Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 16 - Evidence - February 15, 2017
OTTAWA, Wednesday, February 15, 2017
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-6, An Act to amend the Citizenship Act and to make consequential amendments to another Act, met this day at 4:16 p.m. to give consideration to the bill.
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'm Kelvin Ogilvie, a senator from Nova Scotia and chair of the committee. I will ask my colleagues to introduce themselves.
Senator Eggleton: Art Eggleton from Toronto and deputy chair of the committee.
Senator Jaffer: Mobina Jaffer from British Columbia.
[Translation]
Senator Cormier: Senator René Cormier from New Brunswick.
[English]
Senator Omidvar: Ratna Omidvar from Ontario.
[Translation]
Senator Mégie: Senator Marie-Françoise Mégie from Quebec.
[English]
Senator Lankin: Frances Lankin from Ontario, and today I am participating on behalf of Senator Chantal Petitclerc.
Senator Raine: Nancy Greene Raine from British Columbia.
Senator Stewart Olsen: Carolyn Stewart Olsen from New Brunswick.
Senator Seidman: Judith Seidman from Montreal, Quebec.
The Chair: This week, this committee begins its study of Bill C-6, An Act to amend the Citizenship Act and to make consequential amendments to another Act.
We have two sessions this afternoon. This first session will end no later than 5:15. We will have the "one question per senator per round'' in effect. Keep your preambles short, such that all of our colleagues can get a question in. There are no supplemental questions from a third-party senator. If you wish to get on because you have a supplemental, I'll put you on the speaker's list for whenever your turn comes up.
I want to identify our witnesses. We have two groups appearing this afternoon. We have the Canadian Bar Association and the Barreau du Québec.
I will invite the Canadian Bar Association to present first. We have Barbara Caruso and Kathleen Terroux.
Kathleen Terroux, Lawyer, Legislation and Law Reform, Canadian Bar Association: Thank you, Mr. Chair and honourable senators. We appreciate your invitation and are pleased to be here today on behalf of the Canadian Bar Association to present our views on Bill C-6.
The CBA is a national association of over 36,000 lawyers, law students, notaries and academics. An important aspect of our mandate is to seek improvements in the law and the administration of justice. Our immigration law section, whose members practice in all areas of immigration and citizenship law across Canada, has put this submission together.
With me today is Barbara J. Caruso, Vice-Chair, Immigration Law Section. She will address the substantive issues and comments with relation to our submission and answer any questions for you today.
Barbara J. Caruso, Vice-Chair, Immigration Law Section, Canadian Bar Association: Thank you, Mr. Chair and honourable senators. A few years ago, I appeared before this committee on Bill C-24, the last set of Citizenship Act amendments. I argued that all Canadians benefit when newcomers to Canada contribute financially, socially and politically to our country, and that citizenship plays a crucial role in encouraging permanent residents to do just this.
If permanent residents feel like second-class citizens because they weren't born in Canada or they feel that citizenship is unattainable, we risk materially changing what makes Canada great. Canada will continue to prosper if the people that live here are Canadian citizens and are committed emotionally, financially and socially through a shared and common status of citizenship, based on equality.
I am pleased to return today on behalf of the CBA Immigration Law Section and confirm our support for aspects of Bill C-6 that make citizenship more attainable for many, including the reduction of physical time required in Canada from four out of six years now to three out of five years, and to providing half-time credit for time in Canada prior to becoming a permanent resident.
The CBA section continues to advocate expanding the minister's discretionary powers under subsection 5(4) to grant citizenship in cases where an applicant has not been able to meet the physical dates of residence in the prescribed period of time. There are many worthy situations and circumstances that may preclude an individual from meeting the physical residence requirement, and the Citizenship Act must provide an avenue for these individuals to at least apply for citizenship.
Recent world events have highlighted the importance of citizenship. Citizenship is not merely about calling oneself a Canadian or about national pride. Becoming a citizen results in important rights and obligations being conferred to individuals, and these rights and obligations have the potential to have a significant impact on a person's life, whether it's the ability to vote in a general election or on matters of national interest in a referendum, or the ability to live, work or to travel to another country without restriction.
Just as granting citizenship must be governed by rules that reflect the significance of the rights and obligations of becoming a citizen, so too must the process for revoking citizenship.
The CBA section supports repealing the revocation provisions introduced by Bill C-24. We had serious concerns about their constitutionality. It is important that they be repealed. Revocation of citizenship should be limited to naturalized Canadians who acquired citizenship by false representations. However, Bill C-6 does not go far enough. It fails to restore the right to a full hearing before the Federal Court for matters of revocation.
Bill C-24 fundamentally altered the process for revoking citizenship. The process before Bill C-24 involved three steps: first, a report was made under section 10 of the act that the minister was satisfied a person obtained citizenship fraudulently; second, once notified of the report, the person could request the matter be referred to the Federal Court for a hearing; and third, if the Federal Court made the finding requested by the minister, citizenship could be revoked by the Governor-in-Council.
Bill C-24 eliminated the Federal Court hearing. The minister now decides on revocation with no requirement for a hearing. For such a serious matter, it is essential that there be a formal hearing before an independent and impartial decision maker.
This past month, we have seen the value of a judicial process to review matters of immigration and citizenship status that have significantly impacted individuals' rights and liberties south of our border. Accordingly, the CBA section urges that a fair process for revocation that reflects the values of Canadians be put back in place, including an oral hearing before the Federal Court.
Bill C-24 also eliminated consideration of equitable factors that could prevent a legal but unjust outcome. Before Bill C-24, the Governor-in-Council could consider equitable factors when deciding whether to revoke citizenship. This is no longer possible. Instead, the decision on revocation is determinative and there is no further opportunity for equitable factors to be considered by the minister. Even if discretion could be implied, the minister is not an independent decision maker. At a minimum, Bill C-6 should explicitly recognize that officers may consider humanitarian and compassionate factors and must allow the citizen to make written submissions on these factors.
Finally, the citizenship revocation process compares poorly with the process for loss of permanent resident status for misrepresentation under the Immigration and Refugee Protection Act. A permanent resident has a right to a hearing, however a citizen does not.
The CBA, though, supports the amendment to allow persons whose citizenship is revoked as a result of a finding of a misrepresentation when they obtain their permanent resident to revert back to permanent resident status, rather than the current situation where they would be inadmissible foreign nationals.
In summary, the CBA section wishes to highlight three recommendations from our submission on Bill C-6. First, subsection 5(4) should be expanded to allow the minister to recognize residency on a discretionary basis for deserving situations. Second, a citizen facing revocation of citizenship should have the right to a hearing before the Federal Court. Third, citizenship should not be revoked without the officer assessing humanitarian and compassionate factors.
Thank you, Mr. Chair and honourable senators. I will be pleased to answer questions.
[Translation]
The Chair: We will now hear from members of the Quebec Bar. Réa Hawi will speak first, followed by Hugues Langlais.
Réa Hawi, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec: My name is Réa Hawi. I am a lawyer at the Secretariat of the Order and Legal Affairs, and secretary of the Immigration and Citizenship Law Committee of the Quebec Bar.
The primary mission of the Quebec Bar is to ensure public protection. As a result, our activities are always focused in that direction. The Quebec Bar enthusiastically welcomes Bill C-6, which amends the Citizenship Act and proposes repealing the majority of the amendments introduced by Bill C-24 in 2014, which we feel violate human rights and freedoms.
The Quebec Bar believes that citizenship is a fundamental component of affiliation with a country. Citizenship entitles us to participate in the country's civic life and to play an active role in its institutions. Canada has always demonstrated leadership in the area of human rights as well as openness with regard to the international community. Citizenship legislation must be based on Canadians' fundamental values and principles which are, for the most part, enshrined in the Canadian Charter of Rights and Freedoms.
In 2014, during the study of Bill C-24, the Quebec Bar criticized the proposed amendments, particularly the rigid criteria imposed on applicants for citizenship and the discretion given to the minister to revoke citizenship, the failure to respect the right to be heard and the different treatment that applied to people with dual citizenship. Among the amendments made by Bill C-6, we note the ones that concern citizenship exams. We applaud that the requirement imposed by Bill C-24 to prove knowledge of Canada is limited to applicants aged 14 to 64, and that the requirement to prove knowledge of one of the official languages is limited to applicants aged 18-54. In fact, the Quebec Bar had reservations about extending these requirements to children, in particular, and we are pleased to see that the requirement will no longer apply to people under age 18.
We also applaud the repeal of the grounds for revoking the citizenship of individuals who are presumed to have dual citizenship and who, although they were Canadian citizens, had committed actions related to Canada's national security. The amendments introduced by Bill C-24 broadened the scope of section 10, which deals with the revocation of citizenship, to include persons with dual citizenship. We applaud the changes brought by Bill C-6, which corrects the different treatment that these people were subject to.
Having said that, and although we believe that this bill is a step in the right direction, some situations remain problematic and it would be appropriate to go further, especially to better protect children. I will turn things over to Mr. Langlais.
Hugues Langlais, President, Immigration and Citizenship Law Committee, Barreau du Québec: Thank you for the invitation to appear before your committee to discuss citizenship and this bill. We have an interest in this issue, and we support the observations of our group and those of our colleagues at the Canadian Bar Association with respect to revocation, all the mechanisms that have been condemned by the CBA and the need for the possibility of making representations on humanitarian grounds, which I think is essential in the context.
I would like to address two or three aspects, if time allows. The first concerns minors wanting to file citizenship applications. These minors, who cannot have the benefit of representation by a guardian or an adult, are often represented by the youth protection branch as part of the denunciations made by the minors themselves with regard to their guardians. These minors cannot, under any circumstances, file an application for citizenship, even if they have been a permanent resident for a number of years. This is a very serious infringement of a child's freedom to control his or her own self and apply for citizenship without the approval of an adult that he or she may no longer trust and that has been reported to the youth protection branch, which will have to support this person.
The second aspect is the concept of father or mother under subsection 3(1) of the Citizenship Act. I am referring specifically to Canada (Citizenship and Immigration) v. Kandola that the Federal Court of Appeal analyzed in terms of the genetic link as opposed to the gestational link that a child or a gene product has to a parent. The idea of being able to procreate a child using in vitro fertilization techniques may need to be more closely examined in the parental project, which is not provided for by law.
The third aspect is statelessness, which is reflected in all citizenship legislation. This act has the advantage of being amended about every 40 years. It is time, and in keeping with Canada's obligations under the 1954 New York Convention relating to the Status of Stateless Persons, to establish a mechanism for determining statelessness in Canada. We haven't yet, unfortunately, despite the recommendations of the authorities and the international instruments.
So I think it is necessary to make sure that we correct this and other mistakes, but I will stop here, given the time. I would rather answer your questions.
[English]
The Chair: Thank you. We will now start the questions.
Senator Omidvar: Thank you all for your presentations. When Bill C-24 was passed, the Department of Justice issued a legal opinion about its constitutionality. Can you comment on what you know about this legal opinion, and can you follow up, anyone of you, about what you know about legal challenges to Bill C-24 currently in the courts and what their status is?
[Translation]
Mr. Langlais: There is currently a constitutional challenge before the Federal Court. The British Columbia Civil Liberties Association and a private person sought an injunction against all revocation requests generally addressed in all revocation cases. The court ruled that an injunction was not necessary, since there was already a mechanism allowing people to join this court challenge. Without expressing an opinion about the constitutionality, the problem we have in such a situation is how to warn someone in South Africa or Syria that there is a mechanism for joining an existing remedy to obtain a stay of the notice of revocation, pending the determination of the constitutionality of that provision.
[English]
Senator Frum: Ms. Caruso, in a brief on Bill C-6 that the CBA presented to the House of Commons in April, you explained why you're supportive of repealing many of the provisions in Bill C-24. I would like to address the part of Bill C-6 that deals with the revocation of citizenship for convicted terrorists.
In your brief, you state:
. . . Canadians should not face revocation of their status as citizens except in the most exceptional circumstances, and in a fair manner that respects Canada's constitutional and international obligations.
My question to you is: When we think of the case of Zakaria Amara, the ringleader of the Toronto 18 who was convicted for planning, as we know, what he hoped would be some terrible atrocities, including beheading the Prime Minister, bombing the Canadian Parliament and CBC, et cetera, why do you not believe that his case would qualify as such an exceptional circumstance that would justify having his citizenship revoked?
Ms. Caruso: I think the members of the CBA feel strongly about our judicial system. We believe that people that commit crimes in Canada will face a fair but stiff process through the criminal justice system. That's the way that someone in those circumstances should be dealt with, through the criminal system.
Just deporting them and removing them, leaving them stateless, sets them free to continue terrorist acts around the world with no control. We're much better to convict them if, in fact, they are found to have committed the act and had the mental intent to carry out the crime. We are better to convict them, sentence them here and hold them accountable in our judicial system, which is a fair one, than to throw them out of our country into, potentially, a country that doesn't have a judicial system, where they can continue their behaviour.
Senator Frum: First of all, we would not render them stateless. This provision in Bill C-24 only applies to those with dual citizenship. We would take away their Canadian citizenship, and it would have to revert back to their original citizenship, either before or after they served a criminal sentence. I want to clear that up.
Senator Eggleton: Thank you all for being here. You make very compelling arguments on many different aspects of Bill C-6.
I want to focus a little bit more on the revocation, particularly the revocation for false representation or fraud. I think it's absolutely alarming that there isn't an appeal process and there isn't a proper hearing process. Most of this is done by paper, and you can't even find out all the details of the case against you if you're brought up in front of this process.
One of the earlier arguments I heard for justifying not having that appeal process was the fact that the person would be resorting to permanent status instead of being just a foreigner that can easily be removed. From the permanent status position that I understand this bill provides, there is that kind of an appeal process. Could you just comment on that?
Ms. Caruso: Sure. The process for a permanent resident allows for an officer first to make a report, whether or not the individual is inadmissible for having made the misrepresentation. There can then be an order that follows for removal. Subject to that, there would be an appeal before the Immigration Appeal Division, so a tribunal, an administrative appeal, as opposed to before the Federal Court. There would be an opportunity for humanitarian and compassionate grounds. But the bar's position is that the Federal Court is better able to address the issues and that there would be more disclosure through the court process.
[Translation]
Mr. Langlais: I would like to point out that in a revocation procedure that I recently participated in, the embassy that notified the person of the revocation procedure told the person that once the revocation was confirmed by the administrative process, the person would reacquire the right to permanent residence. There seems to be some ambiguity in this position. I agree with my colleague when she says that he had this assumption. We seem to have evolved. At what point, I cannot say, but there seems to have been an evolution, and I felt the need to clarify it.
[English]
Senator Jaffer: Thank you for your presentations. The way I understand it, at the moment, for permanent residence, you can have up to two hearings. For a refugee, you have a hearing. Under the new legislation, you will have no hearings for a Canadian citizen. That's the issue; there will be no hearing. The minister will decide, and we also don't know if the minister will consider humanitarian and compassionate grounds.
Before Bill C-24, I understood the person is notified, it goes to Federal Court, and the Federal Court looks at humanitarian and compassionate grounds, as well as the whole case. If the Federal Court decides that no, this person should be sent out, then that person loses, and that is fine. It's a fair hearing.
I will show my age. As a younger lawyer, we took the government to court when there were no hearings for refugees. This was many years ago. What has happened? We are back at the same place.
Section 7 clearly states that Canadians have the right to a fair hearing before an independent and impartial decision maker. There will be no hearing when a serious thing like a citizenship will be taken. This is not constitutional.
Ms. Caruso: I would agree. If you get a parking ticket, you have a right to a hearing, but if you are a citizen and you are going lose your citizenship, you have no right to a hearing. It doesn't make sense. We need to have a fair process. That is what Canada is about. Our citizenship is based on the principle of equality and fairness. We need to make sure that is in place.
Senator Seidman: Thank you very much for your presentations. I would like to address this question to you, Ms. Caruso, if I may.
The ability to speak one of our official languages is critical to citizenship, its obligations and rights, as well as integration into our society. As a citizen, you have the right to vote, for example. Language also allows a young person to integrate into the school system and make friends, and it allows an adult to integrate into the workforce and their neighbourhoods.
Under Bill C-6, citizenship applicants aged 14 to 17 and 55 to 64 would no longer have to demonstrate adequate knowledge of one of our official languages. How do you feel about this? What do you have to say about this kind of change?
Ms. Caruso: With respect to the youth, I had the privilege two weeks ago to attend at my daughter's grade 6 class at a middle school. There were about 250 kids. It was a sea of United Nations in terms of multiculturalism. Those children are in school learning English. I don't think we have much to worry about on the youth end.
I would agree with you in terms of those that are older. I think the CBA's position has been that the change that we would have liked to have seen is that the knowledge test not have to be in English or French. That's what we were advocating for more so than a change in the age for the language test. We felt it was a double requirement that someone have to take the knowledge test in their second language.
Senator Seidman: As a point of clarification, would you say that the language requirement to demonstrate capability in one of the two official languages for those aged 55 to 64 should still apply? However, they could take the knowledge test in a different language to prove they understood the culture of the country they are coming to.
Ms. Caruso: That would be our preference.
[Translation]
Mr. Langlais: I would like to add a clarification. The language requirement is primarily for the class of parents and grandparents, and people who have been granted refugee status in Canada. Anyone who is a skilled worker has already been screened with one of Canada's two official languages as a basic criterion. So one or two classes of people are being targeted with these language requirements.
[English]
Senator Meredith: Thank you for your presentations this afternoon. I will pick up on the line of questioning that Senator Frum posed to you with respect to those convicted of terrorist activities.
If we look at Bill C-6 and the critique of it with respect to war crimes and those convicted or accused of committing war crimes, can you explain the difference between those individuals who have been convicted of war crimes or war criminals and the revocation of their citizenship and those convicted of terrorist activities? What is the difference between them? Can you elaborate for me? That is, as to the revocation of their citizenship.
Ms. Caruso: The issue goes to what Senator Frum was saying, which is if they have another right to a citizenship other than Canadian citizenship, then the outcome for them is different than someone like myself who was born in Canada and has no right to any other citizenship in another country. Canada is stuck with me and must deal with me before their courts and their prison system and rehabilitation.
We are creating two tiers of citizenship, which is against the values of Canadians. Canadians want to be treated equally. A Canadian citizen should be the same regardless of their genetic heritage.
[Translation]
Mr. Langlais: Since Luitjens in 1990 and 1991, war criminals who have been recognized as such in Canada have had an ultimate right of appeal before the Governor-in-Council. Through this right of appeal, a number of them have had the revocation of their citizenship overturned. The courts are of the view that the Governor-in-Council represents all the trends in Canadian society and is in a better position to judge the validity of a person and his or her humanitarian motives than a decision-maker in his office. This is what enabled a number of recognized war criminals, who were declared as such after the Deschênes commission, to be accepted as Canadian citizens, despite what they had done.
[English]
Senator Lankin: I would ask now to be put on the list for a second question because I'm going to ask a supplementary to the previous questions rather than the one I had originally planned on asking.
I don't know a lot about the history of the commission that you just referred to. I'm trying to understand an argument that's made by critics of this bill.
For people who are concerned that, as Ms. Caruso said, we would be creating two tiers and a differential application of justice to criminals based on the fact that they may have a different origin or country of birth, why are we not treating them the same as war criminals? You have said there is a different route of appeal. Why would we not extend that to people who are convicted of terrorism and say that that satisfies the problem?
I don't think that is the right answer. I agree with the answer that is being put forward, but the differential treatment is what I understood my colleague to be asking about, and I didn't hear an answer as to why it is okay to have differential treatment.
[Translation]
Mr. Langlais: I did not indicate whether I agreed or not. I was explaining the previous process in which people who were in a revocation situation for crimes or serious situations like terrorism, and who were war criminals, had succeeded. Before the current act came into force, when it was enacted in 2014 or in part until June 2015, they had an effective right of appeal before the Governor-in-Council. This right of appeal has been removed.
[English]
Senator Lankin: I guess I don't get supplementary questions.
The Chair: Do you have a question of clarification?
Senator Lankin: No.
The Chair: We are moving on.
Senator Lankin: I am not understanding, but that is okay.
The Chair: Before we go to the second round, I want to follow up with a question.
Ms. Caruso, on the issue of language requirement for those aged 55 to 65, during one of your presentations I got the impression that there was a reference to this group as being "senior'' in society. This committee has studied social issues a great deal, and it appears that today those in the age group of 55 to 65 are, in fact, the largest single block in the workforce, if you take it decade by decade. It is generally understood that they are a long way from being senior citizens in the country today.
This committee has done studies on those who are underprivileged in cities, the challenges faced by poverty in the cities. We have identified that the inability to speak one of our official languages is one of the major if not the major barrier to people entering the workforce and moving into society.
Could you expand your argument against the requirement for one of our official languages in this regard?
Ms. Caruso: As my colleague pointed out, many immigrants that come to Canada have already gone through language testing, so we are talking about a smaller group. These might be individuals that were sponsored as family members or they could have come as refugees.
I cannot argue with the statements and the research that suggest that language is a key indicator of success. Having said that, it's not the only indicator of success. I represent many companies — small and large — and many have workers that come here that have very poor English skills, and they are able to make a living and so on.
Again, I think the bar's position is that the focus needs to be on the test, and that it's a hardship for anyone that has to write a test in something that isn't their first language. That's where people will get tripped up more.
With the other requirements, as I said, we are talking about a smaller segment of the population.
The Chair: Colleagues, I want you to hold your places when this session comes to an end no later than 5:15, because the confusion of getting up and moving around will delay our getting questions to the next panel. So hold your places. We want to get as many questions in today as possible.
Senator Omidvar: You set a high bar for efficiency, chair. Let me try to follow that.
I suspect that if Canadians took the knowledge test, many Canadians would not pass it. I appreciate the clarification, Mr. Langlais; well done. But we are really talking about the language test, not the big cohort of skilled immigrants and their families. We are talking about a subset, which is refugees, parents and grandparents.
Can you tell us what the impact is on these individuals when they are not part of the Canadian family? Imagine a family where a son, daughter, husband, wife, grandchildren are all citizens, and the grandmother is not. Can you comment on that?
[Translation]
Mr. Langlais: I think sign language can answer the question. Parents and grandparents who do not speak one of the two official languages are not excluded from Canadian society by this simple fact. At that point, it is the other family members who will act as translators or interpreters and show them how to deal with the realities of everyday life. When you reach a certain age — no one in this room is there yet — learning another language is difficult. The older you get, the more difficult it is. If a person has not had the chance in his or her country of origin to receive education or training at a certain level, it is likely that learning a language, whatever it may be, will be difficult. In that case, it is necessary to rely on family, which will help the person integrate into society and the workplace.
[English]
Ms. Caruso: I would like to add a personal response to that question. My paternal grandparents came from Italy, hence the Caruso name. They had 10 kids but did not speak any Italian. They were the only Italian family in Bill Davis' Brampton riding, and they wouldn't let their 10 kids speak Italian and they didn't pass it on. Hence, I don't speak Italian and my dad never did. I have one regret in all my education and dealing with immigrants on a daily basis, and that is that I do not have a second language, not even French.
I think grandparents add to our culture and to the family environment in a positive way, regardless of whether or not they can speak English or French.
Senator Frum: Going back to your brief, the CBA speaks about revoking citizenship status in the most exceptional circumstances. I want to go back to understanding what the CBA considers "exceptional circumstances.''
As has been mentioned, convicted war criminals can have their citizenship revoked. That hasn't changed; it has been on the books for decades. They can appeal, but they can also have their citizenship revoked. We were adding terrorists to that group of citizens who committed treason, war crimes or terrorism. Now we are saying with treason, war crimes you can. Terrorism doesn't count, in your opinion, as an exceptional circumstance?
Ms. Caruso: The CBA's position is that it should be limited to the misrepresentation. If someone has done something outside of the country and in our screening processes they misrepresented their background, history and their activities, and if it subsequently comes forward and they are given an opportunity to respond to those allegations, if the determination is that they misrepresented them, then those are exceptional circumstances.
Senator Frum: So treason is not necessarily misrepresentation, though. You can lose citizenship for treason. Do you agree with that?
Ms. Caruso: Sure. It provides for treason. So if that was hidden when the person applied for permanent residence and it was misrepresented, and it came to the front in later years, then that would be grounds for revocation.
Senator Eggleton: Picking up on that, my understanding with respect to war criminals of past times is that they're not being necessarily removed from citizenship because they were accused of being war criminals but because they lied in getting into the country. They misrepresented their position. They obviously didn't tell people that they committed crimes in some other country.
With this whole question of terrorism, I wonder if you might comment on this. One of the difficulties there is that there are other heinous crimes that are committed in this country. We're talking about people that might be convicted of attempted terrorism and could have their citizenship removed, but nobody would be removing the citizenship of Robert Pickton, who murdered many people. Maybe mass murderers should be included in that. Where do you start to draw the line on what would be a basis for revoking citizenship and perhaps moving a person towards deportation?
As you said at the beginning, Ms. Caruso, within the criminal justice system, we look at the law and we treat everybody the same. If a person is convicted, they go to jail for it. But citizenship is not something that we have brought into that kind of equation as a second punishment. I wonder if you could comment on all that
Ms. Caruso: I would agree with the points that you made, in particular the last point that revoking citizenship is an additional penal consequence. That's never been part of our judicial criminal system. Yes, only for some; not for those born here with no right to another citizenship.
It's hard to fathom. If we were to take this path and other countries followed, where would we be casting all these people off to? I believe in a rehabilitation system. I do not believe in capital punishment. That's my personal view. The CBA hasn't done that. These are the types of questions that then follow from all of this. What do you do with these people who are committing crimes that are hard to even imagine?
The bar's position is that we have a very fair and democratic system for our justice system. Those who come before it will be given the opportunities. Is it perfect? Probably not, but the rules are in place to allow people to seek protection of the law. That's the way that we think it should proceed, not by creating different rules for different people based on their origin.
[Translation]
Mr. Langlais: Despite the vocabulary used, we are essentially and exclusively in administrative law, which means that we are not in a situation of proof beyond doubt. With terrorism or an offence, as set out in the Immigration and Refugee Protection Act, we stick to reasonable grounds to believe. This is provided for in section 33 of the Immigration and Refugee Protection act.
On a scale of 100 reasonable grounds to believe, that is roughly 25 per cent. We are far from 99.9 per cent of the "beyond a reasonable doubt'' concept. The decisions we are about to make are aimed at people who have never actually been convicted under the Canadian criminal system that we know, which is a value everyone cherishes.
The other thing is that there is no statute of limitations in administrative law. What caused the Luitjens family and others to be attacked in court? Because they made false representations when they applied for immigration in the 1940s. We have to put things in perspective. We are not in a criminal system here, but in an administrative one.
[English]
Senator Jaffer: My question is to the Barreau. I don't think this has been discussed a lot, but you talked about how this will negatively affect same sex couples. In your submission, you have addressed section 3(1)(b) of the Citizenship Act, which states the person is a Canadian if they were born outside of Canada and one of their parents, excluding adoptive parents, is a citizen.
As stated in the Kandola case, where that infertile couple was not able to pass on Canadian citizenship when they had the child conceived, according to the court, the child had to be genetically linked to the parents to obtain citizenship. You claim this discriminates against the child because the child then is not seen like any other Canadian child. This affects people who have had to have children by other means.
Can you expand on that idea and how this act will affect that child and if that is constitutional?
[Translation]
Mr. Langlais: Justice Mainville made it very clear in his ruling. Obviously, he is dissenting, but that is not why we cannot be right. He says the following:
Rather, in my view, Parliament intended to use the legal concept of parent in paragraph 3(1)(b). In this way, derivative Canadian citizenship is conferred to a child born to a Canadian parent following a fertilization technique, and this irrespective of the nationality of the genetic donors.
We need to bring this legislation into 2017. It probably won't be amended before 2057.
[English]
Senator Meredith: Ms. Hawi, you said you enthusiastically welcome Bill C-6. I am talking about the number of cases that have been affected by Bill C-24. If Bill C-6 comes into effect, what happens to those cases? Can you tell us how many of those are currently before the courts in terms of their decisions and so forth? What happens to those decisions?
Ms. Hawi: Mr. Langlais explained that earlier, about the case at the Federal Court. I will let him respond to that.
[Translation]
Mr. Langlais: There are currently about 200 cases before the Federal Court. A number of cases have been stayed because they have succeeded in joining the prior proceeding. There is a special order from Justice Zinn that puts into perspective a category A and a category B, and that includes records that arrived after the start of the proceedings. A third proceeding initiated by the British Columbia Civil Liberties Association sought an injunction and new cases were subsequently added. I do not have the latest figures — the Department of Justice could tell you more about it — but there are too few people who are really aware of this mechanism proposed by the courts to curb the revocation mechanism.
[English]
Senator Lankin: In the lead-up to second reading debate on this bill, senators received many letters from Canadians, pro and con. I received a number of letters from people telling a personal story around being caught up by a provision on the intent to reside.
In discussion with people who are critics of Bill C-6, I have heard people say that it's largely a symbolic expression, and if someone can't even say that they intend to reside in this country, why would we think that they should have citizenship? If it was largely symbolic and didn't have import in people's lives, I can see that argument. What I have heard is that it is the unintended things that can happen that can disrupt someone's life.
I am wondering if you can tell us what the legal impact of the intent-to-reside provision has been, what you have seen, the kinds of complaints or cases that you've handled, whether or not this is part of Bill C-6 that you support, and, if so, why?
Ms. Caruso, I'll start with you, but anyone who would like to answer, please do so.
Ms. Caruso: I see this on a regular basis. It made me very uncomfortable to be providing clients with advice regarding the intent provision because at the time that they're signing their application forms, which we may have assisted them in preparing and they have to check that box, they may very well be in Canada with an intent.
The concern that the bar has is what happens if, subsequent to signing that application, they get a transfer to go work in another country for a multinational company and they leave? How are they to prove that at the time they signed that, they had the intent? With the provisions for misrepresentation, and the implications of misrepresentation being revocation of status with no hearing, those were significant consequences that needed to be explained to individuals. That made it very difficult to give people a clear picture of what it was that they were signing and what the potential consequences were.
We often represent multinational companies, and for whatever reason, their executives may not have gotten around to filing for citizenship. They know there is a potential transfer coming up. It's percolating. It's better for them to be representing Canada abroad for that company as a Canadian citizen. They go to apply for Canadian citizenship, even knowing that that potential transfer is on the horizon.
So it's going to put people in a position where they were perhaps not being honest on their application form, but not without having met the criteria of having resided here for many years and being able to speak English or French and pass the language requirements.
The Chair: I don't have time to give both the sponsor and the critics a last chance here, but we have had two complete rounds of questions. I think my colleagues have asked very clear and important questions. Both groups have provided answers that we have clearly understood. I want to thank you both for being here with us today.
We now have Audrey Macklin, Professor of Law, University of Toronto, appearing as an individual; and Noah Shack, Director, Policy, Centre for Israel and Jewish Affairs. I'm going to invite Ms. Macklin to present first. We always go to the electronic presentation first in case of difficulties. Ms. Macklin, would you present to us, please?
Audrey Macklin, Professor of Law, University of Toronto, as an individual: Thank you very much.
[Translation]
Thank you for this opportunity to appear before you today.
[English]
I will focus my comments on the legality of citizenship revocation for post-citizenship conduct, broadly speaking around national security offences.
I think the starting point for this is to ask whether a law that permitted revocation of citizenship, for let's say terrorism, treason, national security offences committed after one has obtained citizenship, would withstand constitutional scrutiny. I think the short answer to that, based on the jurisprudence, is no.
A starting point for that would be a case called Sauvé decided by the Supreme Court of in 2003. It concerned prisoner disenfranchisement, taking the vote away from inmates in federal institutions. This was challenged as a violation of the right to vote under the Charter. The court quickly acknowledged this was clearly a violation of the right to vote and considered whether it could be demonstrably justified in a free and democratic society.
The starting point for comparison is to acknowledge that citizenship revocation does not just remove one right associated with citizenship; it removes all rights by taking away citizenship as such.
In Sauvé, the court decided that disenfranchisement could not be justified under section 1. It was punishment. That is to say, it was punishment for an offence that had already been tried and punished by way of imprisonment. It was arbitrary as punishment, and it served no valuable purpose of deterrence or rehabilitation.
One might then assume that if disenfranchisement is unconstitutional, so too then would be citizenship revocation for much the same reason. I think, in a sense, one almost need not go any further than that, but one certainly could and talk about other bases for saying that citizenship revocation would be a violation of the Constitution.
In addition to what I just described, which would be the reasoning under section 7 of the Charter, one can talk about section 12 of the Charter. Would citizenship revocation for post-citizenship conduct constitute cruel and inhumane treatment or punishment? Case law here from the Federal Court states that in order to be legitimate punishment, punishment must achieve a legitimate aim, and there must be no adequate alternatives.
What would the alleged legitimate aim of citizenship revocation be? If the legitimate aim is to promote national security by rendering this person a non-citizen and therefore deportable, there are many arguments out there — and I'm sure you're familiar with them — about why deporting people who are considered to be threats to national security to some other country does not enhance national security or global security. First, it merely displaces a problem from one place to another. Second, if that person goes to a state where there is indifference to regulation of national security, then that person will simply be free to pursue their aims there.
Canada, like many other states, considers terrorism to be not just a national problem but a global problem. If we consider terrorism to be a global problem, then it doesn't make sense and it doesn't make us more secure to displace somebody we think is a terrorist from one place — here — where we could manage them through our criminal justice system to another place where they may not be managed at all.
Are there adequate alternatives? Of course there are adequate alternatives, because when somebody is not a dual citizen and citizenship revocation is not available, our criminal justice system stands alone. If the criminal justice system is an adequate alternative for mono-citizens, there is no reason to think it isn't equally adequate for those who happen to be dual citizens.
I will move on for a moment and talk about another concern that has been expressed here about the intent-to-reside provision.
If one were to impose an intent-to-reside requirement on future citizens who are being naturalized, then you would be subjecting naturalized citizens to a burden on the exercise of their right as citizens to come and go from Canada freely. That is to say, naturalized citizens who pick up and move somewhere else would live under the risk that somebody in the immigration department might think that they had not fulfilled their intent to reside and had misrepresented their intent to reside and seek to have their citizenship revoked. People who acquire citizenship by birth don't live under that burden.
Next we can talk about citizenship revocation as a potential violation of the equality provisions of section 15 of the Charter. Citizenship revocation, as you know, would only apply to those who are dual citizens, not mono-citizens. Obviously, there is discrimination between different classes of citizens. Canada, like any other liberal democracy, holds to the idea that there is no such thing as second-class citizenship. Once you are a citizen, all citizens are equal. So to impose upon one class of citizens the threat of revocation, and not on another, is obviously to discriminate on whether one is a mono or a dual citizen.
The intent-to-reside provision discriminates on a different basis. It discriminates between naturalized citizens who are at risk of revocation on grounds of alleged misrepresentation of their future intent to reside, whereas birthright citizens are not subject to revocation on that basis. You have discrimination on a different basis there.
In addition to all of that, the absence in the current version of Bill C-6 of any fair procedure that would regulate citizenship revocation on grounds of fraud or misrepresentation poses a serious risk of unconstitutionality under section 7 of the Charter. It does not comport with fundamental justice. Just to cut to the chase on that, you get more procedural protections if you're fighting a speeding ticket now than if you are fighting citizenship revocation.
Lastly, the current bill does not adequately address the need for proper notice to be provided to people who are at risk of citizenship revocation, and here I mean personal notice. People ought to be notified in person, through personal service, if the government is considering revoking their citizenship, and not simply by sending a notice to their last known address.
I see that I am out of time, so I will end my comments there and welcome your questions.
The Chair: Thank you very much.
Noah Shack, Director, Policy, Centre for Israel and Jewish Affairs: Thank you, chair and honourable senators, for the opportunity to be here representing the Centre for Israel and Jewish Affairs, the advocacy agent of the Jewish Federations of Canada, regarding Bill C-6.
Canadian citizenship is one of the most valued and highly respected in the world, but it is not just a prestigious status one acquires. It is based on a set of core values designed to ensure dignity, freedom and equality for all, a carefully balanced set of rights and responsibilities that we all cherish.
Despite the none-is-too-many policy of the 1930s and 1940s that prevented those fleeing the Holocaust from finding safety on Canadian shores, Jews have made a significant, positive contribution to Canada throughout our country's history, like so many other groups whom we join in full-hearted appreciation of the opportunity and privilege inherent in being Canadian.
As some of you may be aware, February is Jewish Disability Awareness and Inclusion Month, a global initiative to highlight the importance of accommodation and inclusion for people with disabilities within Jewish communal life, and also a focal point around which to demonstrate Jewish leadership on this important issue beyond our own community. Within this context, I would like to note our appreciation for the amendment to Bill C-6 that will update section 5 of the Citizenship Act to include ministerial discretion with regard to accommodating the needs of citizenship applicants with disabilities.
Unfortunately, barriers remain within Canadian immigration laws that have made it difficult for people with disabilities to come to reside in Canada in the first place. Currently, under section 38 of the Immigration and Refugee Protection Act, a foreign national can be rendered inadmissible on health grounds if they might reasonably be expected to cause excessive demand on health or social services. This provision has been applied unfairly to people with disabilities, ignoring the myriad of positive ways they make contributions to Canadian life.
To maximize the impact of the amendment to section 5 of the Citizenship Act contained in this bill, a complementary amendment to section 38 of the Immigration and Refugee Protection Act should be considered.
Retaining a physical presence standard in determining residency requirements for citizenship is an important principle maintained in Bill C-6, which can enhance integration and decrease marginalization of new immigrants. As former Minister McCallum mentioned, it can also help to counteract the problem of citizens of convenience.
CIJA also supports the retention of basic language and knowledge testing provided for in Bill C-6, coupled with a physical presence requirement. This can have a significant impact on counteracting the importation of anti-Semitic and other extremist views that are rightly confined to the fringes of Canadian society but are unfortunately still prevalent in other parts of the world. We have done extensive national polling on attitudes here in Canada that I would be happy to discuss with you.
However, with regard to testing, there have been issues of religious accommodation. Many religiously observant Jewish Canadians are unable to take the required tests during the Jewish Sabbath, which lasts from sundown Friday until nightfall on Saturday. It has been our experience that many of the language testing facilities only offer Saturday testing. In some cases, groups or individuals have been able to reach an accommodation with the individual testing centres, but this has been inconsistent. Here in Ottawa, for example, there are only two organizations that provide the testing. Both conduct their sessions on Saturdays.
A local couple hoping to become Canadian citizens was told by one organization that it would take a number of months to find some time to accommodate them and that they should probably look to take a test in another city. The other organization had a single Thursday test date in August, eight months following their inquiry.
Following the involvement of the minister's office, the couple was registered to take a test earlier in the spring. While we appreciate the intervention and the assistance of the minister's staff, this is a problem that needs to be addressed in a systematic way. Insufficient access to testing should not form a barrier to citizenship.
Immigrants are among the most dedicated shapers of this country, a source of cultural vitality and economic strength. Jewish Canadians are proud to have played a part in Canada's immigration story, coming to this country from all over the world for more than 200 years. We appreciate that Bill C-6 will once again allow time spent in Canada as a temporary resident to count toward the residency requirement for citizenship, particularly with regard to international students. Those who come to Canada to advance their education, knowledge and skills, while integrating simultaneously with Canadian peers, seem to be ideal candidates for citizenship here, and we shouldn't place unnecessary obstacles in their path.
We are also pleased that Bill C-6 does not seek to repeal C-24's streamlined provisions for revoking citizenship from those who obtained it through fraud or misrepresentation. These provisions consolidate a process that has been routinely abused by those who hid their Nazi past when coming to Canada. The ongoing case of Helmut Oberlander is a timely example. He was a member of a Nazi mobile killing unit. He hasn't denied this fact nor apologized for it. He was responsible for the murder of more than 90,000 Jewish men, women and children. When he applied for entry into Canada in 1954, he misrepresented this past and fraudulently obtained his citizenship. He has avoided final revocation and removal from Canada for more than 20 years through this flawed system we have.
This ongoing experience demonstrates the need for a streamlined revocation procedure for fraud and misrepresentation so that these cases can be dealt with more efficiently. The commitment of successive governments to revoke his citizenship and remove him from Canada is much appreciated by our community, even though they haven't been successful to date, including the current government's most recent initiative with the Supreme Court. While that was also unsuccessful, we're hopeful that the minister will continue to press forward so that justice, however delayed, won't be denied in this case.
With regard to the revocation of citizenship more broadly, CIJA articulated a supportive position with regard to Bill C-24 when dealing with the revocation of citizenship for those who commit certain offenses, like terrorism offences. This position reflected our belief that in the case of certain particularly egregious crimes, the perpetrator is guilty of a fundamental betrayal of the core values on which Canadian citizenship is based in addition to the particular crime they are convicted of. Our support for this provision reflects a desire to address not just the crime that they have committed, but also the grievous offence to Canada and Canadian identity that has taken place. This is why we advocated for the revocation provisions to be extended to also include those convicted of war crimes, crimes against humanity and genocide.
The government has articulated a different position on this issue, and we respect the mandate they have received to do so and the arguments for why the law shouldn't distinguish between dual nationals and other Canadians. However, we encourage members of the committee to reflect on the serious nature of the offence committed by Canadians who perpetrate these heinous crimes to the institution of citizenship itself and consider how our society can best respond to this additional affront to our values and identity.
The Chair: Committee, we have one additional thing to add to our approach in this round. With a guest appearing by video conference, it is essential that you identify who you are addressing your question to, or in the case that you want both to answer, if you would kindly say who first, because the person by video conference can't see the dynamic here in the room. Please identify who you want to address your question to in the first instance, although both witnesses have an opportunity to speak to each question. I would also remind you, one question per round.
Senator Omidvar: My question is to Professor Macklin. You have written extensively about citizenship. At second reading in the chamber, there was some discussion about whether citizenship is a right or a privilege. Can you extrapolate for us what the legal consequences of these different concepts of citizenship are?
Ms. Macklin: Lots of people say citizenship is a privilege, not a right. I think what people mean by that when they say it is they feel privileged to be a Canadian citizen. They feel lucky to have been born here or to have gotten citizenship here, and they fulfil their commitment to this country through various acts that they perform in their engagement as a citizen. That is all laudable and good, but a privilege in law is something quite different.
A privilege in law is the conferral of a discretionary benefit onto an individual. A privilege belongs not to the individual who holds it but to the authority that confers it, and it can be taken way. When we say citizenship is a privilege, not a right, what we are really saying is that it belongs to the government. It can give it and take it away as it wishes. I'm not sure that that is something that we would want to endorse at all.
Citizenship, in law, is a right. Once you have it, you hold it as a right. It's important not to let the rhetorical use of "privilege,'' or its popular use, cloud what the significance of using it in law is. In law, citizenship is a right, not a privilege.
Senator Omidvar: Just as a quick clarification, have we ever taken citizenship away from people born in Canada?
Ms. Macklin: I'm not sure if we've taken it away from people born in Canada. We have taken it away from naturalized citizens.
I am sure my colleague from CIJA is aware that the last case of citizenship revocation on grounds of treason was to a Jewish Canadian citizen named Fred Rose, who at that time was seen as breaching what is called the fundamental betrayal of core values of Canada. He was a Communist and was convicted of conspiracy to disclose secrets to the Soviets. He didn't actually do it; he was convicted of conspiracy to do it. He had his citizenship revoked. It was the Conservative government of Prime Minister John Diefenbaker that introduced what was known as the "Fred Rose amendment,'' in 1958 so that it would never happen again.
The Chair: Mr. Shack, do you have anything to add?
Mr. Shack: In terms of whether or not citizenship is a right, Professor Macklin referred to the Sauvé case, which was specifically focused on whether or not voting rights could be removed from people incarcerated in Canadian prisons for sentences of longer than two years. Of course, the right to vote is explicitly enshrined in the charter. To my knowledge, there is no similar right enshrined to Canadian citizenship.
We need to be careful when we are talking about the right that people have to Canadian citizenship so that we don't confuse it with some of the other rights that are clearly enshrined and treated as something that can, in fact, be rescinded. As we know in the case of people who misrepresent themselves in applying for it in the first place, I don't think that is a controversial example. We can all agree that that right is forfeited, if it existed in the first place.
Senator Frum: Professor Macklin, in your comments, you said something to the effect that Canada, like other Western democracies, believes in the principle of equality. This was in reference to revocation of citizenship and having what you consider to be two different classes of citizens.
While it is true that Canada is a country that believes in the principle of equality, like other Western democracies, there are 22 other Western democracies that currently have on their books provisions to allow for the revocation of citizenship in cases of terrorism. In fact, Canada is now among those Western countries, but with the passing of Bill C- 6, we will separate ourselves from the 22 other Western democracies, including Britain, Switzerland and New Zealand.
I just want to clarify. You made a comment that we would be deporting such individuals in these cases to some other countries. That is not quite it. We would be removing the second citizenship that they obtained fraudulently by making a false representation, and we would be returning them to their single citizenship that they had originally. So it is not a question of randomly deporting people to some other country. In the case of terrorists who had dual citizenship and were convicted of terrorism crimes, we would simply be removing their Canadian citizenship and leaving them with their sole original citizenship; isn't that is correct? Isn't that the way the law is right now?
Ms. Macklin: As for the 22 other countries, most of those don't have entrenched bills of rights, so they are distinct in that respect from Canada. The United States, which does have an entrenched bill of rights, has pretty much foreclosed on citizenship revocation.
I would say that post-9/11, the only country that has made extensive use of citizenship on grounds of terrorism is the U.K. The U.K. is quite a significant outlier, although it does certainly use it extensively.
On your question with respect to deportation of people on grounds of terrorism, let me put it to you this way if you think it is such a good idea: Let us take Canada and the U.K. They both have revocation of citizenship for terrorist acts committed while a citizen. If we think this is a great idea, let's think about a Canada-U.K. dual citizen, and let's imagine that that person is convicted of a terrorist act in Canada. Then what happens? I guess it is just a race to the finish for the U.K. and Canada to see who can strip citizenship first. If the U.K. does it first, then Canada is stuck with the person. If Canada does it first, then the U.K. is stuck with them. Does that seem like a rational system for dealing with terrorism? It's just some kind of weird competition between states as to who can strip citizenship first.
As a strategy for responding to a serious concern about global terrorism, it seems like a kind of arbitrary game of hot potato. I would suggest that it's neither rational, nor is it principled, nor does it advance any objective of reducing the incidence of citizenship.
Mr. Shack: Just because two countries might have a similar law on the books and would seek to implement those laws simultaneously, that is a specific example, but it doesn't necessarily negate the value of the principle more broadly. I think there is good cause for us to think carefully about whether or not this is an appropriate way to deal with the affront to Canadian citizenship and identity inherent in some of these heinous crimes that people are not just perpetrating but are being convicted of more generally.
Senator Eggleton: Professor Macklin, thank you for your concise and compelling comments. I will pose my question, though, to Mr. Shack.
You said in your remarks that CIJA supported the position on Bill C-24 with regard to revocation of citizenship from dual national Canadians. You also say that you are supportive of the streamlining of the process that has come along with that. Are you saying you don't support an appeal process, that you don't support people having the right to a hearing? That is the result of the streamlining process. It's denying people rights.
Then you say the position reflected your belief that in the case of certain particularly egregious crimes, that the perpetrator is guilty of a fundamental betrayal of the core values on which Canadian citizenship is based, in addition to the particular crime they're convicted of. My goodness, that could apply to a lot of people in this country. For example, anyone who commits murder would fit into that. Certainly Robert Pickton would fit into that. He committed mass murders.
I don't understand how you rationalize taking people's rights away, rights to a hearing and to an appeal, and draw the line at people that you consider to be terrorists as opposed to other people that have committed other crimes — egregious crimes, I might add.
Mr. Shack: With regard to the first question, the misrepresentation and streamlining of the process, this came up during the hearings in the house. We expressed an openness to adding an additional element, whether it is an appeal hearing or an in-person appearance before officials, as long as the core principle of our position is addressed, namely, that this process will not result in a two-decade-long revocation proceeding. That's the core of our position.
If there's an issue and someone needs recourse to provide alternative accounting of their circumstance, or they are caught up and it turns out they misrepresented their country of origin, for example, without knowingly doing so, they should be able to make their case. But that case shouldn't take 20 years to work its way through the system.
We supported streamlining the process. Could it be fixed and made fairer for people caught up in it while still respecting the fact that it shouldn't take 20 years? We would be supportive of that. It is the principle that is most important for us on that account.
With regard to your second point, delineating specific crimes as more egregious than others, the law already does that to a certain extent. Let me explain what I mean. There is a reason that we have terrorism offences and genocide as a specific offence, as opposed to them just being murder. The end result is the same. People are tragically killed, maliciously, but there is a certain element — whether it is a political motivation or a quality to that crime perpetrated — that makes it egregious enough to be a distinct offence in our system. We think that is an approach that makes sense. Terrorism offences, war crimes, crimes against humanity, genocide, things of that nature, we can certainly agree are different in quality than murder, even though the outcome is no less tragic. The murder of one person is no less tragic than the murder of many.
I'm not a criminal lawyer. but if mass murder were a specific crime that someone could be convicted of, in the case of Robert Pickton, I would imagine that could be considered in this case as well. What we are talking about here are things that are qualitatively different than — I hate to use the term "normal crime,'' but you know what I am getting at.
Ms. Macklin: My reference earlier to Fred Rose and his revocation is meant to remind us that every generation comes up with its own view on what the most heinous crimes are, and we ought to be mindful of the ways in which these shift. Every generation thinks it has a handle on what are the absolute worst of the worst crimes that merit some kind of distinctive punishment. Reflecting on whether Fred Rose deserved to be exiled because he was a communist who conspired is worth thinking about.
On the question of punishment for crimes, of course different crimes deserve to be named differently and punished differently. But recall that punishment is the job of judges, not the job of a minister. In fact, it is constitutionally not allowed to be the job of the executive. The Minister of Justice doesn't get to decide what sentence someone receives, nor is it lawful for the Minister of Immigration, Refugees and Citizenship to decide whether to punish someone with citizenship revocation. Punishment is the job of judges. It is not the job of ministers.
Senator Jaffer: Thanks to both of you for your presentations. My question is for Professor Macklin.
In the chamber, during first and second reading, we had many discussions on dual citizens. Our discussions were that a child could be born here, as I think one of the Toronto 18 whose citizenship may be taken away was. However, because of the original country, the parents' country, for example Iran or Pakistan, they also have Iran on Pakistani citizenship. That is an example.
I understand with the Toronto 18, they had not consented or wanted Pakistani citizenship, but because of birth, they would always be Pakistani. This created a situation where you think you are a Canadian citizen and you only know about Canada. Then suddenly, because of the law of dual citizenship and something you have done in this country — you have been raised and educated in this country and it is the only country you know — you can be sent to a country you know nothing about.
In your paper "Citizenship Revocation,'' the Privilege to Have Rights and the Production of the Alien, your words were "no longer valued as members of the community but instead are temporary outcasts from our system of rights and democracy.'' Can you comment on that, please?
Ms. Macklin: Let me step back for a moment and remind you of what used to be the typical case for stripping citizenship and exiling somebody. That case was one of treason, where you have acted in a way that is disloyal to your country of citizenship and instead demonstrated allegiance to some foreign power. The idea of taking citizenship away and deporting you to that foreign power had some kind of logic to it. I'm not defending it, but the logic was you will be sent to the country you are actually loyal to.
The way we have come to understand terrorism is different. We understand terrorism as somehow being loyal to no country at all. In fact, there is no particular logic to saying that somebody who has been convicted of a national security offence somehow belongs more to some other country whose citizenship they acquired through their parents but have never been to than they do to the country where they were born, raised and acculturated. They may be good or bad citizens of Canada, but they belong to Canada by any measure that you can come up with. According to no measure could you meaningfully say that they belong more to that other country. Does that respond to your question?
Senator Jaffer: Yes, it does.
Mr. Shack: In response to your question about people who are unable to renounce a second citizenship, which does occur in the case of a small number of countries, there was testimony provided previously on hearings into this bill and on Bill C-24 that I would recommend everyone take a look at.
I believe it was Sheryl Saperia from the Foundation for Defense of Democracies who proposed an interesting principle of having to demonstrate a meaningful connection to the country from which they can't renounce that citizenship.
Someone who travels frequently on an Iranian passport or resides in Iran for an extended period of time during the year could be said to have a meaningful connection to that country, and the issue of their ability to renounce is not really applicable.
On the other hand, if someone has been outspoken and critical of the regime over there or has informally renounced their citizenship or has never set foot over there and doesn't have any meaningful ties, then you would be able to say that there should be some discretion built in to deal with those cases where they may have a second citizenship but it's not really their citizenship.
Senator Meredith: Thank you both for your presentations this afternoon. Specifically, my question is to Mr. Shack, but I want the professor to comment on this as well.
Analysis on the Global Terrorism Index 2016 found that all instances of radicalization in the West share the common issue of identity and belonging at both the community and individual levels, according to Canadian national security experts like Ray Boisvert and Phil Gurski, and pose using such citizenship as a tool to fight radicalization.
That is a buzzword, professor and Mr. Shack, with respect to identity and individuals in this country. If the problem itself is identity and belonging, where is the logic in identifying and stripping individuals of their citizenship based on identity?
Mr. Shack: We're not talking about counter-radicalization once someone has been convicted of committing the terrorism offence. They have basically committed that offence against the institution of Canadian citizenship and their Canadian identity. It is anathema to our identity here.
Last week, I was in the Public Safety and National Security Committee in the house testifying on the issue of radicalization and what we can be doing to confront it. The issue of identity is important, and this applies to all communities susceptible to radicalization, not just one.
Senator Meredith: Can you elaborate for me?
Mr. Shack: With regard to countering hate. Hate is often the foundation for the radicalization process. There is a pilot project currently being run in Germany that is putting teachers on the frontline to help identify certain attitudes amongst students, in particular anti-Semitism and misogyny. We have recommended that list be expanded in terms of the government's anti-radicalization efforts here to include any form of hatred, whether against Black Canadians, LGBTQ Canadians, women, any identifiable group. That is the place where we can have the biggest impact in countering radicalization before it starts.
In terms of dealing with people convicted of terrorism offences, I'm not sure that revoking their citizenship or having that as a demonstrable consequence if you do this will have an impact, or if that's removed, if that will have any impact on radicalization in this country.
Ms. Macklin: I agree that the prospect of citizenship revocation is unlikely to have any impact, deterrent or otherwise, on people who have become disaffected and, in the vernacular, radicalized.
It is easy to pretend that there is a uniform process and uniform set of ideas that the people who we label as terrorists have, but all evidence suggests otherwise. All the evidence we have so far, particularly about incidents in North America and Europe, gives an inconsistent pick. It is far too individualized. Particularly in Canada, it seems to me we have evidence of radicalization that runs the gamut from a deliberate commitment to mental health problems, ordinary crime sliding into what we call radicalization, but who knows for sure?
The point is that we should not homogenize the range of people who have been swept up by this label, and as a consequence not assume there is any kind of uniform solution, much less one that involves citizenship revocation.
Senator Lankin: Professor, I have to say I completely agree with your last comments from my time on the Security Intelligence Review Committee. We have much to learn about the process of radicalization and need to ensure a careful use of that as a label, because without that knowledge, we will not find helpful solutions, so I appreciate that.
I would like to put a question to you and ask Mr. Shack to comment as well. There have been a number of points of discussion around the revocation of someone who is convicted of terrorism, and then talk about treatment of war criminals. In particular, I listened to you, professor, and I understood clearly in the case of someone convicted of an act of terrorism, a Canadian citizen, we are talking about the issue of citizen revocation for post-citizenship activities, and you are looking at various provisions within the Constitution and Charter about equality and other provisions that would suggest to you that that would be unconstitutional.
I understand why CIJA has a great deal to offer us to think about issues of convictions of war crimes and crimes against humanity and genocide. You are suggesting that those things be added to this revocation.
One set of issues is with respect to citizenship revocation for activities post-citizenship; the other is for activities that may well predate. There already is a mechanism for revocation based on misrepresentation.
I am trying to get this very clear. In the previous panel, I got a little confused because we then started talking about taking cases of revocation for war criminals to Governor-in-Council and a different process. It has become a little muddled in my mind. I would like to ask you to try to help me get some clarity on that.
I appreciate, Mr. Shack, that you are offering a different point of view, but my question is, are we not talking about two different things? The end result of what you are arguing may be a fair result, and we can talk about that, but one is post-citizenship activities and the other is pre-citizenship and misrepresentation.
Ms. Macklin: I will start by clearly distinguishing between the rationale for citizenship revocation on grounds of fraud or misrepresentation and citizenship revocation for post-citizenship misconduct, what I will generically call crimes against citizenship, if you will.
The logic of revoking citizenship for fraud or misrepresentation goes like this: You didn't tell us something that was relevant to our decision to grant you citizenship. Had we known the true facts at the time, we would not have given you citizenship. Now that we know those facts, we will restore the situation as it would have been had we known those facts at the time. That's why we take away your citizenship. We are restoring the situation to what it would have been had we known the facts at the time.
The logic of post-citizenship revocation is entirely different. It is punishment for so-called crimes against citizenship. That's the difference. They aren't the same. They can't be reduced one to the other, even if one could misrepresent on something like work, or lie or deny having ever committed a terrorist act, and it turns out that you did before you came to Canada, that would be grounds for revocation for fraud or misrepresentation. That has nothing to do with whether you will revoke citizenship after the fact for acts committed post-citizenship. Clearly distinguish the two.
With respect to procedure, let me focus on what the existing procedure is for citizenship revocation for fraud or misrepresentation. Bill C-24 changed the previous law, and the current bill retains that change. It moves to a system of minimal procedures. The system before was very cumbersome. Here I agree with Mr. Shack. It was a cumbersome, complicated, unwieldy system that came from a bygone era; so there is good reason to change it.
That doesn't mean what it was changed to is good. What it was changed to is a process by which the government sends you a letter that says, "We're thinking of revoking your citizenship, do you have anything to say about it? You've got 30 days.'' You write a letter back, and the next thing that happens is a decision is made. You have no opportunity to participate in person. There is no oral hearing. There is no disclosure of whatever the evidence is that is against you, so to speak, so that's a problem. That's a problem that exists in the current bill that makes it an unfair process, even if there is a valid basis for revoking citizenship. I think it is crucially important that that be addressed.
Let me give one particular example of the defect. The way you get notified is by a letter in the mail. One of the problems that we have seen in the UK, which has made extensive use of citizen revocation, is that the people whose citizenship they are revoking are out of the country. They send the notice in the mail to their last known address in Britain. Of course they don't reply. Citizenship is revoked. The individual may discover it later but can't return to the UK to challenge it. Why? Because they are no longer citizens and they won't be admitted.
You want to make very sure that if somebody is facing a situation as dire as revocation of citizenship, they are notified and they have an opportunity to make their case. Their case may not be successful, but they are still entitled to make their case. That's why it is crucial to have a fair process and, among other things, personal service. Thank you.
Mr. Shack: With regard to your question, there is a distinction here between the revocation for fraud or misrepresentation and for acts that are committed while being already a Canadian citizen.
Perhaps I wasn't clear in my remarks. Our request to include war crimes, genocide, crimes against humanity in the revocation provisions specifically referred to Canadians going and committing those crimes while already being Canadians. It doesn't refer to people who lied about those activities in the past. That's already covered. It applies to people who are Canadian citizens and may be involved in perpetrating those types of crimes as Canadian citizens. So that was what our request was.
I would agree that it's fine to tweak the streamlined system that is in place. It's not perfect, but it's important to err on the side of efficiency. It needs to be fair, but we can't have a return to what existed previously.
Senator Raine: Thank you very much. It's very interesting to hear all your points of view.
I want to ask you about revocation of citizenship in the case of conviction of an act of terrorism. After due process of Canadian law and a person being sentenced to incarceration, would it be possible to revoke citizenship, have them revert to their previous permanent residence status, I guess, and serve the penalty in Canada, and then on release they would no longer have the full privilege of citizenship, i.e., they would no longer be able to vote, and I suppose there are other citizenship rights like carrying a passport and travelling around. Could it be done in a way that they could then reapply after a certain amount of time? Is it possible to think about that? I believe that many Canadians are concerned about people who do very bad things that are against all of our values and don't seem to lose the honour and privilege of being a Canadian citizen and having citizenship.
Ms. Macklin: So what you would propose, then, is that they would revert to being a permanent resident, so the crime that they would have been convicted for would also be the basis for revocation of permanent resident status, because you can lose your permanent resident status for committing a serious crime. So it's hard to know how the crime would be enough to cause them to have their citizenship revoked without also losing their permanent residence status.
But somehow you have the idea that they would not be removed from Canada, so the idea is that they would remain in Canada. That is a different goal than what most people seek with citizenship revocation, which is to have them deported. Yours would be the opposite. You would in effect force them to remain in Canada because they wouldn't have a passport. They couldn't travel. If they travelled, they wouldn't be able to return to Canada. You would compel them to stay in Canada and you would deprive them of the right to vote.
On the first point, you would require them to remain in Canada. It's sort of interesting as an opposite effect that you want to impose on them. I'm not sure why that would be a great idea. With the other idea of disenfranchising them, as I said, the Sauvé case from the Supreme Court of Canada seems to come down strongly against using disenfranchisement as a punishment for criminal conviction. I think that that would probably be constitutionally impermissible.
Mr. Shack: Once somebody is convicted of a terrorism offense, if they were to apply for Canadian citizenship, they wouldn't receive it. I think that's a proper thing. I don't think that that should be changed in the scenario that you have proposed.
Senator Omidvar: I'm going to stay with citizenship revocation of dual citizens on grounds of treason. I think today is an interesting day to talk about that, because Inderjit Singh Reyat, who was the only individual convicted of the most serious terrorist crime against Canadians, the killing of 329 Canadians aboard Air India Flight 182, was released today, after serving 25 years in prison.
I suspect that he was released on parole, to stay at home. I suspect that if we had deported him to India, he would have probably neither served time nor received justice, or been rehabilitated, as he apparently has.
Mr. Shack made the point about public opinion. There are polls out there that suggest a very significant number of Canadians support the revocation of dual citizens who have been committed of crimes of treason. Do you think public opinion, Professor Macklin, is a legitimate policy goal in this context?
Ms. Macklin: I wouldn't want public opinion to dictate what the laws ought to be in some kind of direct way. I do not believe in governance by referendum necessarily.
But I really have to revert to my earlier point, which is that citizenship revocation for post citizenship conduct, in my view, is simply unconstitutional. It's illegal. Some people might like the idea, and some people think it's a good idea, but I haven't actually heard anybody explain how it could be lawful.
If I may make a point about rehabilitation, there is this idea that once you label somebody a terrorist, they are a different species of human being and that the normal expectations and aspirations we have for people who have committed crimes, even horrendous, awful crimes is somehow dislodged. That is, we no longer understand at least the possibility of rehabilitation. Instead, once we have labelled them a terrorist, there is some idea that they are beyond the pale. They are no longer fully human. They aren't able to reflect on their conduct and perhaps become different people.
I expect that it's like people convicted of crimes across the board. Some people may never change. Many people are rehabilitated. Things happen. There is no reason to think that just by hanging the label "terrorist'' on somebody that they cease being complicated human beings in the way that we all are and the way people convicted of crimes are, and that they wouldn't be responsive to the potentially positive effects of rehabilitation.
Mr. Shack: I would just note that the particular terrorist that you referred to remains unrepentant and continues to withhold crucial evidence regarding the other perpetrators of the attack. I think that's something that is worthy of consideration.
With regard to him serving time, there is nothing to suggest that the revocation and deportation would take place before serving time for a crime you are convicted of here in Canada. I don't think that that's necessarily something that we need to be concerned about.
With regard to public opinion, I was referring specifically to some polling that we have conducted about attitudes towards Jewish Canadians broadly in Canadian society. We have some data comparing first generation Canadians to other Canadians. I was talking about that in the specific context of the residency requirements, language requirements and knowledge requirements, in terms of those being useful tools in changing some of the things we have discovered.
That said, in terms of public opinion, the current government was elected on a platform that included changing this, so they have a popular mandate to make this proposal, which we respect. It is important to recognize that this is an important principle, namely, that citizenship should be revoked in the context of these particular crimes for many people in this country. I don't think that that's inconsequential.
With regard to the legal viability of that principle being enshrined in law, I'm not convinced necessarily that the fact that this law would only impact dual nationals is inherently a violation of section 15 or necessarily discriminatory. There is nothing here that targets a particular category of citizen. It targets all citizens who are convicted of these crimes. However, because of our accession to the convention on statelessness, that cannot be applied to Canadians who don't have a second citizenship.
Not all distinctions necessarily constitute discrimination. The reason for the distinction in this case is important. Because the provision on statelessness is applied universally, and fairly, to everyone, it means that the other law inherently cannot apply in the same way. It's a bit more complex than it just saying, "This only applies to dual nationals. It targets dual nationals.'' It doesn't. The intent of this provision would apply to all Canadians. There is another law that exists that prevents it from being applied in that way, rather than targetting dual nationals unfairly.
Senator Frum: My question is for Mr. Shack. I do want to say I hope none of the family members of the 329 victims of the Air India bombing are watching this hearing to hear Mr. Reyat referred to as merely a complicated person. That's an outrageous thing to say about a man who murdered 329 people — terrorists are often complicated people.
The Chair: Senator Frum.
Senator Frum: My question to you is this: We are anticipating that there will be proposed amendment to Bill C-6 that will add an appeals process to the revocation of citizenship in cases of misrepresentation. You have expressed your concerns, but you said there is a way of tweaking that. Do you have a specific proposal for us, if such an amendment would come forward, about what you want to see in that amendment or what you would be concerned about in terms of the egregious cases you cited?
Mr. Shack: I would be concerned with a process that would be able to continue on in perpetuity as the pre-existing one would. If there is an opportunity for someone to have a hearing, or to make their case, or to be provided with additional information they may require making a case in a reasonable time frame that's prescribed, that would seem to make sense to me at first blush. For something that can drag on and on and on for decades, we cannot just return to what was there before.
Senator Frum: An appeals process that didn't also include a time frame would be a troublesome amendment, as far as you're concerned?
Mr. Shack: If there is an appeals process that doesn't lead to more appeals, and more appeals, and more appeals, I think that would be okay. We're looking for a defined end period to the process that is reasonable, not something that can just continue on in a circular way so people can just ride out the system and never have to face the consequences of the misrepresentation that they made.
The Chair: Thank you Mr. Shack. Ms. Macklin?
Ms. Macklin: One moment. I'm very sorry, but I understood that the senator was impugning me —
Senator Frum: I was quoting you.
Ms. Macklin: — by alleging that I had described Mr. Rayat as a complicated person. I want to say that is a deliberate misrepresentation of my remarks.
Senator Frum: No. We have a transcript.
Ms. Macklin: I come here as an academic. I do so out of a sense of the importance I attach to the law-making process. I understand there may be those who want to use our remarks to achieve certain other political objectives. I do not want to be the object of that. I think it shows disrespect for those of us who take the time, because we care about Canadian law and policy and constitutionality, to be discredited in this way. I just want to indicate, lest that account of my remarks stand uncorrected, that do not accept that characterization of what I said, and I would like to be on the record. Thank you.
The Chair: Thank you, Ms. Macklin. It is on the record, as is the entire meeting today.
With that, I want to once again thank my colleagues for the questions that they have raised. I believe it has been a very important discussion this afternoon. I want to thank our two witnesses for being completely willing to answer all questions and hopefully to clarify those issues that have been raised. With that, I declare the meeting adjourned.
(The committee adjourned).