THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Wednesday, May 1, 2024
The Standing Senate Committee on Social Affairs, Science and Technology met with videoconference this day at 4:17 p.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.
[English]
The Chair: Senators, before we begin, I would like to remind all senators and other meeting participants of the following important preventive measures. To prevent disruptive and potentially harmful audio feedback incidents during our meeting that could cause injuries, we remind all in-person participants to keep their earpieces away from microphones at all times. As indicated in the communiqué from the Speaker to all senators on Monday, April 29, the following measures have been taken to help prevent audio feedback incidents: All earpieces have been replaced by a model that greatly reduces the possibility of audio feedback. The new earpieces are black in colour, whereas the former earpieces were grey. Please only use an approved black earpiece.
By default, all unused earpieces will be unplugged at the start of a meeting. When you are not using your earpiece, please place it facedown in the middle of the round sticker that you see in front of you on the table, where indicated. Please consult the card on the table for guidelines to prevent audio feedback incidents.
Please ensure that you are seated in a manner that increases the distance between the microphones. Participants must only plug in their earpieces to the microphone console located directly in front of them.
Colleagues, these measures are in place so that we can conduct our business without interruption and to protect the health and safety of all participants, including the interpreters. Thank you very much for your cooperation.
My name is Ratna Omidvar. I am a senator from Ontario and the chair of this Standing Senate Committee on Social Affairs, Science and Technology. Before we begin, I would like to do a roundtable and ask senators to kindly introduce themselves, starting with the deputy chair of the committee.
Senator Cordy: My name is Jane Cordy, and I’m a senator from Nova Scotia.
Senator McPhedran: Marilou McPhedran, independent senator from Manitoba.
Senator Seidman: Judith Seidman, Montreal, Quebec.
Senator Burey: Sharon Burey, senator for Ontario.
Senator Moodie: Rosemary Moodie, Ontario.
[Translation]
Senator Cormier: I am René Cormier from New Brunswick.
[English]
Senator Bernard: Wanda Thomas Bernard, Nova Scotia, Mi’kmaw territory.
Senator Ross: Krista Ross, senator from New Brunswick.
[Translation]
Senator Mégie: I am Marie-Françoise Mégie from Quebec.
[English]
Senator Pate: Kim Pate, and I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabe.
Senator Jaffer: Mobina Jaffer from British Columbia.
The Chair: Welcome, Senator Ross. Today we are proceeding to a clause-by-clause consideration of Bill S-235, An Act to amend the Citizenship Act and the Immigration and Refugee Protection Act. I would like to welcome back — just in time, I hope — officials from Immigration, Refugees and Citizenship Canada, or IRCC and the Canada Border Services Agency, or CBSA, who are with us in the room today.
From IRCC: Uyen Hoang, Acting Director General, Citizenship Policy; Gayle Leith, Senior Policy Analyst, Legislation and Program Policy Division, Citizenship Branch; Lauren Heyer, Counsel, Legal Services Representative; Andrew Roth, Senior Policy Analyst, Citizenship Policy; and from the CBSA: Derek Janhevich, Director, Inadmissibility Policy Division; and Jeff Robertson, Manager, Inadmissibility Policy Division.
To all the public service officials, thank you for coming back yet again. We really appreciate your time. Senators will have questions and they will direct them to you. We’re going to have to look across here, and if we don’t remember your name, maybe you can help us out there. We do have your names, but I’m not sure we can match the names with the faces. That’s what I meant.
Before we begin, I would like to remind senators about a number of points: If at any point a senator is not clear where we are in the process, please ask for clarification. I always want to ensure that we all have the same understanding of where we are in the process. In terms of the mechanics of the process, I wish to remind senators that when more than one amendment is proposed to be moved to a clause, amendments should be proposed in the order of the lines of the clause. If a senator is opposed to an entire clause, I would remind you that the proper process is not to move a motion to delete the entire clause, but rather to vote against the clause. I would also remind senators that some amendments that are moved may have consequential knock-on effects on other parts of the bill. It would be useful if a senator moving an amendment identified to the committee other clauses in this bill where this amendment could have an effect. Otherwise, it becomes extremely difficult for members of the committee to remain consistent in their decision-making.
Since no notice is required to move amendments, there could — of course — have been no preliminary analysis of the amendments to establish which ones may be of consequence to others and which may be contradictory.
If committee members ever have any questions about the process or the propriety of anything occurring, they can always raise a point of order. As the chair, I will listen to all arguments, decide when there is sufficient discussion of a matter or order and make a ruling. The committee, colleagues, is the ultimate master of its own business within the bounds established by the Senate, and the ruling can always be appealed to the full committee by asking whether the ruling shall be sustained.
I wish to remind senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote, which, obviously, provides unambiguous results.
Finally, senators, we are aware that any tied vote negates the motion in question. Are there any questions on the process so far? Hearing none, we should proceed to clause-by-clause.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-235, An Act to amend the Citizenship Act and the Immigration and Refugee Protection Act?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed
The Chair: Shall clause 1 carry?
Senator Jaffer: I have a few amendments to clause 1. Honourable senators, I respectfully suggest that if you follow this chart that Mr. Gavin Jeffray from my office has kindly prepared, which was on the suggestion of Nicolas Thibodeau from Senator Mégie’s office. A quick preview: The original bill is there. The bill with the proposed amendments, the specific amendment and the impact of the change are also there. If you have any questions, please ask.
The first amendment is labelled 235-124 and relates to clause 1 of the bill. Senators, you will notice many minor amendments being proposed to this bill. These minor amendments have come about because of the government’s suggestion of shifting the provisions of the bill from S-3 of the Citizenship Act to section 5. I will now explain each part of the amendment.
You may notice, as I go through them, many of the changes refer to the text that is already in the original bill. This is because the style in which amendments are produced by the Senate law clerk’s office.
I move the following amendment:
That Bill S-235 be amended in clause 1,
(a) on page 2,
(i) by replacing lines 4 to 8 with the following:
“1 The Citizenship Act is amended by adding the following after section 5.2:
5.3 (1) The Minister shall grant citizenship to any person who applies for it and who was ordinarily resi-”,
(ii) by replacing line 13 with the following:
“(a) the person resided in an institution — in-”,
(iii) by replacing lines 21 to 23 with the following:
“(i) a department or agency of the government of Canada or a province mandated with the protection and care of children, or
(ii) an agency appointed by a province, in-”,
(iv) by replacing line 29 with the following:
“(b) the person resided in or was maintained by”,
(v) by replacing lines 33 to 36 with the following:
“(c) the person was provided with services to improve their living conditions by an agency appointed by a province,”,
(vi) by replacing lines 42 and 43 with the following:
“(d) the person
(i) was not returned to the care and custody of their parent when any of the circumstances described in paragraphs (a) to (c) ceased to apply to that person, unless the return took place within 365 days of the date upon which the person reached the age of 18 years,
(ii) was subject to one or more of the circumstances described in paragraphs (a) to (c) for at least 365 days cumulatively, and
(iii) has not resided outside of Canada for more than 10 years since reaching the age of 18 years.
(2) The Minister may, in their discretion, after having reviewed a person’s particular circumstances, waive on compassionate grounds any of the requirements set out in paragraph (1)(d).”;
(b) on page 3, by deleting lines 1 to 11.
Senators, are there any questions?
Senator Seidman: Thank you, Senator Jaffer. Colleagues, I want to direct you to chapter 7 of Senate Procedure in Practice. Section (H) of that chapter concerns the admissibility of amendments and summarizes the rules and practices that may be taken into account when evaluating the receivability of amendments moved in committee. The 11th consideration found near the bottom of page 142 — that’s in our own Senate Procedure in Practice — says:
As a general rule, an amendment is inadmissible if it proposes to amend an act not being amended by the bill under consideration. Furthermore, according to the authorities, only those sections of the parent act that are being amended by the bill may be subject to amendment by the committee.
Senator Jaffer is attempting to amend sections of the parent act that were not amended by Bill S-235 as it was adopted at second reading in chamber. The committee may choose to make an exception to this general rule. A Senate committee has done so at least once before in 2009. But we should have our eyes wide open that this is an exception to the rule, and it is not in keeping with the usual practice.
Thank you for your attention. Chair, I leave it to you to advise whether these amendments are receivable.
The Chair: Thank you, Senator Seidman. I would like to hear my colleagues on Senator Seidman’s intervention.
Senator Pate: This entire bill was an attempt to fix an oversight that Senator Oh had wanted to try to fix with the original legislation. Given that Senator Jaffer has responded to the evidence that has been brought before this committee, it strikes me that it would be one of these opportunities. Thank you, Senator Seidman for pointing out the procedure where we should make such an accommodation, given that this is in response to the evidence that’s been provided. It is consistent with the intention of the bill, which was consistent with the intention of Senator Oh’s amendment back in 2016 as well.
Senator Seidman: Thank you. I’m just thinking of one single point. I am not speaking to the intention of the bill at all, which is very worthwhile. I am speaking purely to the Rules of the Senate, which are very clear. On page 142 —
Senator Moodie: Sorry, I’m hearing French on the English channel.
The Chair: Let’s get the French and English lines in their correct lanes.
Senator Moodie: The issue is not the language that is being spoken in the room. Interpretation was speaking French on the English line.
The Chair: Can interpretation intervene and do a few tests, please? Is French okay?
Senator Moodie: I’m not hearing anything right now. We need a test.
Senator Seidman: Maybe I’ll speak, and we can see if you can hear anything. Can you hear anything when I am speaking now? Can you hear English on the English channel?
Senator Moodie: I am hearing English.
The Chair: We are going to carry on. Senator Seidman, please.
Senator Seidman: What I did was read to you the question directly to the chair regarding the receivability. It was not a point of order, it was a question regarding the receivability of the bill for the reason that it doesn’t cohere with the rule that is very clear. It says that only those sections of the parent act that are being amended by a bill may be subject to amendment in committee in clause-by-clause.
In this case, what’s happened is that this bill, which concerns subsection 3.1 of the Citizenship Act is now doing away with that and is amending another section, section 5.2, and according to the Rules of the Senate, a committee can’t do that.
It is clear, but in putting forward the history, I think it is only fair to say that the committee can choose to make an exception. There is precedent for an exception. I am being completely transparent about this. We should have our eyes wide open and know that, in doing this, we are making an exception to the Rules.
The Chair: Thank you so much, Senator Seidman, for that clarification. Does anyone else want to weigh in?
Senator McPhedran: Thank you. I just wanted to ask whether Senator Jaffer or Senator Pate has already spoken to this — could you say a bit more about the impact of this change and how it connects to the purpose of the bill?
Senator Jaffer: This is the first time I have heard of it. I have not studied what Senator Seidman has provided. She has been very transparent; I appreciate that.
What I understand is that it is still within the bill. It’s the immigration bill, and it is about a child in care. I don’t accept what Senator Seidman is suggesting, but I don’t think that she was expecting a dialogue, she just wanted to bring this to our notice. I appreciate Senator Seidman for doing this, but I don’t even think it is an exception. I think it is still within the bill.
Thank you, Senator McPhedran, for giving me a chance to speak, but I think we’re still within the bill, because it is still the citizenship bill and it is still within the sections within the bill.
The Chair: Thank you, senators. My understanding is that section 3 in the Procedure in Practice says that notwithstanding your citing of the Rules, it is possible for a bill to undergo significant amendments. I think you agreed to that in committee, provided that the text reported back to the Senate continues to respect the decision of the Senate at second reading. That is, the amendments do not violate the principle or scope of the bill.
I believe that with the advice I have received from the law clerk, we are still within the lane of where we started at second reading, and therefore, even though the process has been slightly more circuitous than we had expected, we are still on the way to addressing the key concern that the bill raised. You might be choosing a different pathway, and we can certainly speak about it at the report stage should we get so far.
Senator Seidman: Thank you, chair and thank you for your ruling on the receivability of the amendment. I fully respect your ruling and certainly would not contest it.
I would like to say thank you, Senator Jaffer, for your tireless advocacy. I absolutely empathize and understand the intent of this bill and the dire situation of these young people in care.
That said, I have reservations, both substantive and philosophical, and you have heard me express them before all through this process as we have reviewed the bill. From the philosophical perspective, we are amending two major acts: The Citizenship Act and the Immigration and Refugee Protection Act. We’re amending both of those with little study, scrutiny and consultation. This will, inevitably, have unintended consequences for those two particular acts.
Personally, I don’t believe that major acts like this should be amended by a private member’s bill, and I have said that as well. It takes much more research and consultation than we as individual senators are equipped for. From the substantive perspective, the procedure of amending every single clause of a bill is unusual, and it does result in a lack of confidence that we are doing the right thing, at least from my perspective. For example, in a major change, an amendment to section 5 now moves from automatic citizenship to an application process. Fine. The amendment references an application and a letter, but — you can re-read the transcripts from our meeting — neither the sponsor nor the department could tell us what the content of either would be, the content of the application nor the content of the letter. So there are no criteria provided in this bill for citizenship. An application — but what does that mean? A letter — but what does that mean?
This is just an example of what has given rise to my confusion and concern, and I don’t think this is the right way to amend two very major acts in our country.
As a result, I will ask that every clause that we vote on is on division to reflect that I do not support the bill or the proposed amendments.
Thank you.
The Chair: Thank you, Senator Seidman. That was very clear.
Senator Jaffer: Thank you, Senator Seidman, for being who you are, transparent, and for bringing this out.
Obviously, I don’t agree with you. I also believe this bill has been studied thoroughly by many, but we have not often disagreed, but we have often agreed.
I appreciate your concerns, and I respect them. Thank you, senator.
The Chair: We will proceed with clause-by-clause consideration. Senator Jaffer, would you kindly continue? Senator Seidman, we will note that you are on division.
Senator Jaffer: The next one is on line 13. This is a minor formatting change from capital “A” to lower-case “a.” The changes to lines 21 to 23 — switch the capital “I” to lower-case “i” and add the text as you see on the chart there. The text is “mandated with the protection and care of children.”
Senators, this was added to ensure clear interpretation of the departments and/or agencies that the bill refers to. The only change to Part 2 is a minor formatting change to lower case iii.
The Chair: Would you kindly direct us to the page on the chart?
Senator Jaffer: It’s the first page. Sorry, I should direct you. I will from now on. Senators, are there any other questions?
Now, the next page, senators. I erred, Senator Omidvar; it was on the top line. I’m sorry. What I said was also on the next page — iii.
The Chair: Are we all on the same page? We are looking at the chart on page 2. Carry on.
Senator Jaffer: On the next page, line 29 is a minor formatting change from capital “B” to lower “b.” That’s also on the second page. The changes are made to lines 33 to 36 — switch the capital “C” to lower “c” and delete the text “when they are not residing by.” That’s on page 3 of the chart.
The Chair: Are we on board so far? Do we need further clarification? No, okay. Let’s carry on.
Senator Jaffer: The next one is — sorry, senators. I am lost. The last one was “by,” and the next one is amendments — lines 42 to 43. The previous ii has now become subsection (1), which includes a new paragraph reference — paragraphs (a) to (c), deleting the previous reference to clauses 1(A) to lower (c). Can everybody see that, senators, on page 3? It is the second line, second column. Can you see it, senator?
Then the text has been changed. It is “unless the return took place within 365 days of the date upon which the person reached the age of 18 years.” Senators, this has been added in order to allow parents who regain custody before the child turns 18 to have a reasonable amount of time to apply for citizenship.
Senators, is everybody with me? There is a new subsection (ii) that has been added, which states that the person was subject to one or more circumstances described in paragraphs (a) to (c) for at least 300 days, cumulatively. This was added to specify that the time spent in government care must be 365 days, cumulatively. Any clarification, senators? No?
A new section has been added — iii — which states the person has not resided outside of Canada for more than 10 years since reaching the age of 18 years. If you remember, this was one of the objections from the government — that they didn’t want it unlimited. So this was added to limit eligibility to those who have not been outside for more than 10 years since reaching the age of 18. Any questions, senators? No?
Part 2 is added, which states that the minister may, at their discretion, after having reviewed a person’s particular circumstances, waive on compassionate grounds any of the requirements set out in paragraph 1(d). The addition grants the minister discretion to waive requirements on humanitarian and compassionate grounds.
Senator Cormier: I’m a bit lost. Can you repeat what page we are on? Are we on the first amendment?
Senator Jaffer: Yes.
The Chair: The document we are looking at doesn’t have page numbers, and that’s a bit of a problem.
Senator Cormier: I know. So you are on page 3?
The Chair: We are on page 3.
Senator Jaffer: Any other questions? The final amendment to clause 1 of the bill deletes lines 1 to 11 on page 3, because with the shift from section 3 to section 5 of the Citizenship Act, individuals are now required to submit applications for Canadian citizenship, which eliminates any risk of being granted citizenship without consent.
Any questions?
The Chair: Senator Jaffer, are we —
Senator Jaffer: Clause 1 —
The Chair: This brings us to clause 1. If you have questions of the officials, they are here to answer them.
Let me remind us all where this started. This is to create legislation that would deal with the situation of minors in care who have aged out of the system who fall into criminality. They are then possibly due for deportation, and before they are deported or at the time of falling into criminality, they discover they do not have citizenship and, therefore, under the law, they can be deported. It deals with that particular subsection of the community we are talking about.
Senator Jaffer: I agree with you for the most part, but there are quite a number of people — and one of them was a witness here who has had no criminal record. She has been in the country for a very long time, and she doesn’t have citizenship. It is not only the ones whom you spoke about; there are others who don’t have citizenship. The challenge is they don’t have the documents. For example, this person who gave evidence, Ms. Abdi, she had been to 33 or 34 homes and had ended up with no documents. So to get citizenship is a challenge. Even though she has no criminal record and she has lived all this time here, she still doesn’t have citizenship. It applies to all who don’t have citizenship and children in care.
Senator Pate: I think most people here know, but perhaps for the public’s benefit, it is important to know that this is correcting something that many senators thought was corrected by the amendment that Senator Oh made in 2016. Those of you who were in the chamber at the time will remember him using examples of some cases that I had been working on, and he referenced them. He thought that what he was moving would fix the situation.
I explained to him how it wouldn’t meet those issues. Being a naive new senator, I worked with him on that amendment and then found out that people were not going to accept my amendment to his amendment and it would have messed up the bill. Everybody suggested — including the sponsor of the bill, Senator Omidvar — that we bring a private member’s bill to correct this issue, including Senator Oh.
Part of the history of how we arrived here is that now we are attempting to fix something that we recognized, even when we passed the bill at that time, needed to be corrected.
I think it’s important to point out that part of the reason Ms. Abdi found out she didn’t have citizenship was that her brother was criminalized. He found out that he didn’t have citizenship, and then they went back and found out that she didn’t have citizenship either.
I think we also have to look at the racism in this process. It is predominantly racialized children whom this applies to, who end up in the care of the state. Due diligence is not done, in my humble opinion, by many child welfare authorities, for whatever reason. The cases I’ve worked on where we have managed to get to citizenship overwhelmingly have been non-racialized children that we have managed to fix it.
This is to put into context what we are talking about. It is trying to correct something that many senators thought was being corrected by the amendment that Senator Oh made in 2016 and now Senator Jaffer is trying to fix it.
The Chair: Thank you, Senator Pate. In response to the concerns voiced by public officials at the last meeting, Senator Jaffer has put some guardrails around this proposal — one being 365 days in care, and the other being not having been outside of Canada for more than 10 years.
I would like to propose another guardrail. Therefore, I propose a subamendment, and you all have copies of it.
That the motion in amendment be amended
(a) in subparagraph (a)(i)
(i) by replacing “8” with “9”,
(ii) by replacing “resi-” with “resident in Canada on the day on”;
(b) by adding the following in subparagraph (a)(vi), after proposed subparagraph (d)(i):
“(i.1) has been physically present in Canada for at least 1,095 days before the date of their application,”.
This subamendment deals with two issues that came up during testimony. There were some concerns that the bill lowers the bar compared to other permanent residents who are trying to attain citizenship.
One of the criteria that permanent residents face is that they must have resided in Canada for three out of five years before they apply. My subamendment tries to bring this closer in line to this cohort. A person who was in state care before they could apply for citizenship would have to be a resident of Canada for at least three years, in addition to having been in care for 365 days.
This leads to the second reason for the subamendment. The government, during their last appearance, raised the issue of fraud. They presented a hypothetical of a person who came to Canada when they were 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, and at the age of 18 could qualify for a new grant of citizenship. This would be provided that they have lived outside of Canada for less than 10 years.
As we heard from other witnesses, this is an unlikely scenario. However, we want to maintain the integrity of the system. If the person has to live in Canada for at least three years before they apply for citizenship, that puts integrity into the system, reduces fraud and still provides a pathway for citizenship for children adopted by the state.
The lawyers before the committee believe that we needed to create a pathway for those individuals since they are the main community in sight. This amendment adds another guardrail to the amendments that have now been proposed by Senator Jaffer. So there are three guardrails: one, they must have been in care for 365 days; two, they must not have been outside of Canada for more than 10 years; and, three, they have to prove physical presence in Canada for three years.
Senator Pate: I think that’s fine. My understanding is that Senator Jaffer is fine with that. I do think given that there was an absence of evidence about the number — having worked with this population for many years, the likelihood of someone at age 17, who has just come into the country, being taken into care is remote to nil. I think that’s what you heard.
I want to ensure that’s on the record. I’m not opposing your suggestion, but I do think that without that kind of evidence, it becomes problematic when we keep trying to amend things to address remote hypotheticals — which, for me, underscores the potential discriminatory components that already are part of the legislative scheme.
The Chair: I’m responding to your comment, Senator Pate. We heard two different opinions on this. From the legal community and the advocates, we heard that this was a remote possibility. From the public officials, we heard that this could be a possibility. Therefore, I am proposing this subamendment.
Senator Ross: I’m trying to follow where your subamendments go. I have been able to follow Senator Jaffer’s amendments, but I can’t follow where that goes.
The Chair: Do you have the written version of the bill?
Senator Ross: Yes.
The Chair: It’s so tiny; I can’t read it. It goes right on top of page 2 of the draft amendments. It says, under paragraph (i), “the person was a minor who was ordinarily resident in Canada for 365 days . . . .” It removes that and follows with my amendment.
Page 2 of Senator Jaffer’s Bill S-235 amendments. On top of page 2, paragraph (i):
The Citizenship Act is amended by adding the following after section 5.2:
5.3(1) The Minister shall grant citizenship to any person who applies for it and who was ordinarily resi- . . . .
That’s where “for 365 days.” By replacing “resi-” with “resident in Canada,” and by adding, “has been physically present in Canada for at least 1095 days.”
Senator McPhedran: To be sure I understand, what you have just done is, essentially, read to us what your amendment would do to that section, how it would read, should we accept your amendment?
The Chair: Yes. It’s a little technical.
Senator Cormier: It might be evident. It means three years, including the 365 days?
The Chair: Resident in Canada for three years. Of those three years, at least 365 days would be in care. So it is not adding on to the 365 days.
[Translation]
Senator Cormier: The French version refers to replacing “a résidé habituellement” with “résidait habituellement au Canada…à cette date.”
[English]
The Chair: In Canada.
Senator Cormier: What is the difference between “résidé” and “résidait?” Just as a matter of clarification. I don’t know.
The Chair: Is there a difference in the English and French?
Senator Moodie: There is. Not in English, but in the French.
Senator Cormier: Not in English.
The Chair: In the English it says “by replacing “resi-” with “resident in Canada on the day on.” What does it say in French?
Senator Cormier: I was just asking if there was a clarification for that. It is not a big problem, I was just wondering why the tense of the verb changed. Did it mean something or not? If not, I’m fine with it.
The Chair: You are fine with it. Senator Ross, are you with us? Thank you.
Colleagues, we have an explanation on tense. The answer to Senator Cormier’s question is that the imperfect tense is used when you are not referring to a finite period of time. So the removal of the reference to the finite period of 365 days required the change from the future simple tense to the imperfect tense.
Senator Cormier: Okay.
The Chair: My grammar lessons are coming back to me.
Senator Cormier: Thank you.
The Chair: Imperfect tense.
Colleagues, for further clarification, we should really be referring to the act itself as opposed to — yes. Okay.
Do you have any more questions of me for the subamendment? If not, is it your pleasure, honourable senators, to adopt the subamendment?
Some Hon. Senators: Agreed.
Senator Cordy: Abstention.
The Chair: Thank you, colleagues. We now move to the amendment. Shall the motion in amendment as amended carry?
Some Hon. Senators: Agreed.
Senator Cordy: Abstention.
Senator Seidman: On division.
The Chair: On division, yes.
The Chair: Shall clause 2 carry?
Some Hon. Senators: Yes —
Emily Barrette, Clerk of the Committee: I think there is an amendment from Senator Jaffer.
The Chair: An amendment. We have another amendment from you on clause 2.
Senator Jaffer: Yes. Senators, I apologize.
First of all, there is an error, senators. The amendment page is labelled 235-3-3-20. It should be 235-2-3-14. That relates to clause 2 of the bill.
On clause 3 of the bill, lines 14 and 15, the proposed changes add the text “whether to grant an application made under section 5.3”.
This is in place of existing reference to paragraph 3.1, page 1, and replaces the word “must” with the word “may,” giving the minister discretion in deciding whether to accept a written statement from an individual attesting to their time in government care.
Senators, I am sure you will remember that members were uncomfortable with the word “must,” and so I have changed it to “may.”
On page 17, the reference to clauses (a) and (c) have been replaced with paragraphs 5.3 (1) (a) to (c). The change is also a consequence of the shift from section 3 to section 5 of the Citizenship Act. Those were the only changes, senators, to clause 2.
Senator McPhedran: I wonder if we could just have a brief explanation of the second change that you just referenced.
Senator Jaffer: The one about “may”?
Senator McPhedran: The second change.
Senator Jaffer: Which is about “may.”
Senators, I still have the opinion that it should have been “must.” This is not a normal application. These are not people coming from a strange land. The government is in loco parentis of these children and then adults. They have been in the country for a long time. I had that once the written statement has been — however, the Minister of Immigration sets out in the regulation, it then must be accepted, but I heard from the members here that they wanted it to be “may.” And so just to accept what my colleagues had said here, I changed it to “may” accept.
Senator McPhedran: Thank you.
The Chair: Shall clause 2 carry?
Senator Cordy: Abstention.
Senator Seidman: On division.
Some Hon. Senators: Carried.
The Chair: Yes, thank you. Shall section 3 of the act is also amended.
Senator Jaffer: Yes, I will. In section 3, section 50 of the Immigration and Refugee Protection Act is amended by adding the following — it says “follow” on the bill, and I am just adding “-ing” after paragraph (c) and (c)(i) in case of the foreign national who has applied under section 5.3 of the Citizenship Act until a final decision has been made on the application.
Senators, what it means is that if a person has applied for the application and the time is up, they should be given the time and not be removed until the application is heard.
Senator Cormier: In the French version of the amendments, Senator Jaffer, we are speaking about — in English, you say, “by replacing line 20.” We use the same number in French, but it doesn’t fit with the bill. It should be line 23. So there is just a modification that needs to be made there. You can check just to make sure, but when I look at the bill, it corresponds to line 23, not line 20, in French. Sometimes it’s more words.
The Chair: Since the chair has no French, we will get an opinion from the law clerk about clarifying this issue. Thank you, colleagues.
Okay, for comparing English to French, Senator Cormier, you are required to move a subamendment stating exactly what you did. Then we will suspend a bit until the law clerk gets a look, and then we will focus on it. So please go ahead.
Senator Cormier: I have to propose a subamendment, is that it?
The Chair: Yes.
[Translation]
Senator Cormier: Honourable senators, I move:
That the French version of the motion in amendment be amended in paragraph (a) by replacing “20” with “23”.
[English]
— by replacing line 20, and I mean in French.
[Translation]
I was talking about the French version. Is that clear? Thank you.
[English]
The Chair: Thank you, Senator Cormier. The law clerk will now wordsmith it so that we have it in front of us.
Colleagues, it is moved by the Honourable Senator Cormier:
That the motion in amendment be further amended in paragraph (a) by replacing (20) with (23).
The Chair: Is it your pleasure, honourable senators, to adopt this subamendment?
Some Hon. Senators: Agreed.
Senator Cordy: Abstention.
The Chair: Okay.
Shall the motion in amendment, as amended, carry? Clause 3.
Senator Seidman: On division.
Senator Bernard: I’m sorry. It’s hard to keep up with everything because of all the changes. Is that the motion where a senator is proposing —
The proposal of changing “must” to “may” —
Senator Cormier: We adopted it already. [Technical difficulties]
The Chair: That was clause 2.
Shall clause 3, as amended, carry?
Some Hon. Senators: Agreed.
Senator Seidman: On division.
Senator Cordy: Abstention.
Senator Bernard: I’m sorry. I missed it. Maybe I was sleeping — freezing. I didn’t support the change from “may” to “must.” I’m trying to warm up. I don’t support moving to “may.”
The Chair: Okay, so we are back at clause 2(3)(i). It says in the original version that Senator Jaffer proposed: “In determining if a person is a citizen under paragraph” — pardon?
Senator Seidman: We can’t go back. Senator Bernard can register that she wants to be against that, but I don’t see how we can go back to a clause that we already voted on as a committee.
Senator Jaffer: We didn’t vote on the clause as amended. We didn’t vote on it.
The Chair: We made a mistake, Senator Seidman. When I said “shall clause 2 carry,” I did not say, “shall clause 2 carry as amended.” For the new team here.
Senator Seidman: Okay, I take it back.
The Chair: So we are, by default, back on clause 2. I’m going to ask the question again.
An Hon. Senator: So it is okay, then.
The Chair: Shall clause 2, as amended, carry?
Should we have a roll call on this?
Ms. Barrette: Someone can request it.
The Chair: Is someone requesting it on this?
Senator Bernard: May I explain why I think we should remain with “must” instead of the change to “may”?
The Chair: Yes, please.
Senator Bernard: “May” may work — pun intended — with a sympathetic minister. We won’t always have a sympathetic minister. That’s why I prefer “must.” This is part of a broader issue with regard to children aging out of care, children being in care and the state not paying attention to details, such as citizenship. Therefore, it is important that “must” be the language we use, because “may” leaves it open, and when we leave it open, we are leaving it open for these children to continue to be neglected. That’s part of what is happening — the state neglect of the details of children’s lives, whereas if they were with their own families — their parents — they would pay attention to those details — or at least we would expect the state to do that. There are no national standards around this in this country, so it is left to individual workers in a system that is already overworked.
That’s why I would suggest we stay with the original language of “must” as opposed to the proposal of “may.” Thank you.
Senator Jaffer: I withdraw my amendment and go back to the original text of “must.”
The Chair: Senator Jaffer, clause 2 has more than just the one word.
So, colleagues, before we fall into complete disarray here, we have to vote on clause 2 — the subamendment that is proposed by Senator Jaffer — and we can have another subamendment to the subamendment. My understanding from the law clerk is — so, Senator Jaffer, are you amending your subamendment by removing certain paragraphs from your subamendment, those paragraphs being paragraph 2(3)(i)?
Senator Jaffer: Chair, may I suggest this: That in leaving the first part of the amendment, as Senator Bernard is saying — so in determining whether to grant an application made under subsection 5(3), the minister must accept a written statement by the applicant about the existence of any circumstances in paragraphs.
That is the amendment 5.3 (1)(a) to (c). That would be the only amendment. So keep the original text of “must,” and the only amendment would be 5.3(1)(a) to (c). That’s the only amendment in clause 2.
The Chair: I just have to make sure it’s procedurally correct, and I’m not sure about it. We will suspend and possibly come back with new —
Senator McPhedran: Before we suspend, may ask a question about procedure? I think there was a sense that we would probably complete clause-by-clause today. I’m just wondering if we have a backup plan.
The Chair: We have until 5:30. We have another 45 minutes. I think we can deal with it. Thank you.
Colleagues, we are ready to resume. We have a subamendment to the amendment proposed by Senator Jaffer. It is on clause 2. It deletes paragraph (a) completely, because that’s the paragraph that uses the word “may.” By deleting that paragraph, we revert to the original amendment, which uses the word “must,” but it keeps in paragraph (b), because there are corrections in terms of line numbers and paragraph numbers. So there is nothing substantive now in this subamendment.
Senator Ross: I have a question about the wording of “must accept” or “may accept” — maybe a clarification on how “accept” could be applied. A minister could “accept” as in “receive” something, but that doesn’t mean they actually approve of it or use it as evidence. I’m envisioning a court case where they say, “I accepted the letter, but I did not agree with it and did not use it as proof.” “Accepting” could mean two things in this manner.
The Chair: I’m going to ask the officials to explain it to us. I’m not sure about this, but my understanding is that “accepting” an application means processing it. I’m going to let the officials speak.
Uyen Hoang, Acting Director General, Citizenship Policy, Immigration, Refugees and Citizenship Canada: Thank you for the question, senator. The way I would read this — and I apologize if I’m not capturing the latest version — I understand it would say:
In determining whether to grant an application made under section 5.3 the minister must accept a written statement by the applicant about the existence of any of the circumstances in paragraph 5.3 (1) (a) to (c) as proof of that circumstance, unless the minister establishes on a balance of probabilities that the circumstance did not exist.
The Chair: Okay.
Senator Cormier: I remember the conversation we had about “must” and “may” was around the criteria taken into consideration to determine if the minister should say yes. Are there other considerations like the background verification, all that? By saying “must,” what latitude does the minister have in terms of examining either criteria, possible considerations? That’s my question.
The Chair: [Technical difficulties] We have interventions from Senator McPhedran and Senator Pate.
Ms. Hoang: The way it is written right now it is unclear in terms of what must be included as part of that statement in order for the minister to be able to fully assess whether or not the individual was in state care. In theory it could be a simple statement from an individual saying I, whoever, has spent 365 days in state care, and that could be considered to be the statement that the minister must accept unless he can prove otherwise on a balance of probabilities.
Senator Jaffer: This could be included in the regulations as to exactly what the written statement would be. Would I be mistaken about that?
Ms. Hoang: That could be the case, but currently the bill as is does not make any amendments to the regulatory section of the Citizenship Act that would allow us to do that.
Senator McPhedran: I understand but I have a question on that. Creating regulations is a power that a government has to a bill. If I heard you correctly, I heard you say there has to be some kind of empowerment clause specifically in the bill. You already have regulations. You already have the power of regulation.
Ms. Hoang: I would have to confer with my team, but from my experience in order to make regulations it must specify in terms of what type of regulations we would be allowed to make. In the current bill right now there is no reference to the type of regulations that we would be able to make with regard to what would be the criteria for what would be accepted in the statement.
Senator McPhedran: I will just say I have been involved in drafting quite a bit of legislation over decades, and I would like to ask for a legal opinion on that. It’s not my experience or understanding.
Senator Pate: Basically, what you have just confirmed is if the minister went to the province or territory, they would have the records, and then they produce and say they were never in care, that would be on the balance of probabilities. But the way it is worded if we go to “may,” is the person who might actually be in an institution has the responsibility to produce documents that they would not even have control over. So we have watered this down from a presumption and not even requiring an application, which was the original intent that Senator Oh and I were working on to now say they have to apply and it may not even be accepted, and if they can’t produce the documentation, it actually makes it a far more, I would say, onerous process than it needs to be, given that the state controls the documentation.
I can’t imagine a situation, having dealt with a lot of these, where when the state or the federal government asks for documentation from the province, they can provide it. The province has the documentation. They know who has been in their care or not. And if they can’t, that’s an even bigger problem.
Senator McPhedran: [Technical difficulties] It would be of the officials and also of the sponsor of the bill. Does anybody equate the word “accept” with the word “approve”? We are talking about “accept” here. Thank you. Do you equate the word “accept” with the word “approve”? Are they the same, interchangeable?
Ms. Hoang: I would have to consult with our legal terms team in order to ensure that is a consistent use in the way the Citizenship Act would consider this terminology, but at face value it could be used interchangeably. If you accept —
Senator McPhedran: Is that the intention? May I ask the sponsor, is that the intention?
Senator Jaffer: No, it’s not.
Senator McPhedran: Are you aware of any situation where they were used interchangeably as words?
Senator Jaffer: No.
Senator McPhedran: Thank you.
Senator Moodie: I want to confirm what I have heard from the question asked by Senator McPhedran. I have much more limited experience than Senator McPhedran in drafting, but we put through legislation a lot in this place, and we expect that the follow-up process will be regulatory in terms of what needs to be put in place to support the bill. We don’t empower that specifically in our bills. We talk a lot about what sits where, what sits in the legislation itself and what sits in the process after to create legislation.
I would really be concerned with your characterization that somehow this legislation needs to specifically point us in the direction of creating regulations and that because this is not there, that this is a problem.
Ms. Hoang: Senator, I would have to consult with my colleague, my legal team over there.
The Chair: As you consult with them, Ms. Hoang, perhaps you could clarify for me; there is a pretty specific set of regulation-making authority in the act. In the act, the last regulation-making authority says, “generally, to carry out the purposes and provisions of this Act.”
Could you clarify with your team whether that could apply and give us some comfort there? Thank you.
Ms. Hoang, do you have a response?
Ms. Hoang: Thank you, senator. I’m going to turn it to my colleague, Lauren Heyer, to provide a more detailed explanation on that.
Lauren Heyer, Counsel, Legal Services Representative, Immigration, Refugees and Citizenship Canada: Regarding the question about regulatory-authority-making that is in the Citizenship Act, there is one currently at section 27 and section 27.2. At this time, I would draw everybody’s attention to subsection 27.2(a):
The Minister may make regulations
(a) prescribing the manner in which and the place at which applications are to be made and notices are to be given under this Act and specifying the information and evidence . . . ;
So if the idea is the contents of how the application is supposed to look, it seems that, for now, there would be at least some level of authority to make regs. But we would ask — perhaps if there is more time — if we could just do a quick analysis and maybe get back to you on that.
The Chair: I’m looking at the particular subsection you mentioned. It seems to be general enough to apply to this bill. Colleagues, should we proceed, then? Are you satisfied with that? Okay, good.
It is moved by the Honourable Senator Jaffer:
That the motion in amendment be further amended by replacing the word “may” with “must.”
Is it your pleasure, honourable senators, to adopt this subamendment?
Senator Cordy: Abstention.
Senator Pate: Do you count abstentions —
The Chair: No, this is not a roll call vote. It’s just a voice vote.
Shall the motion in amendment, as amended, carry?
Some Hon. Senators: Agreed.
Senator Cordy: Abstention.
Senator Seidman: On division.
The Chair: Shall clause 2, as amended, carry?
Some Hon. Senators: Agreed.
Senator Seidman: On division.
Senator Cordy: Abstention.
The Chair: Shall the preamble carry?
Some Hon. Senators: Agreed.
Senator Seidman: On division.
Some Hon. Senators: Shall the title carry?
Senator Seidman: On division.
The Chair: Shall the bill, as amended, carry?
Some Hon. Senators: Agreed.
Senator Seidman: On division.
Senator Cordy: Abstention.
The Chair: Is it agreed:
That the law clerk and parliamentary counsel be authorized to make necessary technical, grammatical or other required nonsubstantive changes as a result of the amendments adopted by the committee, in both official languages, including updating, cross-referencing and renumbering provisions.
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Senator Pate: Yes. I think everybody received in both official languages —
The Chair: Do we want to discuss observations in camera?
Hon. Senators: Agreed.
The Chair: Agreed.
Senator Cordy: I wanted to talk about my abstentions, which can be done in the chamber and, I assume, also at committee.
I abstained on all the votes related to Bill S-235. I agree 100% with the premise behind the bill, and I congratulate Senator Jaffer for the incredible work she has done to assist children who are aging out of care. However, as I said a few weeks ago at this committee, I’m really uncomfortable that we are amending the Citizenship Act and Immigration and Refugee Protection Act in a private member’s bill without being fully aware, in my belief, that there are unintended consequences that might occur. Thank you.
The Chair: Noted.
Senator McPhedran: Can I just understand why we have to go in camera for the observation that everybody has seen? What is so secret and special about them?
The Chair: We always do go in camera, because observations get discussed in camera in a different way. Therefore, we will suspend and then go in camera.
(The committee continued in camera.)