Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 22 - Evidence, September 28, 2000 (p.m.)

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, respecting Canadian Citizenship, met this day at 13:30 p.m. to give consideration to the bill.

Senator Gérald-A. Beaudoin (Deputy Chairman) in the Chair.

[English]

The Deputy Chairman: Honourable senators, we will resume our study of Bill C-16, proposed legislation respecting Canadian citizenship. We have with us officials from the Department of Citizenship and Immigration. They are Mr. Wolpert, Ms Frith, Mr. Sabourin and Mr. Stevens. I wish to thank you for appearing before us today. We have many technical and legal questions on Bill C-16.

Ms Rosaline Frith, Director General, Integration, Department of Citizenship and Immigration: Mr. Chairman, honourable senators, first, I would like to introduce the other departmental officials who are here with me today. Normand Sabourin is our Registrar of Canadian Citizenship; Eric Stevens is legal counsel, as is Max Wolpert. Nick Oosterveen is the Director General of Selection Branch and Madeleine Riou is Nationality Law Adviser. We may have to turn to them on some specific issues.

Following some brief introductory remarks, I will ask Mr. Sabourin to make a short presentation focussing on some of the issues of importance that have aroused debate around Bill C-16.

Mr. Chairman, Bill C-16, has been some 20 years in the making. It is a bill that will modernize the 1977 Citizenship Act. It will address the gaps and inconsistencies that have developed from that legislation. It will respond to the ruling by the courts and the Human Rights Commission on discrimination, and it will improve the processing of high volumes of applications. This bill truly reflects significant consultation.

We have come a long way from the first Citizenship Act, which came into effect in 1947. Under that act, citizenship was a privilege, granted only if a person met certain subjective criteria. It had provisions that discriminated against certain categories of people. For instance, women who married non-Canadians were adversely affected.

The Citizenship Act of 1977 aimed to eliminate the discriminatory aspects. It provided for the recognition of dual citizenship and it set out clear criteria for granting citizenship.

Despite these significant improvements, it soon became apparent that the 1977 act needed further change. The divergent views of the courts on the meaning of residency requirements is a case in point. Another issue is the inequality of treatment of children adopted abroad and in Canada by Canadian parents. These issues, as well as administrative shortcomings, will be addressed in Bill C-16.

The bill before you today promotes respect for Canada and our rights and freedoms as Canadians. It retains the elements of current law that are working well and sets out clear, fair and objective criteria for Canadian citizenship.

I am proud to be here today with my colleagues in support of the bill. Before beginning to answer your specific questions, I will turn to Mr. Sabourin to make some comments.

[Translation]

Mr. Norman Sabourin, Registrar, Canadian Citizenship, Citizenship and Immigration Canada: Mr. Chairman, my presentation will last about eight minutes and will deal with the questions raised to this point. I am very pleased to be able to address the Committee on Legal and Constitutional Affairs in connection with its consideration of Bill C-16. My colleagues and I have followed the committee's work closely. We have carefully noted your questions and comments, as well as the concerns raised before the committee.

[English]

We have been very impressed with the deliberations and with the depth of understanding this committee has shown for all the issues surrounding citizenship. As Ms Frith has said, the proposed legislation before you is the result of many years of work by dedicated public servants working under the direction of successive ministers responsible for citizenship.

As early as 1984, the need for revisions to the legislation was evident. The minister responsible at the time, today an honourable senator on this committee, spoke of the government's desire to modernize and strengthen the citizenship legislation to reflect changing Canadian values.

This work over many years means that the proposed legislation before you has been the subject of intense and thoughtful scrutiny and represents, in my view, the best possible balance that we can achieve and the best possible bill that the government can bring before the Senate.

This being said, some aspects of the legislation are still cause of concern for some, and I would like to speak on four key issues that were discussed extensively in recent deliberations of the committee. My hope, of course, is that I can provide some clarification that will make your work easier when you perform a detailed review of the bill later.

[Translation]

My four topics are eligibility for citizenship, loss of citizenship, the public interest and the need to pass new citizenship legislation.

Citizenship and nationality are two terms that are sometimes confused. I think that it is primarily because, in some countries, the term "nationality" has ethnic connotations that influence how one attains that status.

From a legal standpoint, however, the European Convention on Nationality states in its background report that the term "citizenship" is the term most commonly used in most central and eastern European countries, and that it has the same meaning as the term "nationality," which is used in western Europe.

I would add that the term "citizenship," which is used in Canada, is also used in other countries that have had immigration policies over the years, including Australia, New Zealand and the United States. It is natural that countries that have been enriched through immigration would want to avoid a term that might be perceived by some to have ethnic connotations.

In international law, it is clearly established that each State is free to define the conditions under which citizenship may be acquired. In Canada, the right to citizenship is a purely statutory one. Even though the Canadian Charter of Rights and Freedoms refers to citizenship, that status is defined only by Parliament.

[English]

Let me speak now of loss of citizenship, specifically involuntary loss of citizenship. This can take place in two different ways, that is, through annulment or through revocation. Annulment is an administrative power of the minister to correct an error made by the minister in granting citizenship. We know that citizenship is acquired by a permanent resident when the minister grants citizenship in accordance with the law, but the law also says that the minister cannot grant citizenship if a person is subject to a criminal prohibition. What would happen if the minister were to grant citizenship anyhow, even if she had no authority to do so in the first place? The proposed legislation spells out that in such a case the minister can declare the grant of citizenship null and void. That is what the annulment power is all about. We believe, as do our legal advisors, that the minister has this power and authority today under the current legislation. However, because of the grave personal consequences of declaring citizenship null and void, the proposed bill spells out that the minister can only exercise her authority within a period of five years and must provide notice to the person and an opportunity to be heard.

[Translation]

Another aspect of the bill that has been abundantly commented upon is that of the public interest. To define what that means, I think it is useful to refer to the Supreme Court's comment:

The general sense of the term "public interest" is a particular set of values that are best understood in connection with the collective good and refer to issues involving the well-being of society.

The Supreme Court felt that this concept was too vague in certain contexts, but those involved circumstances in which a constitutional right was violated, which is not the case where citizenship is concerned.

People ask why there is a need for extraordinary powers in the bill, based on the public interest. The minister, when she was here, summarized the situation quite succinctly. The government needs to have a safety net for unforeseen situations.

I will try to give you a hypothetical example, which may not be easy. Suppose that Mr. X moves to Canada. He is a permanent resident. Mr. X, still a permanent resident of Canada, leaves his native country for Ruritania, his country of origin. Once there, he starts looking for his ex-wife. She teaches in a primary school. He finds her in the school and commits a violent, horrible murder. Most of the children are killed. These horrible scenes are even shown on television.

Of course, Mr. X is arrested and put on trial in Ruritania, where he is charged with these crimes, but he is found not guilty by the Ruritanian jury. There is a problem with admissibility of evidence. There was a technical problem, and the jury finds Mr. X not guilty. He comes back to Canada where he is still a permanent resident. Now, the families of the children who were killed through Mr. X's actions undertake a civil suit against him to try to establish that he has civil liability and that he caused the death of these children without a valid reason. The families of the children win their case.

Mr. X applies for citizenship and there is no criminal prohibition under the act. He is not subject to the provisions in the act that could prevent him from obtaining citizenship. The minister has no other choice but to grant citizenship.

A question arises here. Should this country welcome Mr. X into the Canadian family? Does he represent the values that we share in our country? Will Canada's international reputation be damaged if Mr. X is granted citizenship?

This hypothetical example, although it may not be ideal, shows that there are situations that cannot be provided for. These cases may involve hate crimes or people who lead others into serious crime.

The only way for the government to ensure that its hands will not be tied by the fact that these types of cases have not been provided for in advance is include extraordinary powers in the act.

Since we are talking about an extraordinary power, only the Governor in Council would be allowed to exercise this power, so that ministers of the Crown would be accountable for their actions in accordance with our parliamentary traditions.

There is a parallel which we feel is useful, even though it is not ideal. The public interest clause is somewhat similar to the notwithstanding clause in the Charter of Rights and Freedoms. Is the notwithstanding clause used frequently? Is it necessary? Obviously, the governments that put it in there believed that it was.

[English]

I will now turn to revocation of citizenship. You have heard much on this issue, both from the minister and from witnesses. You know that today we have an administrative process for taking away citizenship, a process that rests with the executive. Some have proposed that a judicial process would be better.

We think that it would be unfair to suggest that one model is superior to the other. Both models have merit and both models are imperfect, as human processes must be.

In considering each model, one question we should ask ourselves is whether we can predict how our courts will interpret citizenship revocation authority in the future. The model proposed by the government has been tested, proven, tested again and challenged before the courts, and each time the courts have said that the process is fair and that it protects the interests of citizens.

Would we choose a new, unproven model and wait many years to see how the courts interpret these provisions? Would it be fair to tell citizens: "We will now have new rules that apply to you. We are not sure exactly how the courts will apply these rules, but we are really hoping for the best"?

My minister and the government believe that the process, which has seen over 3 million new citizens by naturalization since 1977, and at the same time has seen a total of 37 per cent lose their citizenship through revocation, has proven itself. It is tested, true and fair to everyone.

I have one final point on revocation and loss of citizenship. You have heard that all citizens are equal whether by birth or naturalization. You have heard that clause 12 of the proposed legislation reads this way. Clause 12 repeats section 6 of the existing law and the wording is clear. A citizen is a citizen is a citizen. Some have said that that is not true. Some have said that naturalized citizens are second class citizens because they can lose their status; but the only way they can lose their status as a citizen of Canada is if they obtained that status by fraud.

If you lie in order to be naturalized, you lose your status. If you lie in order to obtain a passport by saying that you were born of a Canadian parent and you were not, you will lose your passport. If it is discovered that your lie is in fact the only reason you are a citizen today, then the government believes that you should not be a citizen today.

In essence, on issues of loss of citizenship, fraud is fraud. You cannot be recognized as a citizen if that status is the result of fraud.

I will conclude with a few remarks about the need for this legislation.

My Director General has said that the courts have spoken since 1977 on repeated occasions to tell us that the law must be changed. For example, the Federal Court has said that the rules regarding residence mean that the citizenship process has become nothing short of a lottery. The Federal Court is telling Parliament, "This situation cries out for legislative reform."

The Canadian Human Rights Commission has also told us that reform is urgent. Clarifying rules regarding parentage is very important, as is the need to remedy the inequity that exists for adopted children. The commission has put many of its complaints on hold right now on the basis that the government has shown its goodwill toward addressing these problems by tabling in Parliament the legislative proposal before you.

Some honourable members of this committee have participated in studies, reports and proposals to recommend changes to the legislation. The Speech from the Throne has repeatedly mentioned the need for legislative reform. After 23 years of immense work -- an immense amount of honest, dedicated work and energy -- in developing these proposals, the members of this committee have before them an opportunity to give Canada a revised, modernized and relevant citizenship legislation for the 21st century.

The Deputy Chairman: There is one point from the beginning of your remarks I would like to elucidate. For one week we have heard that in one respect Canadian-born citizens are treated differently from those who obtain citizenship. You say that we have had only 37 revocations of citizenship since 1977 and that in each case it was necessary to clearly establish the fraud, and that fraud is the only criteria. This is the reason why a Canadian-born citizen will never lose his or her citizenship. This punishment results from a fraud committed before citizenship was granted. If it is explained that way, prima facie, it looks all right. Loss of citizenship may happen only to those who are not born Canadian and the fraud must have been committed before he or she became a citizen, not after. Is that correct?

Mr. Sabourin: That is correct. The revocation provision goes to fraud, not only for acquiring citizenship by fraud but for gaining admission to Canada by fraud, because the very fact that a person was entitled to ask for citizenship in Canada was dependent on the fact that that person obtained permanent residence.

The Deputy Chairman: My second question is the following: Suppose that a Canadian-born citizen commits a crime and a person who was awarded citizenship commits the same crime after he or she is a Canadian citizen. Is the punishment equal?

Mr. Sabourin: Chairman, in terms of criminal penalties, the same penalties apply to everyone. In terms of using revocation or loss of citizenship, there can be no loss of citizenship on the basis of a person's behaviour after obtaining citizenship. There can be none whatsoever.

The Deputy Chairman: So if the same crime is committed, the same punishment follows. I agree with that.

Mr. Sabourin: That is correct.

Senator Cools: Mr. Chairman, you refer to the same punishment. Are you meaning punishment as dictated by the Criminal Code, or are you meaning same consequences? The Criminal Code does not really care. It just lays out the punishment. Perhaps you are meaning consequences and not punishment.

The Deputy Chairman: In this country we have equality before the law. It is a basic principle of human rights. Whether or not you are a Canadian-born citizen, it does not matter. The Criminal Code applies equally.

Mr. Sabourin: That is correct.

The Deputy Chairman: What I would like to know from you is if Bill C-16 respects that principle.

Mr. Sabourin: There is no question that Bill C-16 respects that principle. The only way to lose Canadian status is if it was obtained as a result of a fraud -- not as a punishment for some sort of action that is not connected to the acquisition of the status.

Senator Cools: That is as per this legislation. Would that bar any other act of Parliament in respect of treason or anything else?

The Deputy Chairman: There are potentially different paths of the judiciary and the cabinet. It has been that way in our country for many years. Many witnesses have said that everything should be before the courts, that everything should be decided according to the principles of our law, which is good system of law.

Can you explain to me why we need cabinet involvement in this process? Is it because an aspect of this is beyond the realm of the courts and should be left to the ministers of the Crown? The Crown has some prerogatives. The cabinet has some powers. Executive power rests entirely with the cabinet in this country. The executive must make some decisions, outside of the judicial branch of the state. Is this why we give a power to the ministers, to the executive branch?

Mr. Sabourin: Mr. Chairman, perhaps you would allow me to put forward some contextual information on this issue. In most countries, the giving of citizenship is such an important act, such a valued prerogative of the state, that the granting of it is a discretionary matter.

Since 1977, as per the legislation, the granting of citizenship should be an entitlement in Canada. If an individual meets the requirements set out in the legislation, the minister then has a duty to grant citizenship. However, it remains a power of the executive. It remains an administrative authority and right to grant status to an individual who comes before the administrative organ of government and says that he or she meets the requirements. There is a principle that if the executive grants that status it executive should take away that status if it is found to have been given in contravention of the legislation.

What Parliament did, in 1977, was to say, "Minister, before you take away that status, first of all you will get advice from the Federal Court as to whether there was a fraud committed."

The Deputy Chairman: Is it mandatory?

Mr. Sabourin: Yes, it is mandatory. The minister cannot proceed unless she gives that opportunity.

Second, Parliament agreed that because it would be of such grave consequence to the individual to have that status taken away, it should not be taken away by the minister. That status should be taken collectively by all ministers of the Crown advising the Governor in Council. That is why, even though it is an executive power, the final decision rests with cabinet. Thus, not one minister will make this decision in isolation, but will do it collectively with other ministers.

The Deputy Chairman: The last question that was raised before us is that when the case is referred at the first instance to the Federal Court, which reference is mandatory, and that is a protection for the person, is there a right of appeal that is possible from the first instance to the Court of Appeal of the Federal Court?

Mr. Sabourin: That right is not present in this proposed legislation, Mr. Chairman, and perhaps some context or comparison with other systems would be helpful.

Before 1977, the process of taking away citizenship by the executive still existed in Canada. However, before proceeding, the legislation directed that prior to the minister proceeding a commission of retired judges should be set up to determine whether a fraud had been committed. Once that advice was obtained, the minister acted only if the commission determined that fraud was committed.

In 1977, we said that the commission may not look to be entirely impartial, because, after all, it is appointed by the minister. Who would be considered impartial? The Federal Court? The Federal Court members who are appointed by the executive are appointed for life and their authority to act independently is a sacred and recognized principle in our country.

In terms of other contextual information that might help, in other countries, such as Australia, the advice of an independent body must be sought before taking away an individual's citizenship. Even though that body might be the court, it does not mean that now the court is determining the substantive rights. The court is not saying either to proceed with revocation or not to proceed with revocation. The court is simply saying that it has reviewed the facts, that it has listened to the person whose citizenship is the subject of discussion. After listening to that person, the court might believe that there was not a fraud wilfully committed. The individual may have lied but did not know he or she was lying. If the court determines that, then neither the government, the minister nor the Governor in Council can proceed with revocation. They simply do not have the authority to do so.

The Deputy Chairman: Thus, the minister will act at the end, after a judgment of the court of the land?

Mr. Sabourin: That is correct, from the trial division.

The Deputy Chairman: From the trial division, all principles of law being applied, of course.

Mr. Sabourin: That is correct.

Senator Cools: Did you say judgment or opinion of the court?

The Deputy Chairman: It is more than an opinion. My impression is that it is some kind of a judgment.

Senator Fraser: It is a decision.

The Deputy Chairman: Is it fact-finding or a judgment?

Mr. Sabourin: Perhaps Mr. Stevens would address that.

Senator Moore: The bill refers to it as a decision at clause 17(3).

Mr. Eric Stevens, Counsel, Legal Services, Department of Citizenship and Immigration: Honourable senators, this is a decision primarily about finding facts, but the law must be applied as well. When you think about the process that is followed, it is a statement of claim, statement of defence. It looks very much like an action. It is quite a formal proceeding.

The Deputy Chairman: The word used in the bill is "decision." That is good enough for me.

Senator Moore: To follow up on the chairman's question, what happens if in the course of its proceedings the Federal Court finds that the person lied because he or she was fleeing a situation of persecution to arrive here. That would be fraudulent; fraud is fraud, you said.

How do we give humanitarian consideration to that person's case?

Mr. Sabourin: That is perhaps an excellent example of what the minister was trying to explain to this committee. Under a process that was judicial rather than administrative in the executive, the court would have no choice but to revoke the citizenship if they found that fraud was, indeed, committed. However, in the example that the honourable senator has mentioned, the decision of the court is merely information that is then transmitted to the minister to give her the authority to make a report. The minister might decide, taking into account humanitarian and compassionate grounds, that a report is not warranted. Possibly, she might bring that report to the Governor in Council, and her colleagues -- ministers of the Crown -- might say, "Well, I do not know, maybe in this case we should not proceed because there are considerations that need to be heard."

I will give, with your permission, a concrete example that will be of interest to all members of the committee. There has not been much discussion about individual cases because there is only so much one can say. However, I am certain that all of you are familiar with the name Helmut Oberlander, either through personal representations made to you or by reading the newspapers. Mr. Oberlander wrote to each minister of the Crown to say, "When cabinet considers whether or not to follow up on the decision of the Federal Court that claims I committed fraud, I hope you will take into account the following information." If we had a judicial process and Mr. Oberlander were to write to justices of the court to say "I hope you will take this information into account," he would be in contempt. He would be doing something that is not permissible and that is entirely inappropriate. Of course, he would be able to argue his case in court, but he would not be permitted to attempt to sway the opinion of an elected member of Parliament by suggesting the use of humanitarian grounds in his case. He would not be permitted to say, "Even though the court has said that I committed fraud, there are reasons why I should not lose my status." That is why the repeatedly tested process before you is one that has, in many ways, more value than a judicial process.

The Deputy Chairman: Has the cabinet always had that power?

Mr. Sabourin: Absolutely, they have always had that power.

The Deputy Chairman: Is that discretionary power, even after the decision of the court?

Mr. Sabourin: That is correct. On a last point, the reverse is not true, of course. If the court claims that fraud was not committed, that would be the end of the issue. The government could not act, could not proceed.

The Deputy Chairman: Would that be the end of the matter?

Mr. Sabourin: That would be the end. The person would remain a citizen.

The Deputy Chairman: That is interesting.

Senator Andreychuk: On that point, you say that fraud is fraud and the court will not use humanitarian grounds. That is true, but the court would use all of the available law to interpret the meaning of fraud. For example, if it were committed under duress, then fraud would not be substantiated.

Mr. Sabourin: That is correct.

Senator Andreychuk: A highly technical analysis of the fraud must be done, and that encompasses many honed judgments about those definitions and how they are applied. I understand that you are not suggesting that it is a kind of mechanical application, but rather a judgmental application.

Mr. Sabourin: Yes, and it is a difficult appreciation. I would characterize it that way.

Senator Andreychuk: That is why we sometimes find that one judge might have gone the other way.

Mr. Sabourin: Yes, that is correct.

The Deputy Chairman: Tell me, please, if the cabinet has ever disagreed with the Federal Court and whether they ever failed to revoke citizenship after a finding of fraud.

Mr. Sabourin: I do not know how at liberty I am to discuss the deliberations of cabinet.

The Deputy Chairman: I understand that. I ask the question hypothetically.

Senator Cools: If the witness has any difficulty, we can go in camera. We should let the witness know that it is the instinct of the committee to protect him.

The Deputy Chairman: It is difficult for me to resist this question about cabinet.

Mr. Sabourin: I know personally of ministers responsible for citizenship who have gone to cabinet and made recommendations that were subsequently not followed.

The Deputy Chairman: The recommendations were not followed by the cabinet.

Mr. Sabourin: That is correct.

The Deputy Chairman: There is no problem there.

Mr. Sabourin: Of course.

Senator Fraser: Clause 17(1) states that the minister "notifies the person who is to be the subject of the report that the report is to be made," but it does not say that the person must be told the details of the report. Presumably, there would be a letter written to inform the individual that a report will go to cabinet informing them citizenship was gained on fraudulent grounds. However, there would be no requirement to provide an explanation of the evidence, or the department's grounds, or the minister's grounds for believing that fraud had been committed. Thus, an individual can be told that he or she will face the most serious possible accusation, that he or she has the right of recourse to the court, and yet there is no substance given to that individual to assist with a decision to appeal to the court.

If I had committed a grievous fraud, and there were no excuses, then maybe I would not bother going to court. However, it seems to me there would be a category of people, perhaps less well-educated people, or people who came here from countries that do not have solid judicial systems, who might simply give up and decide that they will be required to return to a refugee camp somewhere. Why would an accused individual not at least be told the evidence of fraud? What on earth is the reason for omitting to tell people? Is it not one of our democratic rights to know of what we stand accused and what the evidence is?

The Deputy Chairman: Of course it is.

Mr. Sabourin: I can give a partial answer, and then, perhaps, I would ask Mr. Wolpert to add something. The beginning of the answer has to do with the practice that is being followed on the basis of legal advice. The practice is that in every instance where the minister has sent a revocation notice he or she has gone into some detail to explain on what basis the decision has been made. Our advisors tell us that if fair advance notice and a clear picture of why one is going forward with this important report is not given, then the person will be unable to defend him or herself. Mr. Wolpert, would you like to add something to that?

Senator Fraser: It does not say that. You tell us that this is done, but it is not substantiated here.

Mr. Max Wolpert, Counsel, Justice Canada: The courts have emphasized, for example in the case of Mr. Dueck, that the minister will be bound by what she writes in the notice. In that case, the accusation was that he was the chief of police in a particular town during the war and that he assisted the Germans. The court found that that was not the case -- that information was not established. They found that he had another role, that of assisting as a collaborator during the war. However, because that had not been mentioned in the notice, or the statement of facts that was given to him when it went to court, the minister lost the case.

I work with the Crimes Against Humanity and War Crimes Section of the Department of Justice. We deal with citizenship revocation in the World War II context. We are very careful and cautious in drafting the content of these notices for the minister's consideration that they specify, initially in a fairly brief way, but in a sufficiently detailed manner, the where, what and other pertinent allegations.

We will mention geographical locations, the time frame, and the unit of the occupying forces with which we are alleging the person was connected. There is a good amount of detail that goes into these notices. If the person exercises his or her right to have the matter referred to court, the Federal Court provides that all the normal rules applicable to a full scale lawsuit or action before the Federal Court apply. It is up to the minister, through her counsel, in a statement of claim to give a full set of details so that the person knows the case he or she has to meet. If that is inadequate, as in any other lawsuit or action, the court will order that it be done.

Senator Fraser: I would like to follow up on that point. We had a witness earlier today who noted the legal principle that if you say something in one place and do not say it in another the assumption is that you did not say it in the second place because you did not want to say it.

I note that clause 21(3), which is the public interest section, says that the notice that is being sent to the person must include a summary of the grounds contained in the report involving public interest. I appreciate that in this case we are talking about a report that has already been written. In the case of clause 17, we are talking about a report that is to be written. Why not at least call for a summary?

I want us to go after war criminals. No one who was a war criminal should have a safe haven here. No one should ever have a save haven here.

Mr. Sabourin: I might try to answer that question. Certainly in clause 17, which is the revocation, we see a process where the minister will be bound to refer something to the court. If she does not put a summary in there, as Mr. Wolpert explained, the minister will be in very serious difficulty. That illustrates --

[Translation]

...the power of judicial oversight with respect to the executive.

[English]

It throws light on the fact that there is a role for the courts to play in ensuring that the minister is held accountable. There is no intervention by the Federal Court in clause 21. We are talking about an exceptional power. If it were not explicit in clause 21, it would be more difficult for the court to say that the minister has that duty.

It might be debated, but it is much wiser to have an obligation on the minister in that respect in that clause, 21. There is no provision for referral to the Federal Court. I am not sure that there is a much better answer than that.

Senator Andreychuk: I heard Mr. Wolpert use the phrase "the best practice of the department" while discussing putting forward this information. We are seeing through clause 17, on the point that I thought Senator Fraser was making, that this will be new law. It may be the same as the old section, but it will be new law.

Given that you are also adding clause 21, where you do say "summary grounds" it would be open to the courts to say that what has been done as a good practice is not necessary because Parliament did not think it was necessary. There is no assurance that the continued practices and the continued position of the court will apply here. One would hope that the inferences would be there.

The point was made by some of the witnesses, and I thought that is where Senator Fraser was going, that someone may get a notice. Perhaps that person does not understand our system and knows only brutal executive systems in other countries. That person might think the game is over.

If that person understood what they were facing, they might start analyzing the situation. They might then take a different position about their revocation.

Senator Fraser: They might even say they have made a mistake.

Mr. Sabourin: With respect, I have grave difficulty in drawing a conclusion that because clause 21 is added the Federal Court would say that they thought that the previous provisions placed an obligation on the minister to reveal the reason for proceeding with a report but that they see that there is not such an obligation any more. I do not think that that would be in keeping with the principle that the chairman had alluded to earlier, which is the requirement that there be disclosure right at the outset.

Another point I would make is that when people become citizens we ask them to show that they have an understanding of the rights and responsibilities of citizenship. We ask them to demonstrate that they understand the country's values. We ask them to explain to us why it is that there is rule of law in Canada. They invariably are aware and understand that in this country you can walk up to a RCMP officer on the street in full confidence and full knowledge that your rights will be respected and that you can seek protection from that individual instead of persecution. New citizens are aware that there is rule of law in this country.

I think the answer is twofold. First, we should not under estimate the knowledge and understanding of new citizens for their adopted country. Second, the obligation still remains legally on the minister to disclose this information, otherwise the information she tries to use in court will simply be stricken.

[Translation]

Senator Nolin: On the issue of judicial review, one witness told us that the Federal Court's power to review decisions would apply notwithstanding section 22(3) and that it would apply to an individual who wanted to question the reasonableness of the minister or the Cabinet in the event of a Cabinet decision under sections 21 and 22.

Would the Federal Court's power apply despite section 22(3)? In other words, would you instruct the Department of Justice to represent you before the Federal Court in a preliminary action and say: "Judges, we have a great deal of respect for you, but you do not have jurisdiction under section 22(3) and your power to review decisions does not extend to our discretionary power"?

Mr. Sabourin: I would say that, based on what I was taught in constitutional law -- and it was the very eminent jurist sitting at the end of the table who taught me -- there is no doubt that a privative clause is still subject to the court's power of review. Parliament can say that it is not subject to judicial review, but if the Order in Council violates the rules of natural justice or if there has been a lack of impartiality, the court will certainly intervene.

Senator Nolin: So the power of review exists?

Mr. Sabourin: Absolutely.

Senator Nolin: Paragraph 3 is there but does not mean anything?

Mr. Sabourin: It is there to ensure that no one tries to invoke a right of appeal as such. Section 22(3) is there to ensure that people will not try to question the conclusions of the cabinet, which is acting as an administrative decision-making body.

Senator Nolin: In that case, I accept your use of the term "right of appeal." There is no right of appeal. Why were the words "or review by any court" added? If I understand your reasoning about the right of appeal, you want to avoid questioning the grounds for the decision, that is, how the decision was made and whether the rules of natural justice and the rights all the individuals are entitled to in Canada under the Charter have been respected. I have no problem with that. I hope that you do not want to prevent that. So why were the words "or review by any court" added?

Mr. Sabourin: There is a distinction between the English and French wording of the bill. The French text refers to "contrôle judiciaire" (court review) in general terms whereas the English uses the expression "review by any Court." It does not say "judicial review by the Federal Court" just as the French text does not say "contrôle judiciaire par la Cour fédérale." I believe that the French term is used in a generic sense.

Senator Nolin: In 22(3), it says that the order is final, and despite any other act of Parliament, is not subject to appeal -- I will grant you that -- or review by any court. As far as I know, the French text is as authoritative as the English text.

Mr. Sabourin: Definitely.

Senator Nolin: I accept your arguments about the questioning of the appropriateness of the cabinet decision. I am not arguing this. It is a discretionary power that the executive arm must have, but why not any court review? I realize that the English version uses a different term but we all agree that any judge with a minimum of knowledge would know that this means review by the federal court, whether he is reading the English or the French text.

Mr. Sabourin: If one is of the view that the term may be read in a more generic manner, then one accepts that there will be a power of oversight that cannot be abrogated in any case. If one assumes that the word "judiciaire" has a connotation that would tend to prevent any intervention, court review and power of oversight, then it is clear that a court would point out that these words are not constitutionally valid.

I would be more inclined to favour a more generic interpretation and although both texts have equal force of law, the provisions are interpreted one in relation to another. The English and the French are read together in order to understand the purpose. Clearly the intention of these provisions is to ensure that there is no court intervention other than on the normal basis of court review, as is understood in the context of the Federal Court Act. Clause 22 does not indicate any desire to escape the scope of the power of oversight or review. In any case it would be impossible for Parliament.

The Deputy Chairman: In my view, that is how it would be interpreted.

Senator Nolin: So the wording of this text is to no effect.

The Deputy Chairman: It can happen.

[English]

Senator Cools: In respect of what Senator Nolin said, what does "despite any other act of Parliament" mean? Why would that be in a bill? Why would Parliament agree to that? On page 8, subclause 17(3) contains the phrase "despite any other act of Parliament." Parliament does not pass laws saying despite itself.

Senator Nolin: It is in the former act, but is subject to the Charter. It is a privative clause.

[Translation]

To ensure that the declaration does not apply, this type of formula was used.

The Deputy Chairman: Notwithstanding any other statement?

Senator Nolin: It is a sort of a disguised notwithstanding formula. It is a very broad privative clause.

The Deputy Chairman: One thing is certain as far as this privative clause is concerned, namely that in our system the courts will always intervene because of their court review. It will never be possible to remove that.

Mr. Sabourin: That is true. It is understood, accepted and recognized by all the parties involved in drafting these provisions.

[English]

Senator Andreychuk: I have a number of questions, but I want to start with this. Under subclause 17(1)(b), if a person requests a referral within 30 days after the sending of the notice, the Federal Court Trial Division determines on a balance of probabilities. I know there were amendments made in the other place. Why would you put the test in there for the Federal Court? If you took "on a balance of probabilities" out of there, you would then be following the present law and the present decisions that have been made with respect to the test. I find it unusual that it is left in here. Does it then go back to the courts for reinterpretation? I ask because there are court decisions that say it is a balance of probabilities but it should be a higher degree of probability than in some other cases because citizenship is so important. I will not quote you the cases; you probably know them better than I. Why is that phrase in there? It made sense to have it in there before amendments were made in the House of Commons. Is it still necessary after the amendments? What is the intent of it?

Mr. Sabourin: I think my general answer is that in the other place, as you correctly pointed out, there was some focus on this, and it was felt that it should be explicitly said that it was recognized that the case law that has evolved in the Federal Court, saying that it is determined on the balance of probabilities, is recognized and accepted by Parliament. Without purporting to be able to speak about the intention of the committee that studied this bill earlier, that was certainly my understanding of what was said and why it was proposed that these words be included.

Senator Andreychuk: If those words were taken out, what is the opinion of legal counsel as to what the test would be? If you took out "on a balance of probabilities," what test would be applied by the Federal Court?

Mr. Stevens: It would remain a balance of probabilities, because we are not dealing with a criminal matter so we do not have the standard of beyond a reasonable doubt.

Senator Andreychuk: The public interest clause preoccupies me a lot. We will get a brief to try to get a handle on what public interest has been and what judicial decisions there are on it. Are we not going down a road of unforeseen circumstances? It is sort of like writing a blank ticket for the future. We know that we cannot predict the future. Certainly in criminal law, we want to anticipate situations, but we want to make laws really for clear and present dangers and problems. This is, in my opinion, an unfettered right for the executive, and I think it puts the executive in a very difficult light, because we have to look at the international situation. In international situations, if you look historically, or even now, it is usually the abuse of executive power that has led to depriving citizens of their rights to be citizens, to their being thrown out of the country, to having their citizenship revoked.

That kind of executive act has generally been identified with repressive or totalitarian states, with Communist or Stalinist regimes, which always couch their actions by claiming the authority or the statutory right to act.

In today's society, as you have said, we try to be compassionate and understanding. We have made a fundamental change in saying that citizenship is an entitlement. An applicant must pass a test, but the granting of citizenship would not be discretionary, and that is certainly the intention of the minister. She pointed out a case and you have pointed out a case as examples. However, in the broader spectrum, it seems we are trying to legislate to the government the kind of power desired by repressive leaders who want controls over their citizenry.

Mr. Sabourin: You raise some very thought-provoking arguments about why we should be worried about unfettered discretion. As you suggest, we normally associate broad discretionary powers with oppressive regimes. I have discussed with the minister the intention of the government and I understand that there is perhaps a balance to be achieved. At one end of the spectrum, the government has a discretion to give citizenship. That is the way it is in most countries and it used to be that way in Canada. At the other end of the spectrum, there is a qualified right to obtain citizenship without reservation.

The balance is found in going toward the qualified right, as we recognized in 1977, but to learn from our experience over 23 years. There may be a very difficult case with circumstances that we cannot predict where we would need to exercise some kind of restraint against an individual. We would need a certain window of opportunity to allow things to change.

You have spoken of criminal activity, for example, where we cannot possibly give a blank cheque or a broad mandate to the executive to act in such matters. Of course not. Parliament must act and Parliament must make clear the consequences of certain actions to individuals. What if there is a crime out there that Parliament has not had a chance to legislate against? Would it not be opportune for the government to have the authority to place a five-year delay on granting citizenship to someone who has been doing things that are in the public opinion reprehensible and against which Parliament is seriously considering enacting some legislation, perhaps criminal legislation?

Without this safety valve, as the minister has called it, the minister's hands are tied. I can speak of a case in which I, as the Registrar of Canadian Citizenship, have been named in contempt of court, much to my dismay as an officer of the court. That happened because my minister and I have information in our possession that suggests it is very difficult to consider giving citizenship to a certain person. The court has asked us why we are holding up the file and has told us to do what we must under the legislation and to proceed on the case.

No one can predict the future. Circumstances may evolve in the future where everyone around this table would want to keep some person from becoming a member of our Canadian family at least until we have time to follow up on some of behaviours that we find totally reprehensible.

In my opening remarks, I gave an example that is far from ideal. I realize there are other examples that are perhaps better. Our minister spoke of the case where a person incites hatred or incites others to commit violence. We can try to define examples but we are still grasping and trying to predict the future. Clause 21 attempts to create, as the minister said, a safety valve to be exercised only by those who are accountable to Parliament for using that authority.

Senator Andreychuk: I respect that answer. It seems to me, however, that if you really are talking about these most horrendous, heinous crimes, the rebuttal evidence suggests that what Parliament thought was heinous and dangerous at one time later turned out to be a defendable human right. Our history is not unblemished in that sense.

In weighing those two kinds of principles, we need more specificity. This clause writes a blank cheque for the minister. It is an uneasy signal to a segment of our society who were not born here that their acts may undergo scrutiny that is not directed at those who were born here.

That is not good international policy for citizenship. Surely there is a way to accomplish the required end while using some words to assure that revocation could not occur for routine reasons. Perhaps the department would say that, in a particular case, rather than going to court and getting an unsympathetic judge it would just use this route. The value judgments of transparency and societal benefit will be lost if things suddenly go behind closed doors.

Mr. Sabourin: Your words resonate with me profoundly when you say that the societal values have changed considerably over the years. Actions that were reprehensible in the past are no longer thought to be so. That goes without saying. It also goes without saying that actions that were tolerable or permissible in the past are no longer permissible or tolerable today. As these issues continue to evolve, how can we predict what they will be and whether they must be captured at some point?

You have mentioned the issue of specificity. Could we not use words that would be more clear, that would somehow if not constrain at least clarify when this clause will be used so that we can better understand? Mr. David Matas spoke to you on this issue. I also spoke with Mr. Matas. He is a very able advocate and is extremely knowledgeable. I respect him very much and I admire some of his work, but when I asked him to explain the need to be more specific, he replied, "Tell me the case and I will propose wording for you."

Well, if I can talk about the case, I can also think of wording for it. If we knew the case, we could draft specific wording to clarify where we can exercise this authority. We are not able to do that.

Finally, I would make a comment about how broad or unfettered this power might be. It is an exceptional case to have this rather broad language. The government certainly recognizes that and the minister has spoken on it, but the power is certainly not unfettered. I have heard someone ask, "What if there were a government in place that is not as enlightened as the government of the day?" What if the government decides that a person who has AIDS is an undesirable and that the public interest clause can be used against him or her? I have discussed that scenario with my advisors and with counsel from the Department of Justice.

There is no question whatsoever that a notice going to a person suggesting that that is the basis for making an order under clause 21 would be attacked with vehemence by the courts as an abject disregard for the Charter and for the rights of the individual. As broad as these provisions might be, they are certainly not broader than the Charter. They certainly cannot contradict principles that are entrenched in the Charter and, in particular, rights of quality under section 15. We are not talking about unfettered rights that we would find reprehensible when exercised in a totalitarian regime. We are talking about a right of the executive that is broad, that is perhaps not clearly defined for the reasons I have outlined, but is nonetheless subject to the scrutiny of our courts.

Senator Andreychuk: My final point would be that over the years we have cautiously moved in with what national interest is and what security is, and we have always made certain that those definitions resonated against international principles. This section still continues to trouble me because it is a very subjective section, and it is subjective from the ruling party of the day. We pride ourselves in being a pluralistic society. We also know that cabinets are made up of the same kind of people as the rest of Canada and are subject to making deep mistakes at times.

We have broad definitions, broad powers, and no reviews or external remedy. I leave that. I understand your point.

Mr. Sabourin: The words "public interest" are not words without meaning. They are words that are used not only in Canada but also in many other countries to describe a certain set of values or a certain reality. Many of you are much more knowledgeable about this area of law than I, but the Supreme Court has spoken about the special set of values that are best understood from the point of view of the aggregate good and are matters relating to the well-being of society. Therefore, even though it is broad and subjective, I think you are absolutely right, but it remains that it cannot be so disconnected from the definition that has been given to this expression.

If the minister were to receive a request for a declaration, and if it were found to have no relationship or bearing to the meaning of that expression as outlined by the court, there would be a problem with the capacity of the minister to make such a recommendation.

Senator Andreychuk: I will use your example. We know that this man beat his children. There was some footage and some visible evidence, as well as some written evidence. We also know about technology, and we know that snapshots can be visibly out of context. It is elementary to say that just because you find a smoking gun in the hand of someone they are not guilty of murder. There might have been defences, et cetera.

It seems to me that if you use the public interest to strip that person, you are making judgments on cases that may not have been decided on Canadian standards and you do not give that person an opportunity to adequately defend himself or herself in the way that you would in a court of law. The case of someone being charged and acquitted in another country on a technicality was mentioned. I was taught that technicalities were safeguards. We would be saying that their system is of no value and their adjudication court was so horrifically wrong that we will put it aside. It seems to me that that destroys what we are trying to do incrementally in the world, which is to build justice systems that we all can buy into.

We have just passed Bill C-19, and we had to work very hard to get common descriptions and decisions. We have gone through an extradition act. Should the minister intervene? Who do we trust, a prosecutor in a state of United States or our minister? These are very judgment-laden issues.

Your example frightens me. We would strip someone of citizenship, not entry into the country, but citizenship, on the basis of our judgment of someone else's system and a court case.

Senator Fraser: That was not stripping, it was denying.

Senator Andreychuk: I am sorry, I am using the terms loosely. You are right.

Mr. Sabourin: I am entirely in agreement with you on not identifying a non-guilty verdict as a mere technicality, that we should not accept that but should attack it and we should somehow subvert. However, I would point out that there are perhaps some regimes or jurisdictions around the world where the courts of law do not have the same reputation for integrity that we know in our country and in other countries. However, be that as it may, you will recall that in my example there was a non-guilty verdict for the criminal matter but the courts of justice found this person civilly liable on a balance of probabilities to have wrongfully caused the death of these children. That is where, in the hypothetical example, a rigorous process under the rule of law has declared that this person has done something, and I think most Canadians would find that abhorrent.

To conclude, I know you were not meaning to suggest we are taking away citizenship by using the word "strip."

Senator Andreychuk: No. I meant "deny." I am sorry.

Mr. Sabourin: This denial is an order valid for five years. The purpose of this order being valid for five years is to see if in fact there is a possibility that this person will suffer another accusation or conviction within that time. I would call it probationary.

Senator Pearson: On a totally different question, I come from 35 years in the foreign service. I am wondering whether, in your opinion, clause 9 on the grant of citizenship is adequate to redress what looks to me like more severe requirements about residency. Many of my colleagues have served Canada loyally abroad but never had the opportunity to spend enough time in Canada.

Mr. Sabourin: I would try to answer in two parts, perhaps giving a bit of context first. I would say that in order to represent Canada abroad you have to be a citizen.

Senator Pearson: It is a definition of representation. I am a foreign service spouse, and I can tell you we are representative of the country abroad.

Mr. Sabourin: Thank you, senator.

Some Hon. Senators: Hear, hear!

Mr. Sabourin: You are jumping ahead of what I was going to say, and very rightly so. The government recognizes that. It recognizes that the spouse of a citizen serving Canada abroad is doing a very important job abroad and that they should not be penalized by having to be outside of Canada with their spouse during that time.

I would point to you the provisions of the omnibus bill that has been adopted by Parliament recently, Bill C-23. In that bill, there is a specific provision that says that if Bill C-16 comes into force this legislation will automatically be amended. It will be automatically amended to add a paragraph at clause 6 of the bill to clarify that when a spouse is serving abroad with a Canadian citizen that time will counted as residence in Canada. That has been dealt with.

Senator Pearson: That is very helpful. I knew that was being considered, but I wanted clarification. Several people have mentioned clause 8, and I also think this is very important. It is the issue of adoption. My own experience in the foreign service is that immigration officers are overwhelmed by their activities, and trying to determine what is in the best interests of the child is not within their competence.

What was intended by this? Why is that there? If the adoption has gone according to the usual procedures someone else will have determined that.

Mr. Sabourin: As you are probably aware, that term "best interests of the child" was an amendment put forward in the other place further to a review of the bill at the time. The reason behind that was to ensure that we have a mechanism that will allow us to take into account concerns that have been expressed by the provinces regarding the administration of this provision.

We have had extensive discussion with provincial governments for a number of reasons, not the least of which being that they have constitutional authority over issues of adoption. The provincial governments have told us that they were very concerned that there could be a grant of citizenship to a child who suffers from a medical condition, as an example, of which the parents were not informed. The provinces know from experience that when parents adopt a child and they do not understand what the care of the child will imply in future years, there is a real risk that the parents will sometimes abandon that child to the care of the province because they are unable to cope with the medical condition of the child.

The federal government was very clear at all times to say that there will not be a medical factor to consider in whether or not to grant citizenship. However, in order to establish whether the adoption is valid and whether the parents understand the condition of the child before they make their decision to adopt we would propose to enact regulations under this legislation to allow that a verification take place to ensure that parents are informed.

The manner in which it was felt we could best initiate this was to use a term that has been defined and used in international law and in the laws of several provinces regarding the status of adopted children. We believe that pursuant to this provision we are able to adopt regulations that would address the concerns expressed by the provinces on that issue.

Senator Pearson: Was that the rationale for putting it in here?

Ms Frith: Perhaps I could add to that. Several issues came up in our discussions with the provinces, issue about the processes we would use, how we would ensure the best interests of the child and that the people who were doing the analysis of the files would do it competently. We have many years of experience on the immigration side in dealing with adoptions abroad and this has always been something that is very important to the department. We are always trying to avoid trafficking in children and we wish to respect international laws.

The issue of "best interests of the child" is something that our people abroad are very familiar with. It is done in collaboration with the provinces. Initially we thought that we would be able to deal with the issue through regulations and that we did not need to specifically mention within the proposed legislation itself that particular phrase. However, it became clear to us that it would be far more appropriate to state clearly within clause 8 that this was to be done in the "best interests of the child."

In other words, the adoption will be a proper and full adoption -- because in some countries that does not happen. There will be a family study that would be the same as provinces ask for within Canada, and the provinces are able to see that study. They will also be assured that the family has been informed about the medical status of the child and that we know that the parents understand what they are getting into and that they are making the commitment to that child in their medical state.

Those were all the things that come into consideration. At the same time, we would have a way of dealing with the provinces to ensure that they could tell us to go ahead, the adoption has been carried out properly.

Senator Pearson: It just seems to me, as someone who spent a year on the custody and access issue, that "best interests of the child" is not any clearer than the public interest. Public interest is probably clearer. I can understand the rationale behind what you have done but I would hope you can ensure that the adoption has been according to these regulations.

Mr. Sabourin: The answer to that is we are preparing the regulations in consultation with the provinces. We want to ensure that the contents of these regulations address concerns that they have expressed. What the regulations will do is list a series of factors to be considered to determine whether an adoption is in the best interests of the child.

The key factor in all of this is that the provinces have said they need to have a home study conducted. We think this is very important. The home study requirement does not always exist under the legislation of other countries. This mechanism will allow us to ask that a home study be conducted so that then the province can rule on whether they believe it is a legitimate adoption.

Senator Pearson: That is because the granting of citizenship only comes after the province has ruled it is a legitimate adoption.

Mr. Sabourin: That is correct.

Senator Pearson: The real intention of this, with which I totally agree, is that at least the child will have citizenship before he or she comes to Canada.

Mr. Sabourin: That is correct.

Senator Pearson: I am still not sure it is absolutely the best wording but I guess it is the best you can do now.

[Translation]

Senator Joyal: My first question is related to the fact that the procedure in Bill C-16 and that provided for in the Immigration Act are asymmetrical. Why do less in one case than in the other when the Citizenship Act provides for several rights resulting from citizenship?

My second question deals with clause 17(3). I am not yet convinced that the exclusion of permission to appeal is fair in view of the fact that the decision to be taken by the Federal Court, trial Division, is fundamentally related to fraud.

You will note that paragraph 17(1)(b) refers to false representation, fraud or knowingly concealing material circumstances. A malicious intent to deceive is present in all three. If you look at what the Appeal Court normally does in usual fraud cases in private law, it reassesses the fraudulent intent and does not review the facts leading to the conclusion of facts. This is the first case in which I was involved myself in the matter of a will some 35 years ago.

It is very hard for me to rule out the right of appeal when the trial court decision is not exclusively based on the appreciation of objective facts. As I see it, there is a very large discretionary element. And you know quite well that the personality of people in cases such as these is an important and very often determining element in the impression created. Often the evidence is not so conclusive. There is an evaluation of the witnesses, and so forth.

By ruling out permission to appeal, I am not sure that your aim to bring this matter to the courts and no longer have it be subject to the appreciation of a commission, as was previously the case, is actually being achieved in keeping with the aims of the bill. That is my comment with relation to clause 17(3).

My third question deals with clause 30 which, I think, contains an error in drafting.

[English]

I would like to ask Mr. Stevens to look into it. Clause 31 is very important because in the English text it reads that the minister may reverse on a material defect.

[Translation]

In French, it says:

Le ministre peut [...] dans le cas où, selon lui, la décision est entachée d'une erreur importante.

These are two quite different things. In one case, the expression "a material defect" refers to an administrative omission, a missing paper, a case where, for example, a birth certificate was not produced, whereas in the other case, it is an important error.

What is an important error? I cannot see how this translation can be seen as having the same effect in law. Since the minister does have discretionary power, this discretion will therefore be increased depending on which one is invoked.

As for clause 14, I would like to come back to a question that has often been asked. In our legal system, how can a person who already has citizenship be stripped of citizenship without even being informed of it?

One the one hand, with a two-week delay, Revenue Canada starts sending out reminders three times a month. On the other hand, if someone is on the point of losing his citizenship, he will not even be informed of it. I must admit that I find that rather hard to take. The person is not guilty of anything. The simple failure to apply results in automatic loss of this right. I would be happy to hear a convincing argument from you on this. My last question deals with public order.

[English]

I will speak in English on this one because you put it in English. Public interest with regard to cabinet -- and I have been in cabinet and I will not tell any of its secrets -- is the result of a social dynamic. I will create for you a cabinet in which the prime minister has said that AIDS is a punishment of God. He is against gay marriage because he believes gay marriage is a sin against social order -- against the family unit -- and that gay marriage should be left to the appreciation of one individual even though the Supreme Court of Canada will have ruled on it. This is not a hypothesis. This is taken from a real statement. How do you respond to an individual who requests citizenship and who happens to be diagnosed with AIDS and lives in a same-sex situation under provincial legislation that recognizes his situation as legally binding himself or herself to another person of same sex? This person comes to cabinet under that kind of prime minister. Where do we define public interest in such a case?

Nobody will have access to those records; they will be confidential. There will be a discussion around the table in cabinet, a majority of which supposedly sharing the prime minister's opinion.

I tell you, public interest is a very fluid notion. You have alluded to Mr. Matas. With great respect to you, Mr. Sabourin, and I have known you for years, I take exception to your innuendo that Mr. Matas will not be able to define what public interest is. I have known Mr. Matas for 20 years. He has been testifying before the Parliament of Canada for 20 years. In all fairness to his reputation, if we were to ask him to come forward with what are the essential elements of public interest, he would be able to come forward with some elements of it.

To catch him in the back and say, "Do you think you know what public interest is?", all of us who have been in this public discussion know it is a fluid discussion. However, there is nothing to prevent us from defining some guiding criteria, at least to give some parameters to a society we think should live by the rule of law and should, as much as possible, define that rule of law and have it appreciated by the court, particularly when politicians are the object of pressure or when they have personal faith that they want to impose or give an impression of influence on the decisions they make. I tell you I have my own appreciation of this. You submit yours to us; I submit mine to you. You do not need to debate it. I want to put it on the record.

Those are my questions, Mr. Chairman.

[Translation]

Mr. Sabourin: First of all, I did not intend to attack Mr. Matas in any way. As a matter of fact, when I talked about him, I said that I admired his work and that in my view, his competence was above reproach.

Not having read any proposed text, it is difficult for me to take a stand on a text that is supposed to be of better quality since no one has yet submitted one to me. To come back to the five points raised by Senator Joyal in his question, I will attempt to answer them as best I can.

As far as the parallelism with the Immigration Act is concerned, I do not know to what extent comparisons can be made between the two acts. I believe that there were particular concerns relating to certain provisions contained in Bill C-31.

As far as Bill C-16 is concerned, it does take into account other federal legislation in existence at the present time, including the Criminal Code and the present Immigration Act. However, with respect to the provisions of Bill C-31 that do not agree with Bill C-16, nothing prevents amendments to the Citizenship Act to achieve the proper balance.

I am thinking in particular of sentences for crimes. There is no problem in arriving at a balance between the two. Once Bill C-31 comes into effect, it comes into effect.

As for the matter of revocation and subsection 17(3), we must look at whether it is a question of fraud exclusively or not. Does the appeal court in a civil fraud case have the ability or not to make a proper assessment of intention?

I am in full agreement with what you said but we must not forget that here we are attempting to obtain the most impartial advice possible in order to allow the minister to decide whether to proceed or not to proceed.

Is it the ideal? Certainly not. Is it perfect? Certainly not. Is it a process that has been proven before the courts? The answer is yes.

I must echo the comments made by Minister Caplan when she said that it is a process that has been validated by the courts, that has been used reasonably. As I mentioned previously, with three million new citizens in 23 years and 37 revocations of citizenship, the figures do tell us something important.

As for clause 30, I must agree with you that in several provisions of the bill, there are things that surprise me in comparing the French and English versions. In drafting this bill, the jurilinguists surprised us on more than one occasion with some of their terms. Mr. Stevens and I have discussed at great length the foundation of clause 30 and the scope of the minister's power.

We are of the opinion that since the act requires the minister to grant citizenship to a person meeting the conditions, a refusal of citizenship does necessarily give rise to the minister's authority under clause 30.

So whether this be described as an important error in the French text or a "material defect" in the English text, in view of the fact that the person is entitled at the outset to obtain citizenship, the initial decision to refuse citizenship is an important error. For a person to be deprived of this right is something fundamental.

The power is a discretionary one but the basis for the exercise of this power is a decision refusing citizenship. In such cases of refusal, the decision must be described as either "une erreur importante" or a material defect.

With respect to your comments on clause 14, I listened attentively to Senator Grafstein's remarks. I must admit that I can understand the concern of a citizen who may lose a status he wishes to keep. Howeveer, the purpose of this provision is to ensure that persons born abroad, or of parents born abroad, retain citizenship only if they have an attachment to Canada.

One question we may ask of a person who comes under clause 14 is whether he knows that he is Canadian? Does he have any attachment to the country? If the answer is yes, the person is Canadian as understood in clause 14. The person knows he is Canadian and has an attachment to the country.

In other words, the person must have done something to demonstrate this attachment. It may be something as simple as visiting grandparents and an application for a travel document to enter the country. In order to obtain this, proof of citizenship is required. Hence the need to communicate with the Passport Office or the Department of Citizenship and Immigration. In both cases, the person claiming the right to citizenship -- because he was born outside Canada or of a parent born outside Canada will -- immediately receive a notice either from the Department of Foreign Affairs or from our department. This notice stipulates that the person is Canadian but that he is subject to loss of citizenship at the age of 28. The person is informed that if he does not come to Canada for a period of three years before reaching the age of 28 and does not apply to retain citizenship, then it will be lost at the age of 28.

It would be preferable to send out notices to all those who are born Canadian citizens and who could come under this provision, even if this is costly. How are we going to identify these individuals? It is no exaggeration to say that Canadians are constantly having babies outside the country, and therefore are creating Canadians. We cannot be aware of the situation, unless people get in touch with us and tell us that they know they are Canadians and that they want to come back to Canada or that they want a passport or a citizenship certificate. In such cases, we officially inform them of the danger of losing their citizenship.

I come back to the questions you raised about the public interest, which is not an easy subject and which I do not want to treat lightly.

When the government presented its bill, it decided that it was important to have this power, and that without it, there could be some very serious problems in some cases.

I will come back to the question of same-sex marriage as an example of the type of case that could involve a report as provided for in clause 21.

There is a problem with that. A minister cannot submit a memorandum to cabinet without getting advice from the Department of Justice to the effect that the proposal is in keeping with the Charter. That is essential. For example, in the case of a same-sex couple, clearly the advice from the Department of Justice would be that such an act would be in violation of the Charter. In other cases referred to earlier, involving prejudice or a lack of impartiality toward a particular individual, there would definitely be a problem and a possibility of legal action.

I am sure that my answers are not ideal, and I agree with everyone that this is an exceptional power. However, to repeat the minister's words, they remain a necessary safety valve. I would like to make one final comment to close my remarks on the issue of the public interest.

We should not forget that we are talking about orders-in-council that would have to be obtained by the Governor in Council. The Governor in Council cannot say that cabinet will establish a policy that every time someone applies for citizenship and falls within a group of individuals that it does not like, it will obtain an order-in-council setting out the public interest.

If orders-in-council relating to the public interest are published in the Canada Gazette frequently, I trust that people will speak out against this type of practice and the minister will be held accountable in the House.

As we stated clearly, this is a very exceptional power. I would compare it to the power involving national security. The current act has been in effect for 23 years, and in that time, there have only been three or four cases involving national security in which an Order in Council was obtained by the Governor in Council that stated that an individual was not eligible for citizenship for reasons of national interest.

It was the same type of provision. It is a very exceptional clause to be used in extremely rare cases. That is why the power lies with the Governor in Council, not with the Minister.

[English]

Senator Andreychuk: We take into account the RCMP, CSIS and Interpol in the national interest. Thus, we have some visible and ongoing assessments of national security that would be different, would you agree?

Mr. Sabourin: I would agree. However, I was not referring to the quality of the decision-making process but rather to the frequency of the cases brought forward.

[Translation]

Senator Nolin: I would like to come back to your interpretation of clause 30. I had a problem when I read the word "material", but I have even more of a problem after hearing your answer.

You tell us that refusing citizenship is exceptional. The defect in the decision must therefore be material in order to reverse a decision refusing citizenship. It should be the opposite: since refusing citizenship is exceptional, any error should make it possible to reverse the decision. We should remove the word "material."

Mr. Sabourin: You may be right, and I definitely should have used different terms. In fact, when the bill was drafted, I did suggest a different wording. Mr. Stevens and Mr. Rioux suggested other words. Ultimately, we yielded to the advice received by the jurilinguists, who are very careful about their words. They ask us to explain the intent of the clause, and they provide the words.

We asked a consultant, Mr. Fairbairn, Queen's Counsel, to give us an opinion on the interpretation of clause 30. He gave some explanations and opinions that accurately reflect the intent we explained to the jurilinguists. That confirmed to us that the phrase "material defect" has the right meaning.

I would like to make one final comment. Our objective in the case of this provision is to ensure that people to whom the minister delegates authority, some 200 very competent officers scattered through the country, will make consistent decisions in keeping with the Act. We would like to review refusals under clause 30. Then, when refusals are based on a defect in the decision, the decision can be reversed. This is a normative process by which an officer's decision will be reviewed and corrected, and that officer will discover that he or she will have to be more careful the next time. We want to provide fairly broad access to this remedy. We want to allow people to be heard when their citizenship is refused.

Senator Nolin: I would even add, to support your argument, that clause 30 does not refer just to the refusal, but also to any decision regarding the granting of citizenship. It is quite broad. It refers to all the decisions that may be made during the review of an application, including the decision to grant or refuse citizenship.

Mr. Sabourin: I must clarify something that is very important in clause 30. There are two aspects to the clause. The first is the refusal to grant citizenship. If the minister, through his or her delegated officer, grants citizenship to an individual, the only possibilities are revocation or cancellation.

Senator Nolin: What do the words "or regarding the issuance of a certificate of citizenship" mean?

Mr. Sabourin: They refer to the second case, the certificate. This applies only to individuals who have citizenship from birth. It is important that the committee understand this. Individuals who are born citizens are citizens because that is what the act provides. The act states solely the strict conditions whereby the individual is a citizen. If the individual is given a certificate by mistake or because he or she lied, there has to be a way of cancelling the certificate, and therefore of reversing the initial decision. That is the reason for clause 30. I would say that there are ways of protecting the applicant whose certificate is cancelled under clause 30. I would refer you to clauses 36 and 37, which set out the procedure for cancelling a certificate.

Senator Nolin: I have a question about offences. When the minister receives opinions before going to her cabinet colleagues, do the opinions come from departmental officials or Cabinet, or can they come from other departments?

Mr. Sabourin: She may receive opinions not only from other departments, but also from individuals subject to the jurisdiction of the courts.

Senator Nolin: Would the documents in support of a memorandum to cabinet be only reports from officials, who are citizenship officials within the meaning of clause 40, or does this include citizenship officials such are yourself and others?

Mr. Sabourin: There would definitely be others. In exercise of this type, there are inter-departmental consultations, but there is always a very official contribution from the Department of Justice.

Senator Nolin: Let me explain why I am asking these questions. This morning, we heard from a witness who made an accusation that I do not think we can ignore. Apparently the Security and information service had made a number of false reports about him. If that is his honest perception about the way his rights as a citizen have been handled, we have to ask ourselves some questions. Could the supposedly false reports be included with your minister's memorandum to cabinet? If so, would paragraph 40(1)(a) apply to the offence committed by this official or officials, or would paragraph 39(2)(a) apply? You will tell me that the penalty is the same, $10,000, but I would like to know how that would work.

Second, what type of investigation would be conducted? What types of guarantee could we offer to this gentleman who testified before us this morning?

Mr. Sabourin: The picture you paint is definitely very disturbing and very difficult.

Senator Nolin: That is how it was presented to us.

Mr. Sabourin: On the one hard, in cases of national security, the Solicitor General of Canada advises the Minister of Citizenship and Immigration. If there is a false report, the Solicitor General is responsible. It was written by people who deceived the minister. In the Canadian Security Intelligence Service Act, there are many provisions dealing with the way in which the Canadian Security Intelligence Service is managed, and also with the review powers of the Inspector General, who is appointed by the Solicitor General of Canada. This is there specifically to ensure that the practices implemented by the Canadian Security Intelligence Service are not subject to trickery or deception.

In addition, in a broader context, in the area of national security, there are always issues that are so disturbing that even talking about them could have an impact on national security. That is why the Canadian Security Intelligence Service Act provides that the final review lies with the Review Committee.

As you know, this committee is made up exclusively of Queen's Privy Councillors. They are Privy Councillors appointed in consultation with the opposition parties in the House to ensure the group has some objectivity, but at the same time can consider confidential matters which, if they were revealed, could be harmful to national security. Individuals can make representations regarding inaccurate reports to this Review Committee in all cases of national security, including citizenship cases. Individuals can make representations to the effect that the Review Committee is not impartial enough to take action against them. That has already been done successfully.

I am trying to give you an overall idea so that you understand that there are some mechanisms in place that mean we can feel confident about the system before us.

As far as convictions go, I cannot say anything with certainty, unless I have certain details. Who lied? Who wrote the false report? To whom did the individual send the report and how did he or she transmit this information to the Solicitor General and then to the Minister of Citizenship and Immigration? It is quite difficult to be specific about that.

Senator Nolin: Paragraph 39(2)(a) is broad enough to include anyone at all. The expression "false representation" is very broad.

Mr. Sabourin: It is very broad. It is difficult to comment without having a specific case before us. A few moments ago, I was discussing clause 40 with my director general. It covers citizenship officials more specifically.

Senator Nolin: Since clause 39 is broader, it covers what is missing in the first clause. That would deal with the concerns raised by our witness this morning.

The Deputy Chairman: You have two teams, a French-language one and an English-language one. You have considerably improved the system; the translations are less literal, and that is a good thing. The genius of French and English are different. I imagine that the two teams always use the same terms in the same conditions, but the ultimate problem of interpretation still lies with the court of justice. In one case, it may prefer the French version, and in another, the English version.

In practice, does the court often have occasion to rule on this? For example, we said earlier that the judicial review was paramount, of course. We cannot run counter to the interpretation given by the court. That is a fundamental principle of our constitutional system. So one version was preferred. However, are there any cases where you really get into debates before the courts on this matter?

Mr. Sabourin: I do not think there have been any such cases in the context of citizenship. We do have two teams, and we have greatly improved the drafting process. The teams work simultaneously. When my colleagues and I were there for the drafting, the two teams of jurilinguists were working at the same time, in front of two computer screens that were side by side, in order to capture the ideas in the two languages at the same time. Obviously, sometimes one language is slower than the other. Maybe someone works more quickly or maybe someone else is discussing something with someone else, but the process is simultaneous. In this way, we are able to better capture the intent of the provision.

[English]

Senator Andreychuk: I would like to have clarification of clause 14, which is based on the fact that citizenship is an entitlement if you are not born in Canada. However, the previous sections that led to clause 14 were based on the fact that we were really trying to equate people born in Canada but for the fact that they were serving the country elsewhere. Therefore, if we were to be consistent, would department officials and the government not say that if one were born here one could not lose one's citizenship? We said that if someone was serving our country in another country it was tantamount to being born here. In other words, we wanted to equalize them, in that sense. Therefore, I find clause 14 confusing.

Are you really saying that it is a hybrid -- that it is a kind of entitlement that we extend? Is it my understanding that you were not equating to being born here? If you are born in Canada, you always have your citizenship and only you can revoke it, the government cannot take it away from you. By putting this clause in, you are putting it into the entitlement philosophy as opposed to being born on the soil. Am I correct in my understanding? When you serve abroad, it is because your country has sent you there. We have all of the rules of the Vienna Convention and all of the questions about the term "in a residence" and whether that implies Canadian soil or not. We replied, "No, it is not, but it is Canadian territory."

Mr. Sabourin: I am not sure that I understand your concern.

Senator Pearson: We are looking at the question of spouses and, of course, the children who would have been Canadian citizens by birth. The issue is whether or not to give them the right to claim that as their time -- that they then become the same as citizens. No, I believe that there would still be a possibility of revocation, although it is extremely doubtful.

Senator Andreychuk: Are you following the entitlement philosophy?

Ms Frith: Once those people have gone through the process of acquiring citizenship -- unless it was obtained through fraudulent means -- they are treated just like any other Canadian. In terms of a person born abroad to Canadian parents who receives citizenship at age 28 -- a person who returns to Canada for three years, confirms it and continues his or her citizenship -- if you are asking if that person would be treated as though he or she had been born in Canada the answer is yes. That person's citizenship is the same as any other Canadian-born citizen, citizenship right from birth, and the individual would continue to have that citizenship. It is as if the individual were born in Canada.

Senator Pearson: I feel comfortable with that now, although Senator Andreychuk may not.

Mr. Sabourin: Not to exaggerate the expertise of people who know the existing and the proposed legislation, but issues dealing with the right of citizenship by birth abroad tend to become complicated because of the passage of time.

In terms of the underlying principle, I would say, as Ms Frith has said, there is no difference. If you acquire a status and you are a citizen, unless it was acquired by fraud, that is it. You are a citizen, and you cannot ever lose that status.

Regarding clause 14, the age of 28 years was chosen partly for historical reasons. A long time ago it was determined that a minor may not understand the need to register and once an adult would need a reasonable amount of time to act. That amount of time was set at 10 years.

Senator Andreychuk: I have a statistical question. I believe you said 3 million citizenships were given since 1977 under the existing legislation. Thirty-seven of those have lost their citizenship. How many were subject to the scrutiny and assessment?

In other words, we know how many lost their citizenship but we do not know how many cases the government handled that did not lead to renunciation. We do not know how many might have retained their citizenship through some other process. How many were under the study investigation scrutiny?

Mr. Sabourin: We would not have statistics on that. Nonetheless, I could try to give an anecdotal answer.

It depends upon how you define "scrutiny." At the first level of scrutiny, we could receive a letter, which is not unusual, written by a person claiming that some one lied to gain citizenship and something be done about it. We receive such letters frequently. We look at them. If there is hard information that suggests that the information is credible, we can follow it up. Perhaps, we will take it to the next level. If not, it will be abandoned.

At the next level, a citizenship officer would look at it and seek to answer a number of questions. What does it look like? What kind of misrepresentation may have occurred? How long ago did it occur? Is it serious? Did the person commit shoplifting 23 years ago?

There could be a basis because they were subject to a criminal prohibition 23 years ago, but is it worth anybody's interest to pursue such a case? Probably not. It would not go any further.

If it is a more serious case -- a crime of more gravity or one that has been committed recently with clear evidence on the record that the person was subject to a criminal prohibition -- it might go forward. At that point we would normally ask the RCMP to investigate. We would ask the RCMP to tell us if the information is accurate and to determine whether there is additional information. We would request the results of an investigation.

If everything coming back leads us to believe that we have a solid case, we would consult our legal advisors and ask a number of questions. Is this a good case? Do we have enough information and evidence to try to convince the Federal Court of our position? Legal counsel may say yes, or no. Mr. Stevens has told me no a few times.

We would then go to the minister, where a similar consultation would transpire. If the minister believes there is enough evidence to move forward, we would go then to the Governor in Council.

I would say that generally there are about 3,000 revocation cases that come forward in any given year. I know this from my experience in the years I used to be responsible for such cases. I no longer have that direct responsibility. Out of these 3,000 cases, there would be shrinkage. Cases would be eliminated a few at a time. At the end of the year, there might five cases taken to the minister. The minister would say which case or cases she would want to take to the Governor in Council. That would be typical in one year.

This committee has been concerned with cases that originate in World War II activities. Mr. Wolpert and Ms Frith just shared some numbers with me. I wonder if Mr. Wolpert would talk about the numbers relating to World War II activity cases.

Mr. Wolpert: The current Canada war crimes program began five years ago. There are 1,651 files that have been dealt with in one way or another since that time. Of that, 896 six were closed; they did not warrant pursuing. Slightly over 300 cases are inactive, which means that there was a bit of evidence but nothing indicating anything that would warrant further action. Unless something more is discovered, they will remain essentially inactive. Almost 200 of the routine initial checks were made and nothing warranted proceeding further.

Approximately 150 cases have undergone active investigation that would include examination of documents in overseas archives. After the collapse of the former Soviet Union, documents became more accessible in those cases. At the end of the most recent fiscal year, 82 cases were actively being developed, and about eight were actively proceeding. Thirteen cases have been taken to court under the Canada war crimes program as World War II-related cases.

In addition, there was a handful of cases where the individual concerned never took out citizenship. Those went straight to the Immigration and Refugee Board as deportation cases. We are now focusing on 13 out of the initial 1,600.

Senator Andreychuk: When you say that about 3,000 cases have been handled, are you including the numbers that Mr. Sabourin mentioned or is it a separate unit? The numbers you provided are war crimes from World War II. I thought that Mr. Sabourin's statistics were not just of the Second World War.

Mr. Sabourin: The numbers that I mentioned were global. The number 37 includes each and every single case of revocation as the end result. The yearly volume numbers would be the global number.

Senator Pearson: Is that revocation and annulment?

Mr. Sabourin: It is revocation only because annulment is a new authority under Bill C-16.

Senator Pearson: It has not happened yet.

Mr. Sabourin: No.

Senator Moore: What starts such a scrutiny process? Do you start from an anonymous note, or does the information have to be signed by a person upon whom you can follow up properly? Do you go on a tip?

Mr. Sabourin: There are a number of ways that the information comes to us. Obviously, the key issue on whether or not to move further in examining a case is how credible the information is. We do not give much credibility to anonymous letters, if any.

On the other hand, if we receive an anonymous letter asking why citizenship was granted to an individual who has repeatedly been found guilty of beating his wife -- the writer is claiming that a person is guilty of a crime and should not have become a citizen -- we might verify and find a court record immediately that shows an error was made. The RCMP did not give advise us that the person was subject to a criminal prohibition. In that circumstance, because we have confirmed the information in that anonymous letter, we would go forward.

We will receive information directly from the Royal Canadian Mounted Police in many other cases. The RCMP may say that they had charged a person, and somehow that information fell through the cracks and the person became a citizen.

Senator Nolin: What is going on there?

Mr. Sabourin: Again, we would look at the totality of the circumstances. The person may be prohibited but the case may not be so dramatic that we would bring all the resources available to the administration to move against the person. The annulment power under the existing legislation is important because these prohibitions are there for a reason. They are there because we think that a person who does commit a crime should not become a citizen unless they have paid back their debt to society. We believe that a person who is spending time in jail probably does not understand or does not share fully the values that we understand to be Canadian values. If these prohibitions are to have a meaning, and we discover that a person was subject to the prohibitions, then we should have a way to take the status away.

Senator Andreychuk: Has there been any study done, in the department or externally, as to the number of cases that you investigate because the immigration portion was not working? I have had the opportunity to serve overseas and have seen the understaffed immigration offices, but I do not want to go into immigration today. You are saying that you see about 3,000 complaints and that you deal with some active cases. Is there any way of knowing how many of those could easily have been found at the point of immigration as opposed to at the point of citizenship? I am mindful of people who have nefarious records who get into this country, in some cases quite easily, and the lying is sometimes even minimized because they were not asked the questions. We grant them citizenship and then we revoke it, saying that if the immigration system had worked properly we would not have this problem in citizenship. Do we have any anecdotal or empirical evidence about that breakdown?

Mr. Sabourin: My director general is pointing out to me that out of the 37 cases since 1977, 10 were as a result of fraud in the immigration process. It gives one an indication of something. Whether we would be able to gather the data, yes, probably we could, but it would be quite an undertaking.

Senator Andreychuk: Under certain of these clauses where there is executive discretion, it is obviously not the minister who is going out and gathering information. The minister is not making the case; the department is making the case. The matter then gets to cabinet. If I understand the process, every minister is responsible for his or her department and each minister is allotted time on the cabinet agenda. As well, there is cabinet secrecy in most cases.

The complaint that is often made is that if we are going the executive route, it is hard for people to make a case because they do not really know what cabinet utilized in making its decision because they either get white-outs or only parts of documents. That is the constant hassle of trying to balance cabinet secrecy and the right to know of those affected, to make their case. You may wish to comment on that.

I was looking at it from another point of view. Let us assume for a moment that I am not a lawyer, that I am elected from Saskatchewan, that I am a farmer, a very good one, and that I get into cabinet, in the agriculture portfolio. How does cabinet work, to your knowledge? Where do they seek all their advice for definitions of fraud, for example, and what would be reasonable way of assessing a case? Does that information come from the ministry through the Justice Department? Is cabinet basically relying on the ministry to be able to make an intelligent decision? I know this is difficult, that no one wants to talk about what goes on around the cabinet table, but I want to know how they make these decisions when they are not skilled lawyers or trained lawyers.

Mr. Sabourin: I feel that there are people around this table who know much more about this than do I.

Senator Andreychuk: I am not one of them.

Mr. Sabourin: Perhaps others wish to comment on that point.

Having sat as an observer in these meetings, and without talking about what I cannot talk about, these discussions are very open. They are not, "We better do what the officials say." I would say far from it.

Senator Andreychuk: That is not my point. My point is that I would like some assurance. We keep talking about fraud. That is dependent upon my definition of fraud. Concealing material circumstances? I am not sure the average person walks around within a definition of fraud in his or her hip pocket. Someone has to put that framework out. I know ministers will not be preparing their cases the way lawyers do and the way judges are trained to do it, so how do they get at these concepts?

Ms Frith: There are several different ways. First, the process that we use in preparing materials that go to cabinet is always the same. That process requires that the documents that go forward are reviewed by the ministers who have a concern in the area. The Minister of Justice will always have an authority as to whether or not the documents going forward respect our legal system and that everything is correct. That will happen through different stages. Essentially, there are interdepartmental meetings, where we share our documents and ensure that everyone understands what is going on. There will then be a broader sharing of the documents that will go forward with the responsible officials of those departments, whose ministers will be sitting at that table ensuring that we are prepared to answer any questions they might have. By the time the minister sits down at the cabinet table, he or she has been well-informed. They have had a chance to question the documents and to agree or disagree. A lot of disagreement and questions come back to us before people are satisfied that they understand the matter, especially with the more serious matters that are brought forward.

Clearly, there is ample opportunity to ensure that people are all talking about the same definitions of terminology. In addition to that, an individual whose case is being brought forward knows the case is being brought forward. That individual has been informed of that by the minister. Many individuals will write directly to all of the ministers to plead their own case. In addition to whatever is being brought forward in the cabinet documents, there are other outside factors that have been playing on the cabinet ministers as well. We see that very often. Again, we see it from our departmental perspective because ministers will then consult with our minister to find out whether what they are being told by an individual is correct and whether we have other information or comments. There is ample opportunity for discussion. That is the system.

[Translation]

Senator Nolin: To what cabinet committee do you present your files? It is not full cabinet, is it?

Ms. Frith: No. Normally they are presented to the Special Committee of Council: the SCC.

Senator Nolin: That means that the members of this committee and the people who have access to these documents have a higher security classification than other employees.

Ms. Frith: Absolutely.

[English]

Senator Pearson: I want to raise a couple of questions but you need not answer them now. In the 37 cases where citizenship was revoked, was landed immigrant status also revoked?

Mr. Sabourin: It depends. If an applicant is found to have lied to become a citizen, he or she loses citizenship status and reverts to being a permanent resident. If the applicant lied to become a permanent resident, both statuses are lost.

Senator Pearson: How many days is such a person given to pack up?

Mr. Sabourin: A person who reverts to permanent residence, of course, benefits from all the rights. For the person who reverts suddenly to no status benefits from all the provisions of the Immigration Act, an inquiry is held to determine whether the individual should be removed from Canada. There are many avenues of redress to attack those decisions.

Senator Pearson: That is good.

Senator Andreychuk: If the applicant is a stateless person and there is no state to which he or she can be removed, what will happen?

Mr. Sabourin: First, I will give an introductory comment. Pending statelessness would be an important consideration before proceeding with revocation. If the circumstances of the case are so terrible that citizenship should nonetheless be revoked, then the government would need to find another country ready and willing to accept that stateless person.

Senator Pearson: The question of retroactivity has already been raised?

Mr. Sabourin: Yes, it was raised once.

Senator Pearson: For me that is a concern and I would be interested in receiving the answer.

For our researchers, it may be useful to see a couple of other oaths of allegiance for comparison. What do the Americans say?

The Deputy Chairman: They have an oath of allegiance to the Constitution.

Senator Joyal: It is very long.

The Deputy Chairman: We have on hand the oaths of Australia, Great Britain, the United States and Israel.

Senator Fraser: I want to follow on the procedural questions of Senator Pearson about what happens when there is revocation. When citizenship is revoked, is that decision made public?

Mr. Sabourin: The Order in Council is itself public; however, the name of the person in the Order in Council is protected information. What is made public is the decision of the Federal Court saying that the person obtained citizenship through misrepresentation or fraud. The actual Order in Council, even though it is public, would not reveal the name of the person.

Senator Fraser: The fact that a decision has been made is published in the Gazette.

Mr. Sabourin: Correct.

Senator Fraser: That person can then go to the public to say, "That is me and there has been a gross miscarriage of justice."

Mr. Sabourin: Certainly. If the person wishes to waive his or her entitlement to privacy, the government will be happy to share the information with everybody.

[Translation]

Senator Joyal: I have three questions. The first is about clause 14. When an individual is born abroad of parents whose status is defined in clause 14, can this individual not go to the Canadian Embassy to register in order to get a birth certificate?

Mr. Sabourin: That is possible.

Senator Joyal: Persons living abroad may be asked for documentation to prove their national identify, for example when they go to an educational institution such as a university.

Mr. Sabourin: Definitely.

Senator Joyal: Consequently, the embassy would have a register with the names of the individuals who were born abroad and who requested a proof of birth that was confirmed by Canada.

Mr. Sabourin: That is correct.

Senator Joyal: It would therefore be possible, in this computer age, to have such a register. It would also be possible to find the address of individuals, who, in 28 years, had not applied for a passport, to inform them that they are about to lose their citizenship. We would give people an opportunity to maintain their citizenship, if they so wish, by taking the necessary action. Might it be possible to do that?

Mr. Sabourin: There will be two parts to answer. You are right, this would be possible, but the 1947 act, which had a similar provision, showed us that it is very difficult to trace people who registered in the past. It is possible, but would we be very successful? I do not know.

However, we will continue to apply the two-step approach. The first is to advertise in Canadian embassies abroad. The notice says: "Were you born abroad to a Canadian parent? If so, do something!" The add shows a Canadian flag and tells people how to get in touch with the Registrar of Canadian citizenship. So we do advertise in this way.

Second, we inform people who come to register, to get a proof of citizenship or a passport, about the official procedure to follow. We tell them that they are citizens, but they are citizens because they were born abroad, and therefore could lose their citizenship when they reach age 28. We do this, because at this time, there is a clause that provides for the loss of citizenship at the age of 28. We deal with the applicant directly.

I was mentioning recently to this committee, that we try to get in touch with people through community groups that are active in other countries, such as the Mennonite Central Committee, which gets in touch with members of its congregation abroad to inform them not to forget about this famous provision, among other things. For our part, we act not only as resource people to these people, but we also provide information sessions where required and we try to ensure that people are well informed about this provision.

Senator Joyal: This information is provided when people apply for a passport, but not when they record their birth?

Mr. Sabourin: Birth registration is a procedure under the former legislation that is done in extremely rare cases under the current act. Through the registration, individuals establish their right to citizenship. It is at that time that we inform them of the provision. In most cases, individuals ask for some proof. They do not have to register, but they would like to be able to prove their status to people who request it at customs or elsewhere. It is our duty and that of the Department of Foreign Affairs to inform them by mail.

Senator Joyal: Thus, when individuals go to the Canadian embassy to get a birth certificate showing they were born abroad of Canadian parents, you tell them that some day they could lose their citizenship?

Mr. Sabourin: If there is an application to register the birth, thus, the right to citizenship as such, the answer is yes. I would not want you to think that this is a watertight situation, because things can always happen during the process. We really do everything we can to inform people, including the famous ad in the embassies.

Senator Joyal: My second question is about subclause 44(1), which reads as follows:

Anything that is required to be done or that may be done by the Minister under this Act or the regulations may be done on behalf of the Minister by any person that the Minister, in writing, authorizes to act on the Minister's behalf, without proof of the authenticity of the authorization.

Subclause 2 reads as follows:

The Minister may designate any officer or employee of the Department over which the Minister presides to act as Registrar of Canadian Citizenship...

In subclause (1), who are the individuals within the department who would be designated by the minister, and who would, in fact, act with the powers of the minister?

Mr. Sabourin: This is done through an official delegation instrument.

Senator Joyal: Who is designated at the moment, for example?

Mr. Sabourin: All matters such as the granting of citizenship to children and adults, cases of naturalisation and the issuance of certificates to individuals who say they are Canadian, issues involved in the retention of citizenship and so on, are delegated to citizenship officers. There are some 200 of them across the country. In all, they handle over 300,000 applications a year. Other powers are more far-reaching and are not delegated at all or are delegated to only two or three individuals, including myself.

Senator Joyal: So you are the officer referred to in sub-clause 44(2)?

Mr. Sabourin: I am the person at the moment. Some powers or responsibilities are more far-reaching and are delegated only to the Registrar and to the deputy minister. We intend to follow the same procedure in the case of the bill before you.

Senator Joyal: Let us exclude the citizenship officers who administer the act. Apart from the registrar and the Deputy-minister, who would exercise the special powers of the minister, particularly as regards revocation and cancellation?

Mr. Sabourin: I must clarify one very important point. There is a limit to the delegation authority. The minister cannot delegate his or her powers to make recommendations to the Governor in Council, for example.

Senator Joyal: Obviously, the minister has to sign.

Mr. Sabourin: That is correct. Anything to do with revocation cannot be delegated.

Senator Joyal: However, the whole aspect involving review, evaluation, confirmation of the recommendation and so on is done by delegated authority.

Mr. Sabourin: That is correct.

Senator Joyal: The minister deals with the most difficult cases.

Mr. Sabourin: Yes and no. You are quite right about who does the work and about the recommendations presented to the minister, but we are not talking about delegated authority. This is strictly an administrative process used to prepare a file and presented to the minister with the following message: "This is what we discovered and here are all our recommendations. You and only you have the power to make a recommendation to the Governor in Council regarding revocation. If you agree, sign here." I do not want to get into the technical details, that is not my intention. However, I would like to be clear about the fact that this responsibility lies completely with the minister.

Senator Joyal: My third question is about subclause 24(1). I have already asked this question of the minister when you were present. It deals with the consultations carried out by the Governor in Council regarding the appointment of a retired judge. If I understood the minister's answer correctly, this clause simply repeats the corresponding clause on national security.

We find ourselves in a special situation in the Parliament of Canada at the moment. I am referring here to the two Chambers. There was an extraordinary situation during the 35th Parliament, where one party had only two members in the House of Commons. This party was in the majority in the other Chamber. In our parliamentary system, which operates on the basis of political parties, I think that if we recognize the existence of parties and their role in expressing their views, we have to recognize them equally in the two Chambers, particularly when one party plays such an important role as that of Her Majesty's Official Opposition. There is a specific statute about the political authority in Canada. Consequently, it would seem that provisions such as these should reflect the fact that there are political parties in both Chambers of Parliament, not just in the House of Commons.

My argument is based on the fact that the consultations with the party leader are not about confidential information. The objective is to request an opinion on the professional qualifications of a retired judge, and not to share privileged information as such. I have been given the individual's biography. That is public information.

Mr. Sabourin: Exactly.

Senator Joyal: Consequently, I do not see how, regardless of the other act, we can exclude a political party that does not have 12 members in one Chamber and has more than 12 members in the other Chamber. By definition, our parliamentary system operates so as to preserve continuity, a common memory within Parliament. That is why most senators are appointed for longer periods of time than the term of members in the House of Commons.

I think it would be in keeping with the integrity of our democratic process to consult those parties represented in all of Parliament, not just in a single Chamber, if, as a result of an election, a party elects fewer than 12 members. This is a number, throughout the Canadian parliamentary system, that comprises an essential component of democratic debate. The case of the 35th Parliament is so obvious, in my view. It operated with almost no representation from one party in the House of Commons. However, that party was in the majority in the Senate.

It is difficult to justify such a provision in a system based on political parties. The Senate also operates in this way. As you know, there is a leader on the government side, and one on the opposition side. Did you not have any discussions about these principles when you were drafting subclause 24(1)?

Mr. Sabourin: Without going into this in too much detail, I must say that even though you said that the Senate operates on the basis of political parties, I think it is much more collegial here than elsewhere. I do find your arguments quite attractive, however. You are quite right, Parliament is Parliament. Both the Senate and the House of Commons, in addition to Her Majesty, make up Parliament. However, Parliament is also the body that proclaimed the Canadian Security Intelligence Act. Parliament is the body that decided that it would be advisable, in appointing members of the Review Committee, that the process to be followed be one involving consultation between the Prime Minister and the other leaders in the House.

Bearing in mind all of the mechanics and the machinery required for national security, if there is a desire to amend this process based on the argument that you have put forward -- I think that it is an excellent one -- Parliament is free to amend the Canadian Security Intelligence Service Act. There is no doubt in my mind that, in this case, the procedure provided for here would be immediately changed, through a consequential amendment, in order to have the same appointment system.

The second item I wanted to raise, and this is for strictly practical reasons, is that we must remember that section 24 is there should -- and it is almost certain that this will never occur -- the Review Committee not be able to act, and should its hands be tied for any reason. The history of the Review Committee has shown that this has occurred on only one occasion. Someone had alleged that the committee was partial and it turned out that this person was right. Nevertheless, though, the courts said that there had been a lack of partiality, they also stated that the Review Committee could nevertheless act in this fashion or in any other fashion and that there was absolutely no need to create a legal vacuum.

When the initial decision -- and here, obviously, I am referring to the Zundel case -- had been rendered, the government said that if the Federal Court were to say that there was a legal vacuum, that it would have to be filled. We therefore have this mechanism to appoint retired judges, should the Review Committee not be able to perform its duties.

I am insisting on this practical issue because we must not view it in terms of theory alone. It is highly likely that we will never need to use this provision, but it is there to deal with any exceptions where the Review Committee would be unable to perform its duties.

Senator Joyal: I do not want to belabour the debate further, but, as far as I am concerned, the fundamental issue is not whether or not there has been only one case in the annals of citizenship, it is the principle. In my opinion, when we craft legislation, we cannot disregard the nature of the system we are in. Even if no one ever invoked clause 24(1) -- presuming that in practice this will never occur -- the fact remains that the exact nature of our parliamentary institutions will be reflected in this clause. It is not a question of whether or not this case pertains to only one individual. That is not what is important. What is important is the integrity of the institutions and the principles governing how our system operates in Canada. That, in my opinion, is the very first criterion.

Obviously, the criterion can be tempered by our assessments, but there is a basic principle that we must acknowledge in our systems: the integrity of Parliament as it exists in its definition and the integrity of the rule of law in our country. Finally, this whole issue of values constitutes a political debate. We make a law that must protect the rights of individuals and it is the rule of law that is the fundamental element. Everything else, everything that deals with values, corresponds to what the individuals contribute themselves to society. However, aside from what they may contribute, it is the rule of law that gives every individual the opportunity to express his point of view in an orderly manner within our system and within the Constitution and the Canadian Charter of Rights and Freedoms that we have.

Even if it will never be used, in my opinion, this is not an argument to say that we have already done this in the past and that we could make the same mistake. In my opinion, if we made a mistake when we drafted the Canadian Security Intelligence Service Act, we do not have to repeat the same omission.

That is the basic principle when you define the role of Parliament and the political parties. It is much broader than just this case. Maybe it will never happen again until the next citizenship act. And when the next act is reviewed, maybe we will say that it is not important because the situation has not occurred for 20 years.

Mr. Sabourin: I understand you entirely. I too feel that we should not talk about the number of cases for issues as fundamental as that. I hope that I will not appear too technical, but if it were the wish of this committee, if it were the wish of all parliamentarians in the House of Commons and in the Senate, if everyone unanimously agreed that a nomination process must be adopted after consultation, as you mean, I think that the process would be to amend the initial act that sets out how issues of national security are dealt with.

Suppose there were unanimity, I do not know, maybe there is, it would be quite odd to proceed using the Citizenship Act, which simply adopts the principles set out in the act dealing with national security. It seems to me that it would be a better idea to propose amending the nomination process set out in the Canadian Security Intelligence Service Act. That way, the Citizenship Act will be amended to reflect that. I am certainly not an expert in parliamentary procedure, but it seems to me that if you want to move an amendment, it should target the parent act.

Senator Joyal: Consistency in omission, in other words.

[English]

Senator Moore: Senator Joyal asked about the powers in clause 44(1), and Mr. Sabourin said that does not include the power of revocation under clause 16. How do we know that? If that is the case, why was that not excepted from clause 44(1)?

Mr. Sabourin: You have put me on the spot in front of my former professor of constitutional law. I feel I have to ensure that I give the absolutely correct answer.

Constitutional conventions govern how cabinet operates. Surely, it cannot be a mere representative of a minister of the Crown who argues before all other ministers of the Crown how an authority of the Governor in Council should be exercised.

Senator Fraser: My question is one that we undertook to put for the prior officials who were here. We had a witness earlier this week from the Monarchist League of Canada. In the course of our discussion there was some debate over the part of the new legislation where allegiance is sworn only to the present Queen Elizabeth II and whether that, in law, would include her heirs and successors, who are mentioned explicitly in the present oath. Was there some deeper meaning to the fact that "heirs and successors" is not mentioned in the new oath?

Ms Frith: I will restate what our minister has already stated. When we pledge allegiance to the Queen it automatically includes her heirs and successors. The only reason that "heirs and successors" was removed from the oath is to help with the flow of the words, to make the oath as readable as possible for our new citizens. It was to allow for an expression of a new oath. There was no other reason than that.

Senator Fraser: You are satisfied that legally speaking this is an oath to the monarch of Canada, whoever that monarch may be?

Mr. Sabourin: Absolutely, and we have done our work on that with respect to obtaining advice from the Department of Justice and from other sources that we believe are able to speak on this matter.

Senator Fraser: Could we send the transcript of that little portion of the proceedings to Mr. Aimers?

Senator Andreychuk: There was the other half that who said that you pledge your allegiance to Canada and the construct is "and Her Majesty" and they wanted to have "and so to" or "therefore" because in their reading of the oath "pledging allegiance to Canada" and "pledging allegiance to Her Majesty" were two different things. They said that we are not pledging allegiance to Her Majesty in her own right, that we are pledging allegiance to her as the head of the Constitution.

Senator Fraser: As Queen of Canada.

Senator Andreychuk: This seems to lead to two loyalties rather than one.

The Deputy Chairman: On the first point, I never had any doubt that when we take an oath of allegiance to Canada it includes Her Majesty. I have absolutely no doubt that when we say "Her Majesty" we do not need to say "heirs and successors" because there is a principle of constitutional law that means that when the King or the Queen is dead the other comes in immediately. There is no hiatus. I have always been convinced of that.

There is no reason to change the oath of allegiance to add "and to." The word "Canada" includes Her Majesty.

That is my personal opinion of course.

Mr. Sabourin: Mr. Chairman, without debating this point too finely, the text of the oath is not a mere legal declaration by the new citizen. The text of the oath is there to capture a kind of poetic expression of the values of Canada. It is not merely a legal commitment made by the new citizen.

I would say that in my few years in the citizenship program -- and I began as a summer student when the minister was the Honourable Serge Joyal some years ago -- if I saw one version of proposed wording for the oath I saw at least 1,000. They were all thoughtful, all very valid and beautiful, or most of them, and the only constant throughout the years is that everyone has a good version of the oath. As the minister said, this version reflects a certain measure of consensus and is as valid as many other versions.

The Deputy Chairman: For me, in the act, it is a statutory definition. When it is in the British North America Act, or the Constitution Act now, then it is the constitutional definition. It is not in the Constitution this time, it is in a statute, which is quite different.

I wish to thank the four witnesses for this magnificent appearance before the committee this afternoon.

[Translation]

Ms. Frith: There is a mistake in the document on the revocation process, and I would like to provide you with an update.

The Deputy Chairman: We will gladly accept it.

The committee adjourned.