Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 23 - Evidence
OTTAWA, Wednesday, October 18, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, respecting Canadian Citizenship, met this day at 4:09 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: I wish to apologize to our witness, Professor André Braen. We were unavoidably delayed in the Senate chamber. We had expected to rise at 3:30.
Professor Braen, we are in your hands. You have been invited back on behalf of some members of the committee to tell us more about your interpretation of "public interest."
[Translation]
Mr. André Braen, Professor, University of Ottawa: I would first like to thank the members of this committee for again giving me the privilege of appearing before them.
I was asked, more specifically, to discuss public interest, a concept that appears in the bill. This bill refers to several criteria pertaining to the exercise of discretion, to a greater or lesser extent, in decisions to grant citizenship, revoke it, or quash or a decision taken in that regard.
For instance, clause 16 allows the Governor in Council to make an order revoking citizenship in cases of fraud or false representation, on the report of the minister responsible for applying the law.
When one talks about fraud or false representation, this may appear relatively clear, but by interpreting and applying these criteria, the fact remains that the Governor in Council or the minister has some discretion to interpret and apply those criteria.
Clause 18 states that the minister may declare the obtention of citizenship to be void in cases of false identity or inegibility. False identity or inegilible cases as described in clause 28 may appear clear and objective, but there is of course a certain discretion in the interpretation of the text.
The discretion in clauses 16 and 18 fits within certain guidelines. For instance, in the case of clause 16 it is possible to ask the Federal Court to intervene and hand down a decision on cases of fraud or false representation. Where clause 18 is concerned, the Federal Court can exercise its power of review as such.
Clause 21 discusses public interest. It states that if the minister is satisfied that there are reasonable grounds to believe that it is not in the public interest for a person to become a citizen, the minister may submit a report to the Governor in Council recommending that the person not be granted citizenship. One can see that this public interest criterion confers much more discretion than the criteria contained in clauses 16, 17 and 18.
Moreover one can see that there are virtually no guidelines to direct that discretionary power, and by this I mean that clause 22 contains a privative clause declaring that the order is final, and not subject to appeal or review by any court. At first blush, this is a public interest criteria that is accompanied by vast discretion and that discretionary aspect is re-enforced by the elimination of any judicial review.
I want to say first and foremost that under the law, Parliament cannot set aside the power of review of a superior court because that review power is enshrined in article 96 of the Constitution Act, 1867. However, for legal purposes the insertion of a privative clause is nevertheless taken into account by the courts. One can then see that in clause 28 there is another criterion, national security, which is also accompanied by discretionary power.
This concept of public interest mentioned in clause 21 is not a new concept in law, nor is it something preposterous. The legislator, whether federal or provincial, uses this notion of public interest quite frequently. It is a quasi-objective concept, to the extent that its application calls on or brings to bear a relatively broad discretionary power, much more so than in the case of fraud, false identity, national security, and so on and so forth.
In law the concept of public interest is not without limits, nevertheless. Under the law, and in common law, it has always been deemed that the exercise of a discretionary power -- such as the one based on the notion of public interest -- is limited by at least two factors.
The first limit is that of good faith. One presumes that the government acting in the public interest is acting in good faith. The courts intervene to invalidate a decision to the extent that bad faith can be proven.
The other limit is the intent of the law. The Citizenship Act pursues certain objectives. One supposes that the holder of a discretionary power grounded in public interest will make decisions in light of the intent of the law. In other words, a concept such as that of public interest does not confer unlimited or arbitrary power on the holder of that power.
Moreover, even if the separation of powers is a fact in our system, a court of law can still intervene to assess the exercise of a discretionary power -- for our purposes, one grounded in public interest -- by applying two approaches, one being the traditional approach.
Traditionally, courts in this country will assess whether discretionary power based, for instance, on public interest, was exercised in good faith, in a non-discriminatory way, in a reasonable manner, in compliance with the intent of the law. So, traditionally, courts can still intervene and monitor the legality of the discretion based on public interest.
A newer approach, which has obtained since the Supreme Court of Canada handed down its decision last year, is that courts may intervene to monitor the exercise of discretion -- based on public interest -- by applying what the Supreme Court of Canada has called a pragmatic and functional approach. The law will be read and those concerned will check to what extent the court of law can intervene to invalidate a decision. That is what I had to say on the concept of public interest.
What appears strange to me in the bill as it stands is the creation of categories in the exercise of a discretionary power, and the will to have them be subject to a different level of control or review, given that in all cases the consequences for the individual subject to this decision will be very serious indeed.
Insofar as the concept of public interest is concerned, this concept does not concern me, personally, as a jurist.
Senator Beaudoin: My question concerns clause 22 (3). It says that the order is final, and despite any other Act of Parliament, is not subject to appeal to or review by any court.
In our Canadian constitutional regime, I cannot see how we can vote in favour of that paragraph. If we do, it will be set aside by the courts. Not only is it said that the order is final and that no other Act of Parliament applies, but there is no possibility of appeal or judicial review. Being able to ascertain that our laws are constitutional is the basis of our system. I can only suggest that paragraph 22 (3) be deleted because it is unconstitutional. If we do not delete it by an amendment, the courts will do so. What is your opinion?
Mr. Braen: The provision is known as a privative clause in the jargon of administrative law. The general opinion is that this type of wording is not inherently unconstitutional, since it cannot eliminate a superior court's judicial review power. In practice the courts of this country will not follow up on this type of provision. However, why would the legislator want to insert this type of clause nevertheless, even though there are no constitutional consequences as such? The supremacy of law cannot be set aside, as it is one factor that can be used by a court that must assess the use of a discretionary power.
In administrative law, the presence of a privative clause means that the court of law must exercise what is known as judicial restraint. When this type of provision exists in a law a court of law, will say that it can nevertheless assess the legality of the discretionary power used, but it does so with some reservations. The legislator asks it to proceed with restraint. It is in that sense that this type of clause can be useful, and that is probably why those who drafted the bill thought that they would insert such a clause.
Senator Beaudoin: In other words, the court is not at all concerned, since it knows it can intervene in spite of that.
Mr. Braen: That is correct. It may however put a damper on the court's enthusiasm.
Senator Nolin: In the Morales 1992 Supreme Court decision, the vagueness of the expression "public interest" is discussed. It was the court's majority decision under Chief Justice Lamer that the use of the words "public interest" does not authorize judicial review. The conditions surrounding the exercise of that discretion are too vague for the text of that law to be legally grounded.
Judge Lamer refers to another judgment of the Supreme Court, a decision contemporary to the Morales judgment, the Nova Scotia Pharmaceutical Society judgment. Some might say: yes, but the Morales decision had to do with criminal law and things would be different in an administrative law context. In the Nova Scotia Pharmaceutical Society decision the Supreme Court tells us that the theory of vagueness as to the use of the words "public interest" does not apply only to criminal law but to all types of law: civil, administrative, et cetera.
When I read the legal text we have before us, especially clause 21, I have a problem. In your preliminary remarks you said that the courts will in any case will read the law and look at its intent to see -- clause 21 contains no normative criteria as to the application of the public interest rule -- whether it proposes assessment criteria or guidelines to the minister and cabinet's discretion.
Where can I find in this bill the objectives you referred to in your preliminary remarks? What are those objectives that would provide a context for the minister and the Privy Council when they exercise their discretion in light of Supreme Court judgments such as Morales and Nova Scotia Pharmaceutical Society?
Mr. Braen: It is a judicial task!
Senator Nolin: For the benefit of our colleagues, I simply want to read a passage of the Nova Scotia Pharmaceutical Society judgment. The court established a test for vagueness, and it states:
A law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.
My question is the following: In the wake of these decisions -- including the test in the Nova Scotia Pharmaceutical Society judgment -- does clause 21 respect that test, or does it not?
Mr. Braen: Quite humbly, I believe it does. Once again the concept of public interest is a familiar one in legal language. Another ground or another motive would have been proposed. It could be said, for instance, that the minister may, given reasonable grounds -- or for cause -- refuse to grant citizenship.
For cause, what does that mean? That is just as vague as public interest. Do you agree?
Senator Nolin: That is my problem. Since it is vague, if you follow the test, I believe that it is indeed.
Mr. Braen: But it is not a lack of precision, it is a discretionary power. If you give a government a discretionary power, it is because you feel that certain situations may arise. An act cannot provide for all possible situations. For that reason you need some flexibility and that is why you state that the government may under certain circumstances, to further public interest, intervene as such.
It is true that under the law, an act may be declared unconstitutional for reasons of vagueness, but decisions where laws have indeed been deemed unconstitutional because of vagueness have been extremely rare, to my knowledge, because a law is made up of words and words have to be interpreted. There is always, right from the outset, a certain discretion involved in that exercise. I will not be made to believe that it is possible to insert objective grounds in a law that leave no room whatsoever for subjectivity; that is practically impossible.
The public interest motive is not preposterous in legislation. A great many legislative texts only raise this concept of public interest or to other equally vague concepts in cases of reasonable cause. What is reasonable cause? I do not want to become the advocate of this bill, but in administrative law, my reaction would be the following.
Senator Nolin: I too want to give this bill a chance. I just have a problem with that clause. I have no problem with the fact that the minister and cabinet may exercise this discretion. The problem I have, and the of law says so, is that there has to be some kind of guidance, some markers. The court refers to sufficient guidance, not complete guidance.
When I read this passage of the Supreme Court decision and add your testimony to it, where in the text am I to find the sufficient guidance that will serve as a marker or beacon to the legal exercise?
Mr. Braen: The guide exists in my opinion because if you look at previous provisions, for instance the matter of granting citizenship of revoking it or renouncing it, et cetera, certain criteria are set out.
In one case the text refers to false representation, to fraud. There is subjectivity in that. In other cases it refers to false identity or non-eligibility under clause 28. There is room for discretion in the interpretation of the words used in clause 28.
There is also the concept of national security. Just between you and me, national security commands a certain discretion. There are markers or guides throughout the text. The bill says that in the other areas, which we shall call public interest, we do not know what can happen. Perhaps there will be a case where false representation or fraud will not be an issue. It might not be a matter of non-eligibility under clause 28. It might not be a matter of national security, but it still might be awkward if nationality were granted. That is why we refer to public interest. It is a residual concept, if you will.
Senator Nolin: And one which the legislator wants to exclude from judicial review. That concerns me. I agree with you that clause 96 confers some protection. However, the fact that discretion is granted without guidance as to its use, and the fact that the legislator wants to exclude it from judicial review leads me to wonder what they are trying to hide.
Mr. Braen: In law, I do not think they are trying to hide anything, but to ensure that the courts will only intervene very rarely in the exercise of this jurisdiction. Once again, in constitutional law you cannot effectively set aside the monitoring and review power. However, in administrative law, this is an indication that may be considered by a court of law which may not want to intervene in the matter of this discretionary power in order not to interfere with public interest.
[English]
Senator Grafstein: I wish to thank the staff for providing us with this memorandum. It helps us to focus on the issue. It is very useful, on the one hand, but it makes our life a bit more complex, on the other.
Mr. Braen, I am having difficulty following the linguistic thread of your argument. I am sure that you have looked at the decisions in Morales, Nova Scotia Pharmaceutical Society, Zundel, Kuchma, Snider, and Manitoba v. Metropolitan Stores Ltd. To sum them up, in dealing with issues like privacy it is not difficult to determine what is in the public interest because the public interest has to go against the very narrow right that is privacy. When you say "public interest" in the context of the privacy statute, that seems to me to be pretty precise because a decision must be taken. We know what the value is on the one hand, that being privacy; and we know what the value is on the other hand, that being disclosure. That is not much of a problem.
I assume that the Nova Scotia Pharmaceutical Society case involved a public health matter where there is a question of balance between social objectives, which would be good public health, and individual rights. Again, that is not too much of a problem, but it is more helpful.
The decision in Zundel said that the courts and legislators must be very careful because we are dealing with restricting constitutional rights. When we restrict constitutional rights, we must ensure that the restriction is justifiable, again in the public interest. However, that is it not the case here, and that is why this case is so much more difficult.
Here the question is not on the right to become a citizen, because there is no right to become a citizen. There is a privilege to become a citizen based on certain criteria.
The question of public interest provides us with a much more complex question, because it is so vague and it does not state the social objectives we are seeking to obtain. Is the social objective to fulfil your duty in Canada to vote? Is it to fulfil your duty not to be a harmful influence in a particular neighbourhood?
I believe that the answers you gave to Senator Nolin do not answer the question, because there specific concerns are identified. Public interest is much broader, and it is the broader application, without any type of guidance, that causes us some deep problems.
What would be the public interest in denying a person the right to become a citizen, which we want to encourage? Based on the Charter and other things in Canada, we seek to encourage good citizenship. Yet, we do not really define what good citizenship is other than saying to fulfil and maintain, under the oath, the laws of Canada in some vague and not very satisfactory way.
What would be the limitations on public interest, beyond the ones that you have suggested, which are lying, cheating, security, et cetera? Those are clear. No one quarrels with those. The problem is the vagueness beyond. Help us to say, without definition, what we are looking for in terms of good citizenship. I do not think the act gives us any guidance on that.
Mr. Braen: That is a difficult question to answer.
Senator Grafstein: I am asking the witness the same question that I have been asking myself. I cannot answer it myself.
[Translation]
Mr. Braen: I do not know if the Department of Immigration officials have appeared before this committee.
Senator Nolin: That is another problem we have. We wanted to pass the bill beforehand.
[English]
Senator Grafstein: I do not think we should cloud the issue with immigration. Immigration sets up a different set of architectonics, which we can address philosophically. This is much more complex than immigration.
[Translation]
Mr. Braen: I do not quite know how to answer you. This notion of public interest is a kind of residual notion in my opinion.
In the bill, government authorities, be it the minister or the government, are given the capacity to intervene and revoke, for instance, or to renounce or not grant citizenship, and certain criteria have been set out which I listed earlier.
It seems that in order not to take any chances, to provide for possible situations that would not involve national security or criminality under clause 28, etc., the government should still be able to intervene on behalf of the public interest. Are there parameters? All I can say is that in law, if I were a federal court judge, a superior court judge or on the bench of the Supreme Court of Canada, I would say that this concept in itself has inherent limits, the ones I listed earlier, that is the limit of good faith, and of the intent of the law. The Department of Immigration officials will have to define the objectives of the law themselves. They will read the law and will set out the proper way to proceed.
It must be understood that when the matter goes before the court, ultimately the intent of the law will be defined by the court and not by government authorities.
[English]
Senator Grafstein: I do not mean to interrupt the witness, but therefore we have not fulfilled our responsibilities. I do not wish to delegate the responsibility for defining what citizenship is to a Supreme Court judge, quite the contrary. I want to be able to define for him what I think is right or wrong. I would not be among those who might wish to give a judge, as much as we love and respect them, a licence to define the laws of citizenship for Canada?
Senator Nolin: It is even more problematic than that. It provides a licence to define the public interest without guidance. At the limit, a conclusion could be reached that the opinion of the applicant is contrary to the government or the government does not like it. However, we cannot control that. If that is what we want, I have a problem.
The Chairman: The committee will have time to discuss this tomorrow morning. Let us try to get an answer from the professor.
[Translation]
Mr. Braen: I simply wanted to remind you -- and I do this with a great deal of reserve -- that in our constitutional system there is a certain separation of powers. You are entrusted with the task of legislating, but courts of law must define the objectives of laws. That is our system. The legislator can in any case help the judiciary to interpret the law correctly.
Senator Nolin: We do not want to usurp their place, on the contrary, we want to help them to do their work.
Mr. Braen: Ultimately, they are the ones who decide.
Senator Nolin: However, they sometimes tell us that we have done a poor job and ask us to start over, and we would like to avoid that.
[English]
Senator Andreychuk: You are quite right, you are here to talk about the legal aspects of this bill. Legislators must decide whether we want to give this kind of discretion to the executive. A bill does not become legislation until Parliament enacts it. You are quite right in pointing out what will happen if we give the executive the power.
You said there is a discretion that would involve public interest in clauses 18 and 21. However, clause 16 is more of a blanket discretion of public interest. If you look at clauses 18 and 21, there is limited access to a court and, perhaps, more access even through administrative review.
You said there is public interest when there is fraud, there is misleading the government, when there is national interest or security involved, but there are other aspects. I do not see that clause 16 is in any way limited by the other clauses, for example, clauses 18, 21, the security sections or the prohibitive elements of clause 28. Clause 16 is not tied to those other clauses. If it is tied to those other clauses, does that mean that your interpretation would be that a government could look at clauses 17 or 18, national security prohibitions, and say, "Look, there are more tests; we are more bound there; there is more judicial scrutiny; let us not go that way; let us go to clause 16 because we are giving the signal that we can use more absolute discretion there and we are limiting the judicial influence"?
It is a short cut, in other words, to the other clauses. Did you intend that or not?
[Translation]
Mr. Braen: No, because first of all there would have to be a very careful examination. At first blush, clause 16 targets a very specific case, that of the revocation of a decision granting citizenship. Clause 16 states that the Governor in Council may intervene and revoke the citizenship that has been granted to someone on the grounds that are mentioned.
Clause 18 states that the minister may declare that a decision to attribute citizenship is void. The objective is then somewhat different. In one case the text is talking about revocation and in another about annulment, repudiation or granting of citizenship. Clause 21 allows the government to forbid the minister to grant citizenship. Each provision has an objective that is very specific to it in my opinion. It is certain that in the final analysis immigration officials may in a specific case use one or the other of these provisions regardless of the cases that arise. I would not be willing to say that this would allow immigration officials to bamboozle people and do anything they please. I do not believe that is true.
[English]
Senator Andreychuk: You would agree with me that those are separate clauses and that they have a separate purpose. You would agree that it would not be fair, then, to infer that clause 16 would be at the point of saying, "Well, we have some doubt; we will hold these people up because of our experience with similar cases." It stands on its own; is that what you are saying?
Mr. Braen: That is what I am saying. The goal of this clause appears to be very clear. It is a case of revocation.
Senator Andreychuk: Senator Grafstein touched upon the points of what is limited when you reach the doctrine of vagueness. If clause 16 stands alone, I am also looking at the fact that the government would be able to use full discretion, not in the traditional ways that they have used their discretion in citizenship. That would then be open to them.
Mr. Braen: Concerning clause 16?
Senator Andreychuk: Yes.
Mr. Braen: No, it is limited.
[Translation]
First of all, this clause only applies in cases of fraud or false representation.
[English]
Senator Andreychuk: I am referring to clause 21, I am sorry. I was reading from 16.
Clause 21 stands alone with no reference, you said, to the other clauses. Thus, the government is not bound with what it is doing with national interest. They do not have to stay in those categories. Public interest could not be determined in a broad way.
[Translation]
Mr. Braen: I am going to correct myself because earlier I was referring to clause 27. Clause 21 for its part has its own specific objectives. In a case of false representation or fraud, normally clause 16 should be triggered. If national security is at stake, clause 23 should normally be invoked.
In cases other than those already defined in the bill, you are still told that in the public interest -- in other cases, those that have not been defined -- the government may intervene.
Clause 21 has its own objective. According to my interpretation of the bill, that clause will only apply to the extent that other provisions do not. I cannot see how clause 21 could be used to invoke public interest in a matter of fraud or false representation, when you have clause 16 which already discusses those issues.
[English]
The Chairman: Your question is not on the record because the interpreters could not hear it.
Senator Nolin: My question is this: They are not forced to say it is; correct?
Mr. Braen: I think so. Read clause 21(3).
Senator Nolin: All right.
[Translation]
If it is deemed to be in the public interest to revoke citizenship there is an obligation to cite grounds, at the very least. This is a very slight constraint on the exercise of discretionary power.
[English]
Senator Andreychuk: I am sorry if I confused you regarding clause 16. I wanted to talk to you about both. I will go over them again.
Clause 21 is the broad one on public interest. This clause would preclude someone from obtaining citizenship if the minister deemed it "in the public interest." With the other clauses, of course, an individual would not get citizenship if he or she were under RCMP investigation or were considered a security threat, et cetera. It seems to imply that "public interest" must be something other than already mentioned in this proposed act.
My question went further. Is there a difficulty such that the department, the minister or the cabinet would look at those other clauses and feel that they had not met the test of those clauses on national security, for example? National security is spelled out clearly. However, the government might say, "I am not sure we can pass that test; therefore, we will use clause 21, public interest, because we feel uneasy." That may not be wrong. My question is this: Do they have that authority?
[Translation]
Mr. Braen: If another provision cannot be used, if we are not certain that there was fraud, we can always use clause 21 and invoke reasonable grounds in the public interest. That is one possibility but that concern is nevertheless tempered by the obligation to cite grounds.
This obligation does guide the exercise of that discretionary power. One could imagine a case where authorities, not being able to prove fraud or false representation, might decide to use this residual discretionary power.
[English]
Senator Andreychuk: This is where I come to the administrative law interpretation that I would like you to comment upon. Therefore, if the government moves against an individual under one of the other clauses there seems to be more access to the courts and more transparency. For example, under SIRC there are public review boards, et cetera, that oversee those areas. This clause is saying to the courts, "Do not enter into it." Therefore, it would take a very unusual case to enter into it. It puts the applicant in the position where it is a national security issue so the government, not wanting to go through all those hoops, would rely on clause 21, where it is more likely to succeed. The counter of that is that that person has less ability to defend himself or herself.
[Translation]
Mr. Braen: You are right. Even if the privative clause does not prevent review by a superior court or the Federal Court, that power remains limited and bears on legality as such, whereas in the case of a revocation, the intervention of the Federal Court on the main issue is provided for.
Why propose something different? You are correct, because for the individual concerned by the decision there are fewer possibilities of seeing that decision challenged legally.
[English]
Senator Pearson: I have a supplementary to Senator Andreychuk's question.
I always try to visualize the kind of person we are talking about. The kind of person that comes to mind is someone known to be a pedophile in another country. What does it take to say that someone is under investigation? Can one say, "We have heard such and such about someone?" It is not that simple, is it?
Senator Cools: Of course not.
Senator Andreychuk: I hope not.
Senator Pearson: A case that I have raised before is a case from Interpol. They all knew this particular individual, they were watching him, but one could not have said that he was under investigation. I should like to know about that distinction. What enables you to say that somebody is under investigation?
Senator Andreychuk: That gets you into national security and clause 28 interpretations, which, in fairness to this witness, is not administrative law. There are specific regulations, rules, scrutinies, procedures within the RCMP, within Interpol, within SIRC, and there are oversight committees to make sure they follow through. There is a way of putting people under investigation.
There was one other case, where an individual was put in limbo. If an individual is under RCMP investigation that individual stays in limbo until the investigation is complete. There is no terminating of that investigation. I could have raised that as a problem. Also, the Governor-in-Council review committee does not have to report until it is convenient to do so. So, there is broad discretion to hold people under scrutiny. I am not sure whether that would catch your case. Perhaps your case is one where in the other country they had not been able to determine that an individual was one of the known suspects, which involves criminal investigation work as opposed to criminal charges.
Senator Pearson: I am trying to clarify this in my own mind. I shall raise the matter tomorrow.
Senator Andreychuk: I have another question on public interest. When the minister and the departmental officials came before us, either the minister herself or one of the officials said, "But you know that the government's role in a democracy is to act always in the public interest." Can that overriding responsibility of the government be equated to what is intended here?
[Translation]
Mr. Braen: In any case, there is always a responsibility at the legal level. Legally speaking, you cannot have unlimited, arbitrary discretionary power. That cannot happen.
Moreover if the concept of public interest appears too discretionary to you, remove it. What will remain in clause 21? You could say that the minister may, if he is convinced that there are reasonable grounds, refuse to grant citizenship, or revoke citizenship. What are "reasonable grounds"? The same question will arise. The same dilemma you are facing will arise. Unless you define more objective criteria, as in other clauses, for instance those involving national security, false representation, etc., unless you determine and describe other standards in a more objective way, we will be stuck with these residual criteria that will be known as reasonable grounds, for cause, public interest, any other grounds, etc. The substantive debate will remain the same.
Senator Joyal: Mr. Braen, if we want to reassure ourselves on the legal implications of these provisions in part IV of the bill would it not be a good idea to have a preamble stating the objectives of the legislator? Or should there be a provision in the body of the law to define the objectives of the law, so that when the Superior Court has to interpret the concept of public interest, as you pointed out earlier, the court's second field of investigation would be much more conclusive, since good faith is presumed to exist? I think that the first criterion you referred to is not easy to imagine. Good faith is presumed. You would have to prove that the minister is acting in bad faith. I wish you good luck if you want to try to prove that before the court.
Insofar as the objectives of the law are concerned, as this element is more accessible to us as legislators, would it not be one way of guaranteeing the reasonable use of this power to have a clear preamble on the intent of the law, or a clause in the corpus of the act defining the objectives?
Mr. Braen: It is certain that if you define the objectives of the law with more precision this will guide the exercise of the discretion associated with the concept of public interest. To increase the guidance associated with that discretion, the abolition of the privative clause to be found in clause 23 would be another way of facilitating the intervention of a court of law. For you as legislators, these are greater assurances that courts of law will be more accessible in this context. That is certain.
Senator Joyal: When the Canadian Charter of Rights and Freedoms was adopted, article 1 of the Charter included a kind of opening to discretionary assessment. As you know, the article states, and I quote:
[English]
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[Translation]
That was a very broad criterion because defining what constitutes a free and democratic society in certain countries is not necessarily the same exercise as in a society such as our own. However, Supreme Court decisions have now given us a whole series of tests which courts apply, and it is not reasonable to apply them indiscriminately. It is all very precise. The Court has constituted a whole corpus that now provides us with extremely precise parameters.
What I do not like in this definition of the public interest is the absence of a reference to what is reasonable in a free and democratic society. If we said: that which is congruent with public interest in a free and democratic society, the court could turn to its corpus of decisions and say: here is what is acceptable in a free and democratic society. There would be a whole background of references that would allow us to determine that there are guidelines. But here, there are none. There would then be a possibility of maintaining ministerial discretion while providing guidelines for it on the bases of legal standards that have already been defined by the courts, in a clause which theoretically could impose considerable limits on the exercise of the rights and freedoms listed in the following articles of the Charter.
Mr. Braen: From what I recall I can state that the courts have interpreted concepts such as that of public interest as having to comply with the law, legislation, and the Constitution. A discretionary exercise that would run counter, for instance, to the Canadian Charter of Rights and Freedoms, would not only be unconstitutional but would be certainly be deemed to not be in the public interest. In our system, the public interest commands respect for the law and the Constitution, moreover. Otherwise, you are no longer talking about public interest.
Senator Joyal: What if we added the following terms to clause 21:
[English]
21. (1) If the Minister is satisfied that there are reasonable grounds to believe that it is not in the public interest for a person to become a citizen, the Minister may submit...
[Translation ]
... this would remind people of the limits that exist within our Charter and have been interpreted by the courts. That would provide more specific guidelines than what is in the bill at this time. I am sure that that is not a perfect solution but it would be a particularly important improvement brought to the definition of public interest. If it is "public", it is because it refers to society. That has already been said. Indeed, the Supreme Court said so.
[English]
They talk about societal values.
[Translation]
May I refer you to the Court's decision on page 2 of the document, in the Nova Scotia Pharmaceutical Society case, and I quote:
[English]
The doctrine of vagueness was described as follows in Nova Scotia Pharmaceutical Society as follows:
A delicate balance must be maintained between societal interest and individual rights.
[Translation]
However, societal interest is the interest of a free and democratic society. In my opinion the adjunction of this concept would guide the notion of public interest in a way that would be in compliance with what is already being done when the limits of the Canadian Charter of Rights and Freedom are applied.
The fact remains that we will be depriving the individual from exercising a right. If we refuse to grant someone citizenship we prohibit that person from voting, and from being a candidate. He or she is deprived of the possibility of moving easily within the country, of going outside the country and of returning to the country at will. He is deprived of access to education in one of the official languages of his choice, and is not subject to other provincial and federal legal provisions that concern citizens. It is a very serious decision.
So, as it is such a serious decision, it seems that there should be limits and that they should be in compliance with the limits we recognize in the definition of rights and freedoms in the Charter.
Mr. Braen: The Charter applies even if it is not mentioned in the act. It is a limit placed on the sovereignty of the Canadian Parliament, right from the outset.
Moreover, your suggestion to add a provision to the act would re-enforce and guide that discretionary power, that is certain. There would be no need to refer to the Charter, in public interest cases, it would be included in the body of the law.
Senator Nolin: Are you saying that even if we did not add this amendment to include in clause 21(1) the exact words to be found in article 1 of the Canadian Charter, the courts would use this legal caselaw guideline to analyze the minister's power or discretion?
Mr. Braen: Before the courts, in light of article 52 of the Constitution Act, 1982, one can always invoke the unconstitutionality of a legal provision. The legislator's sovereignty is of course limited by the Constitution, and in our Constitution we have a Charter of Rights and Freedoms.
Anyone who claims that clause 21 or a government decision runs counter to one of his or her protected rights raises the constitutional issue. So, first of all, one must see whether there has indeed been a violation and secondly whether that violation can be assessed by the courts or not, and so on. And that is a fact whether the law is silent on the issue or not.
Senator Nolin: That is what I understood from your testimony.
[English]
Senator Beaudoin: Senator Joyal is proposing something that I think is good. In reply, they are stating that even if it is not in this bill it is in the Charter, and the Charter always applies. Having said that, it is perhaps better to state it again. I learned in my life that, sometimes, to repeat something is not necessarily wrong.
Senator Joyal: I am finished with that matter, and I am grateful for your indulgence.
If we try to reconcile public interest, "public" refers not to an individual but to society as a whole. If we limit that to what is acceptable in a free and democratic society, we establish a balance between the rights of a person and the condition that a free and democratic society would demand.
When the Supreme Court had the first opportunity to debate this, it were faced with the difficulty of defining "a free and democratic society." It is a loose and elastic concept. In one country, it could mean one thing, and in another it could mean something else. As an extreme example, an Islamic republic is not the same as a traditional western society.
We must strike a fair balance with respect to the need of a government to protect "public interest," and I have no difficulty with that, within the context of the definition of a "free and democratic society" within Canada. Thus, we establish a balance, a reference framework, and a corpus of decisions -- which would not make it absolutely free of anything, because the court has said that "public interest" means specific things.
I agree with Senator Beaudoin that from one decision to the other the court can reverse and qualify, and so on, but at least there are parameters. That is to say, this is a railroad that goes in one direction.
We are uneasy with the concept of public interest because we want to maintain the discretion of the government in some areas. I think that that is fair. The government has a right to govern. However, on the other hand, we have a Charter in this country. We want to assure that the rule of law in the country is balanced between the need of the executive and the requirement to protect of the rights of the individual.
[Translation]
Mr. Braen: Of course, on the matter of applying the Canadian Charter of Rights and Freedoms, in our system it is the judicial power which ultimately determines the values of a free and democratic society.
Moreover, if clause 21 is made more specific and if guidelines are inserted in connection with public interest, in terms of the values of a free and democratic society, it must be understood that then the legislator is giving the government the power of determining, of defining according to its own lights, what a free and democratic society is. Of course one can suppose that this might not be too far afield from what the courts have already said. You are in the position of being able to give the executive branch the power of determining public interest in compliance with the values they deem to be fundamental in Canadian society. So, you would be granting certain powers.
[English]
Senator Joyal: Presently, they can identify anything for whatever reason. At least we would have a capacity of reference to what has been already decided, especially if we are excluding, at paragraph 3, any appeal to any legal court. Minimally, we would have some criteria. If the control is excluded or tempered, as you said, we would have a better guarantee that this would be done in conformity with what is normally acceptable in a free and democratic society.
[Translation]
Mr. Braen: I agree with you; that is one way of looking at things. You are right.
[English]
The Chairman: This is becoming a question period rather than a discussion.
Senator Wilson: While it is it fine to say that the Charter is implicit here, we must also pay attention in Canada to the international human rights instruments that as a country we have already signed. If those are referred to, it may give us more frameworks and more context. It does not take many lines to make that reference.
A reference would greatly strengthen the idea of what public interest is about. We are not coming to it freshly, as though we had no thoughts previously about it. To reinforce what Senator Joyal has said in terms of building what we have already signed into, let us make that explicit in a preamble, which is not there yet.
Senator Andreychuk: Under the Charter of Rights and Freedoms, you said that it is a free and democratic society. Therefore, if we gave this power to the executive, and underscored it, as both senators have said, then we have some idea of what we mean by a free and democratic society in Canada. However, the minister came before us and said that the compelling reason for this was the case of a man who beat his wife and children to death and who was charged and acquitted in another country.
If we make any addition to clause 21, and bearing in mind the Charter, would that mean that the government would be restricted to defining our society? Would it also then allow the government to determine what is a free and democratic society and whether the rules of justice and their court systems are appropriate?
[Translation]
Mr. Braen: Yes, if you use the idea of a free and democratic society to guide the public interest criterion, you are asking the government itself to define a free and democratic society. Because of the constitutional context, I would be surprised if that definition were very different from what the courts have already decided in that regard. If I may, what really concerns people, and rightly so, is protecting individual rights, because the decision is so fraught with consequences. It is very serious in terms of consequences. If you want to protect individual rights adequately and if you say: "You know, the notion of public interest commands interpretation by the executive, but in light of the seriousness of this matter, it might be good to allow judicial review at the end of the process, so why not simply provide for a right to appeal decisions before the Federal Court?", then, the Federal Court will make decisions regarding the public interest.
Senator Beaudoin: That is what we have been saying from the beginning.
Senator Nolin: I have no problem with that. That solves my problem.
[English]
Senator Andreychuk: You said that there are different kinds of free and democratic societies and that Canada is one example. If we tie ourselves to our Charter, will we be judging other countries by our definition of democracy, when in fact there may be other valid democratic systems?
[Translation]
Mr. Braen: We are talking here about Canadian values, about a just and democratic society. It is not called Canadian as such, but since we are talking about Canada's Constitution implicitly, we are talking about Canadian society. I think that that is implicit in the bill.
[English]
Senator Andreychuk: Senator Wilson helps us out, then.
Senator Wilson: Yes, in the larger context.
[Translation]
Mr. Braen: Yes, but you know, democracy can be exercised in different ways.
Senator Nolin: I had not read the fifth paragraph of clause 22. What sort of probative force does a Privy Council order have?
Mr. Braen: It is a matter of evidence.
Senator Nolin: I understand, but what are they trying to establish?
Mr. Braen: The decision. If the government is convinced that something runs counter to public interest, it may prohibit granting citizenship. If I understand correctly, the government's decisional process is exercised by order. It says in paragraph 5 that the order is conclusive proof of the matters stated in it.
Senator Nolin: If that were not said, would that mean that the order was not conclusive proof of the matters stated in it?
Mr. Braen: When you go before the courts, there is a rule according to which you must prove all of the arguments you set out. Since you want to prove that it was in the public interest that citizenship be denied, making the order in and of itself is sufficient to prove it.
Senator Nolin: Without even questioning what is behind the document?
Mr. Braen: Yes.
Senator Nolin: So this is another layer of protection for the exercise of discretion. Can you see why we are concerned?
Mr. Braen: I share your concern.
Senator Nolin: The protective layer has three parts. When you say that the Federal Court may proceed with a judicial review, I believe you. However, I am concerned about the restraint that courts will proceed with because of all of these obstacles.
Mr. Braen: There is really no need to provide for monitoring legality. You have to go further; we are talking about a real right to appeal. That is to say, seeing to it that the executive can speak out on the matter of public interest, firstly, but should that not work for one reason or another, asking the court to do its own assessment.
Senator Nolin: With the possibility of allowing for in camera proceedings. Certain other acts already provide for that.
Mr. Braen: Correct.
Senator Beaudoin: There are two things in this law: what the executive does, and what the courts do or can do. When you see the following in a bill:
[English]
"The order is final and despite any other act of Parliament it is not subject to appeal or review by any court", this is full of discretion. We have the executive and the legislative. The Charter is always there. Whether or not you like it, the Charter is always there. I like it.
Either we define this proposed legislation more clearly or the courts will do it in our place. My reaction is always the following, namely, that we should do our work. We are a legislative chamber and we must legislate. If we are wrong, or if the courts think that we are wrong, then they will rule. I do not want to pass the problem to the courts simply because we find it too difficult to deal with. That is a bad argument.
In my opinion, at least, that provision should not be there. The right to go to court and the right to appeal should not be set aside. Even if we do that and even if we say that, the court will say, "It does not matter. You may come before us."
The Chairman: It cannot be set aside.
Senator Beaudoin: It cannot. We say that right from the beginning. If we have no right of access to the court and no right of appeal, then certainly something is wrong. I will not say any more.
The Chairman: Thank you very much, Professor Braen, for joining us today. You must be an interesting professor. I am sure your students enjoy hearing you.
Honourable senators, the committee will meet again tomorrow morning for further consideration of this bill. It will be a full meeting, where honourable senators may bring forward their concerns about the bill as well as amendments that they may propose at some time in the future. If matters unfold as the newspapers would have us believe, we will not get to clause-by-clause consideration of the bill. However, if matters do not unfold in the way suggested by the newspapers, we will proceed to clause-by-clause consideration some time next week.
Senator Andreychuk: I wish to thank the our chairman for proceeding in the manner in which she is doing it. Thus far, we have been dealing with the legalities of the bill. There is also the issue of the public interest from our point of view and whether it is an exercisable one, et cetera. There is also the question of whether or not it is good legislative authority.
The Chairman: I do not want to lose the efforts that have been put forward by committee members as well as members of the public who have, at some considerable governmental expense, been witnesses here. I would hope that tomorrow morning we would be able to put some of that on the record.
Senator Beaudoin: We have a precedent for this. We worked on the court martial bill, for example. We dug in and expressed our view for days and days, and it was very useful. If that matter ever returns, our work will prove useful.
The committee adjourned.