the offence itself that the person was charged with be considered a terrorist act in Canada under the Criminal Code? Second, is the process under which he was convicted fair? If not, no problem; this person should not have their citizenship revoked.
The right examination and questions asked will prevent the wrong people from having their citizenship revoked. I don't think there is an agenda here to just start stripping people of citizenship.
Senator Eggleton: There may not be an agenda but we operate on the rule of law, not on the basis of "it might be a nice minister now but who knows if it will be a nice minister 10 years from now." It could be an awful person; you never know.
What is the two-step process?
Ms. Saperia: This is what I was trying to allude to before. Currently in the bill, it is only mentioned that the substance of the offence has to be comparable to a Canadian Criminal Code terrorist act. When Minister Alexander's bureaucrats testified, they spoke to this two-step process of evaluating the fairness of the conviction. That is nowhere in the bill. That is a problem, and I believe that needs to be rectified through an amendment. I don't see why the government would even have a problem with that type of amendment given that they have already articulated their intent to weigh that factor in their decision-making. I think that is important.
Let me speak to one other issue you raised: two-tiered citizenship. It is a legitimate point, but the main issue is that not every distinction constitutes discrimination. If we are thinking about the Charter and section 15 and equality under the law, not every distinction constitutes discrimination. In this case, we have a distinction solely based on our international obligations under the convention to prevent statelessness. We are bound by an international law to ensure that no person can be stateless. If you are a citizen of only one country, you cannot have your citizenship revoked because then you would be stateless. That is why this distinction is operating. It is not based on whether you were born in Canada or born elsewhere. That would be a truly problematic discrimination, and I would take issue with it.
There are dual nationals who have chosen that status. Many people want to have Canadian citizenship as well as another nationality. For those people who are choosing it, whether it is for personal connection to or benefit from more than one citizenship, I do not think it is a compelling argument to say that we are discriminating against them. This is a choice they are making, and they are likely benefiting from it in some way. Dual citizenship was not forced on them. But there are people who have citizenship from certain countries where you cannot revoke it even if you wanted to.
Senator Eggleton: Egypt.
Ms. Saperia: Yes, and that is more problematic. For that type of situation, I would propose an assessment of active citizenship. I am not particular about who is making the decision, so long as there is a responsible decision-maker. I would want a minister or a court to ask: Does the person maintain deep ties to that other country? Has he or she invoked any of the rights of that citizenship? Has he or she travelled with the passport of that country or served in an official capacity only open to citizens? In other words, the more active the citizenship to that other country, the weaker would be a claim that it was forced on him or her, that he tried to revoke it and couldn't.
Senator Eggleton: Terrorism is in the bill relevant to a five-year or more sentence either in Canada or abroad.
Ms. Saperia: Right.
Senator Eggleton: The rest are life sentences, I believe. This one is a little different. What would get a five-year jail term for terrorism? I can't imagine it would be as bad as the kind of activity that was carried out by one citizen in this country against other citizens, namely Robert Pickton, who is not covered by any of these categories. A five-year sentence for terrorism would be hard to believe, but tell me.
Ms. Saperia: I sometimes carry around my pocket Criminal Code, but I didn't bring it this time. I would have to come back to you and go through some of it. It is under Part II.1 of the Criminal Code. We could review it and look at what crimes produce what type of convictions.
With regard to Robert Pickton, what you are saying is true: There are people who commit terrible crimes that don't have to do with terrorism. This really comes down to the heart of the bill. It isn't just a question of somebody doing terrible things. It is a question of doing terrible things that speak to their relationship, loyalty and allegiance to Canada. That is different. Anyone who commits murder should be punished to the full extent of the law, but it is legitimate to examine what types of crimes and for what purpose and intent.
Senator Enverga: I like your idea of putting a reminder on the passport saying that if you break some laws, you might lose it.
I'm looking into the fact that it's only dual citizens whose citizenship we should strip. What do you think about people like Mr. Khadr who have single citizenship? Is there some way that we can work this out? Is there something in your mind right now about that?
Ms. Saperia: Mr. Khadr is on a lot of people's minds when they think about this type of concept. We have a convention that we are bound by whereby a person cannot be stateless. So long as you are only a citizen of one country, you can be thrown in jail and there are all sorts of consequences to your actions. That range of consequences cannot include loss of Canadian citizenship.
I believe that Omar Khadr's father was a dual citizen. He is no longer alive, but that would be an example. If the law had been in place, perhaps there would be an argument to be made that his Canadian citizenship ought to be revoked.
Senator Eggleton: You raised the question of Mr. Khadr. Actually, you might be happy because I think they can get him on this bill.
Senator Eaton: Is Mr. Khadr a dual citizen?
Senator Eggleton: His father was born in Egypt and Egypt says you are a national of Egypt if you are the son or daughter of somebody who was born in Egypt. His father was born in Egypt. Although he was born in Canada and has never been to Egypt, and probably doesn't speak the language, could they not revoke his citizenship and then call for deportation? Maybe that is what this bill is all about?
Ms. Saperia: I don't think that is what the bill is about. Omar Khadr is such a controversial figure. I think he is someone who actually divides the country in terms of opinion. I am reluctant to get into a debate on Omar Khadr. I would say that we would have to examine whether he is a dual citizen. If he was, again, that would come down to the big questions: Was his conviction legitimate? Was it fair? That will bring a whole host of events.
Senator Eggleton: He has to prove on a balance of probabilities that he is not a dual citizen. There's a reverse onus.
Ms. Saperia: There is a reverse onus only when the government has some sort of proof that the person is a citizen of another country.
Senator Eggleton: Some crimes are relevant to the state and one's affiliation with the state is a little bit different. Is that not what criminal law is about? Criminal law is there to deal with people. Whether we use some of these provisions about terrorism or not, it is criminal law. We don't say to Canadians born in this country: "We're going get you twice. We'll get you on the criminal law and after that, we'll take away your citizenship and maybe we'll boot you out of the country as well." Is that not double jeopardy?
Ms. Saperia: I see this as something that can help to protect Canadians. I want to point to an article today in The Globe and Mail, by Michael Zekulin: "Made-in-Canada terror is real Ð and it's being ignored." One of the things he speaks about, which is what any Western security agency, including Canada, will be speaking about is Canadians and others going abroad to countries like Syria and Somalia, fighting, getting real experience and then wanting to come back to their countries and create bigger problems here than we already have. That is a real concern.
I don't think this bill is about going after Omar Khadr. This bill is about making sure that Canadians who do manage to get to other theatres of jihad and gain real experience there are not able to make Canada a new theatre of jihad.
I want to quote one quick thing from the article, which is:
Another real possibility is the return of these citizens to Canada after their participation in foreign conflicts. They come back with a "postsecondary" degree in extremism, trained by hard-core foreign jihadists in real battlefield situations, posing a real terrorism threat.
I think that is real, because that is what every Western security agency is concerned about right now, and I think this bill starts to address that issue.
The Chair: Mr. Edwards and Mr. Cochrane, it is unfortunate for you that you had one issue that apparently we understood really well.
Mr. Edwards: Senator Eggleton hit the nail on the head.
The Chair: That is universally agreed. You were in that category.
Ms. Saperia, you have done an excellent job of expounding upon the complexities of the areas that you achieved questions on, and I want to acknowledge and appreciate your testimony before us today.
(The committee adjourned.)