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Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology

Issue No. 17 - Evidence - March 1, 2017

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OTTAWA, Wednesday, March 1, 2017

The Standing Senate Committee on Social Affairs, Science and Technology, met this day at 4:15 p.m. to continue its study of Bill C-6, An Act to amend the Citizenship Act and to make consequential amendments to another Act.

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 from Nova Scotia, the chair of the committee. I will start by asking my colleagues to introduce themselves.

Senator Eggleton: Art Eggleton, senator from Toronto and deputy chair of the committee.

Senator Jaffer: Mobina Jaffer, senator from British Columbia.

Senator Omidvar: Ratna Omidvar, senator from Ontario.

[Translation]

Senator Cormier: René Cormier, senator from New Brunswick.

[English]

Senator Neufeld: Richard Neufeld, senator from British Columbia.

Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.

Senator Seidman: Judith Seidman, from Montreal, Quebec.

The Chair: Thank you, colleagues. I remind us that we are here today to continue our study of Bill C-6, An Act to amend the Citizenship Act and to make consequential amendments to another Act.

I also remind you that this session will end no later than 5:15. We effectively have two witnesses today. We have Mr. Watt and sharing a witness position, Mr. Paterson and Mr. Waldman, and while they will split their opening remarks they will decide which one will answer any question directed to them but they don't get two answers. They get one answer for the team. That is by pre-agreement and I want to ensure we understand that's how it will operate.

I will invite the team to present first. Mr. Waldman, would you begin.

Lorne Waldman, Lawyer, as an individual: Thank you for the opportunity to come today. My name is Lorne Waldman. I'm an immigration lawyer, past president of the Canadian Association of Refugee Lawyers. Given the shortness of time, I will not expand any more on my qualifications or those of my organization.

I want to talk to you about one matter that isn't in the bill and we're urging an amendment, which is the lack of a right of a hearing under the current Citizenship Act.

Up until 2012, every individual who had a citizenship revoked had a right to seek a hearing before a Federal Court judge. In the course of that hearing the person had a right to receive full disclosure of all the evidence against him, had a right to call witnesses and had a right to have an independent judge decide whether or not he or she had misrepresented.

The legislation introduced by the former Conservative government stripped away those rights. Instead, you have an official who acts as investigator, prosecutor, writes the prosecutorial brief, concludes on a balance of probabilities that the person has misrepresented and then sends the notification to the person. The person responds to the notification, and after he or she responds the same individual makes the decision.

In my view, this process is — and we have argued this before the courts — a violation of the Charter of Rights and the Bill of Rights because it denies the person a right to a hearing before an independent tribunal.

It's for this reason that we believe that the Senate should seriously consider an amendment to the bill. And I want to give you one example as to why this process is so unfair, involving a case of a client. Obviously, I can't disclosure particulars but I will give a general background.

The gentlemen received a letter alleging that he had misrepresented because there was a discrepancy between his stated absences on his application for citizenship and some information that the immigration official had received from the border services as to his entries and exits from Canada. He was given 30 days to respond. He wrote a letter of response to the same official explaining that at the time he went for his citizenship interview he and the officer noticed that there was discrepancy; they corrected it, they calculated the absences and he still qualified. He innocently sent this letter thinking this was a satisfactory explanation.

Without a hearing, without any further notice, he received a letter saying your citizenship is revoked because when I reviewed the file I didn't see anything in the file that supported your contention. The file was never disclosed to the person, but based upon a determination by the officer without ever conducting any kind of hearing that the person was not credible, despite his assertion that he had explained this discrepancy during his interview, he lost his citizenship.

He was forced to surrender his passport. His only recourse was to seek leave to appeal in the Federal Court, where a Federal Court judge has to give deference to the decision so my client has to satisfy the Federal Court that the decision was completely unreasonable before it gets set aside.

I'm passing over to Mr. Paterson.

Josh Paterson, Executive Director, B.C. Civil Liberties Association: We were the two groups that brought the constitutional challenge to the revocation provisions of Bill C-24 and, as Lorne said, we're not here to talk about those today.

Lorne has laid out briefly one example of how this bill, or the law as it is right now, can go wrong because of a lack of due process. That is a problem that we say is unconstitutional and that Bill C-6, in its current form, fails to remedy.

We hope that the Senate will decide, in its collective wisdom, to improve upon Bill C-6 and address the constitutional problem here in Parliament so that it won't fall to be finally resolved by the courts. We hope that government and parliamentarians gathered in the other place will see fit to accept such an amendment if it's made.

I want to spend the rest of my time setting out some of the key features, from our perspective, of a process amendment for this bill.

From our perspective, there simply must be a right to a hearing with an independent decision maker. The minister alone cannot be the entity that makes such a momentous decision that so deeply affects the rights of individuals — indeed, their very belonging to this country. One option would be to have the minister be able to make a decision to refer the matter to a court; another would be to have the minister make a decision at first instance and have a right of appeal without leave to the Federal Court if a person chose to exercise that.

It's critical that that appeal to Federal Court be without leave. For us, this is a simple matter of the rule of law. If a minister's official makes a mistake in a decision that so deeply affects the life and the rights of a Canadian, the citizen has to have an appeal, we say, as of right; and to put a stumbling block in the way that says they have to get the court's permission to review that exercise of ministerial authority — we're not talking about reviewing an administrative tribunal; we are talking about reviewing a minister's decision — we think that is a problematic insulation of executive authority from review and that the rule of law requires that a matter of such great importance be reviewable as of right.

Regardless of the option chosen, a number of things are critical.

If the minister is the initial decision maker, we suggest that citizenship revocation should not take effect until the appeals are exhausted. We don't want people getting the rush out of Canada or having things happen to their rights while they still have appeals that they can go through.

Canadians need to have the right to disclosure of all the relevant material in the minister's possession. It is not currently their right under the law we have right now.

The process needs to ensure the best interests of the child and that humanitarian and compassionate considerations — such as connections to Canada, for example — that might justify relieving against revocation for misrepresentation, the process needs to have an opportunity for that.

Finally — and this is very important — in our view, if a citizen is stripped for misrepresentation, they must revert to a permanent resident. There shouldn't be a situation, as there is under the current law, where a citizen becomes a foreign national. They should become a permanent resident, as they were; and if the federal government then wishes to proceed further, they have that option.

The Chair: I appreciate your timing. Thank you.

Robert D. Watt, former citizenship judge from British Columbia, as an individual: Thank you very much. I want to thank the committee, first of all, the chair and all the members, for giving me this opportunity to express some concerns I have about Bill C-6.

My concerns are based on my six years as a citizenship judge from 2009 to 2015, when I sat primarily in Vancouver and Surrey holding hearings and conducting ceremonies. During that time I reviewed literally thousands of applications for citizenship.

As you might expect, that experience shaped my view of citizenship and the requirements of those seeking it. I believe that citizenship is one of the greatest gifts that Canada confers on those fortunate enough to be born here or those who come here from another part of the world.

If you ask the question, "What should a country ask of someone who wishes to become a citizen?'', I believe it is fair to say that demonstrating a desire to stay and to contribute to Canada through a statutory period of residence, as well as demonstrating a basic competence in one of the official languages of Canada and a basic understanding of the Canadian system of government, our geography, economy, shared values and laws, are at the heart of what is asked of would-be citizens.

As you might expect, in my work as a judge I found the majority of those seeking citizenship demonstrated clearly that they believed the requirements were fair. However, in Vancouver there was a smaller but significant number of applicants for citizenship who seemed to have other objectives. They were much less interested in making a permanent contribution to Canada. They had a much greater interest in obtaining a passport and in receiving the benefits and protection that citizenship brings. As you know, these include substantial financial benefits such as subsidized health care and GST tax credits for children, which, through the convenience of direct deposit, can be received in a Canadian bank account even while the individual is living abroad.

This particular smaller group can, I think, be correctly termed "citizens of convenience,'' and for me they provided the most dramatic evidence of why it is essential to have the requirements for citizenship made as clear as possible and to have assessment processes that ensure that those who truly qualify for citizenship receive it and that those who, for whatever reason, didn't meet those requirements do not receive it.

I want to express a deep concern about three aspects of Bill C-6. The first is the "intent to reside'' provision.

This provision should remain in the act. Why? Commitment to Canada should be at the heart of citizenship. I believe that expressly requiring commitment to Canada respects the mobility rights of all citizens, but it sends a clear signal to those seeking citizenship that it is expected that if citizenship is granted, the new citizen will centre her or his life in Canada and not somewhere else.

I strongly suggest that the current residence requirement should be kept. First, the existing act has the important merit of clarifying that "residence in Canada'' means physical presence here.

Furthermore, in 2015, when the current act received Royal Assent and was brought into force, the requirement to demonstrate physical presence in Canada diminished, actually, from 75 per cent of the previous requirement to 66 per cent, four years out of six years. Now, with the proposed change, 60 per cent, three years out of five, dilutes both the absolute and proportionate residential requirement without, I suggest, any clear evidence that the existing requirement is burdensome. It appears to prioritize speed and ease of meeting citizenship requirements at the expense of providing an adequate period or proportionate time in Canada in which to assess the applicant's commitment to Canada. The path to citizenship and the requirements for it should not be about meeting requirements but should be about meeting those requirements that are substantial and fair but not needlessly prolonged.

Finally, and most important, based on my Vancouver experience, repeatedly in hearings I was faced with individuals who had lived in Vancouver for years and who had made little or no effort to gain basic proficiency in one of the official languages. In Vancouver, as many of you know, the reality is that several linguistic and cultural communities are now of such a size that individuals from those homelands can and do immigrate to Canada but in several senses are not here. They can continue to live comfortably in their birth language and the impulse to learn about their new country, its laws and how it works is dramatically diminished.

I would also note that the department must have robust audit procedures in place so that officers can constantly check the validity of documents submitted as proof of language competency. As well, I would note that near the end of my two terms of service, I had the clear impression that the knowledge of Canada test was being made simpler and simpler and simpler, to the point where it became almost meaningless. The scores of achievement went through the roof because there was no meaningful assessment or, indeed, contact between the applicants.

Those are my concerns. Again, I really appreciate the opportunity to be here with you. This is such an important topic and I know you are giving it the most careful consideration. Thank you very much.

The Chair: Thank you all very much. I'm now going to open up the floor to questions by my colleagues. We will invoke the one-question-per-round rule. For those of you who weren't here at the beginning, I will remind you that this session will end no later than 5:15. I will begin with Senator Omidvar.

Senator Omidvar: My question is for Mr. Waldman. Thanks to you and Josh Paterson for coming here again and again. You have litigation before the courts representing citizens whose citizenship has been revoked. Can you give an update on that litigation and its status?

Mr. Waldman: I believe there are more than 100 litigants who filed challenges in the Federal Court. Some of them have had their citizenship revoked. Many of them are challenging the process that was instituted by the former government, wherein this officer renders a decision without a hearing. The arguments were heard in the Federal Court over two days of hearings in November. Justice Gagné of the Federal Court heard the arguments and reserved a decision. The decision has not yet been released, but we are hopeful it will be released soon.

The issues raised were all related to whether or not the current procedure meets the requirements of the Charter of Rights and the Bill of Rights. We argued very strongly that you can't have one person being the investigator, the prosecutor and the judge rolled into one and have a fair process.

Senator Frum: Mr. Watt, I want to ask you about some evidence we heard from another witness in a prior panel who spoke about the need to implement smart card permanent residence cards. Her point was made from the perspective of preventing fraud and people misrepresenting how much time they have spent in Canada, particularly with the now-accelerated timelines that the government is proposing.

Do you have any opinions on the permanent residence card system we have now, wherein when people apply they have to show, through the travel documents or receipts from airlines, how long they have been here, versus a smart card?

Mr. Watt: Based on my experience, my preference would be that those who are not yet citizens should be presenting a travel document to a CBSA officer. Pending any further technological improvements, I think that's important. I say that because it was an area where the absence of that kind of presentation, or the confusion that surrounded stamps, led to innumerable questions about whether a particular individual had indeed been in Canada when they claimed to have been.

Senator Frum: It could be more than a fraud problem. It can truly just be a burden on the permanent resident, himself or herself, to have to prove dates of entry and exit.

Mr. Watt: But I think if Parliament deems a residency period — and let's dispense with what that may turn out to be, ultimately — to be an important element of establishing eligibility for citizenship, I think until you have a foolproof, or virtually foolproof, electronic system, it's better that an individual be presenting a travel document to a living, breathing person.

Senator Frum: Thank you.

Mr. Waldman: The issue here really is control on leaving the country. In some European countries, when you leave you have to go through passport control. It will be at that point they read your passport and then they would have a record that you left. Canada does not yet have a requirement that people check in with an official before they leave. This would be a significant change and it would involve significant cost, but if they did that then you would have a way of controlling entries and exits. That would only work at airports, and if you wanted to institute it at the bridges you would create traffic chaos.

The difficulty with that suggestion is that it makes sense from a theoretical point of view, but the implementation would be extremely expensive and disruptive.

Senator Eggleton: I appreciate the comments that you've all made, and Mr. Waldman and Mr. Paterson, I agree with the comment in your document that Canadians are entitled to a hearing if they have a parking ticket, so they must have the right to a hearing when their citizenship is being taken away. I think you made good points about all that and I will not ask you specifically about that, but there are a couple of other issues.

There is nothing in the bill about the fees that are being paid, and yet we've heard the fees have gone up dramatically — some 500 per cent — over the last couple of years.

Meanwhile, the applications for citizenship have taken a real nosedive and gone to about half, I think, of what they normally are. This appears, from analysis that I have read, to be very much related to the fees creating a hardship for a number of people. There are always people who can afford to do it, but a lot of people cannot. A lot of refugees are people with very low incomes. Someone might say that's the cost of the system, you need to recover the cost and it shouldn't be on the general taxpayer. Well, they are taxpayers, too, and they in fact end up, as most immigrants do, contributing very substantially to the tax coffers over years.

What is your experience, in terms of your clientele and stories that you might have about these cases of people who are finding some hardship?

Mr. Waldman: I think you hit the nail on the head. The cost of a citizenship application for a family of four, when you factor in the English test that many have to take, plus the application fees, can run into the thousands of dollars. It makes applying for citizenship beyond the reach of many families.

Although I think it's established more by regulation, I think the government has to seriously look at the cost so as to make it accessible, because, if the whole point of citizenship is to encourage people, as the other witness said, to become part of the fabric of our society and to commit themselves to living in Canada, we have to make sure it's accessible to everybody. At that cost, for a family of four it could cost $2,000 or $3,000 just to make an application when you take an English test. It's outside the reach of many people, and I've seen that in my office.

Mr. Watt: I didn't have a lot of experience with this because the new fee requirements came in toward the end of my term of service. But before that, even, we saw instances where people, individuals and sometimes family groups were struggling even with the old fee costs, so I think a good case can be made for the government to take a look at the regulations that govern the fee schedule and try to strike a balance between accessibility and recouping some measurable percentage of the cost of processing. What was also clear to my colleagues and I was that under the old fee schedule, the cost of processing applications bore virtually no relation to the actual cost of assessing the application. So there needs to be a middle ground somewhere, I think.

Senator Jaffer: Thanks to all three of you for being here and for your presentations. It's not often that we have two witnesses from B.C., so welcome. Sorry we don't have better weather for you.

I have a question. What concerns me is that if you have challenges with your permanent residency, you get a hearing. If you are a refugee, you have a hearing. But if your citizenship is revoked under the new bill or in the previous Bill C-24, you don't get a hearing. My concern is — correct me if I'm wrong — that the minister sends a letter and he doesn't need to do full disclosure, as you already said. So you're responding sort of blindly as to what the minister is saying, which is absolutely unfair. It's not the Canadian values.

I've been studying this bill, and I'm thinking did we not learn anything from Singh? The whole refugee system came to standstill because the courts held that we had to have hearings. Have we not learned any lessons? Why are we making this mistake again?

Mr. Paterson: Thank you, Senator Jaffer. I would agree with your characterization that it's completely unfair and inappropriate that citizens should not have a fair and independent hearing process when they're having their citizenship revoked.

To be clear, if misrepresentation is alleged against a permanent resident, first the government decides whether or not they're even going to proceed against you, and you have an opportunity to make submissions directly to the officers handling your file at that point. Once they do, you have two levels of hearing without any leave at all. You get two levels of hearing before an independent tribunal to not only decide whether you made a material misrepresentation —

Senator Jaffer: For permanent residents?

Mr. Paterson: For permanent residents. It is not only to decide whether you made any misrepresentations but also to weigh any of the humanitarian and compassionate factors. Maybe you did make some kind of misrepresentation, but it wasn't about being a war criminal or terrorist; it was about where you had lived for a number of years; meanwhile, you've been here for 30 years, and the best interests of the child and so forth.

Even then, after that, you can go to Federal Court if they get it wrong. A citizen, by contrast, gets nothing. They get the minister sending them a letter; they get to send a letter back; they don't get any disclosure; the minister makes a decision, and if you don't like it, you now have to go to Federal Court with a leave requirement. From beyond citizenship; you're already not a citizen at this point. So it's completely unfair and that's why we say there must be an amendment. As a matter of constitutionality, we think the lack of an amendment is an infirmity of the current law and needs to be remedied.

Senator Seidman: Thank you very much for your presentations today.

My question concerns the age requirement to demonstrate knowledge of Canada and language proficiency. My concern is specifically around those aged 55 to 64 who, according to this piece of legislation, would no longer have to demonstrate proficiency. It is clear that, according to Statistics Canada, this group currently composes 36 per cent of our workforce.

In addition to that, Mr. Paterson, you added a new concern for me in your presentation, and that is proof of language competency. Could you help me understand what evidence is accepted today and how are standards assured, given there must be a wide gradation of documentation that's presented?

Mr. Watt: This is my understanding of it, again largely post my direct experience. Through regulations under the existing act, individuals applying for citizenship were able to submit paper proof of language competency to the required level, which is Canadian Language Benchmark 4, which is not writing the Nobel-winning novel in English or French; it's the basic ability to communicate and be understood. There is a wide range of institutes and institutions that are being accepted internally by the department with those applications. The difficulty seems to arise because there's such a great range, there's no one national body or even one accepted body in each province and territory. There's such a range, and the officers have had the ability withdrawn from them to make what I referred to in my remarks as a robust audit.

I think the reality is that in order to deal with the variety, it's important that the experienced officers on the ground in the departmental offices have that authority to make random assessments. This individual is claiming to have this competence. Can we have a two-minute or three-minute test to see whether they actually do? Because, as one of the officers in the Vancouver area has pointed out to me, you can have a situation where somebody works very hard, achieves that benchmark level, and then spends the next two years before their application comes forward and, sadly, loses some of that competence. But on paper, they appear to have it.

The reverse also can happen. Somebody whose paper indicates that they have CLB 4 can in fact be at level 6 or 7, because they're working in a job where English or French is the predominant language of communication and as their application comes forward, they actually exceed. So that auditing is really important.

Mr. Paterson: Thank you, Senator Seidman.

We're not opposed to the change to the testing age requirement in the legislation in respect of minors. We think they're going to learn over time anyway and we're not terribly concerned about the change in age there. It's problematic to require that of minors when the rest of their family may be getting citizenship.

In terms of people who are beyond 55, I know you've had evidence before you already that economic migrants will already have had a language requirement on immigrating. What we may be talking about here is people who are in the family reunification class, parents and grandparents, refugees, and we fully agree that it's beneficial to their integration that they be able to learn English or French and be able to communicate. I know you've already heard from Avvy Go about some of the really difficult barriers that people face in being able to obtain that kind of competency and we would prefer the government focus more on funding to help people actually get that competency.

If we're really serious about wanting people to integrate, let's help them do that, but we don't say it's by saying you can't be a citizen at age 55 now if you can't pass this test.

Senator Meredith: Thank you all for your presentations this afternoon. My question is directed to you, Mr. Watt, with respect to Bill C-24 raising the residency time to four years. Bill C-6 lowers that. There's a question around affinity or attachment to Canada within three years or four years. For individuals who desire to stay in Canada and desire to get citizenship, the matter of having one more year, in your opinion as a former judge, can you explain for us your reasoning to say that there should be another year or more time spent here before citizenship is granted? What are the drawbacks that you saw with respect to the latter part of your tenure that would draw you to that conclusion?

Mr. Watt: As I tried to emphasize in my opening remarks, I think it's a combination of the fact that the current act rectified a really great difficulty, and that was that, for decades, literally, the Federal Court had to hear case after case after case where someone claimed residence in Canada but, for various reasons, wasn't physically here. So it's a combination, in my view, of the fact that the current act emphasizes physical presence. In terms of the people that I saw at many, many hearings, I did not have the feeling that adding a further year and linking it with physical presence was going to be burdensome. That's what I was trying to say.

There may be evidence within the department. We never saw any, but there may be evidence that that additional year is somehow burdensome. I just find it difficult, based on my experience, to visualize why an additional year, for somebody who really wants to be here and become a citizen, is particularly difficult, if indeed they're here.

Mr. Waldman: I'll be very brief. I agree with my colleague that the clarification around physical residency being actually required was helpful because we were wasting a lot of time arguing this issue in cases where people didn't meet the requirements. So I think everyone generally supports that.

In terms of the question about three and five or four and six, I think it depends on what group you're talking about. The people I represent are refugees. Many of them don't have travel documents. For those people, they're waiting. They come into my office, and we calculate on a monthly basis to see when they're going to qualify because, for them, having that citizenship so that they can get that passport, so that they can freely travel, is crucial. So it depends on which group you're talking about.

The people that my colleague was talking about I understand, but there are a significant number of people who are refugees who really, really want to become citizens because they have no other effective citizenship. For those people, three and five is a really important change because it makes it accessible to them.

The other change that was made was also counting the time before they became a citizen. If a person is a refugee, it takes two years to get their permanent residence. They can count that for one year, and then they get their citizenship. For them, having an opportunity to become a citizen so quickly is really, really important.

Senator Meredith: Mr. Paterson, any comments?

Mr. Paterson: No.

Senator Omidvar: I wonder if I may have a minute to correct something that has been said by a witness.

The Chair: You have the floor for the equivalent of questions, so, if you want to clarify, that counts.

Senator Omidvar: I just want to clarify that Bill C-24 repeals some sections of Bill C-6, but there were very good things in Bill C-6 as well, including raising the pass mark for the knowledge test from 60 to 75 per cent. Bill C-24 does not touch that. It also stops using the knowledge test as a proxy for a language test, and there is an opportunity for a citizenship judge to have an interview. So there are lots of mechanisms to strengthen the knowledge and language.

But my question is to Mr. Waldman or Mr. Paterson, whichever one would like to answer this. There is perfection, then there's good, and then there's what you can live with. In terms of an amendment, I'm hearing you say, loudly and clearly, that it is difficult to imagine that a foundational right, such as citizenship, can be taken away by a minister as opposed to a judge in an open court. Then there's the option — you've also stated — that the minister could revoke citizenship but give the individual the right to go to court and argue his or her case. What could your association live with?

Mr. Paterson: Thank you, senator. We would prefer that the decision, at first instance, be taken by an independent decision maker, but, if the minister wishes to hold that power within his authority, so long as the decision considers the appropriate grounds, so long as there's the appropriate disclosure and so long as there is a right — a right — to an appeal without leave — leave is a very unusual and rare creature in the law, by the way; it needs to be without leave — we feel that we could be satisfied with that.

Senator Omidvar: Who gives leave, just for us non-lawyers here?

Mr. Paterson: This is judges of the Federal Court who decide whether or not they will hear a judicial review. Most things in the law, most kinds of decisions that you can review from ministers, are without leave. Even many decisions from independent tribunals are without leave. The way it is under Bill C-24, as it was left, there is a leave requirement for judicial review of that decision. We say that that's highly inappropriate. We think it's also unconstitutional.

The Chair: Mr. Watt, do you have any further clarification?

Thank you, senator, for the clarifications.

Senator Frum: Mr. Paterson, I think this was your presentation. I'm sorry; I wasn't at the beginning of the meeting. Under your recommendations for the features of fair process of amendment for citizenship revocation, one of your recommendations is that a citizen who had their citizenship revoked would revert to permanent resident status if their citizenship was stripped. Then, if it turns out they misrepresented their permanent residence application, the minister could also then strip the permanent residence. That's a two-step process for the minister on what is potentially the same fraud in both cases. So it's a double appeals process for that individual. So why would that be a good thing?

Mr. Paterson: To clarify, it wouldn't actually be a double appeal process because the system we would support would be one where the independent decision maker made a decision about whether there was a material misrepresentation. That could be the Federal Court. They then get knocked down to being a permanent resident. At that point, if the government wanted to proceed, you don't get a chance, at that point, to revisit the factual finding that you misrepresented yourself. It's not going to be for the Immigration and Refugee Board to decide that the Federal Court got it wrong on whether you misrepresented yourself. But the Federal Court did not have an opportunity to — and wouldn't and we understand just doesn't — consider humanitarian and compassionate grounds. At that point, there has still not been any independent weighing, by an independent officer, of humanitarian and compassionate considerations. That would then come at that later stage. So the independent body would be looking at that. What that does is it makes sure that citizens have a stronger set of protections than permanent residents do. Because permanent residents always get their humanitarian and compassionate grounds weighed by an independent decision maker, and then they get another kick at the can with another independent decision maker. The citizen, even in the kinds of amendments that are being talked about, doesn't get that at all. The only way for them to get that, we are given to understand, is for it to be that way.

Senator Frum: For clarification, the minister has to sign the revocation. The minister never considers humanitarian grounds?

Mr. Paterson: At the moment, they're not required to.

Senator Frum: But they can?

The Chair: Let's not go down that road. I think you've answered the question.

Mr. Paterson: We say there needs to be a requirement that they do in every single case.

Senator Hartling: You said in your presentation, Mr. Watt, that, in Vancouver, a smaller but significant number of applicants for citizenship seem to have other objectives, much less interest in making a permanent commitment to Canada. I'm just asking generally, to the three of you. I'm from the East of Canada. Would that be similar there? What are your thoughts on that? Have you any experience with that? Is Vancouver different or would it be similar to Eastern Canada?

Mr. Watt: My experience, based partly on talking to colleagues in Toronto and Montreal, was in the period when I was serving, it was a very similar situation. There was a measurable minority that seemed to have the kind of objectives that I tried to demonstrate.

There were times when I was sent on circuit to smaller centres in B.C., and for my colleagues elsewhere that was true. We didn't find the same thing in smaller centres.

Senator Hartling: Because in Eastern Canada I've been dealing with people at the Peace Centre. I haven't heard this, so I'm wondering if it's significant there and different in other parts of Canada.

Mr. Watt: My experience is that it was an observable, demonstrable phenomenon, let me put it this way, in Metro Vancouver, and I heard similar concerns from colleagues in Metro Toronto and indeed in Montreal.

Senator Eggleton: Let me try to clear up these two options you've talked about in terms of revocation of citizenship for misrepresentation.

What I've heard you say is that the first option would involve the minister referring the file to the Federal Court, and the Federal Court in the first instance would make the decision. I presume you would be suggesting that the Federal Court of Appeal could be used also for the appeal process, so you are using the court twice in that particular situation. You can maybe clarify that, but let me finish the question.

That can be kind of expensive going to court twice, but the second possibility for due process is the administrative system that is now there be opened up to allow for a hearing of representation by counsel, opportunity to get the complete disclosure and also the opportunity for humanitarian and compassionate reasons. All of that would then be part of the administrative process and an independent decision maker. Then there is the possibility of appeal to the Federal Court.

Can you clarify those provisions? Also, who would the independent decision maker be?

Mr. Waldman: In the ideal world, the easiest way to have done this would have been to use the existing immigration tribunal, the Immigration and Refugee Board. They already deal with misrepresentation in permanent residence, so they know the rules, the law and the jurisprudence. They have procedures. It would have been easy to have given the power to the Immigration and Refugee Board to make the original determination. Then it would be the same process, leave in the Federal Court.

The difficulty with trying to do that now, I understand, has to do with the question of scope of an amendment. That would have been the easiest way, but because the amending legislation doesn't introduce the Immigration and Refugee Board into the process, I have been told by experts and scope issues that that's not my field and that we can't do that now.

If we want to have an oral hearing now, the only option is an administrative process followed by an oral hearing in the Federal Court. So that's the proposal that would have to be enacted by the Senate to correct the deficiency in the current process.

As Mr. Paterson said, there are different permutations as to how one could achieve that through an amendment. The amendment could be where the administrative decision maker doesn't make a final decision, refers it to the Federal Court, and then the Federal Court judge holds a hearing to decide. That would be option number one.

Number two is the administrative decision maker makes a decision, but the person has a right to request a hearing in the Federal Court; if he does, the decision isn't final until that hearing is held. The hearing would be one where there would be full disclosure of all the evidence.

Those are the two options —

Senator Eggleton: Where does the appeal process go?

Mr. Waldman: There's no appeal. There's a decision and then a hearing in the Federal Court, which is like an appeal because there would be an original decision. So it is actually an appeal in the Federal Court but that is like a new hearing because you can bring in new evidence.

In terms of the Court of Appeal, the legislation provides you can't appeal to the Court of Appeal unless the judge in the Federal Court certifies a question. So there are very few cases that would actually make it the Court of Appeal. It would only be if the case raises a complicated legal issue.

In terms of your concern about there being all these different layers, I don't think that ought to concern you. So the best way would be to have an independent tribunal, the IRB, do that, but we can't do that in an amendment. We have to have an oral hearing. The only place we can have an independent oral hearing, given the current state of affairs, is in the Federal Court.

Senator Jaffer: Mr. Paterson, you keep saying it's not constitutional. I may be wrong but I understand that to mean that every person is entitled to a hearing under the Charter. Many times in these hearings we have heard "humanitarian and compassionate,'' and I would like you to set out what that involves. "Humanitarian and compassionate'' is an integral part of an application, how long you have stayed here, your family connections, and if that's not in front of the minister, he is doing it in a vacuum. Even if you are refused as a refugee, they look at "humanitarian and compassionate.'' For permanent residence, they look at "humanitarian and compassionate,'' and for citizenship they don't.

Mr. Waldman: In the current situation, you are entitled to make any arguments you want to the decision maker, but the decision maker isn't required to consider anything because there is nothing in the legislation that says they have to.

To give you an example of what we mean by "humanitarian and compassionate,'' let's say a father and mother misrepresented and they applied for their two children and their children and they became citizens. The kids were young and they had no idea what their parents were doing. They come to Canada. They do their high school and their university here. They settle here and have lives in Canada, and one day they get a letter, "By the way, 15 years ago your parents lied on your citizenship application and we are taking away your citizenship.'' This is devastating.

We see this in our office all the time. The children shouldn't be punished for the sins of their parents, but this is happening all the time now because there is nothing in the process that requires officers to look at the humanitarian and compassionate circumstances.

It's one thing to say if you have lied, you don't have a right to citizenship. No one would dispute that it is right to take it away. But if you are completely innocent, you had no knowledge and you have made a life for yourself in Canada — because it's not just you lose your citizenship. You are barred from obtaining citizenship for 10 years after you lose it.

Some of the stories are of kids who had jobs and couldn't travel because they didn't have a passport, and they lost their jobs because their jobs required international travel. These were brilliant kids who excelled in school.

When we are talking about humanitarian and compassionate circumstances, we are talking about all the factors that could lead a reasonable, rational person to make a decision to not proceed against an individual because they were innocent.

Senator Stewart Olsen: I have a brief question for my own edification on this.

After the minister says that he's revoking your citizenship and you are presenting that you really need an independent view from a Federal Court, I understand the difference, but supposing we stay with the Federal Court, which seems to be the way it's going. What's the time frame? The minister revokes it, say, in October. What would be the time frame and the cost for this person to come before the Federal Court and have the full and complete independent hearing that you are advocating?

Mr. Paterson: Thank you, Senator Stewart Olsen.

Under the current framework, you have 60 days to respond, and we've talked about some of the deficiencies in that. I don't have a magic number on what the time frame ought to be.

Senator Stewart Olsen: Not "ought,'' "is.''

Mr. Paterson: Oh, forgive me. It is 60 days that you have to respond.

Senator Stewart Olsen: No, no, what time frame would it take for the person who is then going to Federal Court to appeal this decision by the minister? How long could they expect to have to wait for a court date?

Mr. Paterson: Oh, I see. Well, that would depend on what the docket was like. My understanding is that usually these days you can get a Federal Court hearing within about four or five months. I'm not going to ask Lorne to answer. He is the lawyer who does this, but he can nod or shake his head if I'm wrong or right about that. There are costs involved in going to court, but we think that in any new system to be brought forward it's really critical that people have that option, and of course we want it done expeditiously.

The Chair: I want to thank you for your answers. The minister is in the building so we will be able to start the next session right on time.

I come back to thanking you very much for the precision of your answers and the clarifications that have emerged with regard to the overall process. Once again, I thank my colleagues for their questions.

We are privileged to now welcome the Honourable Ahmed Hussen, Minister of Immigration, Refugees and Citizenship Canada, who has the requisite number of supporters with him. We have a list of them, of course. I won't take the time to identify them, but minister, if you refer to one of your colleagues, if you would identify the individual when you ask for their assistance on a given issue, that will take care of identifications to the committee.

Minister, we are very pleased to have you here in the final session on our study of Bill C-6, and of course we invite you to make a presentation to the committee before we open it up for questions.

Hon. Ahmed Hussen, P.C., M.P., Minister of Immigration, Refugees and Citizenship: Thank you, Mr. Chair, for this opportunity to address this committee on Bill C-6, which amends the Citizenship Act and the Immigration and Refugee Protection Act.

Being a Canadian citizen is a privilege and an honour that we all hold dear. No one would dispute this.

In 2015, the previous government implemented major changes to the Citizenship Act, some of which created barriers for people who sought to become Canadian. The measures in Bill C-6 that I will speak about today will repeal some of these changes and facilitate people to become Canadian citizens. If implemented, these measures would send a clear signal to anyone who strives to be a Canadian citizen that we are an inclusive, fair and diverse country. Canadians understand that diversity is our strength. We know that Canada has succeeded culturally, politically and economically because of our diversity and not in spite of it.

In the Speech from the Throne, the government said that it would make it easier for immigrants to build successful lives in Canada and contribute to the economic success of all Canadians. The reforms in Bill C-6 hope to do and accomplish just that.

The changes that were made to the Citizenship Act by Bill C-24 gave the Minister of Immigration, Refugees and Citizenship the power to revoke the citizenship of dual citizens on the grounds of acts against the national interest. These included cases of convictions for terrorism, treason and spying.

These provisions also gave the Federal Court the power to revoke the Canadian citizenship of dual nationals who served in an armed force of a country or an organized armed group in armed conflict with Canada. The problem, Mr. Chair, is that these grounds for revocation could only apply to people who hold dual or multiple citizenships. The government does not support revocation provisions that have a different impact upon dual citizens and is therefore proposing to restore citizenship to anyone who lost their citizenship because of those provisions.

The Canadian Bar Association, the Canadian Council for Refugees and others expressed concerns when these provisions were tabled, and focus groups comprised of immigrants to Canada indicated that they were very much troubled by those aspects of the legislation.

When you are Canadian you shouldn't feel less valued just because you have dual citizenship with another country. Conflicts abroad continue to shape the nature of the terrorist threat to Canada. The government will continue to take appropriate action to counter terrorism and any terrorist threats to Canada. Canadians who commit crimes should face the consequences of their actions and their crimes in the Canadian justice system. The only cause for revocation should be when someone has obtained citizenship through fraud.

The minister would continue to have authority to revoke citizenship in basic fraud cases such as identity and residence fraud, which constitute the majority of the cases; and the Federal Court would continue to have authority to revoke citizenship in cases where fraud relates to serious issues such as human rights abuses, war crimes or organized criminality.

Let's be clear: Terrorists should go to jail for a long time. But broadening the grounds for citizenship revocation sets a dangerous precedent.

Mr. Chair, other measures in Bill C-6 would allow applicants greater flexibility to meet citizenship requirements. The previous legislation imposed a number of barriers or roadblocks in this regard. Bill C-24 required applicants for Canadian citizenship to have an intention to continue to reside here once they became citizens. It lengthened the residence requirements for applicants, requiring them to be physically present in Canada for a longer period before they applied for citizenship. It removed an applicant's ability to count time spent in Canada before they became a permanent resident and count that time toward meeting the physical residence requirements for citizenship.

The legislation also required applicants aged 14 to 64 to meet language and knowledge requirements. Prior to this, only applicants aged 18 to 54 had to meet these requirements.

Bill C-6 would repeal the intent-to-reside provision, which is consistent with the commitments we made as a government when we received our mandate. This change would reassure applicants that they would not be at risk of losing their Canadian citizenship because they did not stay in Canada, even if they said they would.

Bill C-6 would also amend the physical presence requirements, allowing people to apply for citizenship one year earlier than under the requirements that came into force in 2015. It would allow applicants to receive credit for time they spent in Canada prior to being permanent residents because we understand that that will create greater flexibility along the path for acquiring citizenship. We know that immigrants often start building their lives in Canada way before they became permanent residents, and this change will help attract international students and other skilled workers to Canada.

Another measure in Bill C-6 would return the age range for meeting requirements related to official language proficiency and for demonstrating knowledge of Canada to between 18 and 54 years of age.

Mr. Chair, no one denies the importance of having an adequate knowledge of one of Canada's official languages or understanding the responsibilities and privileges of being a Canadian citizen. But reducing the age range of citizenship applicants who must meet knowledge and language requirements would ease the burden on some applicants. Older adults applying for citizenship would be able to improve their language ability and knowledge of Canada through many other integration services. Younger applicants would be able to meet language and knowledge requirements through schooling and when they eventually join the workforce.

Mr. Chair, while Bill C-6 adds greater flexibility for applicants to meet citizenship requirements, it is also important to ensure that those who obtain citizenship actually meet all the requirements. That is why measures in Bill C-6 would enhance program integrity and also allow us more tools to combat fraud.

For example, the Minister of Immigration, Refugees and Citizenship would have clear authority to seize suspected fraudulent documents, such as fake or altered passports, provided for the administration of the Citizenship Act. This would improve the integrity of the citizenship program.

I assure you, Mr. Chair, that our government does not take the revocation of citizenship lightly. We cannot allow anyone to defraud our citizenship system or diminish its integrity, and we are strongly committed to procedural fairness. The government will continue to revoke citizenship from those who have obtained it fraudulently.

Thank you very much, Mr. Chair.

Senator Omidvar: Thank you, minister. We welcome you here and hopefully not for the last time.

I'm going to pick up on something you said in the closing part of your statements. You said that we cannot allow anyone to defraud the system or diminish its integrity, and we are strongly committed to procedural fairness.

We heard from witness statements earlier, though, that when the minister revokes the citizenship of individuals for reasons of misrepresentation and fraud, they do not get procedural fairness because there is, at this point, no right to an appeal or a new hearing. Your predecessor, Minister McCallum, came to the Senate and stated in Question Period he would welcome an amendment to fix the lack of procedural fairness. Are you also prepared to welcome an amendment, and if so, what are your thoughts?

Mr. Hussen: Thank you very much, Senator Omidvar, for that question. We strongly believe that the present process has a number of safeguards built into it to address, for example, personal circumstances and other factors that may be beyond the knowledge of the decision maker, and we believe that the current process is constitutionally sound. However, we are very much open to examining any proposals that add to procedural fairness with respect to citizenship revocation. We have always said that we will examine those proposals and work closely with the senators on that. I can't predict the outcome of that process, but I can assure you that I and my department are open to working closely with you on any proposals you may bring forward that deal with additional procedural fairness on this issue.

Senator Frum: Minister, according to a recent article in the National Post, under your government, approximately 17 people had their citizenship revoked every month. As minister, do you currently have the discretion to reverse or disagree with your department's recommendations on humanitarian grounds? And if you use that discretion, how frequently do you use it?

Mr. Hussen: Thank you very much for the question, senator.

The decision maker is normally an official with the department. They send a notice of revocation to the affected person. The person then has an opportunity to make written submissions, and in limited circumstances they also have access to an oral hearing to plead their case, and if they believe that there are factors that should be considered in that process, they have the ability to present those factors to the decision maker in writing and/or, in limited cases, oral hearings.

The current system allows for the affected individual to present those facts to the decision maker, and those personal circumstances, other factors such as involvement in the original fraud, the extent of the involvement, the age of the individual, their attachment to Canada, their health, there are many other things that are examined as part of that process, and the decision makers who make the decisions every day do take those into consideration, and the written submissions allow the affected party to provide that information to our department.

Senator Eggleton: Minister, thank you for Bill C-6. It does move in the right direction, and it does reverse some of the harm that Bill C-24 was responsible for. I'm finding it very difficult to understand why you haven't put a fair process in place with respect to dealing with a revocation for misrepresentation.

We've had people come here and tell us about no right to a hearing, no right to complete disclosure, no opportunity to have humanitarian and compassionate reasons considered, no right to appeal, no right to counsel at a hearing. In fact, one of the previous witnesses, Mr. Waldman, was telling us about a case where citizenship was revoked for a young person who became a citizen with his parents when he was very young, and because his parents, as it turned out later in the process, had lied, he had his citizenship revoked. There seemed to be no way of dealing with it on humanitarian or compassionate grounds; it seemed to be just cut and dried.

That doesn't sound like a very fair decision or a very fair process, and no right of appeal for something that is extremely important. Citizenship has been said to be a right that leads to other rights. It's not just a question that they become a permanent resident again and they get all sorts of rights there. Citizenship is a very important right within itself.

I don't understand how that kind of procedure can be called sound — I think that was the word you used — when it denies all these rights to people.

Mr. Hussen: The suggestion that there isn't room for someone to bring in personal circumstances and other considerations in front of the decision maker is not the current system that we have. We do have room for that. The affected individual can respond to the notice of revocation by bringing forward those circumstances that you mentioned.

Second, there is a judicial review process that is available to individuals, with leave, of course.

Having said that, I can reiterate the point that I made earlier that we're always open to measures to improve and increase procedural fairness, and proposals that will come out of this committee. I can commit to you that we will examine them very closely and work with you to see what we can do in that regard.

Senator Eggleton: Okay. We'll try that.

Senator Jaffer: Thank you, minister. First, congratulations on your appointment, and welcome to the Senate of Canada. We look forward to working with you on many other bills.

Minister, I know you have inherited this bill. This is a good bill, but there is one pebble in our shoe, and that's on the revocation not having an independent process. As you know, minister, for permanent resident, there's an independent process. Refugees have an independent process.

I want to first go to the issue of leave. I practised in this field. Leave was very rarely granted. So leave is not really an option, as far as I'm concerned.

Why did you not have an independent process, like you have for permanent resident? Why didn't you have it going to the Immigration and Refugee Board?

Minister, when you talk about humanitarian and compassionate, there's nothing in this bill to say you will consider it. In the permanent resident application and the refugee application, as you know, minister, there is a real humanitarian and compassionate process. There is none here.

Mr. Hussen: Bill C-6 mainly dealt with some of the mandate and commitments that we had made to Canadians with respect to the differential treatment of Canadian citizens, whether they were dual citizens or not, some of the issues around creating more barriers towards citizenship with respect to longer residency requirements, much more difficulty even in the days that you count 183 days for four consecutive years. There were a number of pieces in there where we made a commitment to Canadians to address. Bill C-6, its focus is on that. The issue that you bring up on the appeal mechanism was not central to the formulation of Bill C-6.

Having said that, we are committed to procedural fairness. We think that conversation is important. Like I said, we're more than happy to have that conversation and look at any proposal that you may bring forward in that regard.

Senator Stewart Olsen: I have a question and a clarification from the statement you made earlier regarding dual citizens who had their citizenship revoked on the grounds of terrorism or participating in an armed force against Canada. I thought I heard you say that you're in the process of reinstating those citizenships. Is that correct?

Mr. Hussen: This only applies to one individual who was caught by the changes in Bill C-24. In that particular instance, I can confirm to you that we are, indeed, reinstating citizenship to that one individual.

Senator Stewart Olsen: Thank you. That's shocking.

Senator Seidman: Thank you very much, minister, for being with us today.

We have heard expressed here a particular concern about the changes in the age requirement to demonstrate language proficiency and knowledge of Canada. I'd like to ask you specifically about those aged 55 to 64 years.

According to Statistics Canada, this age category of Canadians currently comprises more than one third of our workforce. That's quite significant and, likely, they still have another 20 years to continue to participate.

Do you know what proportion of citizenship applicants fall into this particular age range, 55 to 64; and what factors account for your proposed change?

Mr. Hussen: The percentage is 7.7 per cent of all applicants fall into that age group.

Senator Seidman: How many applicants?

Mr. Hussen: 7.7 per cent of all the applicants for Canadian citizenship.

Senator Seidman: I understand that, but could you give me an idea of the number of applicants so I can understand how many people?

Mary-Ann Hubers, Director, Citizenship Program Delivery, Immigration, Refugees and Citizenship Canada: In the last year, the number of individuals aged 55 to 64, the age group you're looking for, was 2,317. That is a drop from previous years. The year before that it was 15,243.

The Chair: Excuse me. Was that the number that fall into that age group? The senator asked for the total number of applicants for citizenship.

Ms. Hubers: The total number of applicants between July 2015 and June 2016 was 67,235. Of that, there were 2,317 who were in the 55- to 64-year-old age group.

Senator Seidman: The 15,243, is that the previous year's 55 to 64 age group?

Ms. Hubers: That's right, out of a total of 197,475.

Senator Seidman: So there's a huge drop.

Ms. Hubers: It is a huge drop. That is after the introduction of Bill C-24, that time frame that we're looking at, pre- and post-Bill C-24.

Senator Seidman: Thank you for the numbers. I appreciate that. My question had a second part, which was: Why did they do this?

The Chair: Did you get that on the record when you asked the first part?

Senator Seidman: Yes, I did.

Mr. Hussen: I'm sorry? Why did they do what?

Senator Seidman: When I asked you the question, I asked what proportion fell into that age range and what factors account for your proposed change.

Mr. Hussen: The factors that account for our proposed change are, first, the drop in citizenship applications from that particular group of people. There was a drop of almost half, from 7.7 per cent to 3.4 per cent.

Second, we philosophically think that on the younger side, from 14 to 18, these are people who are most likely to be in school. We strongly believe that their language and knowledge of Canada will be enhanced by their schooling, so why put them through a language and knowledge test when they will get that from their schooling system and eventually when they join the workforce?

On the other hand, the 54 to 64, these are people who have lived in Canada and who are integrated into Canadian society in many other ways. We felt that it was important for them to obtain citizenship. In them obtaining citizenship and going through that process, that would contribute further to their integration into Canadian society. These are folks who are working, who are sometimes providing child care for their family members who sponsored them to come to Canada as part of a family-class application.

We're going to a system that worked. We're actually not changing so much as restoring what has worked for Canada for more than 40 years.

Senator Beyak: Many Canadians across Canada watch these broadcasts, read our Senate committee reports and hear our expert witnesses. I would like you to explain to them how you justify Bill C-6, which allows a person convicted of terror, treason or espionage to hold, keep or retain a citizenship to Canada.

Mr. Hussen: I justify that on the basis of two factors. One is, you may not agree with me, but we feel very strongly that a Canadian is a Canadian is a Canadian, and that Canadian citizens should be treated equally. If you have a Canadian citizen who is not a dual national who is convicted of a terrorist offence, they don't get to lose their citizenship under Bill C-24. But a Canadian citizen who happens to have another or multiple citizenships in addition to being a Canadian citizen, and they are convicted of a terrorist offence, they lose their citizenship. That is unequal treatment of two equal Canadian citizens.

Second, it also introduces the concept of further punishment. You're convicted of a terrorist offence. You're going to jail. Another Canadian who is also convicted of a terrorist offence is going to jail. But because you're a dual citizen or have access to other citizenships, you get to have this additional measure, which is losing your Canadian citizenship, whereas the person who is not a dual national but who is also a Canadian citizen doesn't have to go through that. We think that is differential treatment, we think that is unequal treatment and we think that is creating a dangerous precedent of creating two-tiered citizenship and devaluing what we believe should be "a Canadian is a Canadian is a Canadian.''

Senator Meredith: Again, congratulations on your appointment. Your story is an inspiration to a lot of immigrant Canadians, and we thank you for the work you're doing.

Minister, in your presentation you indicated that measures in Bill C-6 would enhance program integrity and tools to combat fraud. We've heard at this committee arguments that some of the bill's residence requirement changes would weaken the government's ability to counter citizenship fraud.

Could you please tell us about the counter-fraud measures that Bill C-6 leaves in place and creates?

Mr. Hussen: Bill C-6 actually enhances program integrity, enhances the integrity of our citizenship program. An example of that is, it gives authority to the Minister of Immigration, Refugees and Citizenship. We would be able to seize and detain documents provided during the processing of a citizenship application if the minister has reasonable grounds to believe that the documents have been fraudulently obtained or used, or that their seizure is necessary to prevent fraudulent or improper use.

We also have received the Auditor General's review of fraud in the citizenship program. We agreed with all of the Auditor General's recommendations, and we have already acted and are acting on many of those recommendations.

These measures and the measures that we're taking in response to the Auditor General will greatly enhance the integrity of our citizenship program.

Senator McCoy: This is really a supplementary to Senator Frum's question. In answering Senator Frum, you were very careful to say "the decision maker.'' My understanding is that the discretion to revoke citizenship is the minister's, and the minister has delegated that power. I'm assuming from what you're saying that to the decision maker you've fully delegated that power and that you don't ever get involved in the decision thereafter.

How many of these decision makers have you fully delegated to, and what level of employment are they at? Are they deputy ministers or ADMs? Who is this "decision maker''?

Ms. Hubers: That authority is delegated to senior analysts in our case management branch at national headquarters. I don't have the exact number of individuals who are delegated to make those decisions, but they are trained individuals in a position to review those applications. They have the discretion whether to proceed with the revocation or not, based on the information that has been obtained from applicants.

Senator McCoy: The assumptions that I laid out are all correct?

Ms. Hubers: This is an authority that belongs to the minister, and through our delegation instrument, the minister has delegated that authority to senior analysts in the department.

Senator McCoy: And never gets involved again?

Ms. Hubers: To my knowledge, no, the minister does not.

Senator Omidvar: I will stay with revocation. You can see this has got us quite engaged.

I want to go to before you make your decision, as Senator McCoy spoke about. While the amendment will cover issues, I think, of appeal, as we've heard, I want to ask you what processes you are able to think of improving administratively, which are within your jurisdiction. As I understand it at this point, the official writes a letter and says to the revokee, "You have so many days to write back.'' That same official gets the information; that same official assesses again; and that same official, if it ever gets to an oral hearing, makes the decision. It seems to me completely counter to what we would call procedural fairness.

Can you think of mechanisms, processes and systems that are not in the bill but in your hands to improve that process so that when you make that decision, there is some procedural fairness built in that we can enhance with an appeal to the federal Crown?

Mr. Hussen: We are committed to procedural fairness. I've said it very clearly that it's not just procedural fairness at the end in terms of involvement with the Federal Court but even on the front end. If there are proposals to improve the administrative side of things to have more procedural fairness there, I would be more than open to examining those proposals coming out of this committee or from any senator. We would carefully review that proposal and make sure we take it into full consideration.

Ms. Hubers: It might be helpful to explain what procedural fairness safeguards exist right now in the current process.

First, one division in the department initially investigates cases to see if there is sufficient evidence that may warrant consideration of revocation. Where there is belief that there is sufficient evidence, the file then gets transferred to a different division that will then make the decision whether to proceed with a notice of intent to revoke. The notice of intent provides all of the evidence upon which the decision maker would be relying at that point in time to make their decision and invites individuals to submit all factors related to that which they should take into account when making the decision, including personal circumstances, such as the length of their time in Canada, the age they were when they acquired citizenship, their ties to Canada and those sorts of things. At that point, when that material comes in, the decision maker will decide whether to proceed with the decision.

In some instances, after reviewing the file, they may decide not even to issue a notice of intent to revoke, or once the notice of intent to revoke has been issued and the information has been received, they may decide not to pursue a revocation.

Senator Omidvar: That's helpful. Thank you.

Mr. Hussen: To add to that, there have been many cases where the decision maker decided to proceed with the revocation, and there are also many cases in which the decision maker felt, upon reflection on the information provided by the affected party, not to proceed with the revocation.

Senator Frum: Just to stay on topic so we make sure we flog it to death, the presentation prior to this hearing, minister, was from the B.C. Civil Liberties Association and the Canadian Association of Refugee Lawyers. Can you deal with their specific criticisms? When the government moves, revokes citizenship for misrepresentation, they say the citizen has no right to complete disclosure of the evidence against them. True or false?

Ms. Hubers: All of the evidence that is relied on is shared.

Senator Frum: They say there's no opportunity to have humanitarian or compassionate reasons considered. Is that true or false?

Mr. Hussen: That's not correct. In fact, the whole point of sending the revocation notice to the affected party is to allow the party to gather information and provide any personal circumstances to the decision maker so that the decision maker takes those personal circumstances into consideration, which would include humanitarian and compassionate grounds.

Senator Frum: No right to counsel?

Mr. Hussen: Absolute right to counsel. The written submissions and the case, you're allowed to use counsel. There's no prohibition against having counsel.

Senator Frum: They say there's no right to appeal, which I don't think you would disagree with.

Mr. Hussen: You have a right to a judicial review with leave.

Senator McCoy: That's not an appeal.

Mr. Hussen: It's not an appeal as of right, that's correct. But to say that there's no appeal whatsoever is also inaccurate, I think.

Senator Eggleton: Minister, in addition to witnesses before the committee, we also received some written submissions. One of them I was reading over said that the number of applications for citizenship has dropped dramatically in recent time. The person writing this also attributed it to the fees. The fees have gone up something like 500 per cent, he pointed out in his written submissions. My goodness; that's quite a lot. For many people, particularly if they're refugees and particularly if they're low-income people, that's quite a burden. It can, depending on the size of the family, get them into the $1,000 and above range. He attributes it to being largely the result of this mammoth increase in fees. What do you say about that?

Mr. Hussen: I'll also let my officials jump in, but I'll start by saying that according to the analysis and the information that we have, that we've examined, the drop in applications is more attributable to some of the barriers that were created by Bill C-24, especially with respect to the longer residence requirement. You could see a correlation between the requirement for longer residence in Canada before you apply for citizenship, and that is a more clear connection than any connection with fees.

The fees that we are charging in Canada for citizenship are much lower than the fees that many countries charge, including the United States, the U.K. and many others. The cost of providing the service and the fees align very well. But I will allow my officials to also provide more detail on this.

Ms. Hubers: Just to support what the minister said, the fee increase occurred on January 1, 2015. When you look at the numbers by month for 2015, in the first six months of the year, those numbers of applications were as high as they had been before. But after Bill C-24 came into effect in June 2015, the longer physical presence requirement, there was a steep decline in applications from July 2015 onwards. So I think there's a direct correlation between the longer physical presence requirement and the decline in citizenship applications.

Senator Jaffer: Minister, I'm again going to harp about humanitarian and compassionate. All the years that I practised — it would tell you how old I am, so I won't tell you how many years — the most important pillar was humanitarian and compassionate.

I hear from colleagues that I truly respect who are still working in this, and they're saying first of all you have no guidelines for humanitarian and compassionate. And recently — I can privately give you the name of the case — the lead officer cross-examined, testified that she had no understanding as to what the basis of the exercise of her discretion was, and she could not explain what factors she considered when deciding whether or not to carry out humanitarian and compassionate. She also said that there was no requirement for her to do a humanitarian and compassionate. Minister, I just had somebody tweet and I will share this with you, saying what the minister describes is what he would like, but that's not what's happening in your department.

Ms. Hubers: Can I just ask for a clarification, please, about the humanitarian and compassionate factors? I believe you're making a reference in connection with the requirements for a grant of citizenship.

Senator Jaffer: After it's been revoked. That's what we're talking about here.

Ms. Hubers: After revocation —

Senator Jaffer: Not after. In the process of revocation, during the process.

Ms. Hubers: Yes, in the personal circumstances consideration that's given to the information provided by the applicant, the decision maker takes that into account before deciding whether to revoke or not.

Senator Jaffer: Can you provide —

The Chair: Senator, I think we're going a little far. We've had unequivocal responses from the minister and the official on this. To go beyond this is into speculation. We heard from a witness, who you referred to, and we are hearing directly from the minister and the officials. We have to assume they are answering honestly before the committee.

Senator Jaffer: I am not questioning the honesty.

The Chair: Well, we're starting to get into the —

Senator Jaffer: No, you don't know what my question was, but I wasn't questioning the honesty. I resent that.

The Chair: But you understand the point I'm making.

Senator Jaffer: No, I don't. It's okay.

The Chair: Is there any other aspect of clarification with regard to Senator Jaffer's question?

Paul MacKinnon, Assistant Deputy Minister, Strategic and Program Policy, Immigration, Refugees and Citizenship Canada: If it's helpful to the committee, we could table the factors that are looked at for you to look at, and you can go through them. I'm happy to do that.

The Chair: Those must be in the hands of the committee prior to 10:30 tomorrow morning.

Mr. MacKinnon: That's not an issue, I don't think. Is it?

Ms. Hubers: I can outline for you now the factors that go into consideration. They look at the age of the applicant at the time of the application for citizenship. They look at the individual's ties to Canada. Are they living in Canada or are they living outside of Canada? Those are the primary ones. They would look at any information about the health of the individual, for example. By their very nature, humanitarian factors could be such a variety of things. Someone could say, "I don't dispute the fraud, but I have a serious illness.'' So that would be taken into consideration.

Mr. Hussen: They would also look closely at the impact that the revocation would have on that individual. They would also look at the extent of that individual's participation in the fraud. They would look at the age. They would look at establishment in Canada. They would look at health. So there are many factors that they examine. But those are some of the examples I can use.

Senator Meredith: Minister, a former citizen judge appeared just before you and indicated that with respect to language proficiency and the department's robust audit of individuals applying for citizenship, he had a fear that the language test was being simplified in the interest of assessing knowledge of Canada and more in improving the great possibility of number of applicants. In terms of simplifying the test, that there was not a robust audit of language proficiency. Are you confident, minister, with respect to the internal mechanisms around audits and around proficiency with respect to those applying for citizenship?

Mr. Hussen: My quick response to that would be that we believe that our language testing program works. It has worked for a very long time. The issue was that Bill C-24 created unnecessary barriers for a certain age group. So on the younger cohort, we felt that those individuals would be educated about Canada and would receive proficiency in one of Canada's official languages through the schooling system and later, when they joined the workforce. With the extended age group from 54 to 64, we felt these are individuals who have been in Canada, integrated in other ways and creating additional barriers for them would not allow them to access citizenship, which also adds to the integration experience in Canada.

I will allow my official to continue.

Alec Attfield, Director General, Citizenship Branch, Immigration, Refugees and Citizenship Canada: First, just to clarify, we don't accept into the application process individuals who do not demonstrate a capacity in either French or English, one of the two official languages. We do that as a way of saving the applicants the cost of the application fee.

So the issue earlier about the cost of the fee process, we don't want to take into the process those applicants who may fail because of the language requirements. Of course, we do have integration programs in support of permanent residents who want to integrate. We provide settlement funding with respect to supporting language proficiency. Once they demonstrate that they have that language proficiency through some sort of certification or any evidence, we would then accept that application into the process.

The other part of it is the knowledge test. There is certainly not an effort to simplify the knowledge test. We do write the knowledge test to be understandable at a Canadian Language Benchmark Level 4, so it is a pretty basic level of language proficiency.

We monitor very carefully the test results and ensure integrity through the overall testing process. Applicants have to get 15 out of 20 questions right. We have multiple tests on the go at the same time. We have a pool of test questions that have been tested. We monitor each test to see that the performance on those is comparable, so that it's equal across the board. We try to make the test meaningful based on the questions that are put forward. All the information for those is in the guide to citizenship entitled Discover Canada. That is your guide. If you understand the guide and you are then ready for the test, and answer 15 out of 20 questions right, then you've succeeded.

Senator Meredith: Are there any improvements that can be made in that regard?

Mr. Attfield: Certainly the Truth and Reconciliation Commission raised some issues around the citizenship guide. One of the recommendations was to better reflect indigenous history in the citizenship guide, so we are looking at the guide for that reason.

At the same time, we are looking at it from a perspective of clarity of language. As I indicated, our view is that the guide is probably written at a level higher than the level at which you are tested for language, so we think we could align it better in that regard as well. So we are looking at the citizenship guide not to simplify it but to clarify. Provided it's written in clearer language, the integrity of the test will remain.

Senator Beyak: Minister, "a Canadian is a Canadian is a Canadian'' has a lovely ring to it but, to quote our National Security and Defence chairman, Senator Dan Lang, "a terrorist is a terrorist is a terrorist.''

Why would we grant our cherished Canadian citizenship to a person convicted of terrorism against Canada?

Mr. Hussen: Just to correct the record, we are not granting citizenship to that one individual; we are restoring citizenship that that individual already had. As I said earlier, we do not support differential treatment of Canadian citizens. Bill C-24 sought to do that. It sought to create two classes of citizenship whereby, if two Canadian citizens — one with Canadian citizenship alone and the other one with a Canadian citizenship and another citizenship or multiple citizenships — both commit the acts that were outlined in Bill C-24, you could have a situation where one would lose their citizenship and the other one would not, even though they committed the exact same offence and they were convicted of the same offence.

You would agree with me that that is differential treatment of two individuals who committed the same offence. The only difference is that one is a dual national and the other one is not. That is a very dangerous precedent, and it also introduces additional measures against dual citizens when it doesn't do that for people who are only citizens of Canada.

So I agree with you, a terrorist is a terrorist, but a terrorist should be dealt with by our Canadian justice system and we should not have differential treatment for Canadian citizens who commit the same offences.

Senator McCoy: Throughout your opening remarks this evening, minister, you consistently used the word "fraud.'' I understood that the statute actually used the word "misrepresentation.'' In my training as a lawyer, the two terms are quite distinct. One is much more serious than the other.

I need clarification. My question would be this: Is there some kind of test as to how egregious this error in fact is, and whether there is malevolent intent associated with it? I haven't practised law for some years, so I'm not pretending to recall all the elements of what makes fraud different from a simple misrepresentation of fact, but I'm reaching for them. So I'm asking you if you have any such elements to determine whether there is something egregiously wrong that would in fact disqualify an individual from being the kind of person that we would welcome as a new Canadian.

Ms. Hubers: Just to point out, the misrepresentation must be material to the application. The vast majority of revocations are for individuals who misrepresented their time in Canada and didn't meet the residence requirement. In some cases these are individuals who spent very little time in Canada at all. So the vast majority of revocations are in connection with people who misrepresented their residence. The other areas of misrepresentation that we see frequently are identity and also in terms of not disclosing criminality.

Senator McPhedran: My question relates to the reconsideration process, and I wanted to ask a two-part question. One is around right, a very important word to counsel, and other is about the actual reasoning that goes into the decision maker's final decision on a request to reconsider.

The first part is somewhat related to how, arguably, we all have the right to sleep under a bridge; however, when we talk about the right to counsel, that's not a meaningful right if indeed we don't have the means to prepare the case that we wish to make. We don't necessarily know all of the indicators that have been shared, "we'' in the sense of being the applicant requesting reconsideration on the grounds that were summarized already.

Has consideration been given to support, to allow for the best possible presentation of factual, accurate information prior to the decision maker reconsidering?

The second part is, when the decision maker reaches their decision, are written reasons required? Is there a way of knowing which of those various grounds have actually been the basis of the decision one way or the other?

Mr. Hussen: I'll start with the first question and I'll allow Ms. Hubers to answer the second question.

The use of the first stage of the process is with respect to the administrative aspect of this where, after getting the notice of possible revocation, you would have time to prepare a case and make written submissions. In that process, you do have right to counsel and to rely on the assistance of legal counsel to assist you in making those submissions.

Senator McPhedran: If you can afford them.

Mr. Hussen: Sure, but that's the case for a lot of legal issues.

For the second question, I would ask Ms. Hubers to answer, please.

Ms. Hubers: We do provide written reasons to the applicant for the revocation, yes.

The Chair: Thank you very much.

Minister, just before I thank you, I want to inform the committee of the meeting tomorrow and some of the process that is required. Tomorrow is clause-by-clause consideration of this bill. I want to point out that if you have amendments or observations, that it is preferable in the extreme that you bring them in writing in both official languages, and the clerk is prepared to help with translation of the language. You need to bring sufficient copies for all members of the committee and the clerk.

That is a bit of housekeeping with regard to procedure. I think that the remaining instructions for tomorrow we will go over in detail before we start the actual clause by clause.

Does any member of the committee have any questions with regard to that process?

Minister, obviously we are very pleased that you've been able to be here today and at a time when no bells could interfere with our ability to interact with you and we've had you for the full hour. We thank you very much.

I also, on behalf of my colleagues, want to thank you for the way in which you've answered the questions and, of course, on occasion with the assistance, which has been extremely helpful. I think the answers in general, although there appears to be one element I have not interpreted the way it was intended, but for all others I believe you have answered clearly to the committee. Members of the committee will determine how well you've answered those questions.

Senator McCoy: I wonder if I could ask a process question.

The Chair: If I can finish, I will come to you.

I want to thank my colleagues on the committee, during these hearings, for the way you have approached your questions. From my perspective, we have covered a tremendous amount of the substance of the issues that are at hand.

With that, Senator McCoy, a process question with regard to tomorrow?

Senator McCoy: No. I would like to ask it of the committee itself as to a process question after the witnesses have been discharged.

The Chair: I will be adjourning the meeting. If there is an issue of process, we will discuss that tomorrow related to clause by clause.

(The committee adjourned.)