Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 22 - Evidence, September 28, 2000 (a.m.)
OTTAWA, Thursday, September 28, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which
was referred Bill C-16, respecting Canadian citizenship, met this day at 9:40
a.m. to give consideration to the bill.
Senator Gérald-A. Beaudoin (Deputy Chairman) in the Chair.
The Deputy Chairman: Honourable senators, I call the meeting to order. We
shall resume the study of Bill C-16.
Our first panel of witnesses is Ms Milena Protich, from the Serbian Orthodox
Diocese of Canada; Mr. Ajit Sahota, from the World Sikh Organization; and Ms
Anne Lowthian, executive director of the World Sikh Organization.
Ms Milena Protich, Chancellor, Serbian Orthodox Diocese of Canada: Honourable
senators, the diocese has submitted a brief for your review. I will not repeat
too much of what is in there.
I am a Canadian-born child of immigrant parents who value their citizenship
in this country greatly and also a lawyer with 16 years experience at the bar. A
large part of my practice involves citizenship and immigration areas.
I would raise one concern that is not in my brief, but which on reflection,
our diocese has asked me to raise. That is, the change that requires residents
of Canada to be narrowly defined in terms of physical presence. Had that been
the requirement 10 years ago, when our diocesan bishop came to this country, he
would still not be a citizen. As a result of the nature of his work, which
involves extensive travel to consult with other churches across the world, he is
absent from this country more than 50 per cent of the time. Yet, when he is here
he works hard. He visits the country from one end to the other. He has been
instrumental in establishing new churches and in bridging gaps between existing
ones. He is a credit to this country. However, on the basis of strict physical
residence, he would not be eligible to become a citizen.
I have a client who is an international accountant. He has formed a Canadian
company to review the books and records of oil companies in the Far East. They
trust him, they hire him. He generates a large amount of revenue for this
country, but again the nature of his work requires him to spend extensive
periods of time abroad. He owns businesses here. He lives here when he is not
travelling on business. He has children who are in school here, who have married
here, who have their own children here. He is clearly involved with the
community, understands the nature of this country, and ought to be a citizen.
Again, because the definition of "citizen" is so narrow, he would be
excluded. I respectfully submit that there should be some mechanism to allow for
consideration of travel when it is for the purposes of one's profession or
Another client of mine is a doctor who studies in the United States. The time
he spends studying in that country is excluded under this definition. In my
respectful submission, that definition is drafted too broadly. I know that the
clause is meant to weed out people who have no connection to the country, but
surely there must be a middle ground between having no connection, and having a
real connection that requires, because of work, school, or other genuine
circumstance, one to leave this country for the benefit of our economy and our
The issues that I have raised in my brief, and about which the Serbian
Orthodox Diocese feels very strongly, concern the clauses dealing with
revocation and annulment orders, and with public interest and national safety
prohibition orders. They are largely procedural, although there are some
systemic issues. They are the same for each clause, so I will summarize them
My first concern, and the concern of the diocese, is whether such a decision
should be made by a political or judicial body. In our respectful submission,
the Federal Court should make the decision, with appropriate rights of appeal,
rather than a minister in in camera, government-in-council sessions. The nature
of the decision-making is judicial in nature and not administrative, legislative
or policy-making. That is more appropriately the role of our judiciary than of
our political branch.
We have grave concerns about the standard of proof. When the minister
exercises her decision, and when the Governor in Council exercises its decision,
there is no requirement to meet any specific standard under the present draft.
They must simply be satisfied. It is a subjective standard. There is no
objective component to it, no requirement of reasonable standard or
satisfaction. There is little in the way of criteria to guide this broad
In our respectful submission, at every level of decision-making in these
intrusive and harmful proceedings, the standard should be one of without a
reasonable doubt. If there is some reluctance to go that far, except in the
court, there should at least be a specified standard and not a broad discretion.
The difficulty with such a broad discretion is that it encourages different
results for different people. That ought not to be so.
In the clauses dealing with revocation orders and procedures, we have
difficulty understanding what a "material circumstance" is. What does
that mean? How is it defined? Is it objective or subjective? It is a question
not only of fact, but also of law. It is an issue in other statutes on which
courts have differed substantially.
Subclause 16(3) of the bill refers to a "presumption." That
effectively shifts the burden to the individual to demonstrate that where there
was concealment, citizenship was not obtained as a result of it. In our
respectful submission, it is an unfair shifting of the burden and that language
should be defined.
As well, the grounds set out for revocation should be modified by the word
"knowingly." There should be some scope in the act to discount minor
breaches. I have dealt with many citizenship applications where people simply
cannot remember when they entered the country, or when they left the country.
They do the best they can. The way this is written, that could be a false
representation. Surely the bill should only refer to actions that are done
knowingly and go to the heart of the citizenship grant, not inadvertent
A serious concern in all of these clauses is what information does the person
who now must defend their citizenship receive? There is no requirement in any of
these clauses that the person be given the minister's report and the supporting
documentation. It is a fundamental principle of our system of fairness, not only
in our courts, but in any area where our rights, privileges or benefits may be
subject to review, that procedural fairness should apply. The ultimate heart of
procedural fairness is knowledge of the case you must meet and a full and fair
opportunity to respond.
Without knowing what is before the minister when the minister makes a report,
people are hamstrung. They are hamstrung first because it is the power of the
state against the power of the individual. The state has enormous resources; by
and large, the individual has fewer. In addition, the state has all the
information, and there is nothing in this bill that requires the minister to
apprise people of it.
In our respectful submission, it is a key barrier to having a fair,
transparent process. Clause 12 of this bill says that all citizens, whether by
birth or by naturalization, should have the same rights. A person should not be
stripped of that citizenship without having a full and complete opportunity to
know what is alleged against him or her, and consequently to respond.
As well, there is nothing in this bill, particularly in the revocation
clauses, that requires the minister to refer a report to the court once it has
been received. We presume, but again that is not made plain in the bill, that if
she does not refer, she cannot report to the Governor in Council. If a person
about whom a report is made is given 30 days in which to answer it, surely the
minister should also be given a time frame in which to either fish or cut bait.
These types of proceedings are very stressful to individuals, to their
families, and to their communities. There should be some time limit within which
the minister must refer, or wind the matter down if she is satisfied that the
explanation is reasonable.
There should also be some limit on the minister's ability to bring the same
matter forward repeatedly. There is no such provision at the moment. We have
grave and substantive difficulties with the privative parts of some of these
clauses and the complete lack of any resort to the judicial process in two of
I am currently handling a case. In my practice of law, I have won; I have
lost. That is life, but I have never felt betrayed by the system. In this case,
a tribunal told a man that an issue which could have excluded him from this
country was no longer before it. He then presented the rest of his evidence. The
tribunal then gave a decision based on the very grounds that it had said was not
an issue. That is a clear error of law.
The minister's representative at the Federal Court Trial Division agreed that
it was a clear error of law and that leave to appeal should be granted. An
honourable justice of the Federal Court of Appeal dismissed the appeal without
reason. There is no remedy for that. There is no doubt that that is a complete
and utter miscarriage of justice.
Indeed, that concept in the Citizenship Act and the stay provisions were
recognized by Mr. Justice Robertson of the Federal Court of Appeal in the
decision last year of Panchoo v. Canada. That decision said that there should be
some residual supervisory jurisdiction to protect us from a case of the
"sleeping judge." In other words, there should be some protection in a
case where there is a clear, patent miscarriage of justice.
In our respectful submission, there should be some provision, even if it is
narrowed down to requiring leave to be granted on specified grounds. There
should be some basis on which leave would be allowed.
Finally, I will comment on the minister's position in the clauses dealing
with the Federal Court Trial Division judicial review of the public interest and
Judicial review exists as a remedy now. In order to work effectively, there
must be a tribunal process first, because a judicial review looks at the process
of a tribunal. It looks at the record of the proceedings and decides whether it
was in the tribunal's jurisdiction or not. It decides whether the tribunal erred
in law or not.
There is no such process in this bill. There is provision for the minister to
choose what to disclose and to make a decision. The ability to act of the
claimant who seeks judicial review, and who bears the burden of bringing a
record to the court on which it can make a decision, is limited by the bill
itself. The way in which this bill is framed gives little credence to the basic
presumptions that all are treated equally and that rights of citizenship are not
to be withdrawn except in a patently fair and open manner.
If there are any questions, I would be happy to respond.
Ms Anne Lowthian, Executive Director, World Sikh Organization: I would like
to thank the honourable senators for providing us with an opportunity to
contribute to this process. My name is Anne Lowthian. With me is my associate,
We represent the World Sikh Organization of Canada, which has made
representations to the Senate and the House on a variety of occasions, and on a
variety of issues, for over 15 years. We have seen a Sikh community 400,000
strong through everything from dress code amendments to changes in immigration
policies and multiculturalism policies.
Each time we have made a presentation, we have made it a point to remind our
friends of what we have contributed as a Sikh community and as a religious
minority community in Canada for over 100 years. Our primary goal today is not
so much to give a legal analysis, but more of an impact statement on the
suggested amendments to the Citizenship Act.
We wish to echo the concerns of the other non-governmental organizations that
have spoken to you already. We wish to give anecdotal evidence of many cases
where we feel that both prospective and established citizens will have all of
their civil rights abrogated by the process proposed in Bill C-16.
We have experience of cases where in camera hearings were used to determine a
subject's suitability for Canadian citizenship. We believe that all of these in
camera hearings are subjective adjudications that are outside the laws
establishing our rights and freedoms in this country.
There is often unquestioned acceptance of unsubstantiated foreign influence.
There is a presumption of guilt. The burden of proof rests with the individual
involved. We believe that this ignores the rule of law.
Many of our relatives and friends come to this country precisely because they
cannot obtain the rule of law in their country of origin. We seek to ensure that
Canada does not go down the same path that produced the refugees and the
immigrants in the first place. We feel that it is our duty to ensure that the
Citizenship Act does not allow elected officials of any kind to adjudicate
citizenship or immigration issues.
While we understand that the Minister of Citizenship and Immigration has had
these powers since 1915, we believe that the revocation of citizenship is so
important that it cannot rest in the hands of politicians. We believe that any
individual is subject to public scrutiny, but not political scrutiny.
We believe that it is entirely conceivable that a court might not hear all
the evidence that relates to a particular case. It may not be able to make a
balanced and fair decision, and individuals accused may not have the opportunity
to properly defend themselves.
We echo the concerns raised regarding full disclosure. There have been many
cases in our experience, based on CSIS evidence and issues of national security,
where individuals have not been allowed to either view or contradict evidence
against them. These people are placed at a clear disadvantage in obtaining
We do not believe Canadian laws work that way. We believe we afford citizens
and prospective citizens alike, equal rights before the judiciary. Therefore, to
take it out of the hands of the judiciary is to abrogate all those
responsibilities to the citizen.
One of our concerns is, at what point will we cease adjudicating whether I am
a Canadian citizen or not? I have been here for 34 years. My colleague, Ajit
Sahota, has been here for 35 years. Which one of us was born here, and when do
each of us have to cease proving that we are proud Canadians?
What is the intent of this law? We agree that we need to be very careful when
establishing eligibility. We do not want violent people in this country. We do
not want war criminals. We want a standard of citizenship that is second to none
in the world.
However, we must balance that with individual rights. Under those rights, we
must ensure that individuals can fully defend themselves and that they have
every recourse before their citizenship -- a valued gift -- is revoked.
We believe that to measure the fraudulent behaviour of an applicant based on
an interpretation of a balance of probabilities ignores standards of evidence.
The presumption of innocence, and the opportunity to defend oneself and provide
contrary factual evidence, are the building blocks of our democracy.
We have anecdotal evidence that many Canadians have suffered from this
concept of balance of probabilities, and have ended up deported,
"disappeared" or dead, based on unsubstantiated, untested and
undefended evidence presented to a variety of Canadian officials.
Therefore, we believe it is imperative that all cases concerning citizenship
and immigration should allow for judicial review at every stage. This means that
the right to appeal is guaranteed, that in camera sessions are not permitted
under any circumstances, and that the evidentiary burden is placed on the
prosecuting department. We do not believe that any minister or cabinet can be at
once the prosecutor, the mediator, and the adjudicator. It places too much of a
burden on individuals who do not have similar resources for defending themselves
against such charges.
We believe that the minister should experience the same due process of law
that every prospective citizen experiences. We believe that the government has
every opportunity to prosecute suspected criminals in Canada based on judicial
standards. We support that; however, we want to ensure that individuals have
similar rights to defend themselves in front of an impartial jury, whether it be
of their peers or a judge.
We believe that there exists no burden of proof on the government. They have
no established standards of accountability for any case that is presently
adjudicated, whether by the minister or by cabinet. How is a citizen supposed to
appeal? The appeal process is lengthy and costly and involves ministerial
reviews, cabinet reviews, judicial reviews, and all of the other mandatory
hoops. We believe that if there are to be policies to protect citizenship in
Canada -- to ensure eligibility of the applicant -- the same policies must be
applied to the people who administer those processes.
It is unacceptable to presume, based on legal interpretation of statutes or
on lengthy history of practice, that a process is constitutional or fair, which
is often the defence of these particular amendments that the minister offers. We
have had considerable experience in Canada of making Supreme Court challenges to
laws that do not consider the implications for the people involved. One need
only consider as examples, the definition of marriage, the definition of family,
religious freedoms, and safety and security issues, which were tested and
retested in our courts to more clearly define the standards by which we are to
measure such issues.
Our organization has challenged laws that, despite their legal validity, do
not represent fair and equitable justice for the individuals involved. We want
to ensure that there is a level playing field, so that one party to a dispute
does not have more or fewer resources than the other, does not have more or less
information than the other, and so that each party can be guaranteed equal
treatment under the law.
One additional point is that many prospective Canadians have had absolutely
no alternative but to use fraudulent means in escaping brutality and torture in
their countries of origin. Many have paid exorbitant amounts of money and even
sacrificed their lives trying to obtain what we take for granted -- being a
Canadian citizen. In some cases, they have had to use fraudulent means to escape
extra-judicial execution, which occurs in many countries. They come here for
respite and they come here with a dream of freedom from persecution.
These particular amendments do not guarantee that. This places the onus on
some citizens to once again prove to other Canadian citizens that they deserve
the right to be citizens. We feel that the onus should be the other way around.
We support measures intended to preserve and protect our nation, our shared
principles, our practices, and our laws. We hope that we can maintain a
commitment to these basic goals, while at the same time respecting the
individual circumstances and rights of each citizen who wishes to join us in
We believe that any type of immigration and citizenship review has not only
individual and national repercussions, but international repercussions as well.
We want to ensure that these considerations are not ignored in favour of
We are concerned about allowing a certain amount of absolute power. We know
that corrupts absolutely. We do not believe that that kind of power should rest
in anything but a tribunal. We do not believe that the minister or the cabinet
-- a politically influenced body -- should have the right to make these
decisions. We believe the judiciary has the sole responsibility, the standards
of evidence, and the trust and faith of Canadians to do that job.
That pretty much covers what we wanted to express. It is more of an impact
statement than a legal review. However, we can answer questions. Again, our
anecdotal evidence has value. We have had experience with individuals being
denied due process of law. Not only have they been persecuted in their country
of origin, but they have been persecuted here. We would like to ensure that does
The Deputy Chairman: Thank you. I understand your main concern is about the
mechanism proposed in the bill and the shifting of the burden of evidence. You
referred to that point.
You concluded from that that it is contrary to the presumption of innocence,
which is enshrined in the Canadian Charter of Rights and Freedoms. There is no
doubt about that. I question whether the shifting of the evidentiary burden is
contrary to the presumption of innocence in some of the cases. However, I
understand now that you have no doubt in your mind that this mechanism is
challengeable and should be changed.
Ms Lowthian: Yes. We believe it is inherently faulty.
The Deputy Chairman: Do you also conclude that such cases should be
restricted to the court system?
Ms Lowthian: That is correct.
The Deputy Chairman: That point has been made by many witnesses, but the fact
is that the cabinet has a certain role to play, as do the tribunals. We are
accustomed to using the court system to protect the rights and freedoms of the
I will open the debate.
Senator Fraser: I have a question for Ms Protich. Are you a lawyer?
Ms Protich: Yes, I am.
Senator Fraser: I am not. I noticed very early in your presentation that you
were talking about the need for the Governor in Council to be
"satisfied," and you said you were distressed that this was not more
narrowly defined. Have you done any research? I have the impression -- and it is
only an impression -- that this is not such an unusual formulation in
Ms Protich: The words "to be satisfied" are often used to denote
decision-making by a body, but how that is defined depends on the context, in my
submission. In this context, the bill lays out no criteria for the application
of that discretion.
For example, immigration decisions involve issues of
"humanitarianism" and "compassion," but again, the question
is whether the decision-making body is satisfied that the person has
demonstrated such and such. However, there are other factors. There are also
other types of statutes. When I look at the entire package, I get the impression
that the words that empower the minister or the Governor in Council are used
very loosely, with very little to narrow down the kind of decision that that
side can make. There is very little requirement for the minister to disclose
anything to the people who are defending themselves, other than, in some cases,
a summary of her points. There is clearly no obligation to disclose the report
or the information on which it is based.
In the clause dealing with the public interest prohibition, "public
interest" is not defined. We have a series of criteria in clause 28 of the
bill that says, "If you have done this, you are not acceptable; if you have
done that, you are not acceptable," which is fine, and by and large they
are reasonable conditions. However, the public interest prohibition says,
"Even if you meet every criterion, we can say public interest requires that
we not accept you." The ministry did publish a case-by-case analysis. It is
a 1999 document issued by the ministry that analyzes each one of these clauses
and compares it to the prior act. There they give an example, and state,
"This clause would be used when it would offend Canadians to accept an
individual," and they give the example of a Holocaust denier. Because that
is undefined, when a court examines it -- assuming you can find a mechanism,
because many of these clauses are absolutely prohibitive and the decision of the
Governor in Council is final -- the court will ask, "What in the act
narrows down the jurisdiction of the minister? What in the act gives the
minister some direction as to the discretion available?"
When you have such broad, undefined terms -- very little requirement for
disclosure; no right to face an accuser and give oral evidence in reply; no
obligation on the minister to even refer to a court; no obligation on the
minister if, in the consultation process, such as it is, the minister gets some
new information, to even tell you about it -- a court may conclude it was
Parliament's intention that the minister have a broad and unfettered discretion
to make these decisions as she sees fit.
I think that is the intent of this bill, and we believe when you are dealing
with something as fundamental as stripping someone of his or her citizenship in
this country, you need something more than the unfettered discretion of a
Senator Fraser: Because clauses 16 and 17 are a package, it seems to me that
the criteria that you say we need are right there: false representation or
fraud, or knowingly concealing material circumstances. This is not merely
stating that the minister must be satisfied that you belong to a religion of
which she does not approve. This deals with a situation where an individual came
here basically on false grounds.
Ms Protich: What level of false grounds? Let us look at false
representations. On your citizenship application, you are asked to detail every
time you have left and re-entered this country. For most people, that may be
problematic, particularly under the proposed new act, where there is a six-year
period in which you have to do that. Let us say you have made a mistake. That is
a false representation. Surely, that is not what this is aimed at, but you would
be hard-pressed to make an argument that that is not what the bill says. If it
included language such as "the minister is reasonably satisfied," then
the minister's power would be limited by an objective override. In other words,
it has to be objectively reasonable in the circumstances, rather than
subjectively, as a minister thinks fit. That is the point. You could use
language that would not greatly fetter the minister's discretion, but would
provide a signal to a reviewing court that decisions are to be analyzed as to
whether they are objectively reasonable, or simply politically acceptable. There
is a difference between whether you take the hit at the ballot box, if it ever
comes to that, or whether the nature of your decision-making is subject to some
I hope that has been of some help. It is a very thorny issue.
Senator Fraser: I am not sure I agree with you, but it has been an
instructive exchange. Thank you.
Ms Protich: It is an issue over which reasonable people have differed.
Senator Andreychuk: I am sorry I missed the first part of your presentation.
I intend to read it fully. My question is addressed to Ms Protich.
Your interpretation of clause 17 -- if I am out of context, you can correct
me -- is that the minister does not have to disclose the report upon which her
decision is based.
Ms Protich: Yes, that is my reading of it.
Senator Andreychuk: Is there any practice in immigration law or elsewhere
where you know this is done? What kinds of precedents are there? If the minister
is not going to provide the report upon which she made her decision, does she
have to give a summary? Or are you suggesting that she could even just give
notice that there was a report, without any disclosure of detail?
Ms Protich: How the minister will treat these clauses is still unclear. There
is a principle of statutory interpretation that the courts use, expressio unius
est exclusio alterius, which basically means that if you say something one way
in one place, and you do not say it that way in another place, you are deemed to
mean different things. If you look at the prohibition clause, clause 21, it says
the minister must give a summary of her reasons. Here in subclause 17(1), it
simply says the minister must not make a report unless she notifies the person
who is the subject of that report. Then the person is required to request a
referral to the Federal Court within 30 days. It is unclear from that what
record and what disclosure will be made.
It seems to me that when are you talking about fundamentally important
issues, there should be a clear code of practice. If it is the minister's
intention to disclose the entire record, then there should be no difficulty in
saying that. If that is not the minister's intention, then I think it is
important to ask why. How can people defend themselves if they do not know what
is in the report?
As part of my role as chancellor, I occasionally sit on church courts, which
often function like the minister in this statute. They have a lot of information
which they do not disclose to the person before the court, and that just galls
me. How can you assess the case? Names are whited out, so you do not know who
has made the comment. How can you argue about the veracity of the comment if you
are precluded from saying, "That is so-and-so. So-and-so has had a problem
with me since X"?
It seems to me that we pride ourselves in this country on full and fair
disclosure, on openness. Our judicial system is designed -- at least this is
what I have believed my entire working life -- so that our decisions can stand
the light of day because everything is on the table.
That is what makes Canada such a wonderful place. When we tell someone that
he or she is no longer deserving of citizenship, surely we have some obligation
to give that person a reason. That reason should be subject to public review.
Then potential applicants will have some idea of what the standards really are,
not what they are said to be. I do not know if that helps.
Senator Andreychuk: Ms Protich, did you touch on the burden of proof earlier?
Ms Protich: I touched on the standard of proof and the shifting of the burden
of proof in clause 17(3). My friend spoke about it in more general terms.
There are two issues. Is the standard of proof to be "reasonably"
satisfied or just generally satisfied? Is there a reasonable override of the
minister's power, or is it completely subjective? In reviewing the standard of
proof, is the test one of reasonable doubt? That is the test in most criminal
and quasi-criminal proceedings, and I think this process is more like a
quasi-criminal proceeding than a civil proceeding. The civil standard of proof,
which is the balance of probabilities, means 50 per cent plus one.
The other issue is in clause 16(3). We have talked about the language used
here, of knowingly concealing material circumstances, false representation and
fraud. That clause is called "Presumption" in the margin notes. Now
margin notes are not meant to be dispositive, but they do give some hint of what
is meant. I must confess I have read that clause over and over again, and I do
not understand it. Perhaps it is trying to say that a false declaration on a
citizenship application leads to a presumption that the applicant knowingly
breached the standards, and but for that, citizenship would not have been
granted. That would be consistent with the margin note. That would mean the
applicant must disprove that citizenship was granted on the basis of the false
declaration, rather than the minister being required to prove that the applicant
knowingly lied. A very significant burden is shifted by that clause, if that is
what it means.
Another way of reading the clause is as an attempt to define those terms, but
if that is the intent, I am lost. I do not understand that.
Senator Andreychuk: Are you saying that an applicant accused of fraud or
false representation has to show that the immigration officer or the citizenship
process did not use that false material fact to grant the citizenship?
Ms Protich: That is how I read that clause. That is consistent with its title
of "Presumption." If that is so, it is very difficult to successfully
defend against it.
Senator Andreychuk: Would that defence necessitate obtaining the original
departmental records? An applicant may have independent information as to what
went on in the initial citizenship process, but it could be 20 years later that
the charge is brought. How would the applicant get the departmental records
showing just how the citizenship decision was made?
Ms Protich: Could he or she get them even if they do exist? Each case would
depend on its own facts for proof. Those documents may be necessary to meet the
burden of proof, if that is how the clause is ultimately interpreted.
Ms Lowthian: We have big concerns in this area. We have already met with
people who have been accused of doing something wrong. We have been told that
the Department of Immigration does have a file on each accused person, but that
the file cannot be released under the Privacy Act. The government is insulated
from transparency by the Privacy Act and the national security issue. Meanwhile,
in that same process, individual rights are trampled on because the accused
cannot defend themselves appropriately. This is a primary concern for us as
The Deputy Chairman: Do I understand that this "presumption" in the
statute, which is a form of legal presumption, is contrary to the presumption of
innocence in the Charter?
Ms Lowthian: Yes. It places the burden on the individual, does it not?
The Deputy Chairman: It is a question of degree, of course. Not all shifting
of the evidentiary burden is necessarily against the presumption of innocence in
the Charter. If the shift is great, and there is no opportunity to rebut the
presumption, then it may be against the Charter.
The more I hear, the more it seems your thesis is that the clause goes
against the presumption of innocence. Are you going that far?
Ms Protich: I am a lawyer, so I do not tend to go that far easily. I never
second-guess the judges' decisions because I am usually wrong. There is a
possibility that the Charter could be breached on certain facts.
The Deputy Chairman: You raise the point.
Ms Protich: There may be facts on which the Charter is not breached because
the problem can be resolved in other ways, but in other cases, the argument may
be successful. The process might be defensible under Section 1 of the Charter.
That is why I hesitate. Sometimes a situation looks quite wrong at first blush,
but then Section 1 comes into play and takes care of everything.
This bill is drafted to give broad, unfettered discretion to the minister and
the Governor in Council. A court may very well look at the broad thrust of the
bill and interpret it as a clear intention to give overriding powers to the
minister. Therefore it is questionable.
Senator Andreychuk: When a minister has these broad powers of discretion,
accountability comes through the ballot box rather than through any due process
Ms Protich: I think that is right.
Senator Andreychuk: It is a question of faith in the government.
Ms Protich: It is also a question of knowledge. How does one know what has
happened? As my friend said, many things are not disclosed because of the
Privacy Act provisions.
Personally, as a lawyer, I would have less difficulty with the powers of the
minister and Governor in Council if there were greater transparency and flow of
information in the decision-making process. If this kind of adjudicative system
were balanced with full disclosure of all relevant materials, and with the
accused's right to appear with counsel and to make submissions, I would be less
bothered. Whether the process is through the Governor in Council or through a
delegate of the minister, it should be judicial or quasi-judicial in nature,
rather than very secretive.
An applicant has very little ability to get the information necessary to
prepare a defence. Who knows what is done with it once it has been compiled?
When these two problems are combined, no matter where one turns, the minister
has the power and the applicant must dance to her tune.
Senator Andreychuk: You were making the point that it was unfair. You were
being less legalistic and speaking more to the practical effect on your
organization. Some people have defended this bill by asking why people who have
been granted citizenship other than by birth would feel undermined or threatened
by this bill if they have done nothing wrong. They say this bill is really
geared to those nefarious people who subverted our laws to get here, and that
the average new citizen should not feel threatened.
Ms Lowthian: The threat comes not from being unable to defend oneself, but
from being unable to defend oneself fully. Suppose, for example, that I came to
this country and filled out an application using a wrong date or some false
information. I am not saying I should not be punished for that, but weighing my
right to citizenship should include the kind of citizen I have been. Am I
non-violent? Do I follow the laws of this country?
It is not a question of feeling threatened. I want to make sure, if the
minister says to me, "I think you came to this country by fraudulent
means," that I have every opportunity to defend myself against whatever she
accuses me of. I want all the information she has. I want to be able to say,
"I can prove I am a legitimate citizen and have a right to be here."
If I made a mistake, I will take my punishment, and that is fine. We are not
suggesting that those who came to this country illegally should be allowed to
stay. It is a privilege to be a Canadian. We are saying that the process has to
be fair and equitable and cannot be left to a discretionary power. It has to be
perceived as being unbiased. The way it is now, it is perceived as completely
biased. That is where the threat lies, not in making sure that every Canadian
citizen has the legal right to be here. That is fine. We agree with that. We
want to make sure the process is legal.
Ms Protich: If I could add to that, the same analysis applies when you ask
why you need all these procedural protections and rights if you are not a
criminal. If you have not committed a crime, you should not need to worry about
whether or not the Crown discloses its case to you. However, we all know that,
notwithstanding the best of intentions and a very good system, mistakes are
made. Only when you have due process can those mistakes come to light and people
have true justice.
Ms Lowthian: Again, it is a presumption of innocence.
Senator Pearson: Following up on that, do I understand you to say you would
not want to there to be any ministerial discretion whatsoever?
Ms Lowthian: I think it is a mistake to place the discretionary power
primarily in the hands of the minister, because there have been past instances
where the judgment and the information have been faulty. What evidentiary
standards do we have when it is up to ministerial discretion? If it is judicial
discretion, there are standards by which the evidence must be produced, tested,
and defended. There are no such standards with ministerial discretion.
Senator Pearson: I agree with that, but the minister noted that if you leave
it entirely to the judicial system, then all judgments are made on the basis of
law, and there is no room for humanitarian and compassionate considerations.
Ms Lowthian: However, when it comes to revocation of citizenship, you are
testing whether or not this individual lied or made false representations.
Senator Pearson: The minister could find that the person did lie, but for
reasons that you suggested. The legal system has less flexibility. It cannot
say, "I am sorry for you, and I am compassionate." It is similar to
the issue of drug testing at the Olympics and the Romanian who was stripped of
her gold medal. There was no discretion possible. A certain chemical showed up
in her drug test, and that was it. I would be concerned if there were no
Ms Lowthian: In my mind, laws are always technically interpreted based on
circumstances as well. If I can prove that I did not lie, or that I lied under
exceptional circumstances or something of that nature, the judiciary still has
discretionary power to weigh that information, based on how the legislation is
written. I trust a jury of my peers or a judge to balance and weigh the
information in an unbiased manner more than I trust a politically influenced
individual or group. There is too much flexibility there.
Senator Pearson: That is an ideological statement. We will leave it at that.
Senator Moore: Ms Protich, in your brief dealing with the public interest
prohibition, you state that a definition of "public interest" in this
context should be included in the bill, and that the breadth of this clause as
it now stands means there is no opportunity for a review of such a decision, nor
for an assessment of whether or not it is appropriate.
Ms Lowthian, I did not see anything in your brief dealing with "public
interest." I thought I might. I recall a situation in the mid 1980s,
involving the Right Honourable Joe Clark, when a newspaper alleged that the
World Sikh Organization was a terrorist organization. Do you have any comment
with respect to that vis-à-vis the public interest? That situation could, quite
foreseeably, fall under that clause.
Ms Lowthian: I agree. Two of the biggest problems our organization has
battled since its inception in 1984 are stigmas and stereotypes. Without
evidence and without proof, Mr. Clark wrote a letter and labelled us as
something. We opened our doors and said, "Scrutinize us completely. Provide
evidence. Charge us and prosecute us. Otherwise, do not mention it. We are not
terrorists. If you can prove we are, then we deserve everything we get.
Otherwise, how can you possibly slander us in this way?" Unfortunately, we
have seen cases where applicants were slandered by stigma, stereotype, and
foreign influences. Some countries do not like political activism, and the
political activists who come to this country and become citizens are targeted by
foreign nationals. It does happen. It is not unusual.
We certainly want to ensure that the public interest is primary. We do not
want terrorists. We do not want violent criminals. Nobody does. We want the
process to ensure that such people are kept out, but also that people are not
labelled as being something they are not. These are refugees seeking asylum.
They are being persecuted in their own country. That is why they come to Canada.
That is why they want to be citizens. They want the glow of freedom.
How do we adjudicate that? Do we adjudicate it based on fact, or do we
adjudicate it based on stigmas, stereotypes, labels, political influence, and
opinion? We want it to be tested. We want the evidence to be disclosed. We want
the evidence to be produced and defended. If, on the balance of evidence and
without reasonable doubt, it is found that an individual has committed these
crimes, then fine, that individual does not deserve citizenship. We have no
problem with that.
We cannot let influences like Mr. Clark colour decisions about a whole
community, about individuals from that community who apply. These are individual
cases and must be based on their own merits, and that is what we want to ensure.
Mr. Ajit Sahota, Executive Member, World Sikh Organization: I have been a
Canadian citizen for the last 30 years, and I work for the Department of
Agriculture here as a biologist. I have always been an upright citizen of
Canada, supporting all Canadian values. For the last several years, CSIS has
been piling up false evidence. Foreign governments are always fabricating
evidence, and it is piling up here. It is hidden under "national
security," so it cannot be produced. I have been asking for the last six
years, under the information act, to see the information in my file, but
everything is deleted for reasons of national security. They sent me a reply
about a week ago, and everything was blocked out. I am an upright citizen of
this country. There is evil torture taking place in India, and I have to speak
out against the people who are torturing and killing. It is a daily occurrence
in hundreds of places. People disappear completely after torture. We cannot even
speak about that.
I face difficulties in my daily life here. If I go to the United States on a
duty trip for the government, I am held up at the airport and delayed in getting
on my plane.
My colleagues will board the plane first and I will board at the last minute
because every item I have will be checked. This is how I have been harassed.
That is why I have been asking what is on my file to cause me to be scrutinized
Most of the evidence that CSIS has is hearsay. It is fabricated evidence from
foreign governments. If I apply for a visa, they will deny my request. If they
give me the visa, they will turn me back at the airport in New Delhi. Several
people from our organization have experienced this kind of harassment
Honourable senators, I am a Canadian citizen. Tomorrow I can be stripped of
my citizenship because of fabricated evidence against me. This is the kind of
situation we are facing. Most people who come here cannot even afford a lawyer
to defend them. Everything is done under the hidden requirements of national
security. This is an injustice happening in Canada. That is why we are here to
request that this bill be amended to allow for judicial hearings.
The Deputy Chairman: I wish to thank you for your presentation. I am sure
your concerns will be taken into account by all honourable senators when they
come to a final decision on Bill C-16.
Our next witness is Mr. Hudda, who is director of the Islamic Humanitarian
Mr. Shafiq Hudda, Director, Islamic Humanitarian Service: I will begin with
the name of God, the most merciful and compassionate.
Honourable senators, thank you for giving me this opportunity to share a few
thoughts with you. One of the disadvantages of being a subsequent speaker on an
issue is that many of your points have been made. I will try not to repeat many
of the arguments that have been put forward, although I do wish to highlight a
couple of them with your permission.
First, putting authority for the revocation of citizenship in the hands of a
cabinet minister is naturally subject to abuse. I would say it is a probability
rather than a possibility. I am not a lawyer, so I will not be able to speak in
legal terms. My assessment is based on the discussion that has been taking place
in Parliament, as well as discussions I have had in various cities in Canada.
The Islamic Humanitarian Service has offices in Vancouver and Edmonton and our
head office is in Kitchener, Ontario. We have active volunteers throughout
Canada. We have been attempting to assess the reaction of our members across the
We are very concerned about the degree of authority entrusted to one cabinet
minister. We have had good working relationships with various governments and we
do not want to put a political stripe on any bill or initiative. However, to
entrust one individual with the authority to revoke citizenship is open to abuse
and quite dangerous.
As the name of the bill suggests, we do respect Canadian citizenship as a
privilege. It should not be an automatic right. One of the things that this bill
does is categorize citizens. It allows those who were born in Canada to be
exempt from the provision of this bill all together, while those who migrated
here are not.
I was born in Uganda, for example, but I have known no other home but Canada.
I was five years old when we were exiled from my country of birth and forced to
flee from the regime of Idi Amin.
The looming shadow that hangs over me is the fear that any time a government
changes, or some authority decides to levy some information against me or claim
that I was involved in a war crime in another country, or indeed that I was
involved in any crime, I could lose my citizenship. Canada may find itself in a
state of hostility with a nation whose people are fighting for freedom.They may
be involved in activities that are deemed to be criminal and destabilizing by
the dictator or the tyrant of the day. That is a reason for people to flee.
These people are then refugees and must be exiled because they have lost their
homes. Canada will take these people in, whether they are refugees or immigrants
from a third country. We have had examples of that throughout the Middle East,
Central America, South America, everywhere.
As a result of the hostility between Canada and that nation, these
individuals are welcomed into our country and granted Canadian citizenship after
the three-year wait and all the other requirements. If, hypothetically, the
situation changes in their home country and a government perhaps less hostile to
Canada takes power and relations change politically, diplomatically and
economically -- as we have seen in our recent relations with China -- what will
happen to those in Canada who were involved in the uprisings or supposed crimes
in the past? Suddenly, the countries are friendly and the government of that
nation can say that this or that person was involved in crimes, or this person
committed an act of destabilization, or whatever. With this bill, from a
diplomatic perspective, the Government of Canada would need to at least consider
the situation as a show of respect to the other nation. What will happen to
these people who have made Canada their home?
I mentioned in my summary that the United Nations has called Canada the best
country in which to live because it has provided security, love, comfort and a
multicultural dimension to all the people who have made Canada what it is today.
However, except for those who were born here, a threat always remains. I cite my
son as an example. He will never face that threat because he was born and
brought up in Canada. There is no possibility of his having his citizenship
revoked, whereas his blood father does face that threat. That could be beyond
our control because of something that may have happened, a change that may have
Instead of creating these categories and making some Canadians second-class
citizens, we are requesting all honourable senators to not allow discrimination
of this magnitude to pass through Parliament. We have no problem with criminals
having their citizenship revoked and being sent back to their countries of
birth. However, there must be a very careful study of what happened, why it
happened, and what were the circumstances in that country that forced them to do
what they did.
Therefore, if there were some sort of judicial review, even if it were
appealable to the Federal Court, that would satisfy our concerns on Bill C-16.
As it now stands, the 5 million-plus people who emigrated to Canada and made it
their home feel threatened.
One honourable senator said that if you have done nothing wrong, you have
nothing to worry about. However, at the time that people fought for their
country, which is a natural thing to do, it may not have been perceived as
wrong, but perceptions change. The country that was seen as hostile at that time
may now be seen as friendly.
I wanted to bring those concerns to your attention and I hope that they will
be considered in your deliberations.
Senator Pearson: Thank you for your presentation. You created an interesting
image of doing something illegal when under the age of five.
Mr. Hudda: You never know. A crime is a crime.
Senator Pearson: What you are saying cuts both ways. We have received
immigrants with open arms because we were engaged in hostility with the country
with which they were in conflict, and we have been saddled with people who have
not turned out to be model citizens.
I do not have as much confidence in the judicial process as some of my
colleagues, in that I feel strongly the need to allow for compassion. I believe
that there should be a capacity for making a humanitarian judgment, despite the
fact that someone lied or did other things they were not supposed to do when
they sought citizenship.
Mr. Hudda: I appreciate that. Without stereotyping the entire profession, I
do not believe that the judiciary is infallible. It is subject to errors, as we
have seen from various cases that have been re-opened here in Canada.
I suggest that one individual not be given that responsibility. Even a
tribunal within cabinet would be preferable to one individual or the judiciary.
We must also remember that a minister can be swayed if an issue is
politically charged. Former U.S. Senator Paul Findley wrote an interesting book
called They Dare to Speak Out in which he highlighted how lobby groups were able
to completely annihilate a congressman's sense of right and wrong through the
fear of not being re-elected. That is a natural fear that must be addressed in
this proposed legislation.
As the judiciary is not infallible and is subject to error, so is the
political arena. The political arena may be more prone to that because
politicians are elected. They may have to make decisions that are more publicly
palatable than right.
Senator Fraser: I, too, was struck by your reference to having come here from
Uganda. We all remember when Uganda and Kenya expelled whole communities and
deprived those people of their citizenship. Britain also abandoned those people.
I have enormous sympathy for your concerns. More than anyone else around this
table, you have personal reasons for saying that we need all the guarantees we
However, as a matter of principle, I would like to ask you two things. First,
is it not necessary for a country to retain some political discretion to guard
against genuine abuses? Second, is not your ultimate safeguard essentially the
political will of the people rather than any system of laws? Any country can
change its laws. If things go really badly, it seems to me there is no country
in the world that cannot change its laws.
Is it not going down an avenue of false hope to say that if we write
absolutely everything into the law, we will be all right?
Mr. Hudda: To answer your first question, I would say that a country should
definitely have the right to make discretionary decisions about who will be
allowed to stay and who will not. Any nation can exile citizens for certain
reasons and send them back to their original homeland.
As a result of my discussions with colleagues across Canada, I am concerned
about the extent to which one individual is responsible for making that
Senator Fraser: It is generally not the minister; it is cabinet.
Mr. Hudda: I would like it to be specified very clearly that the cabinet must
agree unanimously, or by an overwhelming majority, or something to that effect.
For example, the Minister of Immigration may, for some reason, have a bias
against the country where I was born or with which I have been affiliated.There
should be some right of appeal. I should be able to go to another minister, for
example, for a hearing, rather than being at the mercy of a politically
As I said, if a certain constituency within a riding wants something to
happen at the national level, that minister will have no choice but to support
that. Otherwise, he or she will not be elected the next time around. That is a
genuine fear for our elected leaders. We see this on a regular basis in the
United States. The judges are elected. They do not necessarily do what is right.
Rather, they may do what will get them re-elected, and I find that to be very
The Deputy Chairman: I wish to thank you very much for your presentation. You
referred to a very important point and it will be taken into account.
Mr. Hudda: Thank you for the opportunity.
The Deputy Chairman: We have a panel of three members from the Parliament of
Canada, Mr. John Bryden, Mr. Telegdi, and Mr. Benoit.
Mr. John Bryden, Member of Parliament for Wentworth--Burlington: I will begin
by saying that I have never been so thankful as an MP that the Senate exists.
The Deputy Chairman: We applaud that.
Mr. Bryden: The oath of citizenship contained in this bill strikes at the
heart of who we are as Canadians. I have been distressed by this issue. I voted
against my government on this proposed legislation because of its failure to
create an oath that I feel reflects who we are as Canadians.
I became involved because I was a member of the Citizenship and Immigration
Committee in 1985. At that time, we heard testimony time and time again from
witnesses who said that a new oath of citizenship should reflect the principles
that we hold near and dear as Canadians.
Those principles are enunciated in the Charter of Rights and Freedoms. They
are recognized and known worldwide.
I left that Citizenship and Immigration Committee and went on to other
things. When the citizenship bill came to the House a few years ago, it
contained an oath that did not reflect what Canadians told us during my
experience on the committee. An oath appeared in Bill C-16 that was manufactured
somewhere in the bureaucracy. Parliamentarians did not make it, and they did not
even debate it. Suddenly, I found myself facing a fait accompli, an oath that I
thought was deficient in many ways.
It says: "I promise to... observe our laws and fulfil my duties and
obligations as a Canadian citizen." I do not need to tell honourable
senators that simple obedience to the law of a country is not a protection of
fundamental rights, because the law can change. History tells us of citizens who
obeyed the laws of a country. Those laws required citizens to do things that
history also tells us were totally unacceptable.
There are principles that unite us as Canadians. These principles have been
enunciated. After looking at the oath as proposed in Bill C-16 for the first
time, I and several of my colleagues prepared a rough draft of a Canadian oath
of allegiance containing the principles that we thought should be enunciated. I
put that before you today.
The issue is not whether the Queen should be referred to in the oath. That is
a separate issue. Indeed, the House of Commons has dealt with that. The House of
Commons obviously feels that the Queen should remain.
I have given you two different versions. I have given you the text of the
oath I proposed to the House, and that which is contained in the bill.
I propose another oath. I do not want to say that only I propose it; the
citizens of Canada propose it. I am speaking as an M.P. who reflects the will of
the people that sent me to the House, and that indeed now brings me to a Senate
Those people believe that there are five principles that unite us as
Canadians: equality of opportunity, freedom of speech, democracy, basic human
rights, and the rule of law. There is no escape from that. You cannot initiate
laws in this land that fly in the face of those five principles. All Canadians
I cannot say to you more emotionally and more passionately how much I believe
that if we are to have an oath of citizenship, it should be one that has some
credibility with this place and with the citizens of Canada. It should not be
developed behind the scenes by functionaries coming to some consensus on what is
least offensive to Canadians. That is not what it is all about.
Finally, I would like to point out to you that the only issue, to my mind,
that is beyond the question of whether we are indeed Canadians united by the
principles that I have just enunciated, is whether or not we are prepared to
state in an oath of citizenship that we are united under God, and that we have a
sacred trust to uphold these five principles.
I was being particularly careful when I used that language. As all of you
know, there is a reference to God in the Charter of Rights and Freedoms. I
propose that the oath of citizenship reflect the Charter of Rights and Freedoms.
I believe that as long as the Charter preamble contains a reference to God, it
would be appropriate for the oath of citizenship to do the same. There is an
element of controversy here. I would prefer to say that Canadians are a people,
united before God, whose sacred trust is to uphold these principles. However, I
presented an alternative whereby Canadians are a people united by their solemn
duty to uphold the five principles of the Charter. That is an element you might
want to consider. Should you choose to submit an amendment to the House of
Commons that does indeed reflect the five principles of the Charter, they could
not refuse you. This issue strikes absolutely to the heart and soul of Canada,
and it has come this far because there has been no debate. This is why I am so
grateful that there is a Senate to give me the opportunity to create that debate
in the House, where there is the power to take action. Thank you.
Mr. Andrew Telegdi, Member of Parliament for Kitchener--Waterloo: Honourable
senators, during my younger days when I was in Political Science 260, I wrote a
paper on the validity of the Senate's existence.
Senator Nolin: What was your conclusion?
Mr. Telegdi: I said that indeed it should exist because we need a chamber of
sober second thought. Given that those were times of student unrest, my
conclusion was not necessarily popular. I do not know if my professor agreed
with me, because he only gave me a B plus. However, I am happy to report that my
opinion has not changed. I share the opinion of my colleague that the Senate
serves a wide role.
I think we missed an opportunity to involve the country from coast to coast
and come up with an oath that is truly Canadian. I do not oppose Bill C-16
lightly. One of my proudest moments occurred in 1988 when I was asked by the
Prime Minister's Office to be the parliamentary secretary for Citizenship and
My opposition is rooted in personal experiences. I escaped from a communist
dictatorship where the rule of law was subjected to denunciations, show trials,
and a reign of terror that resulted in the deportation of citizens in the dead
of night. I was 10 years old when I escaped from Hungary with my parents. We
crossed minefields to reach Austria. My stepfather, who adopted my brother and
me, is a Jew who survived the Holocaust and Nazi-dominated Europe. The
anti-Semitism that existed after the Hungarian revolution forced us to remain in
a refugee camp for Jews. I fondly recall leaving the refugee camp early each
morning to serve as an altar boy at the local Catholic church. I received two
shillings for each mass I served.
My experiences before coming to Canada are not unique, as many of the six
million Canadians who are citizens by choice had similar, or worse, experiences.
Our Canadian citizenship is part of our identity, and we take our citizenship
rights very seriously.
You have heard many presentations from people who represent groups that have
been victimized throughout our history because they were seen as
"inferior" in the Canadian mosaic. In studying the bill and examining
the flawed process for citizenship revocation, with no appeal, and therefore no
judicial accountability, I concluded that as far as my right to defend my
citizenship is concerned, I am a second-class citizen. The consequence of the
revocation process provided for in Bill C-16 is that all naturalized Canadians
-- Canadians by choice -- are at risk of losing their citizenship through a
flawed judicial process. By this I mean a process with no right of a judicial
appeal, and therefore no judicial accountability. I submit to you that a
Canadian citizen who is accused of obtaining his or her citizenship by false
representation, or knowingly concealing material circumstances, should have the
same rights as a person who has committed a crime while visiting our country, or
a refugee applicant who has been denied by the IRB. They should have the right
to appeal to the Federal Court of Appeal and to the Supreme Court of Canada.
The judiciary, despite its failings in the cases of Marshall, Morin and
Milgaard, is still our best instrument for achieving justice. It is the judicial
bodies, and not the Minister of Citizenship and Immigration, or the Governor in
Council, that are qualified to weigh evidence and pronounce judgment in such
cases. After all avenues of judicial appeal have been exhausted, an individual
could appeal to have the court decision reversed by the minister and the
Governor in Council on humanitarian grounds. The final act of revocation of
citizenship could then remain in their hands.
Further, the decision in such cases should be made on the basis of
"beyond a reasonable doubt." I agree completely with Alan Borovoy,
General Counsel, Canadian Civil Liberties Association, when he stated in a
letter to Minister Caplan that the law of Canada should first require a
consistent standard for making judgments of this kind, and that the standard
should be higher than a mere balance of probabilities. People do not pull up
stakes in one country and travel to another with ease. Relocations of this kind
are often accomplished through hardship. The acquisition of citizenship provides
some measure of sanctuary and security. Once citizenship is revoked in this
manner, the person becomes subject to forcible removal from this country. This
could happen after many years of life in Canada.
I will close by saying that there have been many dark periods in Canadian
history. These include the shameful internment of the Japanese, German, Italian
and Ukrainian Canadians, to name a few, during World War I and World War II, the
turning away of the boatload of Jewish refugees aboard the SS St. Louis, and
Canada's asylum policy towards Jews during the Holocaust.
If there had been a policy of "No Jews" in Canada when I arrived in
1957, I would not have been allowed in, because my stepfather was a Jew. Each of
these events, while morally wrong, was politically correct at the time.
Make no mistake, there was political support for them. There was also, I dare
say, a great deal of political support for turning away the boatload of Chinese
who recently came to our shores. I am proud of the policy that the government
adopted -- that the Chinese deserved due process -- and that is what I am asking
Let us improve this bill by doing what is morally right and leave the
decision of guilt or innocence to the institution of the judiciary, which is
most qualified to make that decision.
Mr. Leon Benoit, Member of Parliament for Lakeland: I agree in principle with
both of the presenters today. We should have had a national consultation on the
oath of citizenship so that Canadians could truly be involved in the process.
The most important required change to this bill is in the area of revocation
of citizenship. I ask you, in your wisdom, to change the bill to create proper
judicial accountability in this area.
This is not a partisan issue. In fact, if you look at the list of members of
the House of Commons, you will find that 47 members of Parliament were not born
in this country, and therefore could have their citizenship revoked by cabinet.
Senator Nolin and others asked the minister about it in committee, and she
responded that cabinet might choose to revoke the citizenship of someone who
brought dishonour to Canada.
I would suggest that, under certain circumstances, a member of the Canadian
Alliance might be considered by cabinet as bringing dishonour to Canada. In
other words, cabinet control could allow partisan politics to enter into the
formula. People could have citizenship denied or revoked without proper judicial
accountability, based on the fact that they were not born in the country. There
are nine members of the Canadian Alliance who were not born in Canada. It is
important that that clause be changed.
I wish to refer quickly -- and I know I do not have much time -- to three
other issues: citizenship at birth, the penalties under the bill, and
retroactivity, the last of which is extremely unusual, and according to one
Liberal member of Parliament, "un-liberal."
I will start with citizenship at birth. This bill continues the idea that
anyone who is born in Canada is a Canadian citizen. Different ministers have
made several statements on this in the past few years. The former minister of
Immigration said that despite recommendations, she made no changes to this
clause because there has been no research on how big the problem of citizenship
at birth really is. That minister and the current minister have acknowledged
that there is some abuse of citizenship at birth. There was the case of Mavis
Baker, as one example, who was allowed to stay in Canada because she had a child
who was a Canadian citizen. The child was born in Canada but the mother had no
status in this country. In fact I believe Ms Baker was in the country illegally
at the time, but she successfully used the citizenship-at-birth issue -- the
fact that her child was a citizen -- to stay in the country. That is one
The minister has acknowledged there are many problems. Having said that, she
does not really know how many. For that reason, she did not make the appropriate
change to this bill.
I will make several comments about the penalties in the bill. I must find my
notes from the debate in the House.
The penalties in clauses 39 and 40 should be much harsher. Hence, there
should be amendments. It would be much less expensive. You know the problems of
people-smuggling and people-trafficking. It came to the forefront last summer on
the West Coast, when about 600 people arrived by boat. In fact that problem
occurs every day at our airports. People-smuggling is quite widespread. Yet
under this citizenship bill, the penalties are very light. If someone wants to
get into our country illegally, obtaining false citizenship would probably cost
a few thousand dollars, whereas the cost for someone involved in
people-smuggling or people-trafficking would be $20,000 to $60,000. The
penalties should be more in line with that. There is nothing near that in this
The second point is that clause 40 refers specifically to penalties to be
faced by citizenship officials. I am concerned that citizenship officials, who
are in a position of trust, would only be penalized in the same manner as any
other person if they are found guilty of issuing citizenship falsely. That is a
real concern. Someone in a position of trust -- and I put forth amendments to
this effect at report stage and at committee stage -- should receiver much
We need that kind of control. Otherwise, we are going to find an increase in
falsely obtained citizenship. Hopefully, people-smuggling and people-trafficking
will be reduced.
I can see that my time is up. I will not get to the issue of retroactivity
unless I am questioned about it. I would certainly be happy to speak to those
issues if questioned.
In summary, the most important change that must be made to this bill is in
the area of revocation of citizenship. This is a very serious issue. We must
have proper judicial accountability in that area.
The Deputy Chairman: Thank you. We will come back to the points you have
raised. The statute also provides for imprisonment.
Senator Fraser: I usually try to avoid preambles, but I have a preamble to my
question to Mr. Bryden about the oath.
Yesterday I was at the ceremony to honour Holocaust survivors. I believe you
were there too, were you not? It was an extremely moving experience. These are
people who survived the Holocaust, came to Canada, and became wonderful
citizens, accomplishing many things.
There was a particularly moving moment at the end of the ceremony, when a
citizenship judge, who I believe was himself a Holocaust survivor, asked us all
to stand and repeat the oath of citizenship, those of us who were new Canadians
and those of us who were born here. As I was born here, and this was the first
time I had ever done this. A whole room full of people repeated the oath as it
now is, the present oath. As I did this, I found myself thinking that in a
sense, it does not matter what the oath says. What matters is what we do. I was
particularly interested, as I had just come from a meeting of this committee in
which we were discussing the new oath. Then I started thinking about what should
be in an oath. I did not realize you were going to be here today. There have
been various suggestions for including various elements.
I will set aside your reference to God, Mr. Bryden, and talk about your
second proposal, the five principles. I admire your desire to provoke a debate,
but I find myself thinking that the more precise you become, the more you
eliminate other possibilities or allow other things to be left out.
I cannot be sure that these five principles are indeed everything that should
be covered in citizenship. Are you not afraid that if we were to say, "This
is all you have to do to be a good Canadian," you might be opening the door
to a more restricted view of what it takes to be a good, participatory Canadian
Mr. Bryden: How can we be less than precise about "freedom of
speech" or "upholding the rule of law" or "belief in
democracy or basic human rights or equality of opportunity"? In fact, I
would actually challenge you to find any other terms that are equally precise in
reflecting what is in the Charter.
I observe that my colleague said that when the boatload of Jews was turned
back, it was politically correct at the time. I point out to you that presently,
Bill C-16 says merely, "Observe our laws." However, the real issue --
and we can be precise -- is upholding the rule of law. That is entirely
different from obeying laws.
Senator Fraser: The proposed new oath talks about respecting our country's
rights and freedoms, all of them.
Mr. Bryden: Rights and freedoms can be defined in a politically correct
Senator Fraser: It also talks of upholding democratic values, as well as
observing laws and fulfilling duties and obligations.
Mr. Bryden: One of the defences of the people who were tried and convicted at
Nuremberg was they were upholding the laws of the land and fulfilling their
obligation to obey the state. Canada and the western democracies matured
enormously as a result of what happened in the Second World War, and we continue
My colleague, Mr. Telegdi, and I are here together because we really belong
together on this issue.We passionately believe that you cannot compromise on
those principles. You can compromise on duties and obligations, and rights and
freedoms can be defined in terms of the rights of a particular ethnic,
linguistic, or religious group in a society, but you cannot get around equality
of opportunity, or any other of the five principles, which I will not repeat.
Senator Fraser: Let us single out, for example, freedom of speech. I, like
you, am a former journalist, and I think freedom of speech is the foundation of
much that we have. On the other hand, if we include freedom of speech but not
freedom of religion, freedom of opinion, freedom of association --
Mr. Bryden: It is a basic human right.
Senator Fraser: If those are basic human rights, then why not just assume
that freedom of speech is also included in basic human rights? Do you see where
I am going here?
Mr. Bryden: I appreciate that. You must look at these five things in context.
We have the Supreme Court and the rule of law to help us decide where freedom of
speech ends and equality of opportunity begins.
This is why you cannot have a democracy without freedom of speech. It is
impossible. You cannot have a democracy without the rule of law either, or
without equality of opportunity. All these things work together.
I was on a committee that heard from Canadians of all kinds of ethnic origin.
I asked every group the same question: What does it mean to be Canadian? The
answers reflected time and time again the kind of thing that my colleague, Mr.
Telegdi, said about fundamental freedoms and basic principles of human rights
that have been expressed in Canadian society, albeit incompletely from time to
time. I do believe the world now looks upon us as the country that reflects them
most completely. I do not understand why we cannot tell our children that. This
is not just about people taking the oath of citizenship when they become
Canadians. We should have an oath of citizenship that we can use in schools. Mr.
Harris proposed such a thing in Ontario, but there was immediate disagreement
because the current oath did not contain the kind of meaning that really
belonged in schools. I suggest to you that what is being proposed, based on
these five principles, is something that we would want our children to recite.
The Deputy Chairman: We could have a very long debate on this subject, but
there is one thing I must say right at the beginning. Human rights are
fundamental in this country. We have 400 cases of the Supreme Court of Canada on
human rights, in all areas of the Charter of Rights and Freedoms, including
equality before the law.
We are a country of the rule of law. This is the most important statement at
the beginning of the Charter. The word "God" has not been defined yet
by the Supreme Court, except that the Chief Justice did send a letter saying
what it might be, but we do not have any decision on that point. Obviously we
have freedom of religion and so on, but it is not the first time we have
referred to God in our constitutional system. There is no doubt about that.
I just say that because the debate may be endless if we start talking about
every possibility in human rights. As I said, 400 decisions in 15 years is quite
something. It is part of our heritage. The terms that may be used in the oath
are necessarily general because we cannot exclude anything of value.
Senator Cools: I have an addendum to the subject. Following up on Senator
Fraser's thinking, and your proposal, Mr. Bryden, where has the idea suddenly
come from that the oath is supposed to be a statement of values or a statement
of beliefs? This is all very new. An oath is about paying loyalty -- in other
words, submitting to the sovereign. In other words, the oath says, "I give
you the right, Your Majesty, to conscript me and send me off to war to fight for
you." This is a very new idea that an oath should be a value-laden
statement of belief. This is totally new. I have studied oaths for a long time.
Where does this come from? Mr. Bryden, you spoke about five principles. Some
people could have found six, others could have found three. If, for example,
Senator Andreychuk was going to be conscripted to go off to fight in a battle,
does Her Majesty really care what she believes? What Her Majesty wants to know
is that she will go off and fight.
Mr. Bryden: Senator Cools, if I may reply, what is new is that in the past
two decades, Canada has come to be regarded by the world as the repository of
basic human rights. I think the implementation of the Charter of Rights was one
of Canada's most wonderful accomplishments. All I am doing with these five
principles is reflecting what is in the Charter. I had a minor problem, as a
journalist, in boiling them down a little and compressing them. However, it
reflects precisely what is in the Charter.
New Canadians came before the committee of which I was a member. What is new
is that we have become a pluralistic, multicultural society in the last two
decades. We are no longer a basically anglophone or anglicized society that only
sees who we are in the monarchy and our British roots, or in our French roots.
Who we are is now reflected in the world. What unites us and makes us the
admiration of the world is what we say in that Charter.
I am simply saying that what we say in the Charter is what we should be
saying in the oath.
Senator Cools: I do not think anyone disagrees that Canada is a fine place to
live, although there are many people in Quebec who wonder if they have equality
of opportunity. I am concerned that we are taking an oath which has existed for
a specific purpose for some centuries now and trying to make it into something
else. The proposals in Bill C-16 give me a lot of anxiety.
Mr. Bryden: The people who came before the committee wanted an oath, but not
one that obligated them to go to war.
Senator Cools: That is what the oath of allegiance is.
Mr. Bryden: Then perhaps it is time we changed it. The witnesses really
wanted an oath that brought them into the Canadian family.
This oath also says that Canadians are a people. We are seen as a people by
other lands. We are a people not because of our ethnic diversity, we are a
people -- and this is how the world views us -- because we are united by the
principles enunciated in our Charter. An oath is no longer about a commitment to
go to battle and to lay down one's life for the country. Indeed, most Canadians
would believe that conscientious objectors are still good Canadians, even if
they do not put their lives at risk for the country.
No matter who we are, as Canadians, we believe in the Charter. I do not
understand why we did not have an opportunity to discuss that very issue in the
House of Commons and in the country. Here we are, having a last, eleventh-hour
Senator Cools: Chairman, it would be very interesting if the committee could
discern how an oath moved from being an oath to a statement of beliefs and
values. In court, a witness must take an oath, an affirmation, and calling upon
one's deity, to do a particular thing. At some point, we must address why this
burden is being imposed on the oath.
The Deputy Chairman: I must say that you are not obliged to take an oath in
many cases. You may make a solemn declaration. That has been the provision in
our law for many years.
Senator Andreychuk: This is a fundamental bill and I want to touch on two
areas, the oath and the process. This debate is only beginning, and as Mr.
Bryden said, it should have been ongoing in the House of Commons and in Canada.
A proposal to change the oath creates an opportunity to talk about what
citizenship means to all of us.
This bill focuses more on those citizens who came here, as opposed to those
who were born here. I was born here and only one clause speaks directly to me.
Mr. Bryden is saying that our values should be embodied in the oath. The
minister told us that she should have the right, with the Governor in Council,
to determine who should be denied citizenship because of the public interest.
The minister also talked about common values, those which we would all
accept.Mr. Bryden is on the right track when he says that the debate about
including those Charter values in our oath rightly belongs to the people of
Canada and not to parliamentarians. This legislative process has not allowed
Canadians to decide what citizenship means to them, and that fundamental debate
must take place.
Mr. Bryden: The matter was debated, though. The committee of 1995 heard from
numerous ordinary Canadians about what being Canadian meant to them. The debate
that is missing is the one that should have occurred in Parliament.
Senator Cools: When you say Parliament, you mean the House of Commons?
Mr. Bryden: You are quite right. I must say to the senators assembled that
this is the first time we have debated this in Parliament. I have spoken as an
isolated Member of Parliament, but there has been no exchange among my
colleagues in the House of Commons on this. Now we are at the eleventh hour. The
Senate has suddenly assumed a value for me that I never thought it had.
The Deputy Chairman: I think you are right.
Senator Andreychuk: Some witnesses who came here told us about opportunities
to present opinions on the Citizenship Act, including the oath, in the previous
bill, Bill C-63. Time passed, and a new bill, Bill C-16, came forward and the
witnesses felt they did not get to participate in a reflective debate.
Originally, citizens were asked how they felt about changing the Citizenship
Act. You are saying that people in 1995 had a fair and adequate opportunity to
come before the House of Commons for a full discussion?
Mr. Bryden: There is never a fair and adequate opportunity unless the House
of Commons itself debates an issue. You can conduct opinion polls; you can
consult with the citizens; the MPs can visit their ridings; but the House of
Commons must debate an issue.
This issue was not debated. This bill contains a version of the oath which
has never been debated.
I cannot resist pointing out one other thing. Mr. Telegdi and the minister
have both addressed the issue of basic human rights. The minister has said it is
very important to obey the law. Mr. Telegdi is concerned about the proposed
changes. Can you have an oath that says you must uphold basic human rights and
the rule of law? You can if you have an oath that says you should obey the law.
The minister has every opportunity to say, "Obey the law. This is the
law," but this oath is different and it is crucially important.
Senator Andreychuk: You are saying you did not have an opportunity to address
this matter in the way you expect in Canada?
Mr. Bryden: No, I refer to the House of Commons. I might have been able to
carry the day on an oath that contained the principles of the Charter had there
been a debate in the House of Commons, but there was no debate. The bill went
Now I am here discussing the matter in the Senate. The opportunity for debate
has passed. The only option left to you, senators, is to overrule what the
government has done and submit your own amendment, or reject the amendment that
is proposed. If you reject the amendment that is proposed, you merely go back to
a version of the oath that, I suggest, also does not reflect Canadian values.
Senator Andreychuk: Mr. Telegdi, I heard your speeches in the House of
Commons and here. You were the parliamentary secretary. If this question is
unfair, please advise me. This bill allows the minister to take away
citizenship. The minister has said these clauses create flexibility and
efficiency, and that the broad discretion in the hands of the minister is
fairer. If, in fact, the minister and the cabinet err, citizens can express
themselves at the ballot box.
You have put a lot of emphasis on the fact that you want the courts to be
involved and you want judicial accountability. I would like you to respond to
the minister's position that this discretion is, in the end, better held by the
minister than the judiciary.
As parliamentary secretary, you do not seem to have had an influence on the
government's position. Was there an opportunity to debate and discuss it?
Mr. Telegdi: Senator Andreychuk, as parliamentary secretary, I tried to do
what parliamentary secretaries are supposed to do, which is exert influence, if
you will, within the government. I received no response. I was not listened to.
I had one of the most miserable times of my life while wrestling with this issue
in the House. As parliamentary secretary, I am supposed to stand up and put
forward the position of the government. I spoke against the bill in committee on
April 13, which parliamentary secretaries are not supposed to do. I spoke
against the bill in the House on May 10, which again parliamentary secretaries
are not to do. I resigned on May 16 because I was going to vote against the
I was hoping right down to the eleventh hour that the government would
consider what I believed to be fundamental justice, that is, the right to
appeal. It is inconceivable to me that there is no right to appeal.
I used to work in the criminal courts with an organization by the name of
"Youth in Conflict with the Law," so I have a great deal of respect
for the courts. I worked there for many years. I actually started a Justice Week
so we could explain the workings of the court to the public. Too often, I think
people are critical of the judiciary because they do not know the facts. One of
my successes was to get the government to adopt the crime prevention and
community safety program across this country, and I have been involved in that
I have only found one instance of a judicial decision that is not appealable,
and that is in the small claims court in Ontario. If you have a claim under
$500, no matter how unreasonable the judge might have been, the decision is not
subject to appeal. I understand that, because we really do not want to spend all
our resources on appeals.
However, citizenship, and what it can mean to an individual, is an entirely
different matter, and that is why you have heard passionate presentations. It
really gets to the heart of people's identity. They are saying, "If you are
going to revoke citizenship, for God's sake, give us the due process of law. Let
us appeal that decision." This bill assumes that one judge at the federal
court is infallible and will not make a mistake on facts. Surely to God, cabinet
is not in a position to overrule a judge.
In my community -- and I will leave you a transcript of it -- we had one of
these war crime cases. War crimes were never proven, but the man was put through
a flawed judicial process. Now, it is not for me as a member of Parliament to
decide if the charges against him are correct or incorrect. From my office, when
I look out my window, I see the Supreme Court of Canada. There are nine Supreme
Court justices. They are the only ones who are able to make a decision that is
not appealable. Those people are not going anywhere else after they make a
decision. They are beyond political influence.
Senator Cools: Really?
Mr. Telegdi: That is what really defines justice in its truest sense. Now,
once the judicial process has found on the facts, then I will concede to the
minister the power to let cabinet make a decision on revocation on humanitarian
or compassionate grounds. However, the cabinet is not in a position to decide
whether that justice was right or wrong.
Referring back to the case in my community, it is the only case in this
country where the defence commissioned a retired superior court justice for the
Province of Ontario to act as an appeal court judge, because no such thing is
possible according to the act. Justice Salhany reviewed all of the evidence and
found that Mr. Justice McKay had no basis in fact or law for his finding. Now,
if I judge between two judges, and if the cabinet can judge between two judges,
certainly the appeal courts and the Supreme Court can.
There are not many cases, but revoking citizenship is important enough that
we ensure that there is due process.You are not just dealing with people who are
having their citizenship questioned; you are dealing with many
Canadians-by-choice who came from war-torn situations. The danger is that we
will set the bar too low. You could have someone from the former Yugoslavia or a
group of Serbs denouncing a Croat or Muslim, or vice versa, or any combination.
How the heck do we deal with that? We cannot. One plea I always make in
citizenship courts is to bring the best you have to offer to this country, but
do not bring us your strife and centuries of hatred, because this country cannot
I will leave you a copy of the submission by Justice Roger Salhany, not that
I expect you to be able to say, "Well, he is right and the previous one is
wrong," but just to show you the only occasion in Canada when this
Let me say further that my community is torn apart because the process is
perceived to be unfair. There is hatred. People are making comments, and it is
sickening. We have people running around with petitions on individual cases
because that is the only thing that the process allows them to do. They gathered
12,000 signatures for this individual. When I gave it to the Prime Minister, I
said, "I do not know if it is right or wrong, but I know it is wrong that
people are organizing petitions on individual cases." We do not do that for
court cases. We trust that ultimately, our judicial process is the best
decision-making process that we have.
Honourable senators, it is with that in mind that I make this plea. This bill
on revocation is not civil. It is not criminal. It is a creation that is
focussed on citizens-by-choice. How do you take away citizenship with that
clause? It does not fall into either category.
I think you must also take into account the frustration of the Jewish
Congress, the B'nai Brith, and Mr. Narvey. You heard from them. This process is
totally inefficient. All it does is create conflicts and cause fear in
communities. That should not be happening. We are here to build a nation. We are
here to build the best country in the world. Surely to God that is what we want
to do. The amendments proposed in the House were, for the most part, the work of
Mr. Kenneth Narvey, with support from the B'nai Brith, and there was
considerable agreement in the House of Commons. Every group that appeared before
us, every group representing the diversity of this country, agreed that there
should be an appeal of that process, but there is not.
I resigned as parliamentary secretary because I could not in good conscience
support that bill and look myself in the mirror the next morning. That is why I
make the plea for an amendment to ensure the due process of law through the
right to appeal a decision. Surely to God that is a fundamental principle for
all Canadians. In doing that, you would send a strong message to all citizens
who are Canadians by choice that this country has come a long way in its
Honourable senators, I cherish this country and I cherish how we have
evolved. My millennium project was to research the history of my household, and
was precipitated by the ugly reaction to the plight of the boat people. I
believe it is extremely important that people understand that we turned away the
Japanese steamer Komagata Maru in the early 1900s, we turned away the St. Louis,
and that is why we do not turn away the Chinese boats. We must try to understand
what it meant to turn away the Ukrainians, Hungarians, Italians, and all sorts
of other people, and the way we treated the blacks and the natives.
It is through an understanding of our history that we can see the evolution
of this country to where we are today. As we enter the new millennium,
honourable senators, it is so very important that we correct this part of the
bill and say yes, we are all Canadians, even though some of us were born outside
People choose to come to this country. One thing they can have in common with
those who are Canadian by birth is the due process of law -- the right to
appeal. That should apply to every Canadian, not just to some Canadians some of
the time. It should apply to all Canadians all of the time.
Senator Cools: The witness referred to a case in his community. For the
record, perhaps he should give the name of the case.
Mr. Telegdi: The case is Helmut Oberlander.
The Deputy Chairman: Is it before the Supreme Court?
Mr. Telegdi: No, it is not. It is lost some place in the bowels of the
bureaucracy. That again points to the inefficiency of the whole process. It is
not before the Supreme Court.
The Deputy Chairman: You will identify the case?
Mr. Telegdi: Yes, it is Helmut Oberlander, and I have the finding of Mr.
Roger Salhany on that case.
Senator Cools: Perhaps you could give the spelling of those names for our
Mr. Telegdi: I will give your reporters the submissions and make it available
to all honourable senators. I will give you a copy of my household history.
There is also a wonderful book by John Boyko, entitled Last Steps to Freedom:
Evolution of Canadian Racism Revised. You may wish to look at Whence They Came:
Deportation from Canada, written by Barbara Roberts, with a foreword by Irving
Abella. It is important reading when you are dealing with citizenship and
immigration, and I know you will be dealing with immigration as well.
Senator Cools: Perhaps, Mr. Chairman, the committee could look at that case
The Deputy Chairman: Yes, we will. We will continue our discussion this
afternoon with the officials and we may ask a question dealing with that case.
Senator Cools: We have before us three members of the House of Commons, and
Mr. Telegdi in particular has raised that case. I think the committee owes it to
these members to look particularly at the case he has cited.
The Deputy Chairman: We will distribute the information and we will take
notice of that.
Senator Pearson: Mr. Benoit, I want you to talk about retroactivity, because
no one else has raised that issue. I am interested in what you have to say on
Mr. Benoit: On the issue of retroactivity, subclause 55(1) states:
Proceedings in relation to an application$pending on the day on which section
72 of this Act comes into force must be dealt with under this Act.
However, subclause 55(2) stipulates that if in fact the application is being
considered by a citizenship court judge at the time, it will be considered under
the old act.
We have a situation where, for some reason or another, a particular
application for citizenship has been held up. We know that these applications
for citizenship can take up to 17 months to complete. If you happen to be one of
those unfortunate people whose case has been held up, but you have not actually
come before a judge, then you are dealt with under the new act. All the work you
have done and the terms that you believed you were to be judged under are put
aside by a stroke of luck, you might say -- or the opposite -- and you will be
dealt with under the proposed legislation rather than under the old act.
The member from Scarborough Southwest made similar comments about Bill C-63.
It was the same in Bill C-63. He said that he takes the traditional, historic
position of the Liberal Party of opposing retroactive legislation -- and that
from a Liberal MP. I think that is a fair comment.
Senator Fraser: Could you give us an example of how this could operate
against someone? I am a little lost. Could you explain how in practice this
might operate against an applicant? It seems to me it is mostly procedural.
Mr. Benoit: It has been a while since we dealt with this bill and I am
stretching my memory. I do know some people brought this before our committee.
Specific examples are on record of where the citizenship process was delayed
Where two people have applied on the same date, because one had gone through
faster, one person might be in a more or less favourable position compared to
the other person. I am sorry I cannot remember the examples more specifically
than that, but they are there in our committee proceedings.
Senator Nolin: Mr. Bryden, I want to understand why you answered one of the
questions by saying that the bill is not respecting the oath that you are
Mr. Bryden: Yes, that is exactly correct. It points out the flaw of the oath
as it exists. When an oath of any kind only requires you to obey the law, you
are subject to that law. If the law is bad, then you, as a good citizen, will
obey a bad law. I believe that the oath for this country should be innovative,
it should break new ground, and it should present principles that are beyond
simply the laws of our land, and that are recognized worldwide in terms of human
Honourable senators, I suggest to you -- and this is a very strong thing to
say -- that the minister might have some difficulty with Mr. Telegdi's position
if an oath containing the words that I have put before you existed. I hasten to
add that those are the words that are in the Charter.
Senator Nolin: Mr. Telegdi, you made a very good case on clauses 16 and 17.
Do you have the same observation on clauses 21 and 22, which concern the total
discretion of the cabinet to decide not to grant citizenship?
Mr. Telegdi: I do, but it does not strike me in quite the same way.
I will leave it at that, but let me just add that I am not sure if the
committee heard from the UN High Commission for Human Rights. You might want to
get some information from them.
From what I have read, I understand that it has formulated a declaration.
Basically, it says that once someone has been a resident of a country for 20
years, entry or departure cannot be denied. It also talks about using the
criminal standard of evidence to revoke citizenship or deal with war crimes.
I think we should look at that, because I would hate to see us go contrary to
conventions that we have signed. I have some communications from the High
Commissioner for Human Rights. I would suggest that you get the research staff
to obtain some of their information. That is of great importance.
The Deputy Chairman: Were you referring to an international instrument or
Mr. Telegdi: Yes, the Universal Declaration of Human Rights also provides for
the right to nationality and how it is to be withdrawn.
I think you need to look at that, because it make specific references. I have
it somewhere in my office. I could not find it, unfortunately. I have so much
information that I was not able to find that particular piece. I was looking for
it this morning and last night.
The Deputy Chairman: If the international instrument or charter considers
this as something of a criminal nature, it changes everything. It would change
the onus of evidence. It would have to be beyond any reasonable doubt under our
law. Only a court may rule on this.
We will investigate this. It is an interesting point if it is of a criminal
nature. Someone said at the beginning of this meeting that he thought that it
was not civil, it was not criminal --
Mr. Bryden: I said that.
The Deputy Chairman:It is certainly administrative to a great extent, and
statutory also. An administrative law has its own principle. We must follow
that. We must have more research done in that area.
Senator Cools: I would like to thank these witnesses. I join with them in
their concern that many of these issues were not given, perhaps, a sufficient
quality of hearing in the House of Commons. That worries me. It seems to be part
of an increasing trend.
It seems to me that among the three witnesses, Mr. Telegdi is in a unique
position, in that he was the parliamentary secretary for the bill, so to speak.
Thus, we are dealing with not only an insufficiency in the House of Commons, but
we are also speaking about the failure of the secretary of state to get a
hearing in the Liberal caucus. That is very worrisome.
Obviously, these three gentlemen are appealing to the Senate committee and
asking us to amend this bill in significant ways. Honourable senators, I think
this is such an extraordinary request that these gentlemen should be given an
even broader hearing. I would like to propose that the committee, as part of its
recommendations, suggest that we invite these three members of the House of
Commons to appear before the Senate, perhaps in committee of the whole, to put
their concerns forward.
We have an extremely unusual situation here. We have before us, as I said, a
parliamentary secretary and two members of the House of Commons who are known to
be earnest. I do not think that we should move on from here as though they were
These are no ordinary witnesses. I think, quite frankly, that the whole
Senate deserves to hear these three gentlemen and I would like to place that
before the committee for its consideration.
The Deputy Chairman: Okay.
Senator Cools: This is very unusual. I do not know if we appreciate how
unusual this is, because these gentlemen have spoken with considerable restraint
and humility. I have certainly not encountered such an event before in my years
here. I think that it is so significant that it should be noted for the
extraordinary event that it is.
Senator Andreychuk: Senator Cools, that is why I thought that it was so
important to have them here. I regret that they received such short notice. I
hope that they have been able to make their positions known to their
I have said from day one that this is a most significant bill. Citizenship is
not a routine matter. It is a unique bill in the sense that it does not fit
neatly into either criminal law or administrative law.
It may be the way in which we have handled this issue for many decades.
However, the granting of citizenship is increasingly important to Canadians, not
only for those who come here, but also for those who are born here. What it
means to be a citizen is the most fundamental issue being debated.
With respect, I disagree with Mr. Bryden. I think there has been a debate
about how to change the Citizenship Act in certain quarters. However, the
meaning of citizenship has never been defined.
This bill says by its title that it speaks to citizenship, but really only
speaks to me in one clause. That troubles me.
I have never really reflected on the oath, quite frankly, until now. Thus,
while I commend the government or the minister for wanting everyone to take an
oath, it is that very statement that has started me thinking that perhaps
citizenship is more than an administrative measure that can be given or taken
away. What obligations does it really carry?
Senator Cools: What you are raising, and what the witnesses are saying, is
that it echoes some of our debate at one of our earlier meetings, where Senator
Joyal and other senators raised the very question as to what citizenship is.
This particular bill does not seem to be speaking directly, or sufficiently, to
the question of citizenship.
Interestingly enough, even Section 91.25 of the BNA, I think, uses the words
"naturalization" and "aliens."
The Deputy Chairman: It is 91.25.
Senator Cools: It does make a difference in the BNA. The language does
differentiate between the phenomena of citizenship and naturalization. We were
told earlier in testimony that the title of the 1946 act makes the
This is an important subject. I would like the committee to create an
opportunity for the entire Senate to hear this.
The Deputy Chairman: We will certainly consider everything that has been said
this morning at our conclusion. I wish to thank the witnesses very much. Your
presentation has been very useful.
The meeting adjourned.