THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Wednesday, February 7, 2024
The Standing Senate Committee on Social Affairs, Science and Technology met with videoconference this day at 4:15 p.m. [ET] to study Bill S-235, An Act to amend the Citizenship Act and the Immigration and Refugee Protection Act.
Senator Ratna Omidvar (Chair) in the chair.
[Translation]
The Chair: My name is Ratna Omidvar. I am a senator from Ontario and the chair of the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
I would like to begin by welcoming our witnesses, members of the public and others watching our proceedings.
Before we begin our study, perhaps we should go around the table and introduce ourselves to the public, starting with the deputy chair of the committee, Senator Cordy.
Senator Cordy: My name is Jane Cordy. I’m the deputy chair of the committee, and I represent Nova Scotia.
Senator Dasko: Donna Dasko, senator from Ontario.
[Translation]
Senator Cormier: René Cormier, from New Brunswick.
[English]
Senator Burey: Sharon Burey, senator for Ontario.
Senator McNair: John McNair, senator from New Brunswick.
Senator McPhedran: Marilou McPhedran, independent senator from Manitoba.
[Translation]
Senator Petitclerc: Chantal Petitclerc, from Quebec.
Senator Mégie: Marie-Françoise Mégie from Quebec.
[English]
Senator Jaffer: Welcome. Mobina Jaffer from British Columbia.
Senator Seidman: Hello. Judith Seidman from Montreal, Quebec.
The Chair: Joining us today, in person — and we welcome you in person; it’s lovely to have witnesses before us — are Kate Webster, Vice-President of the Canadian Association of Refugee Lawyers; and Tamara Mosher-Kuczer, member of the Canadian Immigration Lawyers Association. Again, thank you very much for joining us today.
We will begin with opening remarks from Ms. Webster, followed by Ms. Mosher-Kuczer. You will each have five minutes — which we like to adhere to quite strictly — followed by questions from my colleagues, which are the reason we are all here.
Ms. Webster, you have the floor.
Kate Webster, Vice-President, Canadian Association of Refugee Lawyers: Thank you, Madam Chair, for the opportunity to testify before the committee today.
I am here in my capacity as the Vice-President of the Canadian Association of Refugee Lawyers, also known as CARL. We are a national organization engaged in advocacy, strategic litigation and education to promote and defend the rights of refugees and immigrants in Canada. I’m also a full-time refugee lawyer. In that capacity, I represent many vulnerable youth and other immigrants in their refugee claims, in deportation defence and in other humanitarian immigration applications. While I am here representing CARL, my clients’ experiences also inform my testimony today.
CARL is a member of the coalition known as OCOSOR — Our Children, Our System, Our Responsibility. We endorse the coalition’s written submissions. We support Bill S-235. We encourage the committee to endorse it with several key amendments.
First, I’d like to spend a brief moment reflecting on what’s at stake with Bill S-235, and how it could lead to critical change for a small but highly marginalized, vulnerable and often forgotten group of young people.
Those who would benefit from the pathway to citizenship in Bill S-235 are among the most vulnerable young people in Canada. These are individuals who came to Canada as children — some even as infants — and who ended up in circumstances where they were deemed in need of protection by a child welfare agency. The nature, scope and time period of child welfare interactions vary, but the common factor uniting these children is that they were suffering to such a degree that state intervention was deemed necessary. Through no fault of their own, these children ended up in the child welfare system, where they suffered further marginalization, trauma and a fundamental lack of belonging.
Canada undertook to protect these children, to ensure their well-being and to step into the role of their parent or caregiver when others were unable, but we failed these children. The failure to pursue secure and permanent immigration status for these children, as their parents or caregivers otherwise would have, has resulted in devastating consequences. Many have no idea about their immigration status when they age out of care. Many are now facing deportation.
Previous witnesses have described to you the child-welfare-to-prison pipeline, where trauma and marginalization, the overrepresentation of racialized children in child welfare and the over-policing of racialized communities create a perfect storm that often leads children to criminal justice involvement. Some develop serious mental health issues; some turn to substance use to self-medicate. And since they do not have the citizenship to which they would have otherwise been entitled as children, many now face deportation from Canada — the only home they have ever known. Let me be clear: The stakes are high.
Importantly, the government has recognized this vulnerable group as one that needs swift and meaningful support. July 2023 saw the issuance of ministerial instructions for temporary resident permits, or TRPs, for the class of individuals covered by Bill S-235. On January 22, 2024, Immigration, Refugees and Citizenship Canada, or IRCC, announced a new pathway to permanent residence for many in this group. While both the TRP and the new permanent resident, or PR, pathway are critical stopgap measures to protect these vulnerable persons while the Citizenship Act amendment works its way through the legislative process, they are only stopgaps. They do not fully address the gap that Bill S-235 would fill.
The TRP is entirely discretionary, and while permanent residence is meaningfully closer to citizenship, it is still revocable. Without citizenship, these vulnerable individuals still face the risk of deportation. Permanent residents also have no right to participate in the democratic process, either by voting or by holding political office. This is particularly problematic, given that the vast majority of the affected population is racialized. Moreover, without a pathway to citizenship, the fundamental problem we are seeking to address remains: These are our children — it is our system that failed them, and it is our responsibility to remedy that injustice.
To ensure that this remedy is done right, our coalition has proposed several amendments to make Bill S-235 more effective and accessible for its intended beneficiaries. These are detailed in our written brief. For now, I would highlight the need to define the types of qualifying care arrangements, specify the required amount of time in care, ensure flexibility so that individuals who are inadvertently excluded can still benefit at the minister’s discretion, and allow for a temporary stay of removal for individuals with applications pending under these new provisions.
I welcome the opportunity to discuss these and other recommendations in the questions. Thank you.
The Chair: Thank you, Ms. Webster. The floor is yours, Ms. Mosher-Kuczer.
Tamara Mosher-Kuczer, Member, Canadian Immigration Lawyers Association: Thank you and good evening. I am speaking to you as a member of the Canadian Immigration Lawyers Association, or CILA. We thank you for the opportunity to provide comment on Bill S-235. I was asked to speak on behalf of CILA because of my past experience representing children — while they were in care — in their immigration applications. CILA supports the intention of this bill to provide children who were formerly in care with citizenship as a right. Without citizenship, these children are at considerable risk of being deported if they lose status or become involved in criminality, even if unintentional.
These children are the children of the state and of Canada, and they deserve the security and protection offered by their adoptive parent: Canada. We have some concerns about the bill as it is currently drafted, and would recommend some amendments.
Child protection is governed by provincial law, under which children may age out of care anywhere between the ages of 18 and 25. As currently drafted, this bill limits eligibility to those who aged out when they were 17 years old or under; however, few children age out of care when they’re 17. We would recommend that the requirement that a person had to have been a minor when they aged out of care be removed from the bill.
The proposed bill also does not limit eligibility to those who were under the care and protection of the state. We would recommend that this be clarified. Additionally, neither the term “reside” nor the term “maintained” are defined in the provision or otherwise within the Citizenship Act. There is no minimum amount of time that a person has to have resided in care, provided that they were maintained by a government department or agency. As neither term is defined, it could lead to the conclusion that a person who — while a minor child — was on provincial support and was placed, even for a brief period of time, in an institution, which could include a criminal sentence in an addiction treatment facility, would be a citizen as a right. They would not had to have been in the care of child and family services. Let me be clear: This is just a recommendation for an amendment to the terms, not a major amendment to this bill.
The proposed bill would also not require the person to give evidence other than a written statement by the applicant of their eligibility. Children who have been in care in Canada should be able to obtain some form of confirmation from a child protection agency, such as a letter confirming that they were in care. We would suggest amending the bill to allow the minister to consider a written statement only if an applicant is not able to provide proof that they were in care.
Public knowledge of this bill may encourage a small number of people to abandon their children in Canada in order to allow their children to, one day, benefit from the automatic right to citizenship. I can attest that some of the children whom I have represented were abandoned in Canada by families who knew that their children would be taken into care. However, though this may make some children more vulnerable, we do not believe that the risk is substantial enough to outweigh the benefit that this bill would have on the lives of children who have been taken into care. It would be punitive to deny these children stability in Canada, and place them at risk of being returned to a country with which they have no connection and where they may not speak the language, due to the limited possibility that providing them with this protection might cause another child to possibly be sent to Canada to be placed in care.
In January, IRCC announced two new temporary policies for foreign nationals who were formerly in state care. These new policies are laudable in the additional protection for children who were in care; however, they do not go far enough. Without citizenship, children formerly in care are still at risk of deportation and still face an uncertain future in Canada, increasing their vulnerability. They may also never have a pathway to citizenship because of the difficulties that an application for citizenship may present.
Though we support this bill, we would recommend that it be amended to make the eligibility requirements easier to understand and more clearly defined. The Canadian Immigration Lawyers Association and I would be happy to answer any questions that you may have. Thank you for the opportunity to speak to this bill.
The Chair: Wonderful. Thank you. You’re both right on time; I wish for more of you in future studies.
Now we will go to questions. Colleagues, you all know the drill. You will have four minutes, which includes your question and the answer.
Let me quickly ask Ms. Webster a question. You have recommended that we move from citizenship as a right to citizenship through a grant. Who would make the grant? Who would apply for the grant? We are in a system where, in fact, it is possible for children in care to get citizenship, except the system lets them down because no one applies for them. I am a little puzzled about who the intervening actor is and how you would address that concern.
Ms. Webster: Thank you for the question, senator. We’re talking about a group of individuals who are not still in care — specifically those who have since aged out of care. The proposal to shift the bill’s provisions from section 3 of the Citizenship Act, where it would be citizenship as of right, to section 5 would require that these individuals make an application for citizenship. They would submit this application themselves. They have aged out of care, they are no longer minors and they are capable of making it.
I have spent a significant period of time speaking about both their vulnerability and their marginalization. These are not small problems. They will require resources. It will require assistance to settlement organizations and immigrant support organizations, and it will require us putting the word out so that individuals who could benefit from these provisions are able to access them. I don’t think this is an easy task, but I also don’t think that it’s an impossible one.
We have an impressive network of legal and social service providers who can help with this task. I believe that the concerns raised by some of our government colleagues — with regard to retroactivity, for example, or to consent to citizenship — are importantly addressed by this shift from section 3 to section 5. While, in principle, I think citizenship by right would be a very important step here, I don’t see it working in practice.
We still see a lot of vulnerable individuals being able to benefit from this bill. If we move it to section 5, we’re just going to have to put in the legwork to make sure people can access it.
The Chair: Thank you very much.
Senator Cordy: Thank you both very much. You’ve given us a lot of food for thought in your presentations today.
One of the things I’ve been wondering about since we started dealing with this bill, and with other legislation, is this constant battle of jurisdiction. We’ve got provincial jurisdiction for children who are in care, but it’s federal jurisdiction as to whether or not they can obtain citizenship or even permanent residency. How do we square that? Governments are very territorial, in my experience. How do we work through all of that, or have both levels of government work together? It’s a lot of governments when you’re talking about provincial and territorial. Tell me if they do work together and if it’s actually working.
Ms. Webster: I’m happy to jump into the territorial nature of governments.
In one sense, we can remind ourselves that this isn’t the first time — and it certainly won’t be the last time — where we see overlapping jurisdictions of different levels of government. It’s not even the first time that we see this in the realm of citizenship for children in care. In fact, the amendments to the Citizenship Act back in 2017 — with Bill C-6 — added a provision whereby child welfare agencies could apply for citizenship for children who are in their legal custody.
Yes, it is complicated because you have immigration under federal jurisdiction and child welfare under provincial jurisdiction, and then you have a whole host of municipal and regional agencies involved as well. But we’re figuring it out slowly. I do think this provision wouldn’t be any different. In my own practice, I interact regularly with child welfare agencies, with the family court apparatus and with different levels of government who all have different interests at stake in my clients’ cases or in the outcome of those overlapping levels of jurisdiction. While it’s a challenge, I do not believe the obstacle is insurmountable.
A critical thing that could come out of this committee would be a strong recommendation for sufficient resourcing here to ensure that the provincial agencies, or the municipal agencies, are able to move forward with whatever provisions are ultimately adopted in law.
Ms. Mosher-Kuczer: Nothing currently exists to assist the provincial agencies in dealing with IRCC. I don’t think it couldn’t exist. IRCC has a designated channel to help employers deal with them, so I don’t think it’s an impossibility for IRCC to create a position for somebody to act as a liaison with the provinces. I think that would assist a great number of children in dealing with one of the largest issues that they face in a lot of their immigration applications: securing identity documents. A lot of the time, IRCC has these identity documents because they were originally provided to them when the child came to Canada. However, in order for the child to access those documents, they have to do an access to information request, and wait a substantial period of time for IRCC to give them the documents they require only to give them back to IRCC in order to submit the application.
I think it’s possible for IRCC to create a position for somebody to act as a liaison. I don’t think that would be a crazy recommendation to make.
I wanted to clarify this: In order for children who were in care to be able to apply for citizenship under the current act, they first had to have been permanent residents. A lot of the children I dealt with had no status when they came. I assisted children prior to the creation of the Ontario Centre of Excellence, so a lot of the children we saw had been in care for years and had no status at all — nothing. They weren’t visitors. They had no status. There was no pathway to citizenship for them because they first had to obtain status and then hope to find a pathway to permanent residence and then hope for citizenship. The timing of that never happens when they’re in care. It takes years to move through that process, if they’re ever able to do so.
Senator Seidman: Thank you very much for your presentations, which are really explanatory and helpful. These are my questions for you based on recent occurrences.
The Assistant Deputy Minister of Citizenship and Passport at Immigration, Refugees and Citizenship Canada did testify at our committee about this bill in late November. She explained that a person is automatically a Canadian citizen if he or she is born abroad to a first-generation Canadian parent, and she expressed concern that an unintended consequence of this legislation might be that the foreign-born children of people who were formerly in care in Canada could also automatically acquire citizenship by birth abroad in the first generation.
This is further complicated because, on December 19, 2023, the Ontario Superior Court of Justice declared that the first-generation limit for those born abroad is unconstitutional. On January 22, 2024, Minister Miller said that Canada would not appeal the Ontario Superior Court decision. He said that the government will continue to assess the impact of this decision on existing legislation and confirm next steps as soon as possible.
Being a student of unintended consequences, how do you understand the implications of the Ontario Superior Court decision on this proposed legislation? Is it, perhaps, best to press pause until we better understand those implications?
Ms. Webster: First, thank you very much for the question. As with any new court case that comes down, we’re all working through exactly what the ramifications are.
I do want to turn a bit to the testimony that was before this committee in December, and the recommendations that the coalition — of which CARL is a member — put to the committee. That is specifically where we suggested moving the provisions in this bill from section 3 of the Citizenship Act, which would be citizenship as of right, to section 5 where it would be a grant of citizenship.
There are a series of distinctions there, but the one that I believe, senator, is most relevant to your question is related to questions of consent, which were also raised by the government representative. It could be an unintended consequence, or whether someone actually wants to have Canadian citizenship — a question of when that happens, and, if it technically happened as of right when they aged out of care and subsequently had children, do those children automatically get it? While we’re no longer dealing with questions of retroactivity, the question of when someone acquires citizenship is really quite clear because it would be after they have made an application and the minister grants it. There is a fine line here about when they acquire citizenship and what that means.
For children who may be born abroad, we, therefore, have a bright line of when their parent was or was not a Canadian citizen, and the consequences of that flow — as they already do — from the legislation. To the extent that the landscape changes for second generations born abroad — as a result of this Ontario Superior Court decision — we have a bright line as to where the primary citizen would have acquired citizenship, and the consequences would flow.
We know the government isn’t appealing the decision. We’ll see where the legislation lands. It’s sort of impossible to say from that front. However, I really do think that shift to section 5 resolves so many of these questions because we are not dealing with a retroactive grant.
Senator Seidman: So you don’t think it’s an uncertainty now as a result of the fact that this legislation causes too much confusion about what the implications will actually be as a result of this legislation?
Ms. Webster: I don’t. I think what this legislation would do — provided that shift occurs to section 5 — is simply provide a very narrow pathway to citizenship for a small, specified group of individuals. Those who are eligible can elect to apply for citizenship pursuant to these provisions, and, should those applications be granted, they would become citizens as of that date, and the consequences would flow as they would otherwise.
I don’t see unlimited uncertainty here — certainly not enough that it would warrant, in my opinion, putting pause on this legislation. I think the benefits significantly outweigh any concerns.
Senator Seidman: Thank you. I think I used all my time.
The Chair: It is an important question. Let me work it out a little. Let’s say an individual was in care, but is now 18 years old, applies for a grant of citizenship, gets it, then chooses to leave Canada and has children overseas. Under the new court decision, those children would also have a right to citizenship. Or would they also have to apply for a grant? You have to help us out here.
Ms. Mosher-Kuczer: They would be applying for proof of citizenship.
I think one thing to consider is, first of all, the responsibility that we owe these children, because do we want to say the children of Canadians should not have citizenship if they are outside of Canada? In my opinion, these children are the children of Canada. They have effectively been adopted by Canada, so why would we begrudge their children citizenship if they are born abroad? Under the shift that Ms. Webster is proposing, if it were moved to mirror the adoption provision — which I have to say is a beautiful solution — the child born abroad would apply for proof of citizenship in order to get a passport to come to Canada.
The Chair: Colleagues, feel welcome to pursue this line or any other lines.
Senator Jaffer: I have many questions, but I very quickly want an answer to this one: What Senator Seidman is talking about is a small group of people, and that’s not even here; the gist of this bill is about children who are here.
Also, both of you have talked about “our children.”
In a few sentences, can you — because I have so many questions — first answer my question regarding Senator Seidman’s point? And what do you mean by “our children”? They are not our children. They are refugees. They are immigrants. What do you mean? Both of you used that term.
Ms. Mosher-Kuczer: They are children that Canada — the provincial agencies — chose to take away from their parents and did not return to their parents. Then, Canada, the provinces and the provincial agencies raised these children. They went to school with our children. They have lived here their entire lives. They have no connection to anywhere else, and a lot of them don’t have connections to their own families. The families of a lot of the children I dealt with are no longer in Canada, or, if they are in Canada, they have significant mental health issues and other significant issues. These children were raised in Canadian homes with Canadian institutions. They are our children, and maybe things have turned out not so well for them, but we did that. They were in our care. We mandated these agencies to take care of them.
Senator Jaffer: Do you have anything different to add to that? Otherwise, I would like you to answer my question on Senator Seidman’s point.
Ms. Webster: I would echo very much what Ms. Mosher-Kuczer said. These are our children. These children go to school with your children and with your grandchildren. They are Canada’s children.
Senator Jaffer: But isn’t being in care like an in loco parentis? They are the parents of these children. Haven’t the courts said that they are in loco parentis?
Ms. Webster: Very much so. The Canadian state has assumed the role of a parent, effectively.
Senator Jaffer: Can one of you answer Senator Seidman’s question?
Ms. Webster: In terms of the very small number of individuals?
Senator Jaffer: We are really talking about children who are here.
Ms. Webster: We absolutely are. This bill is specifically designed for individuals who have been in Canada, who have aged out of care and who are, by and large, in Canada. There may have been a very small number of individuals who had been removed from Canada. I think we’re talking about a microscopic minority when we think about that number. The move to section 5 creates a barrier by requiring an application for citizenship. I would be surprised if we saw any applications from individuals abroad.
Senator Jaffer: Have I run out of time?
The Chair: Senator Jaffer, it is your bill.
Senator Jaffer: Ms. Webster, you are suggesting that we move this bill from section 3 to section 5. As the chair has said, that would change it from being a right to a grant. That’s what you are suggesting. It would mean that we wouldn’t have to have retroactivity, right?
Ms. Webster: That’s correct, yes.
Senator Jaffer: Also, it overcomes the challenges that the government was talking about in the sense of retroactivity — everyone gets citizenship, or who gets citizenship. This is now controlled, and they have to apply. Do you agree?
Ms. Webster: Yes, that’s correct.
Senator Jaffer: Those are my questions for now. I will wait for later.
Senator McPhedran: Thank you to both of you for being here and for the really helpful, clear and productive recommendations you’re making to us. We’re seeing some pretty major changes to what we looked at before.
I know you already addressed it, but I would like to go back to concerns that have been raised about planting children as anchors — that was the term we heard from some officials — in Canada, essentially sacrificing them to a process of ultimate citizenship.
We’ve heard from you, Ms. Mosher-Kuczer, that it is a very small number, if any. However, picking up on this discussion that we have just had, would you say that the changes you are recommending have a maximum likelihood of being able to minimize this? As well, in regard to the notion of the initiative shifting to the individual, does that provide some additional protection against this threat — it is, perhaps, an imagined threat, but it is nevertheless a threat of concern?
Ms. Webster: I would certainly agree that it adds another degree of remoteness in terms of this possible threat. Maybe I will start by saying — Ms. Mosher-Kuczer, you did mention it in your opening remarks — that I certainly agree that any potential risk here is extremely low or, frankly, non-existent.
I’m aware that there was a witness before the committee from the Canada Border Services Agency, or CBSA, who expressed a real concern that this bill may incentivize parents to send their children to Canada as future anchors for their own status. They weren’t able to point to any data whatsoever to justify that allegation.
To the extent that there is any real concern in that regard, I would say that alleging it here with this bill is misplaced. It could have been levied against a previous amendment to the Citizenship Act; it’s the one I referenced previously — Bill C-6 — which also came before this committee and received Royal Assent back in June 2017. Among its changes was one allowing child welfare agencies with legal custody of a minor to apply for citizenship on their behalf. That is now in law: section 5(1.04) of the Citizenship Act.
These alleged anchor children theoretically already have a way to obtain citizenship, or a pathway to it — it’s one that is, frankly, much more direct and doesn’t count on a responsible state agency failing to apply for them, and then the children aging out of care and then applying for citizenship. Yet, despite this provision being in law for over six and a half years, CBSA is unable to point to a single case where this is alleged to have transpired. Here in Bill S-235, the alleged risk of fraud is significantly more remote.
I strongly believe that these warnings are unsubstantiated and unwarranted, and even if there were one or two cases — which there is no evidence of — I would suggest that we shouldn’t be crafting legislation to address a microscopic minority, and we shouldn’t limit access to a fundamental right based on unfounded allegations that someone might somehow try to exploit a path of accessing that right a number of years in the future.
Senator McPhedran: Thank you so much.
Ms. Mosher-Kuczer: I would add how difficult it is for the vast majority of people to come to Canada in any capacity. Most people — if you are not from what I’ll call the “global west” — require a temporary resident visa, which is an application to IRCC that takes forever. Then, they have to go to the airport. CBSA has agents there who approve whether that person can get on the plane. They already have had two impediments to getting here. It is already very difficult for someone to get here.
To get a child here by themselves so that they can get into state care — the possibility is so minute. Even in the one case that I dealt with, the child came across the U.S. border. That’s the only way she would ever have gotten into Canada because there is no way anybody would have given her a TRV to come here. That would never have happened.
The Chair: Thank you for your answers. I do think the committee membership is concerned about certain bad actors in this space. I don’t think we can deny that, but I agree with you, Ms. Webster, fundamentally, that we cannot legislate to address the minority risks on the edge. We need to address the mainstream of the system with your proposal to move from section 3 to section 5.
[Translation]
Senator Cormier: My first question is for Ms. Mosher-Kuczer. The age of majority is 19 in New Brunswick, the province I represent. You’re recommending a change in the proposal to raise the age of majority. Could you elaborate on the pros and cons that such an amendment could have on the population?
[English]
Ms. Mosher-Kuczer: It’s not that I am recommending that it be augmented. I’m recommending that the word “minor” be removed because, for example, in Ontario, though children age out of care at 18, there are care and custody arrangements that can be made with the province up until the age of 25. The way the bill is currently drafted in that it refers to “minor” — and the Citizenship Act defines “minor” as under 18 — it would narrow the scope of who is eligible to only include those who aged out of care at the age of 17, which really doesn’t happen. That is why it is my recommendation that the word be removed altogether so that the scope is expanded to actually cover all children who were formerly in care in Canada.
[Translation]
Senator Cormier: Thank you. You’re right; in fact, I was referring to the brief that we received from the Canadian Bar Association, which suggested 19 years of age.
My second question has to do with the clarity of the bill, that is, the language used. This is all the more important if changes can be made so that young people can apply themselves.
The Canadian Bar Association is calling for the proposed amendment to the Citizenship Act to be rewritten in plain language, considering that the act will have a particular impact on young people, particularly those whose mother tongue isn’t English or French. The Justice Canada Guide to fostering the readability of legislative texts states that the readability of legislative texts benefits everyone. Democratically speaking, it’s in the interest of all citizens to fully understand its scope.
So what do you think about this recommendation? Do you feel that the language is clear? Would it need to be amended? Could you comment on the recommendations in the brief submitted by the Canadian Bar Association?
[English]
Ms. Mosher-Kuczer: I do not think it is clear at all. I think that the terms of this bill need to be revised to clarify exactly who the intended audience is. I think that too often in immigration, the legislation is opaque and difficult to understand, and requires reading four different provisions at the same time on your screen, cross-referencing them and trying to figure out what exactly they say. Yes, I support the Canadian Bar Association’s recommendation that the language be cleaned up, and that it be very clear who is included and excluded in this bill, because I think that — in its current form — there are people being unintentionally included.
[Translation]
Ms. Webster: Thank you for the question.
I apologize, but I can’t answer it entirely in French.
[English]
I do agree that there is merit in trying to clean up language. The law is an exercise in precision, and definitions matter. I think that’s something that the committee has heard from different witnesses, and I think there are very workable suggestions that can make small changes to the text of the bill while maintaining the intent of the bill — they are not difficult tweaks, and it would allow the bill to move forward with the same intent.
I appreciate the sentiment from the Canadian Bar Association that plain language in legislative text makes it more accessible. I find it interesting that they raised this in the context of the Citizenship Act. As a lawyer who practises refugee and immigration law, and who also practised in the United States where there is an even larger world of legislation, I find the Citizenship Act to be one of the most dense and impossible-to-read statutes that we have. I am certain that it is not the project of this committee to rewrite that act in its entirety, and I certainly don’t envy anybody who would try. As much as I love the idea of a minor who is about to age out and who might be able to benefit from the provision digging into the legislative text, I don’t think that’s the situation we’re dealing with here. I think this goes back to resourcing and making sure that relevant provincial and municipal agencies understand the context and can help people access it. As my colleague has helpfully pointed out, I also think that there are certain definitions we can clean up slightly to allow the intent of the bill to proceed with precision.
Senator Burey: Thank you so much, Ms. Webster and Ms. Mosher-Kuczer, for your very passionate, thoughtful, insightful — let’s see if I can get any more words in there, as it’s very meaningful. Thank you for both the clarifications and the recommendations regarding switching to section 5. That would make it clearer and more precise.
I always want to get the data. I think it’s important to look at some possible observations regarding it. You said that there are no clear numbers. Have I got that correct? This will be one of the stated concerns, or there will be massive numbers of children accessing this provision.
As far as you know, is the number in the ballpark? No ballpark. That leads to my next question.
Ms. Webster: I don’t think we have a ballpark, but this is a question that we’ve been getting repeatedly. We reached out to as many partner organizations and service providers as we can. As best I can say, based on the due diligence that I have done, I would estimate that we’re dealing with a number in the three figures — that is to say, in the hundreds. I do not think we will hit 1,000.
Senator Burey: Okay, just for the data.
Ms. Webster: That is my best guess. Unfortunately, those who might have collected this data were not charged with that responsibility. To the extent that maybe they have it, it certainly is not public. However, I do have thoughts on data they could usefully collect and disseminate that would inform policy-making going forward.
Senator Burey: That is my next question. How could data collection and sharing among the various levels, departments and agencies of the government be improved? Ms. Mosher-Kuczer, you did speak about the liaison, but could you please expand?
The second part of my question — so I don’t interrupt you — is this: What disaggregated factors might provide a more complete picture of the population of non-citizen minors in state care?
Ms. Webster: Ms. Mosher-Kuczer, I don’t know if you want to speak first to the liaison point, but I can jump into the data questions. I love the idea of a liaison. It hadn’t occurred to me until today. I will take that recommendation. I think it’s a very useful one.
In terms of the data that could be collected, I think we’re all aware that good data makes for good policy-making and good service provision. It allows us to work with what is happening in real time, and tailor laws and services accordingly.
To that end, we would encourage the committee to call on the Government of Canada to collect and share data with the involved parties — collect it and share it between different levels of government. The deputy chair asked earlier about how interacting levels of government can work, and I think open channels of communication are critical here.
In terms of disaggregated data, I suggest that we would want the following: country of origin, race of the applicant, the gender of the applicant, the age of the applicant at the time of application, the immigration status at the date of the application and the location of the applicant at the time of application. That could be a location within Canada — because, as we know, different provinces have different treatment of eligibility for different types of child welfare services — or whether they are outside of Canada. As I said earlier, though, I think that number will be close to zero, if not zero.
If, however, there were individuals outside of Canada who did initiate applications, I would want to know something about the length of time they spent outside of Canada and the circumstances of them departing the country.
Ms. Mosher-Kuczer: As to why there is no data, it’s because the provincial agencies would have been charged with collecting that data, except a lot of the children targeted by this bill aged out of care without the provincial agencies even turning their mind as to whether or not the child had status.
To speak to a small microcosm of numbers in the, probably, six years that I was doing this type of work for a child protection agency in a relatively large city in Canada, I represented maybe 10 to 12 children in their applications. It’s not an enormous number.
Senator Burey: Thank you.
The Chair: It is a vulnerable number; that is true. Thank you for making that point.
[Translation]
Senator Petitclerc: I’ll ask Ms. Webster my question in French.
A spokesperson who appeared before the committee said that the bill, as currently drafted, could result in some young people being treated differently depending on the circumstances of their childhood.
We were given the example of minors who had been in the care of the child welfare system for a period of time and then returned to the care of their parents, as opposed to those who had never been in the child welfare system. They wouldn’t automatically be granted citizenship and would be at risk of being deported from Canada if they were found to be inadmissible.
My question is twofold. Does this risk of different treatment really exist? More importantly, does your recommendation to shift from section 3 to section 5 have an impact? I have the impression that there would be an impact in terms of treatment that would be the same for all children, regardless of their childhood circumstances.
Ms. Webster: Thank you for your question and, again, I’m sorry I can’t answer it in French.
[English]
I agree with the concern that young, vulnerable individuals could be treated differently based on the circumstances of their care and the nature of the formal agreement, or otherwise, with the relevant state agency.
As currently drafted, the bill excludes from access to citizenship some vulnerable persons who were under a care mandate of child welfare agencies. That is to say, there were sufficient safety or welfare concerns for this child, and there was direct child welfare involvement, but they didn’t receive the full care in custody. Perhaps they weren’t removed from the home and placed in foster care, but child welfare was involved in their life for years and there were orders of supervision for the parent, or they were placed in the home of a relative and there was constant supervision — there could be family court involvement.
For individuals who may have been in these informal care arrangements as opposed to full foster care, it’s problematic to exclude them because these categories of vulnerable individuals were also deemed by child welfare agencies to require a degree of support and supervision. Yet, those agencies still failed to secure citizenship for them, or failed to support, perhaps, an extended relative in doing that or guiding them. To the extent that these individuals were identified as requiring assistance, protection and care, it’s our submission that they should be able to benefit from the provisions in this bill.
This shift to section 5 impacts that somewhat, but I think the change needs to relate to the definition. My colleague has helpfully made some suggestions as to how we could be more precise in the language about what “reside,” “maintain” and “child and family services” mean. To that list of amendments, I would suggest that we could ensure that individuals who are in informal care arrangements — but still engaged with the child welfare agency — are also included.
Senator Petitclerc: To give me a sense of this, are these children a minority compared to the other group that is targeted — whom we want to help — with this bill? Is it a fairly big group? I’m just trying to get a sense of who they are and how many. It’s hard.
Ms. Webster: Again, the data is hard. When I said that I anticipate the numbers to be in the three-digit range — less than 1,000 — that would include individuals in these circumstances. We’re not talking about someone who received one visit from child welfare and that’s it. We’re talking about someone whose living situation was deemed unsafe and there is persistent child welfare involvement. It may be that they’ve just been moved to an aunt’s house, but they are still under an order. There’s formal documentation.
We’re not opening this up wide, but we’re just recognizing — and I can say this certainly from my practice, and child welfare agencies would say the same — the first option is always trying to place someone with a next of kin. They don’t want to bring you into a stranger’s home, if they can avoid that, certainly in terms of cultural competency and linguistic competency. You want to place a child in as familiar an environment as possible. There is still child welfare involvement, and there is still supervision, and there’s still a recognition that this child does not have a safe environment with their legal guardian, which is why we think they should be included in the provisions here.
Senator Petitclerc: I’m just digging and digging. Would we say that they have the same challenges and level of vulnerability, but, unfortunately, they’re not protected by that piece of legislation?
Ms. Webster: It depends on what types of challenges you’re thinking of. They have the same challenges in the sense that they have been identified by child welfare as unsafe and in need of some form of protection and intervention by the state.
Perhaps they’re even more vulnerable in the sense that they’re placed in a circumstance where they are left alone a little bit more, which is almost more dangerous. I do think the basic vulnerability and the basic intent — where Canada has stepped in to assume that parental role and say, “You’re not safe, and we’re going to supervise the arrangements for your care and make sure you’re safe” — and the basic premise extend here, and my best guess at numbers would include this group.
The Chair: Thank you both so much for your briefs. I really appreciate them. Both your briefs lay out a number of amendments, Ms. Webster and Ms. Mosher-Kuczer. It’s almost like rewriting the bill. Can you share with us — both of you — which amendments are absolutely necessary?
Ms. Webster: We might have different answers.
The Chair: Yes, I expect you will because you both have a different take on the bill.
Ms. Webster: We do. I don’t know that we have a different take on the bill at a fundamental level.
The Chair: No.
Ms. Webster: We both support the premise, and we want to see it move forward, and that’s an important starting point.
In terms of the tweaks that could be made, from a practical standpoint, the shift to section 5 is essential and is not complicated at all. We provided exact language in the appendix. I believe the brief was circulated with the Translation Bureau before today’s meeting, but, if not, I would just direct your attention to the second appendix, where we have a line-by-line red line suggestion of how we can tweak the provisions to do that.
The Chair: Thank you. I’m hearing you say that’s the one — that is the one?
Ms. Webster: Do I only get one?
The Chair: You have submitted a brief.
Ms. Webster: This is a tough crowd.
The Chair: I do want to move to Ms. Mosher-Kuczer. Ms. Webster, we can come back to you later, if you’d like, and if we have time.
Ms. Mosher-Kuczer: Thank you.
The Chair: You’ve also got a variety of amendments.
Ms. Mosher-Kuczer: I do. I would add on to Ms. Webster’s proposed amendment that if it were to be moved under section 5, I strongly recommend that the fee be waived because the —
The Chair: Yes.
Ms. Mosher-Kuczer: — $630 processing fee would be a bar to most of these children who are not allowed to work.
The Chair: Good point.
Ms. Mosher-Kuczer: I also do believe that it is extremely important that the terms of the bill be more clearly defined because, as I put in my brief, there is a slippery slope if not. If the terms are not more clearly defined, someone who is in jail could, in theory, fall under the bill as it’s currently written. Again, it’s amendments in wording; that’s it.
The Chair: Thank you very much.
Senator Jaffer: I have a few quick questions. When I was practising, the people whom I was dealing with were not minors in the sense; they were people who had aged out, and maybe they got into trouble and they were waiting deportation — that is the kind of person that I saw. Do you get minors in your office? Do you help with this process?
Ms. Webster: I represent minors who are currently in the care of a child welfare agency as well as adults, and the adult population does include individuals who have aged out of care.
Senator Jaffer: Do the minors come to you on their own, or is it whomever is acting in loco parentis comes to you to get that done?
Ms. Webster: I practise in Toronto, and I know you had the Child Welfare Immigration Centre of Excellence — the Peel Children’s Aid Society does have this specialized unit. In southern Ontario, in the Greater Toronto Area, there is increasing knowledge of the responsibility and the legal authority that child welfare agencies have to act on behalf of minors. Now I am seeing more inquiries coming from child protection workers about how they can help their clients who don’t have status.
That’s encouraging when we think about this bill and making it accessible and ensuring that vulnerable individuals are able to apply.
Senator Jaffer: That was also to do with the bill where the government said that they could apply, right?
Ms. Webster: That’s correct.
Senator Jaffer: It’s Bill C-6, right?
Ms. Webster: Yes.
Senator Jaffer: It’s a recent thing. The government has said the provinces can apply for that.
My last question is this: Plain language is something that the Canadian Bar Association is always advocating, right? This is not something new. Would both of you agree with me? For donkey’s years, I would say that they’ve always stocked plain language, but most of the bills are drafted by the government, and they’re not in plain language. Do you agree? Thank you.
Ms. Webster: I do agree.
If I may, very briefly — because I only got my section 3 to section 5 recommendation — I would say the informal care requirements are really critical. I don’t say “informal” as in there’s no paper trail. It’s just folks who are not exclusively in foster care, but who are still under child protection agencies.
Finally, one thing we didn’t touch on is a temporary stay of deportation to allow these applications to process. If we’re recognizing the importance of this, and if we’re moving this provision forward, we need to create a window for the government to process the application, where we’re not removing the potential beneficiary.
The Chair: Your brief is very clear and goes into detail on all these issues. Just because we haven’t touched on them doesn’t mean we have not read the brief. I want to thank you, Ms. Webster and Ms. Mosher-Kuczer, for your thought and thoroughness with advising us. Rest assured, we have listened carefully.
Colleagues, Senator Jaffer, who is the sponsor of Bill S-235, is here as our guest and doesn’t need any introductions from us.
Hon. Mobina S. B. Jaffer, sponsor of the bill: Thank you very much to all of you. It’s very unusual for somebody to get a second chance, and I genuinely appreciate your generosity of time in giving me a second opportunity. I will make amendments regarding what Ms. Mosher-Kuczer said for more clarity. As you know, our bills are not drafted by us. I’m not putting blame on anybody, but I’ll make sure I work with the law clerk’s office to make the language a lot clearer in order to give you assurance on what Ms. Mosher-Kuczer said.
Originally, I asked the law clerk to draft this bill under section 3 because of the challenges, as you were saying, young people have in filling out the forms and with the $630 fee. Those are all challenges, and I thought that was not a good way to proceed when you’re trying to help young people. We’ve heard from the minister’s representative and we’ve heard from others, so I am going to make the change from section 3 to section 5. My amendment will be from section 3 — which is as of right — to section 5 which is as a grant. I will make those changes.
I already had 365 days, but now lots of people are studying this bill and they have come to me; some stakeholders have said “180 days.” I know that for this committee, and maybe in the Senate, 180 days would not be enough. People have explained to me that this is what happens: People go into care while things improve in the home, so people return, but then they are worse and come back. In my new bill, I will be suggesting that it be cumulative. Obviously, in the end, you are the ones who will decide. It will be a cumulative 365 days.
In regard to all the suggestions that Ms. Mosher-Kuczer and Ms. Webster have made, I will make them. I will also make those amendments about being in informal care with a court order. Where a department agency has mandated that a child stay with an aunt or informally somewhere else, they are still in care, so I will make those amendments suggested by Ms. Webster.
To make an application — sometimes it doesn’t fit into anything — the minister would look at the application and, on humanitarian grounds, make the application. Those are the amendments.
I’m dealing with the amendments that both speakers spoke about the last time. I will make those amendments with the law clerk, but I will not do it in plain language. Drafting a bill in plain language is easier said than done, and I will suggest it to the law clerk, but it is not in my hands. Not many bills I’ve seen are in plain language, but I know, as a lawyer, that it’s the Canadian Bar Association’s big thing. It’s a good thing to be in plain language, and I will suggest that to the law clerk.
The Chair: Thank you, Senator Jaffer. We have lots of questions here. Perhaps I can ask you one about the fees. I tend to agree that $630 is prohibitive for a young child. Would that, in your opinion, be observed or be legislated? Does that make it a money bill?
Senator Jaffer: We would put the observations, and it would go into regulations, I hope.
The Chair: Okay.
Senator Jaffer: That is what I was thinking. We would make the observations, and then it would go into regulations, because otherwise it would become a money bill.
The Chair: Thank you. Colleagues, do we have questions? We’re going to be more informal.
Senator Cordy: I’ve been jotting down a lot of notes, and it looks like I have three or four sentences on every line to make it coherent.
Senator Jaffer: Sorry, do you want me to repeat anything?
Senator Cordy: No. The recommendation that we have — and you referred to this — was the cumulative 180 days, and you’re suggesting that it should be 365 days.
Senator Jaffer: In total.
Senator Cordy: Cumulative. That’s what you mean by “cumulative” — it could be over a period of 10 or 18 years, or just whatever?
Senator Jaffer: It depends. It could be more too, but it’s a minimum of the cumulative 365 days.
Senator Cordy: Okay. Would that also include informal care?
Senator Jaffer: Yes.
Senator Cordy: Okay.
Senator Cormier: Thank you, Senator Jaffer. You know how I am obsessed with language. Maybe you noticed this, but there is a difference in the terms that are used in English and in French. In clause 1(1), we use the word “parent” in the French version, and in the English version, we use “relative.” Do you think it would be important to clarify that? Does it mean the same thing?
Senator Jaffer: Far be it for me to tell a linguist like yourself. I had asked that — forgive me, I may be wrong — and I was told that “relative” is “parent“ in French, but I don’t know.
Senator Cormier: It’s not broader?
[Translation]
Senator Petitclerc: It’s like family; it’s a relative, but I understand what you’re saying. That word should be checked.
[English]
Senator Cormier: Just to make sure.
[Translation]
Senator Jaffer: If you find anything like this, let me know and I’ll change the terminology. When I asked, I was told that it was indeed relations.
Senator Cormier: Okay. Thank you, Madam Chair.
[English]
The Chair: Thank you.
Any further questions? If not, colleagues, I suggest that we proceed in camera for a few minutes to discuss future business.
(The committee continued in camera.)