THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Thursday, March 21, 2024
The Standing Senate Committee on Social Affairs, Science and Technology met with videoconference this day at 11:30 a.m. [ET] to consider 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: Honourable senators, my name is Ratna Omidvar and I am a senator from Ontario.
[English]
I am the Chair of the Standing Senate Committee on Social Affairs, Science and Technology. I begin by welcoming members of the committee, witnesses and members of the public watching our proceedings online.
I ask senators to introduce themselves, starting with the deputy chair of the committee, Senator Jane Cordy.
Senator Cordy: I am Jane Cordy and I am a senator from Nova Scotia.
Senator Seidman: Judith Seidman, as you know, senator from Quebec.
[Translation]
Senator Cormier: René Cormier, senator from New Brunswick.
Senator Audette: [words spoken in Innu-aimun] Hello. Michèle Audette, senator from Quebec.
[English]
Senator Moodie: Rosemary Moodie, Ontario.
[Translation]
Senator Petitclerc: Chantal Petitclerc, senator from Quebec.
[English]
Senator Dasko: Donna Dasko, senator from Ontario.
Senator Burey: Sharon Burey, senator for Ontario.
[Translation]
Senator Mégie: Marie-Françoise Mégie, senator from Quebec.
Senator Oudar: Manuelle Oudar, senator from Quebec.
[English]
Senator Pate: Kim Pate, and I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabe.
Hon. Mobina Jaffer, sponsor of the bill: Mobina Jaffer, from British Columbia.
The Chair: Joining us today for the first panel, we welcome back Senator Mobina Jaffer, who is the sponsor of the bill.
Colleagues, we have received draft amendments from Senator Jaffer that she intends to make to the bill. The purpose of the meeting today is to have a chance to hear from her, the sponsor; from government officials; and from stakeholders about these proposed amendments.
We have a short first panel with Senator Jaffer before we proceed to our next panel with officials. Senator Jaffer, would you like to make brief introductory comments, or do you wish us to proceed to questions?
Senator Jaffer: No, I have long introductory comments. Thank you, chair.
The Chair: Perfect.
Senator Jaffer: Before I start, I want to thank each and every member of the committee. You have been very patient with me on this bill, and it has been a very tough bill. I have taken a lot of time to listen to all of you and the government, and I’m hoping that the amendments that I’ve made will satisfy your concerns, but, at the end, even now, if you have some concerns, I still have to go through clause by clause, so I will still look at your concerns. My mind is not closed on this because it is a very difficult issue.
Honourable senators, I appear before you to speak on a matter that is close to my heart and, I believe, close to the hearts of every Canadian who believes in fairness, compassion and the fundamental rights of a child.
Bill S-235 is an act to amend the Citizenship Act and the Immigration and Refugee Protection Act, and it seeks to address a critical gap in our current system — a gap that has left some of our most vulnerable children without the protection and security of Canadian citizenship.
As many of you know, I came to Canada as a refugee. I know the challenges and the triumphs of building a new life in a new land. And I know from my own firsthand experience that Canada is a nation that opens its arms to those seeking shelter, safety and a chance at a better life. But for some of our most vulnerable children, those taken into government care, the promise of Canada has been incomplete. These children grew up in Canada, attending Canadian schools and embracing Canadian culture and yet, through a tragic oversight, they are left without Canadian citizenship.
When provincial governments take these children into care, they are acting in loco parentis, or “in the place of parents.” This is no small responsibility. It is a solemn duty enshrined in laws like Quebec’s Youth Protection Act and Ontario’s Child, Youth and Family Services Act, to make decisions in the best interests of these children, whether they are citizens or not.
Yet, despite this clear obligation, some of these children do not obtain citizenship while under government care. They age out of the system, often unaware that their social workers or foster families did not apply for their citizenship. They assume, wrongly, that the government that took on the role of their parent would fulfill this most basic parental duty of being a Canadian. The consequences of this failure are dramatic and far-reaching. These young adults, Canadians in every sense but on paper, are denied access to health care, education and employment. They are left adrift, cut off from the only country they have known.
Senators, I believe we have a real moral and legal obligation to look after these children.
I have heard the concerns raised by officials from the Department of Immigration, Refugees and Citizenship Canada, known as Immigration Canada, or IRCC; from the Canada Border Services Agency, or CBSA; from stakeholders; and, most of all, senators, from this committee. I have listened to your concerns carefully and, therefore, I am now proposing some amendments.
With Bill S-235, the first concern from Immigration Canada was that it had unintended consequences, such as incentivizing placing children in care to secure citizenship. I also heard that from some of you here. So we have shifted the provision of Bill S-235 from automatic citizenship under section 3 of the Citizenship Act to a grant of citizenship upon application under section 5. This ensures that citizenship is not granted automatically but rather through a controlled application process.
The second concern I heard was that the bill created differential treatment between youth based on their circumstances of care. The shift to an application-based process ensures that all youth who meet the criteria have an opportunity to apply for citizenship, regardless of their specific circumstances of care.
The third concern from Immigration Canada was that this bill could provide citizenship in a manner not aligned with the current scheme of the Citizenship Act, where only those born in Canada or born abroad to a Canadian parent or naturalized through permanent residency get automatic citizenship. The shift to an application-based process brings this bill into alignment with the existing framework of the Citizenship Act.
The fourth concern from Immigration Canada and Border Security was the uncertainty about the citizenship status of foreign-born children of someone who would qualify under the bill. The shift to an application-based process clarifies that only the individual who directly meets the criteria and applies for citizenship would be granted citizenship under this bill.
The Canada Border Services Agency also raised the concern that Bill S-235 focuses on staying removal orders at the end of the enforcement process, rather than earlier, potentially adding to the burden on the vulnerable population it seeks to help. So I have proposed an amendment. The shift to an application-based process addresses this concern. The amended bill no longer involves the stay-of-removal orders in the same way as the original bill, thus alleviating any potential additional burden on the affected individuals.
The second concern of CBSA was the bill does not specify the duration of the stay of removal, potentially leading to indefinite stays where a person doesn’t consent to the acquisition of Canadian citizenship. The shift to an application-based process means the question of indefinite stays of removal no longer applies.
The Canada Border Services Agency raised a concern that the bill lacks transitional provisions specifying to whom the various provisions apply, such as those already removed on an enforceable removal order. The shift to an application-based process clarifies that only individuals who directly meet the criteria and apply for citizenship would be granted citizenship under the bill. We are proposing an amendment to limit eligibility to those who have not been outside of Canada for more than 10 years since reaching the age of 18.
The other concern for CBSA was that the bill does not include any carve-outs or risk-mitigation measures for individuals inadmissible on serious grounds, like involvement in violent crime. The shift to an application-based process addresses this concern.
Some of your concerns were that individuals who are living in informal care arrangements qualify for citizenship under Bill S-235. We are proposing an amendment to include individuals who are in informal care arrangements. We do so in a way that will provide to parents who regain custody of their children before they turn 18 a reasonable amount of time to prepare and submit citizenship applications and to receive decisions.
The other concern you had is that it is unclear how long a person needs to have been in government care in order to qualify for citizenship. We are proposing an amendment to clarify that the time in care should be, cumulatively, 365 days.
Another concern you had was that, given the diverse experiences of children across various provincial and territorial agencies, there is a risk that deserving individuals may unintentionally be excluded. We are proposing an amendment to grant the minister discretion to waive requirements on humanitarian and compassionate grounds.
I have other amendments, too.
The Chair: [Technical difficulties] — run into a time problem. Could you kindly wrap up?
Senator Jaffer: I thought I had 15 minutes.
The Chair: Well, we will then have no time for questions. That’s the problem. We do want to ask questions.
Senator Jaffer: You were sent the amendments. I will share with you that I’ve had a number of discussions with the Minister of Immigration and his staff.
I’ve met with them, and they have shown interest in this bill. They have said that they desire — I have to be very careful how I say this. The officials have expressed to me that they are in favour of the bill and the amendments in order to resolve this legal gap in citizenship. Thank you, senators, for your time.
The Chair: Thank you, Senator Jaffer. You have worked incredibly long and hard on this bill. We will accept questions from my colleagues for three minutes each. That includes the question and the answer.
If I may, Senator Jaffer, I will ask you the first question. The amendments you have proposed have created a different pathway to the objective. Do you believe that your amendments still adhere to the principle and scope of the original bill that was read for the second time in the Senate?
Senator Jaffer: Yes, I absolutely believe that they do because it is still the process of getting citizenship for a child. When I heard what the government officials were saying, it is still going under the same bill and it is still the same intent. So I genuinely believe that it is under the same scope.
Senator Cordy: As the chair has said, thank you very much for the incredible amount of work that you put forward in this bill. My question is this: We heard from Canada Border Services Agency, when they appeared before the committee, that the bill doesn’t include any carve-outs or risk-mitigation measures to address individuals who might be inadmissible on serious grounds, for instance, due to their involvement in violent crime, whether committed in Canada or abroad.
The proposed amendments that I read this week, which you proposed, do not seem to address this public safety consideration. How do you respond to public safety concerns raised by border issues?
Senator Jaffer: Sorry, can you tell me quickly what the concern was, not the whole concern?
Senator Cordy: I am asking about safety considerations for those who may have been inadmissible, who were in the country but who, if applying from outside the country, would be inadmissible because they had been involved in violent crime.
Senator Jaffer: Again, the application process would help in the sense that, even if they applied, if the minister considered that they would not be granted citizenship, they would not. The concern was raised because, if you remember, senator, it was automatic before. Now it has an application process, and that concern would be taken care of.
Senator Cordy: Thank you.
Senator Seidman: Thank you, Senator Jaffer. We know full well the amount of work you’ve put into this and the length of time you’ve been working on this and how much it means to you. In fact, this is your second appearance in front of us. As I look at these amendments, it’s a lot to understand. Visually, I have tried to understand it. As I look at the amendments, I see that every single clause, every paragraph, in this bill has been changed. So it’s quite significant and quite important for us to try to understand this. This is non-trivial legislation. It actually amends the Citizenship Act.
You mentioned that this will now include all youth, regardless of circumstances of care. We’ve broadened the scope of legislation; is that correct?
Senator Jaffer: I broadened it because of the concerns shown by the people here in the committee. To help you understand, I can come to see you and explain to each and every one of you. I have a chart that will make it very easy for you to see. I’m willing to come to all of you and explain every little concern you have. I have a chart that I can leave —
The Chair: Senator Jaffer, we would like to have that information.
Senator Jaffer: Sure.
The Chair: If it’s going to be available to one senator on this committee —
Senator Jaffer: No, I will send it to all.
The Chair: — than it should be sent to all because —
Senator Jaffer: I will send it to the clerk, and I will send it to all of you.
The Chair: Thank you.
Senator Osler: Thank you, Senator Jaffer, for being here today. Amending clause 1 of the bill moves the clause from automatic citizenship to citizenship by grant. Some of the witnesses highlighted that one of the primary barriers to obtaining citizenship was the lack of services and support through the application process. The witnesses identified things like securing identity documents, not understanding the forms or not even having access to a computer to fill out the forms.
Since it would no longer be an automatic process, would this amendment reintroduce the barriers to applying for citizenship?
Senator Jaffer: Thank you very much, senator. The minister is very much aware of that problem. This is not the usual citizenship application such as the one I had to fill, with the very detailed identity documents. This would be a written statement from the applicant.
Senator Osler: Thank you.
The Chair: Senator Jaffer, may I ask you a question? Would the ordinary fees for citizenship apply to this cohort?
Senator Jaffer: I have had mixed answers on that because it would be regulatory and not in the bill. It is my firm belief and hope that, in the regulations, there will be no fees. I can’t guarantee that, but I’m working on that. I have not yet resolved that.
The Chair: Do you believe that children in care can only achieve citizenship if they have the means to do so? It’s not cheap.
Senator Jaffer: It is $600.
The Chair: Six hundred dollars, yes.
Senator Jaffer: Yes. It’s my belief that if we’re doing this — that’s why it is automatic, because the government said — well, you heard all of that, so I won’t repeat it. I’m in negotiations to forego that fee.
Senator Osler: Perhaps, Senator Jaffer, you could elaborate on the application process. You indicated in your last response that it was limited to just a written statement and no other supporting documents?
Senator Jaffer: That’s my understanding. I haven’t got clarification, but that’s my understanding and it was in the earlier process, too. It’s not the usual citizenship application. It’s out of the citizenship application. Some of the stakeholders will present in front of you, and they will also be able to help you with that. Andrew Brouwer and Samuel Loeb will both be able to present to you what can be done.
The Chair: Thank you. I will ask another question. It is the applicant himself or herself, a young individual who is possibly 18 or 19, before he or she exits out of care, or up to 10 years after they exit out of care, who would be able to apply for citizenship based on a written statement?
Senator Jaffer: Yes.
The Chair: Thank you.
Senator Jaffer: You will remember that. You sponsored Bill C-6 in which the people they lived with or the provincial government — if I’m not mistaken — would apply for them. The idea is that before they age out as children, it would become the responsibility of the social workers, provincial government and the foster parents to apply for citizenship. It would be part of their role as parents.
The Chair: What gives you any confidence that they would step up to the role given the fact they have abrogated it to date?
Senator Jaffer: Now there is a law that you were the sponsor of, so I have great confidence they will.
The Chair: What will be the sequences if they didn’t fulfill their responsibilities?
Senator Jaffer: The biggest consequence is the federal court that has been quite strict in many cases. They have been quite firm in their role that the government has. And I think that’s the best answer I can give you. I don’t have all the answers, but that’s the best answer I can give you.
The Chair: Thank you, Senator Jaffer, for being generous with your time.
Senator Moodie: Senator Jaffer, I’m offering you my time to consider the amendments you were talking about.
Senator Jaffer: Thank you so much. The other concern is that it is unclear how long a person needs to have been in government care in order to qualify for citizenship. We are proposing an amendment to clarify that the time in care should be 365 days cumulatively.
The next one was, given their vulnerability and marginalization, is it reasonable that individuals will not become aware of the eligibility for Canadian citizenship under the new provision until they come into contact with the immigration enforcement officials? We are proposing an amendment to stay the removal of persons who made an application for citizenship under the new provision. The change allows for individuals who applied for Canadian citizenship under the new rules to remain in Canada while the application is being processed. Can I finish?
The Chair: You have 1 minute and 49 seconds of Senator Moodie’s time.
Senator Jaffer: The next concern is that the bill does not require that a person provide evidence other than a written statement by the applicant for the eligibility. Children who are in care in Canada should be able to obtain some form of confirmation from provincial child protection agencies confirming that they were in care. That was the concern.
We are proposing an amendment to specify that the minister can receive a statement attesting to their time in government care. Those were the amendments. Thank you, Senator Moodie, that was very generous of you.
The Chair: Senator Moodie, you have time to ask a question if you so desire.
Senator Moodie: I pass to the next person.
The Chair: I have another question. But perhaps I should go to my colleagues first.
Senator Petitclerc: Thank you so much, Senator Jaffer, for being with us today and for answering all these questions. I want to continue on the question of Senator Seidman, because we are studying these amendments. We will need to go back to voting on these amendments at some point. Senator Seidman, you question whether the scope is changing in regard to including children who may be in unusual care arrangements, and I’m not sure it does.
My reading of what you are doing is that the intention at the beginning is to be inclusive of all children in these challenges and situations. And we saw a bit of a gap during the study, and so, does your amendment keep with the intent? That’s my understanding, it keeps with the intent but it wants to make sure no one is being left out, and that we fill that gap. Am I correct with that?
Senator Jaffer: Sorry, I was negligent when I didn’t mention what I mean about informal agreements. As you know, sometimes there will be some family members, and the social workers look out for family members. They will reach out to the family member. But it is still a court order but an informal arrangement. That sort of thing. I’m not saying all immigrant children. That’s what I mean.
Senator Petitclerc: Of course. And so, the legislation we studied somehow could leave out these children with court arrangements and now, via this amendment, you are trying to keep your intention and make sure they are not left out.
Senator Jaffer: The most important thing is it has to be a court order. It has to be under court order.
The Chair: And it has to be in the end 365 days, cumulative. That stays.
Senator Jaffer, I want to query you about the written statement. Are there other communities that are able to provide written statements in lieu of filling out the application form in the citizenship law? Is there a proxy somewhere?
Senator Jaffer: There is. I did have that the proxy in a sense is that the provincial government was under the duty to look after you could make a statement, too, but I don’t want to mislead you. Those are details the department will work out. They are very much aware. You heard in Abdoul Abdi’s case that he was moved 33 times. You can imagine, after moving through 33 foster homes, there is no way he will be left with any identity forms.
In fact, that case went to federal court, and the federal court said the court couldn’t do anything, but it was the government’s role to fill this gap. Mr. Brouwer is his lawyer. He could give you more information.
The Chair: Thank you. This brings us to the end of our first panel. I would like to thank Senator Jaffer for her work. She is relentless and committed to this cause. We thank you for all your work.
Senator Jaffer: Everybody has been very complimentary of me, but it is not me. It is the work of a lot of people, but I am bringing it here because I have the privilege of being here. It is not me. It is the community, and Senator Pate whose bill it was originally and so I’m taking credit on behalf of all of them. Thank you very much.
The Chair: Thank you very much. There is enough credit to go around.
Thank you very much for attending this committee hearing today. For our next panel, we welcome officials from Immigration, Refugees and Citizenship Canada, Uyen Hoang, Acting Director General, Citizenship Policy, Stephanie Jay-Tosh, Acting Senior Director, Legislation and Program Policy, Gayle Leith, Senior Policy Analyst, Citizenship and Passport Program Guidance, Lauren Heyer, Counsel, Legal Services Representative and Lorra Thompson, Acting Director, Humanitarian and Complementary Pathways. From the CBSA, we have Mr. Derek Janhevich, Director, Inadmissibility Policy Division.
Thank you for being with us today. We will begin with opening remarks from the officials followed by questions from our committee members. We will begin with Ms. Uyen Hoang, Acting Director General, Citizenship Policy. If I mispronounced your name, please accept my apologies.
Uyen Hoang, Acting Director General, Citizenship Policy, Immigration, Refugees and Citizenship Canada: Good afternoon, senators. Before we begin, I would like to acknowledge that I am on the traditional and unceded territory of the Anishinaabe Algonquin Nation.
I am pleased to have been invited back to committee to discuss the proposed amendments to Bill S-235, An Act to amend the Citizenship Act and the Immigration and Refugee Protection Act. I will focus my remarks on providing a description of the amendments as we understand them and then discuss how these amendments may change the application of the bill in relation to the Citizenship Act.
As discussed at the previous meeting of November 23, essentially, the Citizenship Act describes who is a Canadian either as persons who acquire it by operation of the law (by birthright either from being born on Canadian soil or by descent); or, persons who obtain citizenship through naturalization.
In other words, generally an immigrant to Canada who is a permanent resident and meets certain criteria and is not prohibited under security and criminal grounds.
The proposed amendments to the bill would allow persons who meet the requirements to apply for a grant of citizenship rather than be recognized as Canadian citizens by operation of law as per the original bill.
Amending the bill to provide for citizenship by way of a grant upon application aligns with the scheme of the Citizenship Act. To be eligible, the amendments outline criteria that persons would need to meet, including been ordinarily resident in Canada for 365 days as a minor; not have returned to the care and custody of their parent unless the return took place within 365 days of the date upon which the person reached the age of 18; spent a cumulative total of 365 days in state care. The minister may also accept a written statement from the applicant as proof of time spent in the care system; and, finally, not resided outside of Canada for more than 10 years since reaching the age of 18.
It would appear that these persons would not be required to demonstrate knowledge, meet language requirements, nor take the Oath of Citizenship. As well, they are not subject to criminal and security prohibitions.
Based on an initial assessment, IRCC understands the intent of the proposed amendments is to provide a facilitative pathway to citizenship for persons who have grown up in Canada and spent time in the care system as minors but who are now adults and are unable to access citizenship.
However, the bill, as written with the amendments, could mean that a person who came to Canada — for example, close to the age of 17, spent slightly more than 365 days in Canada with most of those days in state care and then voluntarily left Canada after aging out of the care system at the age of 18 — could qualify for this new grant of citizenship. This would be provided that they have lived outside Canada for less than 10 years.
Given that applying for citizenship is a voluntary act in which a person would understand that being granted citizenship could result in the loss of their other nationality, the text referring to providing consent to loss of another citizenship has been deleted as it is no longer required.
The proposed amendments would also enable the Minister of Immigration, Refugees and Citizenship to waive certain criteria on compassionate grounds after considering a person’s circumstance, including their return to the care and custody of the parent, the cumulative total of 365 days in the care system, and residence outside Canada for more than 10 years after the age of 18.
Finally, the proposed amendments include a provision which would stay a removal order until such time as a decision has been made on the application for a grant of citizenship. I will let my colleague from the CBSA speak to how this has changed from the original bill in more detail.
However, a person who would be under a removal order, including a removal order that has been stayed, generally cannot be granted citizenship under the current Citizenship Act. It is unclear how a removal order, or a stayed removal order, will impact the facilitative grant in the amendments.
Thank you for your time. Before I take any of your questions, I will turn it over to my colleague Derek Janhevich, from the Canadian Border Services Agency, to provide remarks as they relate to the bill that impacts the Immigration and Refugee Protection Act.
The Chair: Mr. Janhevich, we are now down to four minutes.
[Translation]
Derek Janhevich, Director, Inadmissibility Policy Division, Canada Border Services Agency: My remarks will focus on Bill S-235’s impact on the Immigration and Refugee Protection Act, with a special emphasis on the enforcement of immigration legislation.
The Canada Border Services Agency appeared before the committee last November, and I’m pleased to appear in connection with this important issue again. This bill is very significant. First of all, I’d like to reiterate the agency’s role in processing immigration applications, which includes facilitating the movement of people at the border, processing asylum claims and enforcing the Immigration and Refugee Protection Act.
At the committee’s last meeting, we laid out the grounds provided for in the Immigration and Refugee Protection Act whereby a foreign national or a permanent resident can be declared inadmissible, for reasons including criminality, following serious convictions in Canada, and non-compliance, such as working without authorization.
We also explained how the act allows officers limited discretionary power in determining whether to continue enforcing immigration legislation against an inadmissible individual, and how Bill S-235 would be affected by the Immigration and Refugee Protection Act’s requirement that the agency proceed with removals as soon as possible.
[English]
We outlined how Bill S-235 may add to the burden of inadmissibility proceedings on the vulnerable populations it is trying to facilitate by focusing solely on the end of the immigration enforcement process.
Furthermore, we noted that the bill, without transitional provisions, may apply to those who were previously minors in the care of the state and have already been removed from Canada on an enforceable removal order.
Finally, we offered public safety considerations in the absence of security or criminal prohibitions for individuals that have committed violent criminal offences and may benefit from a stay of removal and grant of citizenship.
The proposed amendments to the Immigration and Refugee Protection Act under Bill S-235 stay a removal order for individuals who applied for that citizenship under subsection 5(3) of the Citizenship Act. It also specifies that the stay will continue until a final decision has been made on the individual’s application. These amendments are welcome. It is helpful that the amendments address the issues of having a removal order both stayed and not in force and the inclusion of a time frame for which the stay is valid.
It is also helpful that the proposed amendments under the Citizenship Act for a grant of citizenship instead of a right of citizenship address issues regarding individuals that choose not to pursue citizenship and may benefit from an indefinite stay of removal.
As we understand the proposed legislation, only individuals that choose to apply for citizenship would benefit from a stay. Eligible individuals who, for whatever reason, choose not to apply for or acquire Canadian citizenship could still be found inadmissible and subject to removal from Canada.
In all cases, including those who apply for Canadian citizenship, they could still have inadmissibility proceedings initiated against them and a removal order issued under the proposed amendments; though that removal order would also be immediately stayed.
Additionally, as it is currently drafted, there are no requirements that a person must also meet the criteria under subsection 5(3) of the Citizenship Act in order to benefit from the stay of removal. As a result, individuals that manifestly do not meet the criteria, such as they have been in Canada for less than a year, may still submit an application for a grant of citizenship under subsection 5(3) in order to benefit from a stay of removal until their application may be finalized.
Finally, I would again bring to the committee’s attention an important border integrity and public safety consideration that the proposed amendments to the Immigration and Refugee Protection Act and the Citizenship Act does not include any security or criminal prohibitions.
Absent any such prohibitions, citizenship may be granted to individuals who are inadmissible on serious grounds, due to their involvement in particular violent crime, whether committed in Canada or abroad during the 10-year period for which persons may have resided outside Canada before they apply for the grant of citizenship proposed under the amended framework. This concludes my remarks. Thank you.
The Chair: Thank you, Mr. Janhevich. Colleagues, we have time for questions.
If I may start, Mr. Janhevich, you have described the context within CBSA and the impact this bill would have on removals, et cetera. Do you have any evidence that you can share with us about the number of people who are under removal orders who are maybe 18 and under?
Mr. Janhevich: I don’t have those figures in front of me right now. I can search through my notes here. However, I don’t have anything right now.
The Chair: These are concerns that have been raised?
Mr. Janhevich: These are issues that we have been raising, correct.
Senator Cordy: Thank you very much. I can’t wait to get the written part of this because you have both given us a tremendous amount of information.
Ms. Hoang, you gave the example of a person who comes to Canada, they are almost 18, not quite adult, but within a very short period of time would become an adult, and after less than a year they would become a citizen and they would not have to go through the process that somebody applying for citizenship from outside the country or from within the country would have to go through.
I wonder if you could expand on that a little bit.
Ms. Hoang: Thank you for the question, senator.
The example I gave was to illustrate what could be possible under the proposed amendments. The person would still have to take the steps required to apply for citizenship, but essentially it could be someone who came to Canada close to the age of 17, lived in Canada for 365 days, or according to the amendments, been ordinarily resident of Canada for 365 days. Of those 365 days, the person could have been in state care, have aged out at the age of 18, could have left Canada voluntarily, and as long as that person has not lived outside Canada for more than 10 years, the person could take steps to apply for citizenship.
Going through the grant of citizenship, it would be the opposite of citizenship by operational law. The person would have to take steps, apply and meet the requirements of the application.
Senator Cordy: Thank you. Mr. Janhevich, I had asked a question earlier to the sponsor of the bill concerning public safety considerations, and you certainly gave me a little bit of concern when you spoke about that. I wonder if you could expand on that a little bit.
Mr. Janhevich: Expanding on the serious criminality?
Senator Cordy: The concerns that one could have around public safety considerations.
Mr. Janhevich: Well, there are no stipulations. There are no prohibitions noted in the bill as stated, right? The public safety concerns of an individual that engages in serious criminal activity, violent crimes, is always a concern for us.
Senator Cordy: Thank you, chair.
Senator Seidman: Thank you very much for your testimony. I have to say this: When we were first presented with this legislation, it was clear to me this was non-trivial. We are amending the Citizenship Act.
Now I feel the weightiness even more, in a way. There’s a lot more to understand. If I look at the original bill, every single clause has been changed. For example, I note that we have replaced on page 2, lines 4 to 8, with 5.3(1) in subsection 5.2 that says: “The minister shall grant citizenship to any person who applies for it.” And we understand that the application process, if what I understood is correct, is merely a written statement. The sponsor wasn’t really able to explain that very well. She said that the department people knew better how that was going to work out. I’m concerned if a bill says the minister shall grant citizenship to any person who applies for it and the application process is merely a written statement. Could you help me understand what I think could be an unintended consequence? Thank you.
Ms. Hoang: Thank you for the question, senator. The proposed amendment does indicate a “shall grant,” and so it is proposing the creation of a new facilitative grant that a person would take steps to apply for. The criteria that have been noted are very few in comparison to the other typical grants that we have in place within the Citizenship Act.
Because there are very few, it is, according to the proposed amendments, if the individual meets those criteria, which are very few, including not being criminally and security prohibited, they would likely be able to obtain their citizenship.
Where they don’t meet those criteria, there is also a proposed amendment that the minister could waive those criteria. It is written in a way that is quite flexible.
Senator Seidman: It’s very broad?
Ms. Hoang: Yes.
Senator Seidman: In scope.
The last time you were here, I asked you about unintended consequences. We’re dealing with a private member’s bill, so it hasn’t had the benefit of the kind of research and consultation that a piece of government legislation would have. That’s just one of the failings, in a way, of private members’ bills. This is a weighty piece of legislation. You have already touched on that certainly about border security, security issues, but is there anything that comes to mind, jumps out immediately about unintended consequences now with these additional amendments?
Ms. Hoang: As you may recall, senator, we had raised three potential concerns from the original bill when we were last here in November. One of those three concerns is now addressed with the significant shift from citizenship by operation of law to citizenship by grant.
The other two remain. One of the three was related to potentially incentivizing the placement or the sending of children to Canada and placing them in state care in order to benefit from this facilitative grant. This risk has not been eliminated or mitigated given that the requirements for the grant of citizenship are few, and within those few they are quite broad with respect to the minister being able to waive those criteria.
The last concern that we had noted was with regard to differential outcomes. The proposed amendment may result in different outcomes for children who were in state care. For example, those who were in state care for 365 days and left state care before they age out would not have access to the facilitative grant as someone who spent 365 days and aged out at the age of 18 and had not gone back to their parents unless there was 365 days after turning 18.
For the first cohort, had their parents not taken the steps to regularize their status and they reached the age of majority and for whatever reason becomes inadmissible and unable to obtain citizenship, they would be at risk of removal.
Perhaps I could turn it over to my colleague to see if there’s anything else he would like to add from an unintended consequence perspective.
Mr. Janhevich: In terms of unintended consequences that were not touched upon at the last committee meeting, I would say that, as drafted, the amendments would allow for any person who has submitted an application under subsection 5(3) of the Citizenship Act to benefit from the stay of removal, even if they prima facie don’t qualify. There’s no authority to proceed with immigration enforcement in cases where an individual clearly does not meet that criteria. What it does is it essentially puts that person in a position where they are in that state, the stay of removal is applied, but we won’t know until the application is finalized. The bill doesn’t address that.
The Chair: There are stays of removal in different contexts of the Citizenship and Immigration Acts as well, where the outcome is not quite certain and the process takes its time. This is not unique, is it?
Mr. Janhevich: I can’t answer that question quite yet because I don’t have the context on the other elements that you are noting.
The Chair: Thank you.
Ms. Hoang: What I can say, senator, with respect to the Citizenship Act, currently the way it is structured is that if you have a stay of removal or you are under a removal order, you would not be able to be granted citizenship. The bill, as is, with the proposed amendments, is ambiguous, and we are not clear in terms of the interplay between the stay of removal with the grant of citizenship.
The Chair: Thank you.
Senator Osler: Thank you to the witnesses for being here today. I will direct my questions to Ms. Hoang at IRCC, and if Mr. Janhevich from the CBSA would like to answer.
It’s certain that this legislation would require collaboration between federal, provincial and territorial governments. This committee heard about some of the challenges given that child welfare is administered at the provincial or territorial level, while the federal government is responsible for immigration and citizenship.
I’d appreciate hearing comments on how this bill could work given the current context and current levels of federal, provincial and territorial collaboration.
Ms. Hoang: Thank you for the question, senator. At this time, I do not have details in terms of how we would be able to operationalize this proposed bill in terms of collaboration with provinces and territories. We would have to look into this further.
Mr. Janhevich: I have nothing else to add other than the bill as it is, and as we have stated previously, takes into consideration things at the end of the enforcement process. If we could look at things at the beginning of the process, which would, perhaps, allow better collaboration, but I have nothing else to provide.
Senator Pate: Thank you to the witnesses. As colleagues will recall, or if they weren’t here, it may be important to know, the purpose of this bill was to actually address a gap that was left once the amendment was made to try and repeal provisions that hampered the ability of young people who were put into the care of the state or taken into the care of the state to have access to citizenship comparable to any other individual who would have citizenship had they not ended up criminalized.
This bill arose out of the cases of a number of individuals, including Mr. Abdoul Abdi, Ms. Fliss Cramman. Those of you who were in the chamber at the time will remember, in fact, when Senator Oh made the amendment, he referred to those cases. He intended to have them included in the provision, but, unfortunately, they were not. This is an amendment to fix that.
The purpose of the bill is to stop the government using the failures of child welfare authorities to pursue citizenship and then to deport young people who, as children, would otherwise have been eligible for full citizenship or, at the very least, permanent residency. Given that, my question to the government officials is: If the proposed amendments to this bill are accepted, could you please walk us through how a person who has been convicted of an indictable offence goes to prison and then learns that they will be deported will be able to apply for citizenship in order to avoid deportation? Again, remembering that regardless of the conviction, these are individuals who prior to that conviction would have been eligible for citizenship.
It’s using the excuse of criminalization to avoid what was otherwise their right until they were taken into care and their parent did not fulfill their obligation to their children. If you could walk me through that. How would someone with an indictable offence, such as Mr. Abdi, Ms. Cramman and the many examples of individuals who gave rise to this legislation?
Ms. Hoang: Thank you for the question, senator. If this bill were to receive Royal Assent, we would likely undertake a very sustained and considerable communication strategy in order to ensure that those who may be eligible for this facilitative grant be aware of it. This would include working with our counterparts in the provinces and territories, as well as key stakeholders.
We would also have to work with our colleagues at CBSA to ensure that anyone who may be under removal order or may be deported imminently be made aware that they may be eligible for this application, and once they start the application process, what the bill is proposing is that we would remove the stay of order.
Senator Pate: So there is nothing to prevent someone who has been convicted of an indictable offence from being granted?
Ms. Hoang: The proposed amendments before us today would imply that those who have committed any type of criminality, from regular crimes to serious crimes to national security, could apply for this new grant, including those who may be incarcerated.
Senator Pate: Like Mr. Abdi, like Ms. Fliss Cramman, like the other examples?
Ms. Hoang: Yes.
Senator Pate: Thank you.
Senator Moodie: I want to just address two issues that I come with again. The first time you were with us, we heard about possible scenarios, unintended consequences, and we asked the question: What data do you have to lead us in the direction that these actually could possibly happen?
I’m particularly interested today in the two scenarios you talk about. Again, the incentivizing of this process; that children be sent to Canada for this. We’ve had four months now. What data do we have on that?
The second part of that same question is the new one that’s been shared with us today regarding individuals who have passed their seventeenth birthday, who would now be put into care but age out at 18.
I work as a pediatrician, taking care of children until their nineteenth birthday. We deal with these kids. I have never seen a 17-year-old put into care and who would age out at 18. What is the likelihood? What are your figures on that likelihood?
My second question is about the stay. What specific change do you think is needed in this current version of this bill that would allow applicants to move to completion of citizenship while a stay is in place? What is the specific change that would fix this problem that you have identified? Thank you.
Ms. Hoang: Thank you for the question, senator. I will answer your second and third point. Then I will ask my colleague, Mr. Janhevich, to provide you with some data that we have seen at the border.
I believe you asked about the likelihood that someone at age 17 would be put into care upon arrival. I don’t have data in terms of how many of these cases have occurred, but I was trying to lay out the interpretation of the possible scenario that could be created. While the intent may be for those who have come to Canada and have lived in Canada for many years — that is, likely have come when they were young and spent many days in state care — as drafted, the proposed amendments would allow someone who came here close to the age of 17 and had met those criteria to apply for citizenship.
Your last question was what changes we could suggest to address the stay of removal. Unfortunately, at this point in time, I don’t have a position for the bill and for any proposed amendments that could be submitted as part of addressing the intent of the bill. I will now turn it over to my colleague.
Mr. Janhevich: I will address your last question first in terms of the alternative options.
Canada Border Services Agency would not be proposing any policy direction, however, the committee may wish to consider how it is intending the affected population to be treated from an inadmissibility perspective. Again, I bring it back to the end of the spectrum versus the beginning of the spectrum. In some circumstances the Immigration and Refugee Protection Act includes carve-outs from inadmissible rounds, such as the exclusion from criminal inadmissibility for permanent residence and for foreign nationals who received a sentence under the Youth Criminal Justice Act, or YCJA. That’s something that could be proposed.
In terms of stats, we provided a response to the committee in February which explained the ways in which granting automatic citizenship pathways could inadvertently create incentives for child exploitation, including children sent to Canada unaccompanied. We included data taken from a sample in the GTA of refugee claims made by unaccompanied minors at Toronto Pearson airport.
By way of example, what I have in front of us is from the Greater Toronto Area, or GTA. There were 45 refugee claims made by unaccompanied minors at Pearson airport in the last five years. Of the 45 minors, 21 were identified as being placed under the guardianship of a family member or friend; twelve were identified as being under the guardianship of child protection services; six were identified as being placed in the care of foster home and shelter; and, 6 were almost at the age of majority.
Data continues to be a challenge. I think this was discussed at the previous committee meeting.
Senator Moodie: The question then becomes: Why are we making an equivalency between a refugee and a child who is here apparently through a different process? That is, a child has come with a parent but has been taken away from a parent through a care process. That’s the first part of that question.
The second part of that question would be as follows. For example, I’m raised in Canada and I absorb the culture of the country. If those circumstances lead me to where I am today and I become criminalized, then why am I being treated as a person who is an outsider that is coming here? Even if I have had a criminal record, why am I being treated as a person who is an outsider that is applying cold and wants to come here and live in Canada? I grew up here. This is what I know. That’s my question. I am puzzled by that.
Mr. Janhevich: I can’t answer your second question. I’m sorry. Could you elaborate on the second question?
Senator Moodie: It is more of a rhetorical question.
The Chair: Thank you, Senator Moodie. We get the intent of the question.
[Translation]
Senator Mégie: A lot of my questions have been answered. The only one left concerns what Mr. Janhevich mentioned earlier, when he spoke about the trajectory that these young people follow. Before asking the question, I assumed that different young people would follow different trajectories, for instance, someone arriving at 17 years of age compared to someone who’s been a ward of the state for a while already. Is there a common denominator? You said that if we could be proactive — What could you do proactively, considering that there’s no common denominator to the trajectories of all these young people, or is there?
Mr. Janhevich: I don’t have an answer to the common denominator question. As for trajectory-related options, this is one option proposed in the bill.
Senator Mégie: Do you think that this bill would allow for a proactive approach?
Mr. Janhevich: I can’t answer that question. I’m sorry.
Senator Mégie: Okay, thank you.
[English]
Senator Burey: Thank you for coming here and for sharing this information with us. Thank you, Senator Pate, for the historical perspective that we are trying to fill a gap that was unintentional, so we are here now.
I would also like to reiterate that I am a pediatrician. As Senator Moodie says, we don’t see kids getting into care at age 17.
Now that we have moved this from proposed section 3 to section 5, it’s not automatic, which was the really big issue, and now it is granting it. I see words like, “The minister shall,” but not “The minister must,” or “The minister may take these things.” Doesn’t that give flexibility so the minister can say, “I’m not granting this.” Is it a fait accompli? That is, once you sign up for it, you will be eligible. Is that the understanding?
Ms. Hoang: Thank you for the question, senator. It is our understanding that, based on the proposed amendment, “The minister shall grant,” as long as the individual meets the following criteria. There is no discretion here. It says, “The minister shall grant.”
Where there are personal circumstances, where the individual may not meet one or more of those criteria, the minister may consider waiving those criteria.
Senator Burey: In general, if there is wiggle room, the minister could waive the criteria. That’s your concern.
Having put that concern on paper, what does the minister do now in terms of the granting process? If there were an amendment, what you would suggest? You mentioned that people were able to receive citizenship under the few granting processes. What does the minister look at now? I want to understand.
Ms. Hoang: May I seek a point of clarification, senator? Are you asking the question in terms of what are the criteria that the minister looks at today, under the current legislative framework, to grant citizenship?
Senator Burey: Yes.
Ms. Hoang: I can give you this at a high level. For example, if I were to compare this to a regular adult grant application, the individual would have to meet a number of criteria. For example, the person would have to have permanent resident status; have physically lived in Canada for three of the last five years; would have to be free from national security and criminal prohibitions; and would have to meet a number of other criteria such as filing income taxes, demonstrate knowledge, meet language requirements, and take the oath of citizenship. I’m sure I’m missing some criteria, but those are the main ones if you had to compare it to a regular grant of citizenship for an adult.
Senator Burey: Thank you.
Senator Jaffer: Thank you very much for coming here. I appreciate you being here again.
Ms. Hoang, I have a question for you. You can explain how this amended bill compares to citizenship by an adoption process? How does it differ?
Ms. Hoang: With adoption, there are two pathways to citizenship for those who are adopted. There is a direct way versus the regular immigration pathway.
For the direct grant of citizenship, it was built in a way to minimize the difference between children born abroad to Canadian citizens and children born abroad and adopted by Canadian citizens. So they don’t have to go through the regular immigration pathway. They don’t need to have permanent resident status. They can adopt the child directly, versus the immigration pathway where the adoptive parent would have to obtain permanent resident status for the child and then go through the regular grant process, subsection 5(2), to obtain citizenship. Versus this one, what is being proposed with respect to the new subsection 5(3), the person would just have to meet a number of criteria in order to be granted citizenship. I’m happy to go over those criteria again, but I think we listed them already.
The main difference, I would say, is that they are not going through the regular naturalization process. You also are, then, creating a distinction between children who came to Canada, who are not criminally prohibited, in terms of the pathway that they would have to take in order to obtain citizenship versus this pathway, which is bypassing the immigration pathway.
Senator Jaffer: But is it in many ways the fact that these children become in loco parentis of the government? Isn’t this the next step to get them — they are adults now — but, in a way, to fill the gap of what the government didn’t do?
Ms. Hoang: Thank you for the question, senator. I’m unable to provide a view on that question. Thank you.
Senator Jaffer: Mr. Janhevich, I know you were asked a question about how many people and — you know, how many people come in. I’m not being rude to you. Please don’t take it that way, but you could only provide one example of CWICE, and that wasn’t even you who took the numbers. It was CWICE who collected it, and from that, you gave numbers, and we don’t even know how they got citizenship. That’s just one number you got from nowhere kind of thing. It is not across the country. I know many people think that Toronto is Canada, but I don’t.
With the greatest of respect, this is not really an example, is it?
The Chair: Senator Jaffer, you said “CWICE”?
Senator Jaffer: CWICE. It is the greater — I have it — it is Greater Toronto —
The Chair: Child Welfare Immigration Centre of Excellence. Thank you.
Senator Jaffer: Yes. Sorry.
Mr. Janhevich: The stats that I was alluding to are some of our data from the GTA, from the airport.
Senator Jaffer: But that is all you —
Mr. Janhevich: That’s all we currently have right now. We are — in terms of providing data, it does continue to be a challenge, to do some manual polls and all that. These are really the baseline benchmarks that we have.
Senator Jaffer: And this is for unaccompanied minors. I am belabouring the point — sorry, chair — but that’s all you had, and you are the government.
Mr. Janhevich: That’s all we can access currently. We are making attempts to dig in to get more information.
The Chair: Thank you, Mr. Janhevich. I believe Senator Jaffer has opened an interesting line of thought in comparing the pathway to citizenship for adopted children. We may well want to think about that. Colleagues, thank you so much for sharing your expertise and wisdom with us.
We will turn now to our next panel of testimony on Bill S-235, and we welcome Tamara Mosher-Kuczer, member of the Canadian Immigration Lawyers Association; Samuel Loeb, member of the Canadian Association of Refugee Lawyers; and Andrew Brouwer, Senior Counsel, Refugee Law Office at Legal Aid Ontario.
Thank you to many of you who have come again for the third time.
I will request each of you — or the ones you have agreed to — to speak for three minutes before we go to questions. As you know, there are a lot of questions, so if you can keep your remarks short and your answers long, that may be helpful. Ms. Mosher-Kuczer.
Tamara Mosher-Kuczer, Member, Canadian Immigration Lawyers Association: Madam Chair, honourable committee members, fellow witnesses, ladies and gentlemen, good afternoon. I’m speaking to you as a member of the Canadian Immigration Lawyers Association, or CILA. We would like to thank you for the ability to speak on Bill S-235. The Canadian Immigration Lawyers Association continues to support Bill S-235 to provide children who were formerly in state care with a direct pathway to Canadian citizenship.
We had an opportunity to review proposed amendments to the bill and believe that the proposed amendments align with many of the recommendations and address many of the issues that had previously been raised by both CILA and other witnesses.
Moving the amendment to subsection 5(3) will place the provision under grant of citizenship instead of right of citizenship. This will require that an application be made for citizenship, instead of citizenship being automatically acquired as a right, as had previously been proposed.
This would mean that the former child in care would not become a citizen until after they had first applied for and been granted citizenship, provided they had resided for at least 365 days in care and they had not been outside Canada for more than 10 years. There would be no retroactivity.
The amended provision mirrors subsection 5(1) of the Citizenship Act, under which children adopted by Canadian citizens can apply for citizenship. This is fitting, as children who were formerly in state care were effectively adopted by Canada.
We would note that the concerns raised by us at our previous appearance regarding the unintended consequences of one of the provisions of the bill continue to apply, and we made some recommendations as to how that one provision could be further amended to reflect better what we believe is intended.
We would reiterate our recommendation that the $630 government processing fee be waived and that alternative identity documents be permitted. I believe Senator Jaffer has already noted that these recommendations could be included in the regulations.
The Canadian Immigration Lawyers Association and I would be happy to answer any further questions you may have. Thank you for the opportunity to speak again on this bill.
Samuel Loeb, Member, Canadian Association of Refugee Lawyers: Good afternoon, madam chair and senators. Thank you for the opportunity to appear before you today to speak about this very important bill. I’m here as a representative of the Canadian Association of Refugee Lawyers.
As lawyers, the law dictates what we can and cannot do on behalf of our clients. Unfortunately, however, the application of those laws does not always result in justice. There are deserving clients who are deprived of a just outcome within the existing legal framework. In those situations, there is very little that lawyers can do. We cannot remedy the injustice because there is no clear legal solution. It is the law itself, that must change.
This bill would remedy one such injustice — the rare but deeply unfair predicament of children who grew up in foster care and are now facing deportation.
I would like to share with you a brief example of this injustice which a colleague shared with me about her client, a young racialized man. He came to Canada at the age of approximately six. His mother struggled with substance abuse. He was apprehended by the Children’s Aid Society, eventually becoming a Crown ward. The state did not arrange for him to become a citizen.
As a young adult, he, too, struggled with substance abuse, was found inadmissible and was issued a deportation order. It was only then that he realized he was not a Canadian citizen. He became sober and filed applications to remain in Canada, but they were all refused.
At the age of approximately 35, he was deported to a country that he did not remember and where he knew nobody. He briefly remained in contact with his former counsel in Canada and asked them to send him money because he had nowhere else to turn. He was living in a shelter. He could not find work. He could not afford his diabetes medication and his foot eventually had to be amputated. Soon after, he stopped contacting counsel, and they do not know what happened to him.
The state was responsible for this young man, and they failed to obtain citizenship for him and others like him. The state should right this wrong. This bill does that. The amendments that are before you today strengthen the bill and appropriately limit its application.
The Canadian Association of Refugee Lawyers wholeheartedly supports the bill and its amendments and we thank you for putting it forward and considering it.
I look forward to answering any questions you may have, especially any arising from the last set of witnesses. Thank you.
Andrew Brouwer, Senior Counsel, Refugee Law Office, Legal Aid Ontario: Madam Chair and senators, I will be brief. Thank you for hearing from me yet again. I appreciate it. We really appreciate the hard work of this committee. This is a critically important bill, but I know it is one of many that this committee is dedicated to, so I want to thank you for spending the time to work on this.
It is hard to overstate the importance of this bill. Of course, it affects a very small portion, a small number of individuals, but those individuals are particularly vulnerable and desperately in need of a solution for a completely intractable situation.
It is our position that this bill gives Parliament and Canada an opportunity to act on its commitment to anti-racism and to addressing the implications and impacts of systemic racism in the criminal justice, child protection and immigration enforcement regimes.
You’ve heard evidence about this just now from my colleague and from us in previous presentations to you, so I will not repeat what has already been said.
We generally endorse the recommendations, provisions and amendments put forward by Senator Jaffer. In our view, for the most part, they do respond to the legitimate issues that were raised by previous witnesses from the government.
It is our view that this amended bill is still entirely consistent with the intent and spirit of the first version of the bill. What these amendments do, in our submission, is to narrow the focus, avoid ambiguity and clarify what is intended here by Parliament.
I would like to offer a couple of quick comments on what we just heard. First, with respect to the issue of criminality and inadmissibility, which seems to be a concern. I want to remind everybody — which, of course, you know — that the people affected by this bill have lived here, for the most part, since childhood. They were not only raised in Canada but raised by Canada, by Canadian state agencies.
In large measure, any criminal offences committed were the natural and predictable outcome of circumstances, of being funnelled from child welfare to the criminal justice system. Youth become criminalized while in government care. Once criminalized, extracting oneself from the criminal justice system is no easy feat, especially for those who are racialized, impoverished, may be dealing with addictions or mental health issues and have no family supports around them beyond the state. For these individuals without citizenship, this turns from the criminal justice system to the next step and the greatest indignity, which is the expulsion from the only country they know. This bill tries to stop that pipeline.
If I may, I will quickly comment on some of the suggestions or questions that were raised, and two clarifications from Senator Jaffer’s summary.
I want to be clear that — as I read the bill, at least — it provides access to citizenship not only for those who have a court order but also for those who are in care under other circumstances. As we know, we have experts among the Senate, people who have worked in that world. They know that not everybody ends up in care under a court order. There are other various other voluntary and temporary circumstances in which the state gets engaged to care for a child.
With respect to questions about the administrative procedures, about fees and about the complexities of applying and so on, I want to point out that the bill is not the place to address those issues. Of course, there will be issues around fees that need to be addressed. The fees should be waived. Access to applications and making sure that proper supports for applying are available are critically important. However, from my perspective, that’s not an issue that this committee needs to be concerned about. That’s something IRCC will do, together with us and with the community.
I want to point out that we are talking about a group of individuals that our child protection agencies took responsibility for. They took responsibility for their well-being, but they failed to secure for them the thing that would protect their rights going forward most, namely, Canadian citizenship. In my submission, the point is to treat these persons who were adopted by the Canadian state in the same way as we treat those who were adopted by Canadian citizens. I would urge this committee to pass this bill with the amendments, and I hope that we can get into some discussion about the particulars. Thank you.
The Chair: Thank you very much to all the witnesses. We will start with questions. Mr. Brouwer, you said that we cannot overstate the importance of this piece of amending legislation because of the systemic injustice suffered by very young people. This issue has been on the horizon ever since I became a senator, which is a good eight years ago. It was not included in Bill C-6. Why has the government not responded by tabling its own legislation? I’m asking you a political question.
Mr. Brouwer: You are.
The Chair: Be free to give me a political answer.
Mr. Brouwer: Yes, I wish I could get into the minds of the people who make those decisions within government. We are, presumably, talking about the current government. We have seen that there is engagement. As NGOs, we have met with both ministers’ offices, both the previous people who fulfilled the roles of public safety and immigration and we have also had indirect conversations with the current ministers’ offices.
What we understand is that there is support for a change to the Citizenship Act. From what I just heard, I haven’t heard my formal position taken by the government on any of this. The folks we are talking about are deeply vulnerable. To be crass about it, they are not voting right now. They are people who are on the margins of society. So getting governments to pay enough attention to make policy changes for some of the most vulnerable members of our society is extremely difficult. They have competing priorities. Why would the government focus this much effort on a new bill that’s only going to affect a small number of people who ultimately don’t have political power?
The Chair: Do you believe that we can reasonably compare minors in care and their right and pathway to citizenship with that of adopted children of Canadian parents who are coming from overseas?
Mr. Brouwer: Absolutely, I do.
The Chair: Okay, thank you.
Senator Cordy: Thank you so much for appearing before us today. I recognize you all from previous iterations around this table.
Some of the concerns that we heard included the use of the word “shall” as in the phrase, “the minister shall grant citizenship to any person who applies for it and who is ordinarily resident in Canada for 365 days.”
That has been the word. It’s not that the minister “may,” but the minister would have no discretion. I wonder if you would comment on that.
Ms. Mosher-Kuczer: That’s how all the provisions under grant are written. The minister “shall” grant citizenship to anybody who meets the eligibility requirement of any of the grant provisions. So they “shall” for adopted children; they “shall” for somebody who has lived in Canada for 365 days and met all the other requirements. That’s how they are all written. If they meet the requirements, they should get citizenship.
Mr. Brouwer: If I may, it’s the same under the Immigration and Refugee Protection Act for people who apply under an existing program. So you demonstrate that you meet the criteria, and you have to establish that. But if you do, there’s no discretion to unilaterally refuse for reasons that aren’t established by the legislature, by Parliament.
Senator Seidman: I will continue with Senator Cordy’s question, please, because I was also going to ask you about this.
I think what we heard is that these individuals — however few they are — are bypassing the ordinary criteria for immigration. I’m trying to understand actually what the criteria are. If I’m understanding the complexity of what I’m hearing correctly and digesting it correctly — I’m not sure I am — it could be merely a written statement. The application could be merely a written statement, and as long as the person then satisfies the 365 days, the minister “shall” grant citizenship. Could you help me understand the specific criteria for this individual?
Mr. Brouwer: Sure. I will leave it to my colleagues to add, but in terms of the application process, it is — to be very clear — more than just a simple statement. There is an application form that needs to be completed with all of the information.
The purpose of that statement is just to confirm one of the criteria, which is the time in state care. The minister is not obliged to accept this written statement, right? As I understand the amendment, that’s gone from a “must” to a “may.” So the individual will still need to demonstrate that they are who they say they are. They will need to demonstrate how long they have been in Canada. I assume there is a biometrics process, as there seems to be for everything in immigration, but they can rely on a written statement if the minister thinks that’s good enough. They can rely on that written statement to establish the one fact of having been in state care for the requisite period of time.
That’s my interpretation of what this bill does. I think there have been a lot of questions or concern about whether or not people are just writing “I qualify” and handing it to the minister, and suddenly they are citizens. That is certainly not the case.
As a practitioner, I can tell you that filing these applications is time-consuming and complex, and they get sent back if they are not complete, if information is missing or if there’s a gap in time when you are setting out your history.
Unfortunately, from our perspective, it’s a lot more complicated than simply handing in a piece of paper.
Senator Seidman: I’m sorry to interrupt you, but I’m using my time rapidly here. It is true that on page 3 about the written statement, it changes the language to “may,” but on page 2, it doesn’t. It says, very clearly: “The Minister shall grant citizenship to any person who (a) makes an application for citizenship; . . . .”
Mr. Brouwer: That’s right. And who qualifies.
Senator Seidman: So, if somebody presents whatever criteria are listed in this bill, but there are other extenuating circumstances that are not in this criteria list, the minister has no discretion. The minister “shall” grant citizenship regardless of what other criteria there might be in the background.
Mr. Brouwer: From our perspective, yes.
Senator Seidman: Okay.
Mr. Brouwer: Like all other citizenship and immigration applications, if you meet the criteria, you must be accepted unless there is some other factor that is listed about which Parliament has said, “This is a reason to say, no.” Then the minister can say, “no.”
Senator Seidman: It’s what is in the legislation that’s absolutely critical.
Mr. Brouwer: Right, that’s what decides it.
Senator Seidman: Thank you.
Ms. Mosher-Kuczer: Can I comment? There is a really nice grid on IRCC’s, website about adoption, laying out who qualifies for adoption and what they need to prove. I’m happy to provide a copy to the committee.
It outlines what an adopted person under subsection 5(1) would need to prove, and it mirrors exactly what is in this bill. Somebody who has been adopted by a Canadian also is not subject to, for example, the criminality provision. They still need to meet all the other eligibility requirements.
Senator Seidman: Thank you. It’s just that this isn’t adoption, and this is an adult, so to me it’s a different situation from adoption.
The Chair: The Library of Parliament will send out that criteria so everyone has it. Yes, Mr. Brouwer?
Mr. Brouwer: Just to be clear, the adoption provision can be applied for by somebody who is an adult as well, in the same way that this can.
From our perspective, looking at the two provisions, they mirror the requirements very closely — the pros and cons.
The Chair: Thank you.
Senator Osler: Thank you to the witnesses for being here today. I will direct my question first to Mr. Loeb, and then if there is time, any of the other witnesses should feel free to answer.
We had heard from Senator Pate and others about examples of individuals — you mentioned this — who did not know they were not citizens until they ended up in the legal system. Can you provide some comment on how citizenship by grant addresses this issue to the same degree that automatic citizenship would? The amendment now makes it citizenship by grant versus automatic.
How would that address the situation of those young adults who found themselves without citizenship once they were within the legal system?
Mr. Loeb: I think the process by grant will still be successful in achieving the aims we’re trying to achieve. Even though now it’s by grant, if they are able to satisfy these various criteria, they will be granted citizenship. It’s essentially achieving the same goal by a bit of a different avenue to address some of the concerns that have been raised, and I think that it makes sense to do it this way.
We have already heard a little bit about how this is similar to or analogous to the access to citizenship for someone who is adopted as a minor by a Canadian. I really do think that is the most analogous example because it’s about a point in time.
Someone who is adopted by a Canadian citizen at the age of 10 can apply for citizenship at the age of 50 regardless of whether they are a permanent resident, regardless of criminal admissibility, because at the point in time that they were adopted, they were a minor. Similarly, at the point in time someone goes into state care if they are a minor, they should have access to citizenship even if they are 50, in the same way as someone who is adopted by a private citizen. They are being essentially adopted by the Canadian state. That’s why we feel they are very similar and why we feel a grant, which is the same as in the adoption process, is appropriate and achieves the goals that we’re trying to meet here.
Senator Osler: Thanks. Are there any other comments from the other witnesses?
Mr. Brouwer: I certainly can’t improve on that.
Senator Osler: Thank you.
Senator Pate: Thank you to the witnesses. I can’t lose track of the fact that today is International Day for the Elimination of Racial Discrimination and this is a discussion we’re having. I want to first ask you to confirm my recollection. I’m older, and so you may have a better recollection, but sometimes this is being described as a loophole versus my recollection when I was working on these cases was this was a gap created by the removal of an appeal process that used to remedy this before people would be deported. If there were a deportation or a notification provided, my recollection is I would hear from people, we would then get the process in motion to appeal that, and usually that would be remedied at that point.
Once the appeal provision was removed by the government, it made it all the more desperate a situation because exactly what you described, Mr. Loeb, happened to far too many people. It wasn’t a huge number, but far too many people were deported unless we could get a humanitarian claim in advance, but usually that was too late because the first sometimes they heard about it was when they got the deportation order in jail.
So this is actually correcting the removal of a right, I would argue, and I’m still concerned — and you heard my question to the officials — that the purpose of this bill was to stop the government using the failure of child welfare authorities to fulfill their parental obligations to gain citizenship.
If the proposed amendments to the bill are accepted, can you walk me through how a person who has been convicted — including of an indictable offence — goes to prison, and then learns they will be deported will be able to apply for citizenship in order to avoid deportation? Can you walk us through that process?
Mr. Loeb: On the premise of your question, yes, there is much more limited access to the immigration appeal division. That is a change. It’s not gone altogether. It depends on the circumstances, but it is a far more limited remedy now following changes, I believe, in 2012. So yes, many fewer individuals have access to the Immigration Appeal Division, or IAD, than they would have 12 years ago. Prior to that, it had been even broader, but it’s been gradually restricted.
Senator Pate: Okay.
Ms. Mosher-Kuczer: Many more people fall under serious criminality now because there’s been an expansion of those provisions. Whereas driving under the influence, or DUI, wasn’t serious criminality before, now it’s a deportable offence, and we know how easily that happens.
Mr. Brouwer: Not to suggest that access to the IAD was everything it needed to be, but certainly it was significantly better than now where it is drastically limited.
In terms of your second question, the individual you’re describing who is serving out their sentence and realizes or discovers that they are not a citizen, they would apply in the same way anyone else under this bill would apply. They would file the application, assuming that we find them and they find counsel. That’s a whole separate issue.
But they would be eligible in that circumstance to apply for citizenship, and that would be processed. If, while that application was in, and they completed their sentence and CBSA found them and started to try to put them on the removal track, they would need to demonstrate that they had filed the application, and that would halt the removal until that application had been decided.
If I can just briefly comment, CBSA was commenting that just filing an application regardless of its merits will automatically stop somebody’s removal, and Madam Chair, you mentioned that there are stays in other situations where someone files an application. Absolutely that’s the case. I’m surprised that the witnesses were unable to identify any, but we can. One is an application for a pre-removal risk assessment. The mere filing of the document stops removal. The filing of an application to the Federal Court to challenge a refusal by the Refugee Appeal Division automatically stops your removal. There are many other circumstances, so there’s nothing novel here.
If there’s a concern about the staying of removal for a non-valid case, the response, obviously, is for immigration to devote the resources to process the applications quickly. It’s not that complicated, in my submission.
Mr. Loeb: If I could just add very quickly to that, the situation the individual from CBSA was speaking about earlier, concerns that maybe an application is submitted at the eleventh hour, but a person can submit this application at any time they are eligible. I think a lot of people will have applied earlier and it won’t be a situation wherein it’s done at the eleventh hour. It will already have been in process. We are talking about a certain small number who will be applying at the end, and regardless, the minister will control the timeline of that application. They can prioritize applications and deal with them on a priority basis if needed and say, “You do not meet the criteria. We are refusing this application,” and then any stay of removal will be brief.
That’s only if it’s been filed later in the process, but it could very well have been filed much earlier.
The Chair: I have a bit of confusion which perhaps my colleagues share with me. This is around the criteria for an application under subsection 5(3), and yet you have alluded to other criteria they must meet that are not in this bill. Could you clarify those for us?
Mr. Brouwer: I’m sorry; I didn’t understand the question.
The Chair: You have said they have to meet other criteria outside of the written application.
Mr. Brouwer: No, there are no criteria outside of what’s written there.
When I was talking about the process not just being a piece of paper, I’m saying in order to demonstrate that you meet the criteria that are set out in the bill, you need to complete applications and file the supporting documents. That’s all I was talking about. This bill, subclause 5.3 as it’s written, as I interpret it, is the beginning and the end of what you need to demonstrate that you meet in order to qualify for citizenship.
The Chair: So it’s not the 100-page citizenship application? It’s a written statement?
Mr. Brouwer: No, it’s still an application. Presumably, it’s whatever kind of application — I don’t know what the form looks like for somebody who has been adopted and is applying in that situation.
Ms. Mosher-Kuczer: It’s relatively similar.
The Chair: And this will all be determined in the regs?
Mr. Brouwer: Yes, absolutely.
[Translation]
Senator Mégie: I want to thank the witnesses for their clarifications.
Do I understand correctly that all applications for citizenship have to go through your offices? If they go through your offices, then the required documents must include the $600 fee charged.
If this bill is passed, how will it affect this $600 fee? I don’t think that wards of the state could afford it. In the case of adopted children, the adoptive parents have to pay the $600; so far, we agree.
Once the bill is passed, what will change for them? Will they still have to pay the $600? As senators, we can’t introduce a bill that generates expenditures for the government. What’s going to change? Are we going to improve things for them by getting rid of the $600? I’m putting the question to you.
[English]
Ms. Mosher-Kuczer: In regard to the $630 fee, my understanding is that a request would be made for a waiver of that fee within the regulations. I would note that the government has promised in the last two elections to get rid of that fee for absolutely everybody. It would be fair to level the playing field to remove the fee for absolutely everybody, but if that were not the case, then I think it would be very fair for the government, who is the parent of these children, to absorb the cost of the $630 fee.
Mr. Brouwer: I think we are all on the same page. They should not be required to pay the fee. It’s not required to put that waiver into the bill. I’m not a parliamentarian. I wouldn’t think that would turn this into a money bill, but the IRCC has full authority to grant waivers.
[Translation]
Senator Mégie: Thank you very much.
[English]
Senator Moodie: We have heard that this bill is really just seeking just outcomes, legal solutions to remedy injustices. Thank you for raising and addressing systemic racism in the criminal justice system, which I fully concur with.
A concern was raised earlier here in this discussion that somehow the bill may be allowing for bypassing the ordinary criteria of the immigration process. You have also raised the question of the parallels or the equivalency with the adoption process and the adoption legislation. How do you respond to that powerful concern that this bill will allow people to bypass?
Mr. Brouwer: I suppose any time you are looking at a remedy for an injustice, you may be looking at creating special measures that people who haven’t experienced that injustice won’t have access to. Looking at the people who are affected here, to suggest that they are getting some great benefit is a little bit incongruous. We are talking about individuals who have gone through, for the most part, really horrific experiences, where the state has failed to do what it should have done sometimes for years with respect to the kids in their care. This provision simply brings them to the place that they should have been had justice been done at the outset.
From my perspective, this is not bypassing or some exceptional grant of generosity. It’s seeking to remedy the harm.
Senator Moodie: Thank you.
Mr. Loeb: You raised the issue of adopted minors in your question. I wouldn’t classify it as bypassing. I would ask: How do we put them in as close a position to adopted minors? That’s who they are closest to. This application process is closest to paragraph 5.1(1), which is the section regarding adopted minors.
I would say it’s not bypassing. It’s putting it as close together as possible with those particular applicants. It’s putting them on par with adopted minors. It’s not bypassing anything.
Senator Moodie: Thank you very much.
Senator Jaffer: Thank you very much for being here and being so supportive of this bill. I want to ask you first, Mr. Loeb, why are you supportive of this bill? What’s important to you about this bill?
Mr. Loeb: We bear a collective responsibility, speaking for myself as a Canadian citizen. The individual I talked about in my opening remarks, it is a failure of all of us that someone has to live through a litany of so many different types of hardships and traumas, end up in the child welfare system and not have the steps taken to get them citizenship by the time they age out. Then the same state taking away permanent residence when they didn’t get them citizenship to begin with and then deporting them back to a country that is foreign to them.
I think that’s unjust. Personally, as a Canadian, I want to see that injustice remedied. I don’t think it’s right, and, as a Canadian, it weighs on my conscience. It should be fixed, and this bill fixes it.
Senator Jaffer: Thank you. Would anyone else like to add to that?
Mr. Brouwer: Like Mr. Loeb, we have clients who are directly affected. We regularly encounter people who have been served with removal arrangements, and it is the first time that they have come to realize that they don’t have Canadian citizenship. They have never considered — sometimes over the course of decades in Canada — that they don’t have the same legal status as all of their peers that they have grown up with.
It’s thinking about the look on their face or the shock when they call and ask if this is really true. It’s that circumstance. This can’t be in a country like Canada.
Senator Jaffer: I said the written statement earlier, but, obviously, to be an attested statement, and if it were wrong and was fraudulent, citizenship could still be taken away. It’s not something you can do fraudulently and get away with citizenship. Is that correct?
Mr. Brouwer: That’s correct. Fraud, of course, always vitiates an application, for sure.
Senator Jaffer: What do you understand is in loco parentis, wherein the government takes the place of a parent for these children? What does that mean? Any one of you can answer.
Mr. Brouwer: I will start and then let others jump in. From my perspective, the government is stepping into the role of parent, taking on the same responsibility that a parent would have for the well-being and protection of the child. It’s because in this case, it’s the state that’s doing it and then failing to take the step that any responsible parent, with all the information, would be taking.
Senator Jaffer: If I understand, the state is not taking on the responsibility that a responsible parent should while it’s put itself in the position of a responsible parent. Then the state, which didn’t do its duty, is deciding to deport them. Am I correct? The same state.
Mr. Brouwer: The same state. Absolutely.
The Chair: Mr. Brouwer, we have focused a great deal in this panel and others on minors who age out of care and fall into criminality of one kind or another, but to be absolutely correct, we are talking about all minors who age out of care, whether they fall afoul of the criminal system or not. Right?
Mr. Brouwer: Right. We don’t have a provision here explicitly requiring that they have —
The Chair: Exactly. I just want to set the record straight.
Colleagues, this brings us to the end of our witness testimony on Bill S-235. I wish to thank our witnesses many times over. You have been called many times, and no doubt we will see you again sometime on another bill, hopefully.
Senator Cordy: Could we get a transcript?
The Chair: Colleagues, you will be getting a couple of things. You will be getting a transcript, and you will be getting, from our Library of Parliament Analyst Ms. Mayra Perez-Leclerc, the requirements of the adoption of the minors who are able to gain citizenship by adoption, hopefully with some kind of comparison that will help us bring the two into one way of thinking about it.
(The committee adjourned.)