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Citizenship Act—Immigration and Refugee Protection Act

Bill to Amend--Third Reading--Debate Adjourned

June 13, 2024

Hon. Paula Simons [ + ]

Senator Jaffer, would you accept a question?

Hon. Mobina S. B. Jaffer [ + ]


Senator Simons [ + ]

I heard concerns raised that this bill might accidentally strip children of a second citizenship because not all countries allow people to carry dual citizenship. I wonder if you could tell me if the amendments at committee have addressed that concern?

Senator Jaffer [ + ]

Thank you for that very important question, Senator Simons.

Yes, that is why, when I was originally reading the bill at second reading, I had said that it should be automatic citizenship. If it were automatic citizenship, a person who wanted to retain their previous citizenship might lose it. Now, after the government officials’ suggested amendments, it is as a grant, which means that the person has to apply for citizenship, so that is not possible. It is now a choice — you apply for citizenship — and it is not automatic.

Honourable senators, I’m also pleased to rise today to speak in support of Bill S-235.

As you have heard, this bill aims to address some glaring deficits and injustices in our citizenship and criminal legal systems. It establishes a pathway to citizenship for people who came to Canada as children and then were removed from their families by child welfare authorities who thereby became their guardians in place of their parents. However, they failed in that parental role to fulfill their responsibility to secure the citizenship of their “children.” If an individual — a person, not the government — were their parent, we would clearly identify this as irresponsible and possibly even parental neglect.

Too many newcomer children experience the legacy of colonialism in Canada, which has resulted in the mass institutionalization of racialized children in child welfare and prison systems. Poor, Indigenous and Black children are among those disproportionately taken — often forced — into care, intensifying the intergenerational effects of poverty and inequality.

When children are apprehended by the state, the government legally becomes their parent. Bill S-235 seeks to apply to all forms of such state parenting, including placements in institutions, foster care, kinship agreements and support agreements. In all such cases, as the parent, the state has the legal responsibility to act in the best interests of the child. This parental responsibility includes securing citizenship status and the protections and rights it affords. All too often, child welfare authorities fail in this duty.

Circumstances within the child welfare system contribute to the likelihood of children being marginalized, victimized and criminalized. Historically, beds in group and foster homes sometimes double as both child welfare and juvenile justice placements. This creates a slippery slope from child welfare involvement to criminalization for youth who would otherwise be highly unlikely to be criminalized by their own families for irritating and sometimes risky but very much age-related and circumstance-related behaviours.

In Manitoba, for instance, as many as one in three children who spent any time in the child welfare system ended up charged with at least one criminal offence before the age of 18.

Without citizenship, children formerly in care who are criminalized are at risk of being deported to countries where they have no connections or supports, as you’ve heard from Senator Jaffer. In situations where state borders have changed, some even end up stateless. Most have grown up in Canada, reasonably assuming that they are Canadian and unaware that they do not have citizenship.

Those who do find out that the state has failed in its parental duties usually find out too late — most often when they are told that they will be deported because of a criminal conviction, and that conviction then makes them ineligible to apply for citizenship.

Parenthetically, many criminal lawyers are unaware that criminality and certain penalties can preclude an appeal of immigration status and mandate deportation.

At the Social Affairs Committee, many witnesses, including — as you’ve heard — Andrew Brouwer of Legal Aid Ontario, urged the government to pass Bill S-235 as a commitment to anti‑racism. He said:

In large measure, any criminal offences committed [by children formerly in the care of the state] were the natural and predictable outcome of circumstances, of being funnelled from child welfare to the criminal justice system. Youth become criminalized while in government care. Once criminalized, extracting oneself from the criminal justice system is no easy feat, especially for those who are racialized, impoverished, may be dealing with addictions or mental health issues and have no family supports around them beyond the state. For these individuals without citizenship, this turns from the criminal justice system to the next step and the greatest indignity, which is the expulsion from the only country they know. This bill tries to stop that pipeline.

The Black Legal Action Centre emphasized:

. . . Canada’s child welfare policies are oppressive, discretionary practices are biased and culturally safe service responses are lacking. Parenting responsibility in Canada is shifted to law enforcement when a child goes into care. Law enforcement is responsible for things such as dispute resolution, discipline and enforcing the rules of the home. Often, this is where Black children first encounter the criminal justice system.

From the data available, we know that gaining full Canadian citizenship is difficult if you’re from a predominantly Black country. We know that Black families face far more scrutiny and apprehensions from child welfare authorities. We know that Black people historically receive harsher sentences within the criminal justice system. And we know that deporting these children whom we have already failed to protect is not the solution. Children should not be penalized for their lack of immigration status. This is an issue over which children have little or no control.

Honourable senators, the government should not be permitted to speak out of both sides of their mouth by saying that although they assume parental responsibility for a child, they can then abandon and deport that child. Children who are placed in the care of the state should not be denied Canadian citizenship because their state parent neglects them and fails to ensure that they have citizenship. The resulting injustices and inequalities are what Senator Jaffer’s bill seeks to address.

Recent actions by the federal government essentially acknowledge the special obligations it has with respect to children in care who lack citizenship status. In July 2023, the government instituted a policy to allow the grant of temporary resident permits to foreign nationals who were in the child welfare system.

In January 2024, the government added a temporary three-year avenue for children formerly in care to apply for permanent resident status.

In both circumstances, applicants are not required to pay the usual fees, and are not subjected to the usual prohibitions on applying relating to past criminalization. Unfortunately, as committee witnesses highlighted, these measures are not a solution on their own, but rather provide stopgap measures until such time as we pass Bill S-235.

In particular, permanent resident status — while a more promising step than a mere temporary resident permit — is still revokable and, therefore, is not a sufficient protection against deportation.

Bill S-235 would remedy these long-standing injustices. It allows people formerly in the child welfare system to apply directly for citizenship. It ensures that they can make this application even if they have been ordered deported, and that they will not be removed from the country because of such an order while their application is being processed.

As introduced at first reading, Bill S-235 would have provided citizenship automatically to children in state care — by right — without requiring them to make an application. Government witnesses, as you’ve heard, at committee raised hypothetical concerns about this approach, notably without concrete evidence or data to support their suppositions. Senator Jaffer, nonetheless, worked with immigration law experts advocating for children formerly in care to create thoughtful amendments to respond to the albeit unsubstantiated concerns of the government.

The application requirement that was added to the bill as a result of these amendments will undoubtedly mean additional barriers to citizenship for children in care, who must now be informed about the need to make such an application and navigate the requirements it imposes. These barriers were added to the bill because of fears raised by the government, so the government must now also take all necessary steps to alleviate the barriers that these changes will impose.

In particular, as the Social Affairs Committee emphasized in its observation on Bill S-235, the government must ensure that the bill’s application process is cost-free, in line with its recent policies on temporary and permanent resident applications for children formerly in care.

The government must also ensure flexibility with respect to documentation requirements, particularly given the reality — again as Senator Jaffer outlined — that the child welfare system too often fails to ensure children retain their crucial personal documents as they are moved from placement to placement until they eventually age out of care.

Honourable colleagues, please understand clearly that Bill S-235 is not about creating special privileges or a fast track within the immigration system. Rather, it is seeking to fill a gap in the law that has prevented children raised in Canada by the state from being recognized as the Canadians they are.

As Senator Jaffer underscored, this chamber has long known about this injustice. In 2017, when Senator Omidvar was leading work on amendments to the Citizenship Act through Bill C-6, Senator Oh introduced an amendment that aimed to help those formerly in the child welfare system. At the time, he spoke about the situation of Fliss Cramman, a woman whose case I had been involved with prior to my appointment to this place. Ms. Cramman arrived in Canada, as you’ve heard, at the age of 8 and was taken into the care of the state at age 11 as a means of extracting her from a home rife with violence and sexual abuse.

She only discovered her lack of citizenship in her thirties when she was serving a prison sentence and correctional authorities inquired into her immigration status as part of the preparations for her conditional release from prison for the purpose of community integration.

Unfortunately, as some of you will recall, the amendments made to Bill C-6 did not help Ms. Cramman, nor many other children in care, including individuals like Abdoul Abdi and Abdilahi Elmi and Mark Wollery Surgeon.

Senator Oh’s amendments created more options for minors to apply for citizenship, but did not address the primary systemic barrier for those formerly in the child welfare system who do not know that they lack citizenship status. Why? It’s because the reality is that they do not know that they must make an application until it is too late for them to do so.

The content of this bill began as a friendly amendment that I worked on with Senator Oh in order to ensure his amendment achieved his stated goal. I naively believed that working across party lines in a collaborative manner would be welcomed. Unfortunately, other colleagues were not of the same opinion, and some threatened to stand in the way of the immigration reforms in Bill C-6 if we proceeded. Therefore, I was asked to not proceed and instead to make the changes via a private bill to address the gap in both the bill and Senator Oh’s amendments. Seven years on, my friends, we finally have Senator Jaffer’s bill. In the meantime, we have continued to fail to ensure justice for children whom we have neglected for far too long.

For people who came to Canada as children, often fleeing war or persecution, and who know no other country or home, deportation is an unthinkable punishment. People removed as children from caregivers and families and placed in systems not equipped to address their needs, much less fulfill full parental responsibilities, should not subsequently suffer the further punishment and indignity of being abandoned after being jettisoned into the criminal legal system. When the state that was supposed to act as their parent fails to secure citizenship, former children in care should not be abandoned to be sent to countries where they have no hope, no family, no connections and no means of supporting themselves.

Canada needs to take responsibility and remedy our role — our role, honourable colleagues — in marginalizing, victimizing, criminalizing and institutionalizing those whom we fail as children. Let’s pass Bill S-235 and begin to remedy these wrongs for future generations.

Meegwetch. Thank you.

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