Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 21 - Evidence of September 27 meeting
OTTAWA, Wednesday, September 27, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, respecting Canadian citizenship, met this day at 1:15 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. We have with us Professor Sears, Professor Braen and Mr. Blake.
Mr. Alan M. Sears, Professor, University of New Brunswick: Honourable senators, I admit I was a little surprised at first to be coming here. My background is in civic and citizenship education and the focus has not been on naturalization issues. When I tell my friends I work in citizenship education, they think I help people prepare to take their citizenship tests. That is not my focus at all. I focus on citizenship more broadly. However, having read your recent debates, I see you have a similar broad view of citizenship, and I feel more comfortable about being here.
There has been a huge explosion of interest around the world in civic and citizenship education, not only in the educational dimension but also in the dimensions of political and social theory. I brought with me just one of dozens of new books available today, many by Canadians. This one happens to be edited by, among others, Alan Cairns, a prominent Canadian political scientist. It is called Citizenship, Diversity and Pluralism. It is one of two books put out by Cairns in the past two years. The other, called Citizens Plus, looks at issues of citizenship for aboriginal peoples.
The interest is huge. Australia, the United States and Great Britain have large national initiatives in civic education. It is very interesting to see the work that is going on in England -- not Great Britain -- where citizenship has been a latecomer on the scene. People thought of themselves as British subjects, but now the language of citizenship and rights is very important in schools in England. Significant initiatives are being made to include citizenship education as a compulsory curricular requirement in what we would call middle schools and high schools over the next few years.
There are also national projects and significant super-national projects, the most prominent being the Council of Europe's efforts to build the new European citizen. An interesting debate is ongoing there about the euro, and a referendum on its use will be held tomorrow in Denmark. Polls suggest the referendum question may fail, but the interesting discussion was surrounding whose symbols should go on the euro. We place on our money many of our national symbols and our indications of civic pride.
That is just one example of a super-national project in the area of civic and citizenship education. There are others. This international activity is largely being driven, I would argue, by three different, interrelated crises.
There is a crisis of ignorance. Young citizens do not have the requisite knowledge for citizenship. Australia coined the term "civics deficit," and we hear all kinds of news about that. The Globe and Mail and the National Post have been great at telling us about the Dominion Institute findings that Canadians are ignorant of their history and traditions and other things they need to know to be good citizens.
The second crisis is one of alienation. Young citizens are alienated from the institutions and processes of civic life. We see all kinds of reports about voting rates, about people being cynical about politicians. Almost every survey will say that public trust in politicians and public institutions has declined significantly over the last 15 to 20 years.
The final crisis is a crisis of agnosticism. We believe young citizens do not believe in the values of democratic citizenship. So we see all kinds of news reports about youth joining xenophobic groups, becoming skinheads, torturing their peers at school, and that kind of thing. That causes part of the crisis of citizenship.
Someone like me should be very happy about this renewed interest. For example, in 1994 the Australian government committed $25 million to civic education programs in Australia. That does not sound like a lot of money on Parliament Hill, but if you work in education outside of math, science and technology nowadays, you know it is a huge amount of money. The Americans have funded their Center for Civic Education to the tune of $10 million a year and have done so for a number of years. It does work all over the United States and around the world in civic education. All of this, I would argue, or much of it, is because it would generate a crisis.
Of course, there is a huge public discussion in Canada. We can barely get a so-called national newspaper nowadays without some sense of crisis about what our citizens know or do not know. Unfortunately, I think that in most cases we have misdiagnosed the crisis. We do a very poor job of citizenship education. When we misdiagnose the crisis, we misprescribe the cure. Jack Granatstein wrote a popular book entitled, Who Killed Canadian History? which proposes some cures that I think are at best misguided. There is certainly no evidence that what he suggests will work in terms of civic and citizenship education.
I should like to suggest several things to this committee about civic education. The first that is we need to recognize that citizenship is complex. It is not simple. In your earlier debates, Senator Kinsella raised the point that there did not seem to be much discussion of broader issues of citizenship in the bill; rather, the discussion was more focused on naturalization. He talked about including some of the language of values and rights and responsibilities in the bill. I would concur. However, we sometimes think that if people were to adhere to what we call Canadian values, all kinds of social questions and problems would go away. In fact, we know that our values often bump up against one another. In New Brunswick, we value free speech. We have also had a very infamous character by the name of Malcolm Ross who has published some reprehensible speech, and we struggle with what to do about that. It is not easy for us. We also value people's right to be free from harm, and we know that some speech constitutes harm, so we struggle.
When the minister spoke to the committee about the test, she said that we still expect prospective citizens to know about their new home. What is it they should know? I submit to you that the citizenship test they do now is completely and utterly inadequate, and it reflects some of the worst thinking from this movement of crisis. Let me illustrate with an example from my family.
Two years ago my daughter was studying for a Canadian history test in Grade 8. The night before the test she came down and gave me her notebook and said, "Ask me some questions." One of the things she needed to know was the date of Confederation. I asked, "Well, what are you going to put down?" She said, "1867." I said, "I don't think you should put down 1867." "What do you mean?" she replied. I said, "I think you should put down 1949." She said, "That is not the right answer." I said, "It is the right answer if you live in Newfoundland."
That is what I want my daughter to know about Confederation. I do not want her to know that it happened in 1867. I want her to know that it is an evolving relationship. It is a way that we live together. We began talking about it some time in the last third of the 19th century, we continue to talk about it, and we will continue to talk about it. It is a fluid thing. It is a complex thing.
I was reminded of that today. I was early, and I walked around Parliament Hill. I went over to the Centennial Flame, and what did I see but 1867 and 1870 and 1871 and 1873 and so on, up to the current discussions reflected in the Calgary Declaration. Those are all part and parcel of Confederation. That is what I want my daughter to understand. I do not want her to know necessarily that there was an event in 1867. Certainly it is an important date in the evolution of that relationship, but when we reduce civic education to that, it is almost meaningless, I would counter, and that is why people do not know it. When people take surveys that are reported in the national press, they fail, not because they did not learn this stuff in school, but because they did not learn it with any sense of context.
In London, England, they have ESL programs for new immigrants. Those ESL programs are focused on educating new citizens, not only on the bits of trivia about living in England, but also about important issues and questions facing English society. They have programs in the course of learning English where those immigrants are connected to a community organization and work in the organization. They have to interview people about the issues that that organization faces and get involved in some of those issues and come back and report to their fellow students. Each student gets an in-depth look at a single issue or question or social organization, and then all the students come back together and talk with their peers about it. It is a way to learn English and also to learn about citizenship in a much more complicated way than the 200 questions from which we select 20 questions for our new citizens. Citizenship is complex.
The second thing I want to emphasize is that citizenship is fluid. It is not a stable state of affairs, and that is reflected in the debates about this bill. Most of you, in your questions, have talked about how the legislation has evolved from its 1946-47 manifestation to its 1997 manifestation to this manifestation. The minister argued that things have changed, so therefore the bill has to change. Senator Kinsella used the phrase "sterile naturalization." We treat citizenship as if it were a fixed thing.
In my own work looking at the history of the federal government's involvement in citizenship education, I can see over time the federal government trying to fix, if you like, a national identity. The government began with something I call heroic pioneers, and it moved to the bilingual-bicultural reality. The document said things like "Canadians have to realize that Canada is in fact a bilingual-bicultural country." It is not. It is by policy and by law a bilingual-bicultural country, but not by any kind of fact or reality. That policy and law evolved because of those kinds of discussions we had together. We worked them out. Canada is a plural and officially multicultural country. Again, those are acts of policy and law, not necessarily statements of reality. That is the way we have decided to think about ourselves, and that happened over a period of time.
When Senator Kinsella spoke to your committee in June, he said that attempting to define the essential nature of Canadian citizenship has become a sort of national pastime. I hope he was not lamenting that, because that is exactly what I think it ought to be. A colleague of mine once said that Canadians are people who are always arguing about what it means to be Canadian, and the purpose of citizenship education is to introduce people to that debate in an informed way. I would concur with that.
Canada is a conversation, and we want people to join the conversation. Much of our civic education is focused on getting people to come to some sense of a preconceived ideal, but it is not there and should not be there. We need to introduce new Canadians to the issues, debates and questions that concern older Canadians and to introduce them to those debates in an informed way.
Mr. Raymond Blake, Director, Saskatchewan Institute of Public Policy: Honourable senators, I am delighted that you invited me to come and express my views on Bill C-16. One would certainly expect a great deal of debate and discussion whenever a government attempts to touch in any way basic citizenship laws. There is much that can be said about Bill C-16 specifically and much that can be said generally about the notion of citizenship, and I should like to follow Professor Sears by talking generally about citizenship.
Citizenship is neither merely a legal concept nor a parliamentary act. Citizenship defines who we are as citizens and who we are as a nation. Citizenship implies rights. It implies responsibilities. It implies loyalty and commitment to a nation or to a common cause. Unfortunately, after reading Bill C-16, I come to the conclusion that the bill will do little to inspire Canadians. The bill does not respond in any meaningful way to the growing sense of Canadianism that we see sweeping this nation of ours.
Professor Sears talked about his daughter. To bring equity to that, I should like to talk about my son, a seven year old who has spent time in New Brunswick and Saskatchewan. Neither of those societies is really pluralistic in the same way as Toronto, yet when you walk into small-town New Brunswick or bigger-town Saskatchewan you do see people from around the world. You see kids standing there singing their national anthem every morning. You see them colouring the maple leaf with great pride. I believe that a citizenship bill should be geared particularly towards young Canadians as well as new Canadians.
In preparing for this presentation I went back to the original Citizenship Act of 1947. The Honourable Paul Martin, Sr., introduced that first citizenship act and he told Parliament at the time that citizenship means more than the right to vote, more than the right to hold and transfer property, more than the right to move freely under the protection of the state. He also said that citizenship is the right to full partnership in the fortune, the misfortune and the future of the nation. For him, citizenship was a mark of nation building. It was a mark of creating a new type of Canada to address the changing and evolving nation that Professor Sears spoke about a moment ago.
Despite the praise that has been heaped on Mr. Martin and the Citizenship Act since 1947, it is worth pointing out that the act was not greeted with open arms in 1947, nor was it greeted as a wonderful piece of legislation. While many French-speaking and English-speaking Liberals thought it was a wonderful thing to mark Canadian identity as separate from the British identity, the act was not welcomed by many small "t" tories and many imperialists, who thought that we were turning our backs on Great Britain and that it was the curse of death for our nation.
Some honourable senators will no doubt recall much better than I that the maple leaf flag, an important national symbol, was not initially embraced by Canadians. In fact, its proposed adoption created great debate and much discord, yet it has become an enduring and lasting symbol.
All instruments of nation building are difficult. They stimulate debate, and so they should. They generate controversy, yet they are all important symbols of who we are as Canadians.
Courageous leadership, which we expect from our elected officials, is required for nation building. Unfortunately, Bill C-16 does not show courageous leadership. It does not talk about what it means to be Canadian for most Canadians.
It is clear that the role of the citizen commissioners who will be appointed if this piece of legislation is enacted is to promote active citizenship in the community. Yet, in the discussions surrounding the bill, the Department of Citizenship and Immigration gives no indication that the Government of Canada intends to promote citizenship education in the way Professor Sears talked about. There is no indication that the minister will follow the lead of the Right Honourable David Blunkett, Secretary of State for Education and Employment in the U.K., who recently said that it is essential that as a nation they must do more to develop a sense of citizenship among their young people: they must show that in a modern democracy there are roles and responsibilities that citizens of their nation must perform. In fact, our Canadian oath of citizenship was revised in clause 34 of the bill, according to the department's own words on their Web site, for two reasons, one being that the proposed oath is more concise and easier for new Canadians to recite. That is hardly the stuff that will instil a sense of nation in our young people and hardly the thing that builds a nation like ours.
Canada has seen tremendous challenges in the last decade. There has been fundamental change, and there are a number of things we could talk about. We could talk about Quebec's place in Confederation, and we could talk about Meech Lake and Charlottetown. Although a number of people perhaps had some problems with Quebec getting special distinct status, for most Canadians, myself included, that was a notion of citizenship that people were debating. The debate was acrimonious and bitter, but it was also useful.
Any time a government brings in a piece of legislation to deal with citizenship in a country like ours, which is diverse, divided by ethnicity, religion and class, there are no clear and common values. If I were a parliamentarian I would not want to try to devise a piece of legislation that describes what it is to be a citizen of Canada; yet, as a citizen, I expect our legislators to do precisely that.
Our legislators must realize that there are a large number of people across this country who are concerned about this country and who are committed Canadians. I have seen them in my classes and in my child's school. However, from this commitment come difficult choices. There are probably useful things in this bill, but I think that when we talk about citizenship we expect courage, we expect leadership. When we talk about citizenship -- something basic to us as Canadians and as citizens of this great country -- I think we expect a little more, particularly for our young people, who are wrestling with what it means to be Canadians.
[Translation]
Mr. André Braen, Professor, University of Ottawa: It is a privilege and an honour for me to have this opportunity to appear before you today. I will be much more technical and procedural than my two colleagues before me.
With respect to Bill C-16, I have been asked to deal primarily with the role of the Federal Court of Canada in the process through which Canadian citizenship is lost or revoked, or in the case of annulment of the obtention of citizenship. As you can see from the outset, the focus of my comments will be extremely limited.
I have looked very closely at this bill, and clearly, in keeping with the focus of my presentation, I paid particular attention to the provisions of the bill dealing with revocation or loss of citizenship and annulment of the obtention of citizenship.
Under section 16, as drafted, the Governor in Council may make an order revoking Canadian citizenship. In order to do so, the minister responsible for the act must first draft a report. Revocation is possible only in cases of fraud, false representation or knowing concealment by the person concerned. Revocation can thus occur only in specific circumstances.
Section 17, as drafted, provides that the minister who must submit his or her report to the government before proceeding with revocation, must first notify the person concerned of his intention. The minister must also notify the person concerned that the matter can be referred to the Federal Court of Canada for a ruling. In other words, the Federal Court of Canada can be asked to check whether, on the merits, there was indeed fraud, false representation or knowing concealment.
The decision of the Trial Division of the Federal Court of Canada is final. Obviously, the person concerned can thus ask the Federal Court for a ruling on the matter or can waive that right. Note that in a case of revocation, the bill provides for potential intervention by the Federal Court of Canada.
Section 18 provides that the minister responsible for the administration of the act may, by order, declare that the obtention, retention, renunciation or resumption of Canadian citizenship is, and always has been, void. Section 18 sets out the cases in which this may occur: if the person concerned used a false identity or if section 28, as drafted, applies, that is, if it turns out that Canadian citizenship was granted to a person who should not have been entitled to it because he or she falls into one of the categories referred to in section 28.
Section 18 also provides that in such a case, before proceeding with annulment, the minister must notify the person by saying: "Look, we are planning to annul your grant of citizenship. You may request that the Trial Division of the Federal Court of Canada check whether our decision is legal."
In general, section 29 requires the minister to advise individuals covered by the act of their right to apply to the Federal Court of Canada for judicial review of government decisions. Furthermore, under section 30, the minister may reverse her own decision under certain circumstances.
I would like to draw the attention of the honourable senators to two features. First, with respect to potential intervention by the Federal Court of Canada, the bill, as drafted, distinguishes between revocation of citizenship on the one hand -- that is, intervention by the Governor in Council based on the minister's report, which must state that the Federal Court of Canada may be called upon to intervene -- and on the other hand, the process of annulment of the obtention of citizenship, the purpose of which is completely different.
In one case, the Federal Court of Canada can rule on the merits and determine whether there was fraud. In the other case, it says that the Federal Court does not deal with the merits and only checks that the process was legal. A judicial review application to the Federal Court of Canada under Section 18.1 of the Federal Court Act calls upon the court to exercise its review power, to check whether or not the decision was legal.
Second, another distinction stems from the bill as drafted: the bill distinguishes between, on the one hand, the Federal Court's ability to intervene as a court of law and to rule on the merits of a matter, and on the other hand, to intervene by way of judicial review. In other words, in one case, the intervention is based on legality, and in the other case, it is based on the merits.
Whether we are referring to revocation of Canadian citizenship or to the minister's annulment of the obtention or resumption of citizenship, the legal consequences are the same, the person loses the rights attached to the status of Canadian citizen. More specifically, constitutionally, the individual whose citizenship is revoked or annulled also loses his or her constitutional rights, rights entrenched in the Constitution. The Canadian Charter of Rights and Freedoms, as you know, proclaims human rights, individual rights, but also proclaims rights that can only be exercised by Canadian citizens. For example, Section 3, the right to vote for a provincial legislature or the Parliament of Canada, the right to run for election. Section 6 provides for mobility rights, the right to leave and enter Canada and to travel from coast to coast. Section 23 of the Charter gives parents the right to have their children taught in the minority language of the province in which they live. That right belongs to all Canadian citizens. Whether we are referring to revocation or annulment, the legal consequences are the same, particularly with respect to the loss of constitutional rights.
That being the case, one wonders why a distinction is made with respect to the applicable procedure and the Federal court's intervention. Why, in one case, is the court asked to rule on the merits of the matter, while in the other case, it is merely asked to check whether the decision was legal.
Reviewing the legality of administrative decisions is not necessarily straightforward; it falls into the "relatively complex" category. My question to you is the following: Would not wisdom require Parliament to provide for court intervention -- in this case the Federal Court of Canada -- for a ruling on the merits of the matter, not just where there is fraud, but also where there are prohibitions, to determine whether the provisions of Section 28 have been applied and interpreted correctly? In other words, provision for intervention by the Federal Court of Canada in all cases in which Canadian citizenship is in jeopardy. That is the question I wanted to ask you. Thank you for bearing with me.
The Deputy Chairman: I must say right away, before turning to question period, that we have asked ourselves that question many times. On the one hand, there is the Cabinet decision, and on the other hand, there is the legal route. We wondered about the fact that if it goes before the courts, then obviously legal principles are followed. That is relatively straightforward. However, when we consider the route that leads to Cabinet, it is much more complicated because there are political considerations. I am glad you raised this problem. I am sure that there will be a number of questions for you to answer on this aspect of the bill.
Senator Fraser: Professor Braen, I have two questions for you. I am not a lawyer, but I would first like to make sure that I understand your position correctly. If I understood the minister correctly, there are very specific reasons for which she would be entitled to annul citizenship, for example, false identity or someone being charged with committing a crime in Canada. The minister has the power to annul citizenship for very specific reasons where there is no room for any doubt, and then we don't need the whole legal process to protect the rights of the person concerned. You find that justification insufficient, right?
Mr. Braen: False identity requires an assessment, an interpretation, of the facts. If I understand correctly, the interpretation given by the executive would prevail. Granted, section 28 sets out prohibition cases in great detail. I would simply point out that applying legislation and determining whether or not a given provision of an act applies requires discretion that is partly judicial. An immigration official may very well have an idea what subsection 55(1) of the Canadian Immigration Act is all about, but in fact, in law, only an interpretation by a court of justice and not by immigration officials is authoritative. Because of this judicial discretion in applying and interpreting a legislative provision and so on, it may at first blush appear very specific, but words are quite inadequate to convey all of that.
Senator Fraser: It is never precise.
Mr. Braen: Especially when lawyers get involved.
[English]
Senator Fraser: Mr. Blake, we were all quite moved listening to you and to Professor Sears speaking about the broader dimensions of citizenship. However, when you said that there should be something more in this bill, you did not tell us what that should be. The values you were evoking seem to be terribly difficult to shoehorn into a piece of legislation involving specific legal items. What do you think we should have in this bill that we do not have?
Mr. Blake: Clearly, Canadian citizenship has always been contested ground. If you take three groups that traditionally have been marginalized and bring them into the picture -- aboriginal people, multicultural people and women, for example -- you find that they have very different conceptions of what Canadian citizenship means than a middle-aged white male might have.
Nation building is dependent on dialogue about who we are as a people. There are no easy answers to the question, but the 21st century is a perfect time to have these debates. Certain events have led us to this point. The first Citizenship Act was passed in 1947. The Supreme Court became the final arbitrator of judicial decisions in Canada in 1949. The Second World War has been called by some "Canada's War," a point when we came into our own on the international stage. The notions of Pearsonian democracy and liberal internationalism have come to the fore. One might also include the Charter of Rights and Freedoms or the flag as defining moments for Canada. Over a period of time we have evolved as a nation. We have not arrived at this point quickly.
I do not have the answers, but the people of Canada, particularly young people, are engaged in a dialogue. We speak about citizen engagement. People are engaged and committed to the country. They are trying to define what is Canada. What we need is a real national dialogue using all the technologies available, providing access for all citizens, tapping into the schools, the universities, the Boy Scouts and all the other clubs and organizations. This debate will be contested, it will be difficult and I wish I had the answers. However, as we tackle the notion of citizenship, I should like to see citizen engagement to discuss who we are as a people.
Senator Andreychuk: Thank you for marking the difference between the two clauses in the bill and their effects. I wish to take the discussion one step further, though. You quite rightly pointed out that cabinet will make what were traditionally decisions and findings that found their way into judicial environments and that were built on precedents. How will cabinet be able to do this? Will they be bound by judicial or similar decisions when they make findings of false representation? How will people be able to defend themselves? How is one assured of a fair hearing? How will one fairly defend oneself when, as per clause 16, one can reply in writing but cabinet will deliberate behind closed doors
Mr. Braen: As I understand clause 16, before the government can revoke citizenship, a report must be made by the minister.
[Translation]
If the person wishes, intervention by the Federal Court of Canada may be sought. Thus the Federal Court of Canada is called upon to determine in specific cases whether there was fraud, concealment and so on. When the Federal Court rules, it does so in accordance with its rules of procedure, and obviously, the person is a party to the proceedings. We can assume that the person will attend the hearing or legal proceeding in question. Not before the Federal Court has given its ruling, if requested, can the minister and then the government take action. I find it hard to imagine that the government would go against a Federal Court finding that there was no fraud, for example. In all honesty, I do not think that section 16 would allow the government to go against such a finding because the power to revoke exists only where there is, inter alia, fraud. If, in a proceeding where both the government and the citizen are represented, the Federal Court finds that there was no fraud, the government cannot proceed. In my view, the government would no longer have valid authority to act. The citizen may intervene before the courts. We must keep in mind that the political power can be exercised only after the court proceeding.
The Deputy Chairman: So in your opinion the political decision must await the outcome of the court proceeding.
Mr. Braen: If the person in question has sought Federal Court intervention. The wording of sections 16 and 17 provides that the Governor in Council proceeds only where there is a report from the minister. In order for there to be a report from the minister, notice must also be sent to the citizen informing that person that the government is planning to revoke his or her citizenship because there was fraud at some point in time, and that the person may apply to the Federal Court to determine whether or not there was fraud. If the person decides to go to court, this has an effect on the government's power. The government can revoke only where there is fraud or knowing concealment of material circumstances and so on.
The Deputy Chairman: It will be up to the Court to decide whether fraud has taken place.
Mr. Braen: The Court can be asked to decide whether fraud has taken place. If the court says there has been no fraud, the government cannot revoke citizenship.
[English]
Senator Andreychuk: Some groups have made the point that once the Federal Court makes its ruling, it goes back to the government and there is no avenue of appeal from the Federal Court judge, only judicial review. Further, that judicial review is not on merits but on procedure. Do you believe that this is a fair process, or do you believe that the process would be strengthened if there were provision for appeal to the Federal Court of Appeal?
Mr. Braen: Yes, I think it would be strengthened, because at the first step the Federal Court of Canada would have the opportunity to intervene to see whether there is a serious ground for a finding of fraud.
[Translation]
The Governor General's decision remains unchanged, in accordance with the rule of law, subject to possible intervention by the Federal Court at another stage, but only with respect to monitoring the legality. However, monitoring the legality is one thing, but it is not just a question of procedure.
[English]
It may be more than that. It may include, for example, what is called the error of law and so on.
As I understand clauses 16 and 17, it seems to me fair. Clause 18 appears to me to be more questionable.
Senator Andreychuk: It was also raised that perhaps in clause 17 there is a right to a judicial appeal and that there may be Charter implications if there is not. That clause says that you go to one court and the finding there is final. The argument is that due process should include an avenue of appeal. Other witnesses told us yesterday that the dilemma is that they have received inconsistent decisions from the first court, and therefore the avenue of appeal would be more definitive and more constructive.
[Translation]
Mr. Braen: It might be wise in that case to provide that the lower court decision would not be final and the ordinary appeal rules under the Federal Court Act would apply. The issue here is how complex to make the system. As we know, it takes a lot of time to get a case through the courts. Will adding a right of appeal slow things down or overburden the system?
We also need to take into account the possible number of such cases. At the moment, forfeiture of citizenship exists, but I do not believe that there are a significant number of cases per year. Maybe Parliament will decide that this will not necessarily create a burden on the system, since there not likely to be many revocations by the government. That is really your role as parliamentarians.
Is the idea of adding an appeal level aimed at creating a little more consistency in the rulings that will be handed down by the federal court at the pre-appeal level?
[English]
Senator Andreychuk: Of course, the other argument is that revoking citizenship is a very grave matter, as the courts have said, although it is still a civil matter. The test is a balance of probabilities rather than "beyond a reasonable doubt," which is a much easier test to meet. Nonetheless, those groups believe that our system of justice and fairness is brought into disrepute when there are many avenues of appeal allowed for a minor criminal offence yet for something as significant as citizenship you get one crack at the court with a balance of probabilities. Of course, the consequences of loss of citizenship are much more traumatic than the consequences for minor criminal offences.
[Translation]
Mr. Braen: I agree completely. As was said earlier, the consequences of revocation, that is the cancelling of a status that has been granted, are serious just from the legal standpoint. There are few offences that result in the forfeiture of what is a constitutional right, among other things. In order to ensure neutrality and fairness in the system, should we not involve a court of justice which, by definition, is more impartial and independent than the government?
[English]
Senator Andreychuk: You pointed out the system in the U.K. One of the complaints some groups have about this bill is that it is basically a naturalization bill that really speaks to new citizens. However, clause 33 of the bill says that the new commissioners will have the responsibility of promoting a strong sense of civic pride, including respect for the law and the exercise of the right to vote, and so on. So these new commissioners will have some responsibility to promote citizenship.
The minister talked about common values. The bill talks about a strong sense of civic pride with a backdrop of plurality, but we have no idea of what the commissioners training will be. The bill says that that will be in guidelines. I am not sure whether those guidelines will be embodied in regulations.
Is this the kind of debate you were saying should be generated, or do you see a different modality for a debate?
Mr. Sears: That is a good question and it connects to what Senator Fraser was asking earlier about what we could do. I am reluctant to do much in the bill, but there are two things that could come up. One is a symbolic statement in a preamble that Canadian citizenship is complex and evolving and that not everyone understands it in the same way. That allows for some wiggle room for people to hold different values. In fact, we allow that and are proud of it. We have a concept in our government system of a loyal opposition.
The commissioners really interest me because everyone has an opinion on civic education. Frankly, we do it very poorly and, in my view, the minister does it very poorly. In her testimony, the minister talked a lot about Citizenship Week activities. Those are not much more than flag waving and celebrations. In multicultural education, we used to talk about celebratory multiculturalism or the "food, fun and festivals" version of multiculturalism, where in schools everyone brought a dish to share from a different country. However, we never discussed the issues of multiculturalism that are potentially contentious and that are important. Culture, in fact, makes a big difference in the way we understand the world economically and politically. It is not only the food we eat, the clothes we wear, or the music we listen to.
It is a good idea. The federal government has a legitimate role to play in promoting civic and citizenship education, but such education must extend beyond the celebratory, knee-jerk things that the Dominion Institute, for example, puts out. They would suggest, for instance, that if we cannot identify Michael J. Fox as a Canadian from a list of people it is somehow a disaster for our country. Of course, Michael J. Fox just took out American citizenship. It is not a disaster for our country if children cannot pick him out of a list.
You talked about due process. Our group is currently researching how young people understand what we call key concepts or ideas related to citizenship. One of those ideas is due process.
Another concept we have looked at extensively with children in grades 2 to 11 <#0107> children eight to 18 years old -- is dissent. We put the children in situations where they discuss an act of dissent in a storyboard or on a video and then we interview them. We have found one idea that transcends all the ages: those children think dissenters are bad people. They see a scenario of people breaking a rule on a point of principle. The children say, "If they do that, they probably take drugs; they probably steal; they probably hate their mothers. They are just bad people." Is that what we want democratic citizens to understand about dissent and dissenters?
When we look at the school curriculum, we see that it does not spend much time looking at dissenters. Kenneth Osborne wrote a famous book in 1980 called Hardworking, Temperate and Peaceable: the Portrayal of Workers in Canadian History Textbooks, in which he pointed out that we do not see the Winnipeg General Strike or the On To Ottawa Trek or any of the contentious things in the labour movement. We see men going off to work with their lunch pails, happily singing and building this country.
I am all for instilling pride in the country, but pride has to be informed. Frankly, the citizenship education that I see coming from the department and in things like Citizenship Week do not go much beyond that kind of celebratory thing.
Senator Andreychuk: I have questions about the concepts of citizenship and immigration being lumped together in this bill. I hope that one of my colleagues takes that up or that I get a chance on the second round.
Senator Grafstein: Obviously, one of the difficulties is for Canadians to understand, first and foremost, what are the rights and privileges of a citizen. This bill is bereft of that information. It deals with citizenship, but it does not deal with rights or responsibilities.
I believe it was the professor who mentioned that there is a series of rights. Would it be useful to have a list of citizens' rights in one place, where someone turning to this bill could decide for himself or herself what it means to be a citizen? You mentioned those rights. They include the right to vote in elections for the House of Commons and provincial legislatures, and the right to run for office. There is the same right municipally. There is the right to remain in Canada, and there are mobility rights, which are shared with permanent residents. I am reading from a memorandum received from the Library of Parliament. There are minority educational rights. There is the right to apply for a passport; the right to preferential employment in the federal public service, which I understand is under appeal at the Supreme Court; and the right or the obligation to perform jury duty.
It strikes me that before we talk about what more a citizen is, we should at least know what his or her legal rights and benefits are. Have we made enough of a distinction, in terms of legal rights, about what a citizen is as opposed to a landed immigrant or a resident in Canada? Have we adequately distinguished those two classes or clusters of responsibilities and rights?
Mr. Blake: When I got the invitation to come here, I searched the Internet for "citizenship Canada" and I came up with a list of law firms that work with immigrants. Then I tried "Canada citizenship" and came up with essentially the same list. A Canadian looking for what it means to be a citizen has very few places to turn in order to find information.
The Charter of Rights and Freedoms is certainly what a number of my colleagues have posted on their walls. These are our rights as Canadians. There is reference here to the Charter of Rights and Freedoms, but it would be nice to see our rights laid out very clearly. As well, citizenship is not just legalities. A flag is not just a flag.
It means something when we watch the Olympics and we see Simon Whitfield taking a Canadian flag. All of my family members were around the TV, clapping and cheering when he took that flag. It made one feel proud. It was a particular flag. It was something that, perhaps through osmosis, we have come to appreciate, probably in a way that our grandfathers did not. For me, and particularly for my children, this is a sign of who we are. When we travel abroad, which unfortunately is too infrequently, my little boys will say, "Look, there is a Canada jet or a Canadian flag; there is a person from Canada. "
We need to do something with citizenship that instills something in us. A good place to begin would be to enumerate what it means to be a Canadian citizen.
Senator Grafstein: In the bill?
Mr. Blake: Yes.
Senator Grafstein: Does anyone else want to comment on that?
[Translation]
Mr. Braen: That would be helpful to the extent that having a list of rights conferred by citizenship would make it possible, on a practical basis, to have a better understanding of the consequences of granting or revoking citizenship. It is something that is practically impossible, since it would mean revising all the federal and even provincial legislation. For example, the Canada Shipping Act has been amended. If I want to register a boat so that it can fly the Canadian flag, the law specifies that I must be a Canadian citizen. So establishing a list would mean revising all the legislation, which is long and arduous, and as soon as there were any changes to the legislation, the list would have to be changed. From a legal point of view, recognizing that citizenship confers a status is enough.
[English]
Senator Grafstein: I do not quarrel with that. I quarrel with the question of public confusion. Your two colleagues have said that the most important thing is to increase the level of education about the nature of citizenship, however you define it. We start with ignorance of the minimum legal standards. I am not suggesting an exhaustive list. I am suggesting a "shall include," at least highlighting what the primary issues are, but that is for another moment.
Michael J. Fox recently announced that he was going to become an American citizen because he left Canada at 18 and he has not voted. He felt it was important for him to participate in the democratic process in the United States. That was one of the rationales that he gave to the press the other day for becoming an American citizen: the right to vote, the right to participate.
Another issue I should like you to comment on is the debasement of citizenship. Let me start at the top as opposed to the bottom and talk about the Supreme Court of Canada. I was looking carefully at the Supreme Court decision in Reference re Secession of Quebec, which has been a matter of great debate here in the last few years. I noticed that the Supreme Court used the word "Quebecers" in that decision. When I read it, it struck me as strange that the Supreme Court of Canada, a legal body responsible for being very careful about a definition, any definition, would use the word "Quebecers." It struck me that the more preferable way of dealing with that issue would be to talk about the residents and/or the citizens of Canada resident in Quebec as opposed to Quebecers. Does that bother you as it did me? You are talking about the role of citizenship and the importance of citizenship. I am talking about the use of language as it applies to the word "citizenship" in the courts.
Mr. Sears: It is beyond the scope of my expertise to comment. I think what the court means is what you said, senator: the citizens of Canada, the voters, resident in Quebec.
Senator Grafstein: It is not clear. It seems antithetical to the proposition you were making, which is clarity, clarity plus, legal rights, legal rights plus and obligations. It seems to be going in the opposite direction.
Mr. Sears: I would not be averse to the notion that even legal rights might differ for different people.
Senator Grafstein: Nobody quarrels with that. We just want to know what they are.
Let me deal with another issue that troubles me. It is based on education. Again, this is contrary to your thesis, perhaps. Turn if you would, please, to paragraph 6(1)(c). It states:
The Minister shall, on application, grant citizenship to a person who
(c) has an adequate knowledge of one of the official languages of Canada;
Do you think that "adequate knowledge" is an appropriate minimum requirement, or a requirement at all? It is a new requirement.
Mr. Sears: It is not new.
Senator Grafstein: It says "adequate knowledge of one of the official languages." I am not sure if that was in the 1947 legislation.
Mr. Sears: It was in the 1977 legislation. An applicant had to demonstrate to a citizenship judge a capacity to speak and understand one of the two official languages. My understanding of the 1977 legislation is that there was a 20-year exemption; that is, if the applicant had been in Canada for 20 years, he or she could be exempted from that requirement.
Senator Grafstein: Lay that exemption aside for the moment. What is your take on that requirement?
Mr. Sears: I think it is reasonable to expect people to be able to speak and to understand one of the official languages of the country. The word "adequate" is obviously a wishy-washy word. It is hard to determine.
Senator Grafstein: How would you take that wishy-washy word from a civic education standpoint? By the way, just to help you here, I pointed out to the minister that, quite frankly, I have a serious problem with this because I know dozens of citizens who are great Canadian citizens and who do at not have an adequate knowledge of one of the official languages.
Mr. Sears: I know a number of people who are great Canadian citizens and do not have the legal status of Canadian citizenship. If you think of citizenship more broadly, it is perfectly reasonable to think someone could be a good citizen of a country, a contributor, an active participant, and not have legal citizenship status. That happens all the time.
Senator Grafstein: We are talking about citizenship for the moment. We are granting a higher right here.
Mr. Sears: Yes.
Senator Grafstein: For instance, the hospitals in Toronto now have the capability of translating into 87 different languages and dialects.
Mr. Sears: I see that as a completely different thing. The civic discourse in our country goes on in French and/or English and citizens ought to be able to engage in the public civic discourse. I would support the right of people to be tried in a language they can understand, and to have their trial translated. That is a different thing from the status of citizen.
If we want to expect more from citizens -- and citizens must not simply have a status; we want them to participate -- then they have to be able to participate in the civic discourse, which goes on in English or French, or both. In that sense, it is probably a reasonable requirement.
Senator Grafstein: Could I get comments from the other witnesses?
Mr. Blake: We want to see diverse peoples can live together in our country. That is what makes Canada what it is. The Citizenship Act should allow diverse peoples to come together to discuss and, hopefully, to agree upon a set of common goals and ideals. Hopefully, they will find a way to fulfil their goals, objectives and ideals within this country.
One of the things that have made us great is our openness. For example, in Toronto there are large numbers of people who, at my age, when they get together with friends, speak Italian. Yet those people are very committed to Canada. They are very insulted when people insult Canada. I think what we want is diverse peoples living together and sharing a common goal and objective.
Senator Grafstein: What about this test as a requirement for citizenship?
Mr. Blake: I think citizenship is a privilege as well as a right. Sometimes we do not make that distinction in Canada. Even people who come here and cannot speak the language and who do not learn to speak it adequately are still very much citizens. Yet, in order to engage in the public discourse and to know what is going on in their country, I think as a basic minimum we should expect an adequate knowledge in one of the two official languages.
[Translation]
Senator Pearson: Mr. Braen, I would like you to help me understand the difference between revocation and annulment, and their legal consequences.
Mr. Braen: The bill makes a distinction. In the revocation process, the power lies with the government. That means that the individual is already a Canadian citizen. The government can intervene and revoke citizenship in the cases set out in clauses 16 and 17, if there has been fraud, et cetera, but only if there is a procedure for it.
Annulment is dealt with a little further on, where the bill says that if citizenship has been obtained or restored or if there has been a request to have the citizenship status renounced, the minister may annul a decision if, for example, information has been concealed or one of the conditions under clause 28 applies.
In reality, there is overlap, it seems to me, since the Governor in Council's power to revoke citizenship means that a person has already obtained it.
Moreover, the same category of individuals seems to be targeted by clause 18, which provides for annulment of citizenship that has been obtained. Citizenship may be revoked only if, pursuant to clause 16, the party in question obtained that citizenship by false representation or fraud or by knowingly concealing circumstances. In other words, revocation can occur if the citizenship was obtained fraudulently in the first place.
Clause 18 makes provision for an order to annul a person's citizenship, but on different grounds. It refers to people who have obtained citizenship in contravention of Section 28. That means that the person was mistakenly granted citizenship. Or the person used a false identity.
Senator Pearson: I understand that.
Mr. Braen: First of all, if I read the section -- I have the French version -- there seems to be some overlap between the power to annul and the power to revoke citizenship for individuals who have already obtained Canadian citizenship.
Senator Pearson: If a person has his or her citizenship revoked, will the actions that person has taken as a citizen remain valid?
Mr. Braen: Definitely.
Senator Pearson: What about in the case of an annulment?
Mr. Braen: In civil law, yes, but civil law applies only in Quebec. When a decision is made to remove a right, there are consequences. The parties concerned are supposed to be returned to their former State. In common law, that precise notion does not exist. I do not believe that revocation of citizenship, for example, means that a contract concluded two years earlier by an individual will be rendered null and void. I do not think it would have that kind of an effect. As of the time citizenship was revoked or the order in council handed down, the individual would lose these rights which may be recognized in legislation.
Senator Pearson: I understand about revocation, but what about annulment?
Mr. Braen: It seems to me that the same thing would apply. If citizenship that has been obtained is annulled under Section 28, because a mistake was made -- the individual was not entitled to citizenship -- I believe that the individual would lose his or her rights as of the time of annulment. However, I do not believe that there would be any retroactive impact on civil rights.
Senator Pearson: I thought there would be consequences with respect to the right to vote.
Mr. Braen: Let us take the case of someone who obtains citizenship but was not entitled to it under Section 28. What are the consequences? When that person voted, he or she had the right to do so. It is impossible to go back in time. It can affect the person's eligibility. If I had been a candidate in an election and I was elected, the fact that my citizenship was annulled would mean that I was no longer eligible.
Senator Pearson: I hope that that type of thing is unheard of!
The Deputy Chairman: You have piqued my curiosity, since Section 18 makes distinctions between obtaining, retaining, renouncing and resuming citizenship. So if citizenship is annulled, it is because of something that was there initially. Citizenship is annulled; that is, eligibility never existed.
Senator Fraser: That is what the English version says.
[English]
The English version says, "is, and always has been, void."
The Deputy Chairman: Yes, I think that is it.
Senator Grafstein: It is void ab initio.
[Translation]
The Deputy Chairman: It was never valid.
Senator Nolin: Anything that is void is always void. That is an old principle of civil law.
The Deputy Chairman: But since Professor Braen is an expert in administrative law, I would really like to know what he thinks.
Mr. Braen: I have the French version of the bill. I do not have the English version and it seems to be a bit different. It says here:
...prendre un arrêté déclarant nulle l'attribution, la conservation,...
One does not say "and deemed". There is a difference. However, again, what are the consequences that would flow from annulment? For example, let us suppose that I voted in the last elections; I was a Canadian citizen. My citizenship was annulled because I fall into a section 28 category and I did not have the right to be a citizen. Does that mean that the right to vote that I exercised is deemed never to have existed? I do not think so. I voted.
Senator Fraser: I understand your reasoning. The reasons why citizenship can be annulled are already known to this person. She was aware of it. The person knows whether she lied about her identity. She knows whether she was found guilty or charged abroad. These are not situations where the person made an honest mistake. This is a case where she knew right off the bat that she did not have this right, therefore she had to deal with the consequences.
Mr. Braen: Let us say that I work in a shipping industry and that the ship I own may fly the Canadian flag; the Merchant Marine Act compels me to be a Canadian citizen. Let us suppose that this citizenship is revoked, what are the consequences? The consequences are that I no longer meet the standards set forth that allow me to own property, but there is no retroactive effect. When we are talking about annulment in civil law, there is a retroactive effect. The legislation is very complicated.
The Deputy Chairman: That is why we are here, to explain complicated things.
Senator Nolin: I have a question for you regarding section 21(1). The concept of public interest, is not set forward as a full discretionary power under section 21(1), it is attributed to the minister and, then, to the Governor in Council. If I reread the Morales decision as well as the opinion of Chief Justice Lamer on the concept of lack of precision, could you guide my thought processes? Is it too vague to pass the legality test?
Mr. Braen: This is a concept of public interest that is widely used by judges and by legislators. There is a wide discretionary aspect in the application of this discretion. I would be surprised if this would affect the Constitution under section 7 of the act when it mentions how specific the legislation must be. I think if you say that something is in the public interest, the minister may make a report, and individuals have an idea. We do not perhaps share the same view, but we know to a certain degree what the public interest may be, in other words a very large range of possibilities. I am not surprised by this. This is used often by legislators both at the federal and provincial level as well as by judges.
The Deputy Chairman: Is this not too vague, to the point of being unconstitutional?
Mr. Braen: Section 7 was mentioned by the Supreme Court but is it not a very clear decision. We know that legislation must be clear, but what exactly does that mean? When one uses a given term, difficulties in how to interpret that term may always arise.
Senator Nolin: I would be in agreement with you if there was a way to oversee the decision.
Mr. Braen: There is a way to oversee it pursuant to judicial review.
Senator Nolin: We would control the legality of the issue, but at that point, Cabinet will tell the courts: "Rest assured, it was in the public interest." The legality is thus appealed.
Mr. Braen: Since the Baker decision, two years ago, the Supreme Court has allowed intrusion into the exercise of discretionary powers such as that of the public interest. In applying a pragmatic and utilitarian approach, it could become involved in how this discretion is exercised and verify whether it is legal or not, in the court's opinion.
The Deputy Chairman: What decision were you referring to?
Mr. Braen: It is Baker v. the Department of Immigration. It is not a concept which gives the minister or executive authorities unlimited latitude. There are limits which exist in law with regard to concepts such as these.
Senator Nolin: Could the executive not use its discretionary power to go against a fundamental freedom?
Mr. Braen: Fundamental rights, as you know, are protected. They may only be limited to the extent allowed in the Constitution itself. Would the loss of citizenship, for example, be the loss of a fundamental right? It does result in the loss of constitutional rights, as we already explained. Section 3 and Section 6 of the Charter could in fact involve this constitutional aspect.
Senator Nolin: What interests me is the judicial process that respects the rights of the parties. If a decision taken by the executive will affect my rights, I would like to be able to cross-examine the person accusing me or raising matters that would affect my rights. However I will not have this right.
Mr. Braen: No. First of all, it is not a matter of revocation but rather of granting. They are completely different. Moreover, under administrative litigation case law, there is a "duty to act fairly," at the very least. Even if an administrative decision is very discretionary, jurisprudence would require, in my opinion, that the immigration authorities comply with a certain procedure and act fairly, such as giving, for example, a notice allowing the individual a chance to make written representation. The fact that it is not mentioned in the text of the act does not mean it does not apply.
Case law has always been consistent on this point starting with Nicholson in 1979. When the executive makes a decision affecting individual rights, as would be the case here, then there is a requirement to act fairly. The presumption is very strong. It does not only apply when the legislation is clear on the subject.
A reading of this clause shows that the legislator does not clearly intend to give full latitude to the minister. I have the feeling that a minimum amount of procedure must be respected. It must be understood that there is some flexibility in the act as far as the application and choice of procedures is concerned. Because there are a great many cases, I imagine, that will have to be processed, and we cannot expect a hearing every time. That is my interpretation.
[English]
Senator Andreychuk: I am a little confused. You are saying that the concept of public interest is well enough used that you have no concerns about giving a minister, and obviously the cabinet, the right to deny citizenship in the public interest. Is that correct?
I do not see anything to indicate that we have gone the way of the minister giving reasons. It is not national interest and it is not security, because there are other clauses to deal with those. Public interest must be something other than the clauses defined in the bill. Therefore, the concept of public interest is sort of a catch-all miscellaneous provision into which anything could fall.
Although I have not done all my research on this, I understand that there are other areas where public interest would inevitably fall into certain categories. Here, however, the minister was hard-pressed to define anything but hate crimes. I think it was Senator Nolin who pointed out that we do have criminal law to cover hate crimes, and he asked why this clause would be used. We asked for other examples. The minister said there were other examples but was not at liberty to say what those were. That leaves me with great unease about the prevailing values or attitudes of the particular cabinet as to what my public interests might be that they are protecting.
Senator Grafstein: It is void ab initio.
[Translation]
Mr. Braen: You are quite right because other provisions of the act set out specific grounds for government intervention, such as national security and so forth.
I agree with you. In my opinion, it must be understood that the granting of a power to the minister on the basis of a very wide discretionary criterion such as public interest must not be perceived in law as an unlimited discretion.
The courts have consistently held that when the legislator grants discretion, no matter how broad, such as the notion of public interest, it is not unlimited.
First of all, the minister is required in exercising this discretion to act in keeping with the aims of the legislation. The minister cannot do whatever he wants. He has the power to make a report and say that it would be contrary to public interest to grant citizenship. But in doing so, he must act in keeping with the aims set out by the legislation. Another limit is good faith. He may not act arbitrarily. He must act in good faith. So the courts have set limits or restrictions on the exercise of a discretionary power.
That is why I do not necessarily share your fear. As a jurist, I do not think that the use of an expression like "public interest" gives the government the ability to do whatever it wants. There will always be, as long as we maintain the principle of legality -- and it is part of the Constitution, as you know -- there will always be limits imposed by the courts. So it is always possible to appeal to a judicial tribunal in the case of arbitrary action. I do not have the same fear as you but it might perhaps be better to specify how the discretion is to be exercised. And rather than referring to public interest, if we do not like the term, then be more specific. The government will respond that so many situations may come up that they cannot all be listed and it is better to set out a motive, to give some discretion.
[English]
Senator Andreychuk: Perhaps I am not well versed in the workings of cabinet, but when we reached for examples from the minister, she said that she was not at liberty to say. The fact that she could not disclose any examples seemed to imply national interest cases. Would all of the cabinet material be made available to a court?
Second, how would you read clause 21, public interest, with clause 22(3)? Clause 22(3) states:
The order is final and, despite any other Act of Parliament, is not subject to appeal to or review by any court.
Therefore, we are really only into administrative review. In a review, will the court be empowered to have all of the material placed before it for the kind of scrutiny that you seem to be saying will happen?
[Translation]
Mr. Braen: I'll answer your second question first. As far as clause 22(3) is concerned, even though it states that the order is final and is not subject to appeal to or review by any court, I do not think that sets aside the Federal Court's power of review and supervision. That is my impression. It has been held, in the case of the provinces, that it was unconstitutional to maintain that the provincial legislator could set aside the power of review and supervision.
In MacMillan Bloedel in 1995, The Supreme Court ruled that it was unconstitutional for the Parliament of Canada to transfer what the court described as an inherent power belonging to a superior court and handed over to an administrative body.
In other words, the power of review and supervision is seen by the Supreme Court of Canada as being subject to constitutional protection. I would be very surprised if it were recognized that the Parliament of Canada had the power to remove its administration from the power of review and supervision of the Federal Court or the Superior Court in constitutional matters.
Now, as far as evidence and reports are concerned, there may be a problem. There is the Canada Evidence Act as well as legislation on access to government documentation, and so forth, allowing the executive to remove the analysis of evidence before court. Unless I am mistaken, it is the Chief Justice of the Federal Court of Canada whose responsibility it is to act and make the necessary verifications on consulting the file. He must therefore take a look at the file to determine whether or not it may be disclosed, in other words conveyed to another individual. So some intervention is possible here. As for the parameters, I am not very familiar with them.
The Deputy Chairman: There is final control by the court.
Mr. Braen: It is in the Evidence Act if Cabinet invokes secret arguments.
Senator Nolin: In spite of subclause 22(3), you maintain that there is court review?
Mr. Braen: Under the Constitution, the Parliament of Canada may not attempt to prevent the other power, the judiciary, from exercising its ability to review the legality of a decision.
The Deputy Chairman: I'm convinced of that.
Senator Nolin: So what exactly is this subclause 3 attempting to do?
Mr. Braen: It is what we refer to in administrative jargon as "a privative clause" to demonstrate to the courts that we don't want them to interfere in our business. That is exactly what the Supreme Court will do.
The Deputy Chairman: And they are entitled to interfere.
Senator Nolin: In spite of the very specific wording of the subclause.
Mr. Braen: Exactly. In case of illegality.
Senator Nolin: But first of all the courts must hear the case. I would not like to see the State, in dealing with a preliminary measure, maintain before the Federal Court that under subparagraph 22(3) of the act that although they happen to be the Federal Court, they do not have the power to hear the present case.
Mr. Braen: In my view, the Federal Court may intervene.
Senator Nolin: Judging from the wording here, Parliament seems to be stretching its power.
Mr. Braen: It is a common practice for the federal or provincial legislator to make this kind of attempt. What I am saying is that does not prevent a court of justice from intervening and, for example, reviewing this discretionary power to determine whether there was in fact a misinterpretation of public interest by applying the criteria of the Baker case and so forth.
Senator Nolin: In a preliminary procedure, could the federal State invoke subclause 3 and say to the judge of the Federal Court: "You do not have the power to hear the complaint or the application before you because you do not have this power under subsection 3"? When dealing with a preliminary measure, the court has not yet examined the facts of the decision, it is simply a preliminary procedure.
Mr. Braen: Legally speaking, we cannot use this argument. If we were to do so, a court of justice is empowered to do this, because a court of justice can intervene not only once a decision has been made but also to prevent an allegedly illegal decision from being made. Initially, with this type of argument, I do not think that that would prevent the Federal Court from intervening and, for example, from saying that this is part of its review and surveillance power. This is protected in the Constitution. I do not want to substitute my opinion for public interest, but I will, nevertheless, check wether or not this is legal. My opinion is that I have no fears as far as that is concerned.
[English]
Senator Grafstein: I have a general comment about this. We have raised two very narrow but interesting legal issues. The first is with respect to what are the judicial limits of the public interest. It would be very helpful if we could get the Library of Parliament to give us some cases dealing with the definition of "public interest" as it might apply in this situation. That might help our discussion.
Second, the professor raises another interesting point. You will recall, Mr. Chairman, that the first thing we were taught in administrative law was Lord Hewart's The New Despotism, which dealt exactly with this point, the question of the role of the courts versus the state and where the courts can override the state, notwithstanding a privative clause. Rather than our having a debate, it might be useful to get a bit of staff work on this issue, so that at least we are up-to-date on the current status of the Supreme Court's decisions dealing with privative clauses.
Senator Andreychuk: I think we should have work on those two questions, and a third is the evidentiary question of how the court obtains cabinet documents.
Senator Grafstein: It strikes me that we are asking the witnesses to give us a legal memorandum. Since this question has been raised several times it would be more appropriate for us to get the staff input. This is also notice to the minister's advisers that we will be asking questions about this and that they had better come prepared with more definitive answers than they gave us on the first round.
The Deputy Chairman: The minister comes back tomorrow afternoon.
Senator Grafstein: Then we had better put her officials on notice that this is an important question of definition.
I should like to return to a topic from an earlier hearing, and get the professors' views on clause 14, regarding someone who has been living outside of Canada as the child or grandchild of a Canadian citizen and who believes that he or she is a Canadian. I will use the classic example of missionaries' children who have been out of the country for that period of time. Under this provision, persons in that situation, who believe that they are Canadian citizens, would have no notice that they are, at age 28, losing their citizenship and all their rights that pertain thereto, unless they had done something six years prior involving a residency requirement or some sort of notification. In effect, it is a revocation of citizenship based on previous legislation without any notice whatsoever. There is no due process there at all. It is just a statement of law. Do you have any concerns about that from a Charter of Rights standpoint?
[Translation]
Mr. Braen: At the end of my intervention, I asked you whether or not it was wise for the legislator to make a distinction between revocation and annulment, given that this is coupled with the consequences of clause 14, since we are talking about the automatic loss of citizenship per se. Obviously, this is a very serious consequence. First of all, clause 14 is not simple to read. It is quite complicated. Secondly, in terms of the consequences, it is very serious.
[English]
Senator Grafstein: Professor, the notice is the law, but there is no specific notice to a person. Again, the general principle that ignorance of the law is no defence applies here, so that there is no coherent notice to the individual, except that the onus is on the individual not to plead ignorance of the law. This becomes the law. The question is whether that is fair and reasonable. Is it bulletproof against the Charter?
[Translation]
Mr. Braen: Does it go against the Charter, given that there is a potential loss of constitutional rights? As far as the procedure is concerned, in order to ensure fairness, the immigration officers should, first of all, at least inform the individual that he may lose his citizenship, considering clause 14.
[English]
Senator Grafstein: That is at age 22, because the bill requires those people to be here for a period of time six years prior to age 28. In effect, they find out at age 28 that they lose their citizenship, but there is no way for them to prevent it without notice, because there is a residency or notification requirement at age 22. It seems to be quite convoluted, in a sense.
[Translation]
Mr. Braen: The immigration official should, before taking away this individual's citizenship, and given the consequences of clause 14, at least follow a minimum procedure which would become in my opinion, to advise the individual that he falls under the scope of clause 14 and at least hear him as such.
First and foremost from the procedural viewpoint, and given the state of Canadian jurisprudence with respect to the application of natural justice or the duty to act fairly, it seems to me that there are guarantees that are provided by the law, that are not found within the legislation but are provided by the law and limit the scope of clause 14. Moreover, as you said, the consequences are very serious. With such a case, this happens almost automatically. There is no provision for an intervention by the Federal Court of Canada. Would it not have been appropriate, as is done in other cases of fraud, false identity, and so on and so forth, to have a court of justice intervene, such as the Federal Court, given the consequences that result from the loss of citizenship, even if it is automatic? I think that it would be wise to ask this question, as you have done.
[English]
The Deputy Chairman: In section 7 of the Charter, the expression "with the principles of fundamental justice" is used. That is in the heart of the Charter and the Charter is in the heart of the Constitution.
Senator Grafstein: The chairman will recall the evidence received from the justice official that the obligation is not upon the government or the state, but rather rests with individuals to modify or put themselves on notice. The obligation is not on the state. This is an important question: Upon whom is the obligation? Is the obligation on the state to notify of revocation, or is the obligation on citizens to be kept informed of the fact that their rights may be revoked without notice?
Mr. Braen: If we apply this notion of fairness, the obligation rests with the state to inform the citizens.
Senator Grafstein: I pose this question because if the government witnesses are coming here, I should like to them to address this subject.
Senator Joyal: My question goes to the previous question and binds with the comments made by Senator Grafstein.
[Translation]
Mr. Braen, as I interpret clause 17(3), the surveillance and review power of the higher courts over the lower courts is as follows: we are dealing here with a decision made by the Trial Division of the Federal Court of Appeal. This clause denies the right to request permission to appeal. We are not denying the right to appeal, we are refusing the right for permission to appeal. In my opinion, this is very different from a process where we respect the various stages of the usual legal process, which is to provide for various levels of appeal, although as the matter progresses through the judicial hierarchy, there are stricter conditions that govern the appeal. For example, we do not necessarily have the right to appeal to the Supreme Court; we request the right to appeal to the Supreme Court.
In this case, we are denying an individual the ability to ask for permission to appeal. When you say that despite everything, an individual can still appeal to the general surveillance power of the court, you are changing the system where individual rights are normally debated. You are shifting the decision to take a regular approach towards debate and decision-making and turning it over to the more general responsibilities of the court. In my opinion, this is not the same thing at all. When it is said that despite the exclusion clauses such as these ones which deny the right to appeal, that does not prevent nor does it exclude overall the higher courts' power of review over the lower courts, the fact remains that the individual who has to deal with this situation finds himself in circumstances that are quite different from those of an individual who has exhausted the normal appeal process further to a decision. When you appeal to the surveillance and review power of the court, it does not review exactly the same aspects of the decision that it would under a regular process within a normal appeal system. When I say normal, I mean regular. Consequently, a decision is made that is part of a judicial debate process and it is placed within the context of a broader responsibility of the court. The individual is not given the same legal guarantee unless he can request an appeal. I think that we must make a distinction between these two things. What we have in this case, and I will use an English expression to describe it, is --
[English]
We are shifting the system under the general surveillance power of the court while the individuals should have the capacity to seek the permission for appeal.
[Translation]
There is a fundamental difference between the two. I believe that the clause, as it is drafted, limits the rights of an individual to due process, a process which reflects the legal philosophy that we want to follow, as you said yourself, a limit we are fighting. If we fight against this type of exclusion clause, we should amend it, in my opinion, to re-establish what is normally the usual process in decisions that are as important to individuals as the revocation of citizenship.
Mr. Braen: You are quite right. You will recall that, at the beginning, when I made my general comments, I said that it was strange that the legislator was making a distinction between the revocation process by the Governor General and the annulment process by the minister.
In the case of the revocation process, the Trial Division of the Federal Court can intervene to determine whether or not there has been any fraud. This intervention cannot be appealed. Normally, under the Federal Court of Canada Act, final decisions of the trial court can be appealed to the Federal Court of Appeal. Bill C-16 excludes this possibility. Moreover, the Federal Court will no longer be able to intervene in cases of annulment, in order to judge the merits. The Federal Court can intervene as a review body to determine whether or not the decision is legal. This decision no longer deals with the merits.
However, the question I asked was the following: why make this distinction between the two processes since, ultimately, the result is the same? At the end of the road, the citizen may lose his citizenship.
I fully agree with what you say. This is a serious matter and if you feel that it is appropriate, perhaps a larger role should be assigned to the judicial power, a role which normally it would have.
The Deputy Chairman: As you have seen, this is an extremely interesting and very difficult debate.
[English]
Senators, our next witnesses are from the Coalition of Concerned Congregations, the Kitchener-Waterloo Multicultural Centre, and the Metro Toronto Chinese & Southeast Asian Legal Clinic.
[Translation]
Mr. Kenneth M. Narvey, Legal Researcher and Chief Operating Officer, Coalition of Concerned Congregations with respect to the law pertaining to war crimes and crimes against humanity, including those of the Holocaust: I lead a coalition of six synagogues in the Greater Montreal region.
[English]
I believe everyone has a copy of my letter to Mr. Heyde of September 25. If anyone does not have it, I have additional copies here. During questioning I may distribute extracts from the Tobias case in the Supreme Court of Canada, to which I referred in my letter to Mr. Heyde. I also have copies of a letter to Senator Finestone from June 26.
Professor Braen stated that it would be wise for the decision on whether a person has obtained citizenship by fraud not to rest solely with the Federal Court Trial Division, but that there be the opportunity for appeal to the Federal Court of Appeal. That is essentially what I will be saying here today, although in a great deal of detail. As you will have seen in my letter to Mr. Heyde, I believe that persons appearing before a legislative committee should bring with them specific draft wording in English and French.
The Deputy Chairman: You will have noticed that this question of appeal has been raised by many persons here.
Mr. Narvey: Not only have I noticed it, I have brought with me the page references on which they have raised it. Previous witnesses have asked what should be done. I should like to talk about how it should be done. A committee cannot vote on an idea, but it can vote on a motion for a specific draft amendment. I have proposed six motions numbered CCC-SSC -- for Coalition of Concerned Congregations-Senate Standing Committee -- 1 to 6.
In the bound volume that the Canadian Bar Association gave you yesterday, which was from over one year ago during consideration of Bill C-63 in the House of Commons, they say, as we say, that there should be the possibility of appeal with leave of the Court of Appeal. The Barreau du Québec says the same thing, as does Mr. Matas.
I appeared before the committee of the House of Commons where I proposed three amendments, two of which were adopted. The sequence by which the third was not adopted may be of interest to you.
Like Mr. Matas, I thought the solution was very simply to amend clause 17(3), which says that there is no appeal, to say that there is the right of appeal with leave of the Court of Appeal. Mr. Sabourin, the Registrar of Canadian Citizenship, pointed out to me that the matter is more complicated than that. One would also have to amend clause 17(1). Therefore, I prepared some language that would have done that and presented it to the House of Commons committee as a proposed amendment. Mr. Sabourin advised the committee that it was not a good idea and that the government did not support it. His concern was why we would have a complete judicial process under which, with leave, one could appeal to the Federal Court of Appeal and, with leave, one could appeal to the Supreme Court of Canada, if, after that, it still had go to a minister's report and the Governor in Council. Therefore, the committee voted down the amendment.
I prepared language, which was moved at report stage in the House of Commons, that would have established what I think the minister the other day called a purely judicial process. It proposed completely removing the Governor in Council and having the minister be a prosecutor but not a judge. I would have presented that same language to you, which was supported by the B'nai Brith, the German Canadian Congress, the Ukrainian Canadian Congress, and a significant number of members of the House of Commons, albeit not the majority, were it not for the very striking language of Minister Caplan the other day. She convinced me that I ought to modify my approach.
In her opening remarks, Minister Caplan stated that the present system is a good system because the Governor in Council will be able to weigh all questions of law and humanitarian and compassionate considerations. In answer to Senator Andreychuk, she said that the present system is a good system because if a person lied for understandable reasons the court would be required to take away their citizenship, while the Governor in Council can weigh humanitarian and compassionate reasons.
I took very seriously what the minister said about humanitarian and compassionate reasons and I believe that the solution lies between what she said and what I have said. I submit this to you for your consideration.
I suggest that the minister is half right. There must be humanitarian and compassionate consideration, and perhaps the Governor in Council is the place to do that. Having heard the discussion around this table, I am still somewhat uncomfortable with the Governor in Council making any kind of decision that affects rights, because of its closed nature, because of the difficulty of making representations, and because of cabinet secrecy. However, it would at least be no worse than what we have now if humanitarian and compassionate considerations were to be considered by cabinet. However, in my respectful submission, it is completely wrong to have the Governor in Council weigh questions of law. The Governor in Council is incompetent to weigh questions of law.
You have two excellent judges, Mr. Justice Noël and Mr. Justice Lutfy, both of whom have been promoted in the judicial system since their judgments, saying completely opposite things as to whether there was a legal basis for security screening before June 1950. A court of appeal can decide which one is right, but the Governor in Council cannot. The Minister of Fisheries, whom I love and respect, is not the proper person to decide whether Mr. Justice Nöel or Mr. Justice Lutfy is correct.
What I have tried to do is to add a clause. As you see, I am a person who likes to draft, in English and in French, and I accept criticism at all times. This is not a perfect draft. Indeed, I will point out an error on my page 16.
I suggest, using the language that I have prepared here, that there ought to be a system in which the minister is the prosecutor, but the courts decide.
The Federal Court Trial Division decides whether there has been fraud, et cetera. As Mr. Matas pointed out, it is unfair that there is no present possibility of appeal by the minister. Someone can seek leave to appeal, and not necessarily get it in the Federal Court of Appeal. Whoever does not get leave to appeal or whoever loses that appeal will be able to seek leave to appeal to the Supreme Court of Canada. I have added a draft 17(3) that reads, "following that process, if there has been a revocation by the courts" -- which is what we propose. Mr. Doody for the Ukrainians noted that someone said, "Let's let the courts do it," and that someone was me.
Following that, on the model of several existing provisions in the law, let the person be able to apply to the Governor in Council for a direction to the minister on humanitarian and compassionate grounds to restore that person's citizenship.
There is a great deal more detail in this. If I do not get to what I am asking for, I should like to have subclause 17(3) reworded in the French so as not to unbalance and confuse things with regard to the Tobias case.
I have likely been more than five minutes, but I await your questions.
Ms Vera Golini, Board Member, Kitchener-Waterloo Multicultural Centre: Thank you for the opportunity of speaking before you today. Someone else from our centre was to come here but she had to be hospitalized. I am less competent to speak, but my compassion is as alive as hers.
Our centre is interesting not only because it celebrates its 30th anniversary this month, but also because it handles about 9,000 people a year. It handles the problems and needs of new immigrants. Our centre has the fourth largest intake of immigrants in Canada. It has a staff of 15 people dealing with 47 languages from all around the world.
We are very concerned about Bill C-16 as it touches us intimately, historically, and at the very moment. Our first concern is the lack of an appeal process. Our second concern is the substitution of commissioners for citizenship judges. I will address those two points, as they are the ones that touch us most intimately, and leave the rest to other groups and their specific concerns.
Our main concern is that Bill C-16 contains no appeal process for individuals who have been found culpable of obtaining citizenship fraudulently. Further, we disagree that the final decision regarding revocation of citizenship should rest with the Governor in Council. We believe that the final decision should be within the jurisdiction of the judiciary.
We wish to state our opposition to the implementation of revocation of citizenship by a flawed judicial process decided on a balance of probabilities without a right to appeal. Citizenship is important to all Canadians. Therefore, politicians such as the Minister of Citizenship and the cabinet ought not to be given the privilege of taking citizenship away following a flawed judicial process.
As to the findings of fact, it should be for the court of first instance to decide on the facts whether citizenship was obtained by fraud. That decision should also be appealable all the way to the Supreme Court. Once appeals have been exhausted and the decision of the lower court or courts upheld that citizenship was obtained by fraud, then the cabinet may impose a sentence of revocation of citizenship, and maintain the cabinet's ability to consider humanitarian and compassionate issues. This is an important point that goes to the very heart of the compassion for which Canada is known. A place for this compassion should also be made.
Research of Commonwealth countries and citizenship acts also shows that a number of independent countries involve formal legal due process in matters of revoking citizenship. These findings demonstrate that there is no sound evidence for stating that the present Canadian citizenship revocation process is found in almost all Commonwealth countries, as has been stated elsewhere. This goes to the letter distributed by Mr. Narvey, and we beg you to consider his findings and those of other researchers.
We believe that it is a basic tenet of our democratic country that, once found guilty by a court, a citizen has the right to receive an opportunity to appeal that decision. In fact, that is the case for all visitors and citizens born in Canada. We maintain that this right must apply as well to naturalized Canadians -- citizens by choice, that is. The present bill does not provide that right. A lower standard of proof in citizenship revocation cases results in a lower value of Canadian citizenship. We need to be very careful about that.
As a Canadian myself, and first as an Italian, I know it is of fundamental importance. I am not married and I do not have children, but I have my profession, and my citizenship allowed me to gain my profession. I want to make it clear that this matter affects not less than 20 per cent of Canadians, that is, about 6 million people in Canada. That is the number of Canadians who are Canadian citizens by choice, like myself.
As a Canadian citizen born in Italy, I have a personal stake in this matter. It is inconceivable to me that if I were found guilty of committing a fraud to become a Canadian citizen -- which I did not -- I would have no chance for appeal before I would be divested of what is most precious to me: my Canadian citizenship.
Our second and briefer point of concern regarding Bill C-16 is the replacement of citizenship judges with appointed commissioners. We maintain that a person invested with judicial independence should continue to be involved in granting citizenship. In this way, both the granting and the removal of citizenship privileges are part of a formal legal process rather than a political one. Further, we feel it is an unnecessary prerequisite for appointment for these judges or commissioners to have received the Order of Canada. That is as it is. Some have and some have not received the order. Under these circumstances, we would have been deprived of the services of well-respected judges, such as Lorna Van Mossel and Robert Sommerville.
Citizenship should be granted or awarded based on a combination of tested knowledge of Canada and an interview with a citizenship judge. Here begins the true civic commitment; here begin the first meaningful steps of the new Canadian citizen. I can assure you that for many of us who gained our citizenship while we were of conscious age, there are two things that we remember -- when we got married and when we got our citizenship.
In conclusion, I wish to state that we at the Kitchener-Waterloo Multicultural Centre are informed about the views and work of our member of Parliament, Mr. Andrew Telegdi, on the matter of Bill C-16. On behalf of our centre I wish to state that we fully support the work and the points of view of our honourable member of Parliament. His pleas have already been heard by you. His writings and views are already known to you. We stand fully behind him, and we plead that the Senate give full consideration and support to his recommendations.
Mr. Victor Wong, Representative, Metro Toronto Chinese & Southeast Asian Legal Clinic: Mr. Chairman, honourable senators, I am the executive director of the Vancouver Association of Chinese Canadians. We are a local anti-racism and human rights organization based in Vancouver. Today I am representing my colleagues with the Metro Toronto Chinese & Southeast Asian Legal Clinic. The MTCSALC is a non-profit organization assisting low-income immigrants and refugees. It is based in Toronto.
Together, our two organizations work collaboratively with other equality-seeking organizations, including the Canadian Council for Refugees and the Chinese Canadian National Council. Many of the comments you have heard today are in our presentation. I do not want to repeat that which has been said already. Instead, I will highlight some of the points we wish to bring to your attention.
In general, we work with refugees, refugee claimants, visitors, undocumented persons and members of vulnerable groups. As they seek legal status in Canada, they enjoy full Charter rights. They enjoy full due process. Thus, I cannot understand why we would not extend those full Charter rights to the 20 per cent of our population who decide, by choice, as Ms Golini points out, to be Canadian citizens.
We feel the bill is weighted a bit too heavily in favour of the minister and the cabinet. Perhaps there is not enough weight for the individual who could be affected. As well, there should be another counterbalance with the judiciary. As was pointed out by previous speakers, there could be some improvements in this area.
In regards to the annulment and revocation of citizenship provisions, the terms of the standard of proof are not very clear to us. We believe that, for something as serious as taking away somebody's citizenship, there should be a high standard of proof. It should be beyond a reasonable doubt. It should not be that one is satisfied that it be taken away. If that is done and one goes to the Federal Court, the court will be looking only to see if the administrative procedure was followed. A higher standard is necessary when something as serious as taking away someone's citizenship is being undertaken.
In regard to the process, we suggest that you consider looking at an independent decision maker. Perhaps the minister might want to consider acting as a presenter or a prosecutor in taking away someone's citizenship, and not as the prosecutor and the decision maker.
We have some concerns over the definition of public interest set out in clauses 21 and 22. The definition is not broad enough. We remind senators of a xenophobic moment in Canadian history: specifically, the example of Japanese Canadians -- Canadians born here in Canada who happened to be ethnic Japanese. During the hysteria of wartime they were expelled from this country. That was an example Canadian citizens having their citizenship revoked. The epicentre of public opinion at that time was clearly to the right of the government. The government had the support to do that. It was clearly in the public interest at that time. We know now that that was the wrong decision. Our organization has some concerns about the term "public interest." We urge you to seek better clarification of it, if not delete it.
In regards to the counting of days in clause 6 of the bill, the government has changed the method of counting days in the case of refugees, refugee claimants, visitors and undocumented persons. The current rule is that you would start counting those deemed days at half a day for every one day from the day of arrival for that person. You could have a situation in which a refugee claimant is in this country for a long period of time -- months or years -- or a situation in which a visitor overstays the visitor's visa, or a situation in which an undocumented person, a person who is here illegally, subsequently gains status in this country. Currently, the clock starts from the day of that person's arrival. The minister is proposing to start the clock from the day that person secures legal status.
We have been working with the boat migrants who arrived last summer off the B.C. coast. I know of two individuals who recently gained status. They had been in jail for 13 months. Under this law, we would start counting their days from the day that they received their legal convention refugee status, which would be, perhaps, one month ago. However, they have been on Canadian soil for 13 or 14 months.
What is the point of making those people wait an extra six or seven months for their citizenship? I submit to you that people who have worked in the underclass, members of vulnerable groups, or perhaps those who have expressed the desire to stay here, have a great desire to be Canadians. Why would you purposefully delay their opportunity to apply for citizenship? The objective here is to encourage all permanent residents to get involved and to have full participation in society and to become full citizens of this country.
Finally, on the issue of statelessness, I am totally confused as to why we would even have a provision like this. Why would you do this? Why would it be done at age 28 and not age 38? Why not do it at age 48 or 58? What is the point of having this provision? Your previous witnesses who are the experts suggested that there should be a process. One of the senators said the same thing. However, a bureaucracy would be required to track down every one of these individuals to make sure that they are given notification that they are about to become stateless. Why would you even have this provision? It seems to me that it is a very wasteful piece of legislation.
Our recommendations are not as precise as those of my colleague, Mr. Narvey. We are urging the committee to consider amendments to delete or amend these problematic clauses of the bill.
Senator Andreychuk: Your position is clear and it reflects many of the comments made by other witnesses. Have you had an opportunity to talk to the minister about your feelings about what you call the 20 per cent of Canadians? In particular, have members of your association discussed the appeal process and the public interest, noting the kinds of examples you have used?
Mr. Wong: My colleagues have made a presentation before the House committee. I do not know whether they have spoken to the minister individually. I know that they have made presentations and submissions to the committee going back to Bill C-63, but I personally have not because I have been working on the issue of the boat refugees and there are some political issues involved with that.
Senator Andreychuk: My next question is on the issue of the rights and obligations of citizens. The bill says that a citizen, born in Canada or not, is entitled to all rights, powers and privileges and is subject to all the obligations, duties and responsibilities to which a person who is a citizen at birth is entitled or subject, and has the same status as that person.
Do you feel that, if the bill is passed in its present form, that 20 per cent, part of which is your constituency, will feel secure that they are equal to those who are Canadian born? Is that one of the fears that some of the groups have pointed out? Is that why you want the appeal?
Mr. Wong: It is only those who can have their citizenship revoked or annulled. Those who are Canadian born will always be Canadians.
Senator Andreychuk: Some people have come and said they have this fear, they want due process and they feel like second-class citizens. Other Canadians have wondered what they are worried about; if they did not do anything wrong, why would they feel threatened? Which perception is prevailing in your communities?
Ms Golini: In our communities, a citizen who was not born here feels that he or she is not as much of a citizen as someone who was born here. In fact, they see the invisible threat of the revocation possibility, even though they are not guilty of any fraudulent conduct in obtaining citizenship. The fear is that at the moment of proof they might not have the ability to prove what is true if there is no appeal process. That is the crux. Some citizens are seen to be more of a citizen than others.
Mr. Narvey: First, in clause 12, which says that we are all equal, there is an inequality that cannot be escaped. I think we all agree that those who were lucky enough to be born here cannot lose our citizenship and those of us who were lucky enough to come here can lose our citizenship. The question is this: How can citizenship be lost? The perceived unfairness among those who are threatened with losing their citizenship is the lack of possibility of appeal, but there is also a perceived unfairness that Mr. Matas stated, which is the unfairness to the victims that the minister cannot appeal. I do not know who came up with this wonderful idea of no appeals, but there is no other area of law in which it is presumed by Parliament that a first-level judge is magically infallible.
Mr. Wong was asked whether he had spoken with the minister. I should like to say that the minister has refused to speak to me. Mr. Sabourin, who once spoke to me nicely, has refused to speak to me and has refused to accept a document from me.
I do not think, as Mr. Matas put it, that this is a done deal. People think it is done, but it is not a deal unless there is some consultation. I hope you can prevail upon the minister to be more open to the possibility of amendment. This bill certainly needs amendments and this is the place to do that work.
Ms Golini: We find it interesting that in the public interest a privilege of appeal is being denied. We see the paradox and we feel that that really needs to be addressed also.
Senator Grafstein: I take it you are interested in the appeal for due process, but you are not interested in having the appeal division deal with the case ab initio. You are really asking for an appeal process based on questions of law that might have taken place at the first level of fact finding.
Ms Golini: Yes.
Mr. Narvey: Yes, law or mixed fact and law; a normal appeal process. Section 27 of the Federal Court Act says that any decision by the Federal Court Trial Division can be appealed to the Federal Court of Appeal. We agree with the Canadian Bar Association and B'nai Brith, not that there should be an appeal when there are no grounds for appeal, but that there should be a right to apply for leave to appeal. If the court feels that there is an arguable case it will allow you to argue. It is a much higher standard to get leave to appeal to the Supreme Court of Canada.
Senator Grafstein: Let me turn to a matter of factual interest. On page 2 of the Metro Toronto Chinese & Southeast Asian Legal Clinic brief, there is reference to the incarceration of the Japanese here. The Chinese situation was different. There were only 11 Chinese admitted to the country from 1923 to 1947. That was an immigration issue as opposed to a citizenship issue on the Chinese side.
The Japanese situation arose out of the Emergency Powers Act, which has been severely restricted. The new Emergency Powers Act is subject to the Charter. I doubt the situation could be repeated again, based on existing law outside that legislation.
I give you that by way of history, because the Senate and the House of Commons have done some hard work on that issue. The door is not as open in the future to a wayward or bigoted government being able to move. I think they are constricted. I would hope the record is clear about that. This committee dealt with those issues.
The Deputy Chairman: It is a case that was long before the Charter of Rights.
Senator Grafstein: We are mindful of that, but I think it is fair to say that we have come a long way on this since the Charter and we have learned those lessons of history.
Senator Andreychuk: Sometimes history repeats itself.
Senator Grafstein: It is now harder to do.
Senator Andreychuk: Let us hope.
Senator Grafstein: The other question of principle here deals with the issue that we are all wrestling with, and that is the definition of "public interest." Again, we have still not heard from the minister, but have you looked at the question of the definition of public interest? It is much narrower, from a judicial standpoint, than we have been given to believe in some of these briefs. I am not sure the definition has been coherent. Perhaps some of you would like to comment. I recall that there is a tremendous number of judicial decisions on the nature of the public interest, and it is not as broadly cast, I believe, as we have been led to believe by the evidence, not just your evidence but of that of other witnesses as well. We are going to hear more narrowly from the minister, I hope, but what are your views? I am talking about a legal definition. We are talking about law now, as opposed to politics. In politics, public interest is too broad. When it comes to the court, it is much narrower.
Mr. Wong: Let me go back to how we have utilized the Immigration Act over the last 14 or 15 months in response to the arrival of the Chinese boat refugees. After the first boat was processed and released, subsequent boats arrived and the adults aboard those ships were detained. The government maintains that that was done in public interest. A number of things were done. Aboard the next three ships, more than 110 people were denied the right to make a refugee claim. They had to appeal and take their cases to the Federal Court, and just before their cases were to be heard, the Immigration Department backed down and allowed those cases to proceed.
If you go back and look at the news articles of July and August of 1999, you will see the public hysteria, the media hysteria, the opposition hysteria to their arrival, and the public commentators calling on the government to just send those people back home without a hearing. You could consider that what the government did in denying 110 people the right to make a refugee claim was in the public interest, but it was illegal.
Senator Grafstein: I am not quarrelling with that, necessarily, for the moment, but I am wondering whether the government used the public interest test. I do not believe it did.
Mr. Wong: No, but they used the immigration detention regulations to detain them.
Senator Grafstein: I do not quarrel with that, but we are talking about a different issue, which is the nature of a definition of public interest in the hands of a minister. What are the limitations on that, or are there any?
Mr. Wong: There have been no limitations in this case, in terms of detention. I am giving you an experiential example.
Mr. Narvey: I think Mr. Matas was the first witness who said what we all know, that this is aimed at one individual, Mr. Ernst Zundel, who is a hate monger, as the minister said. The question is whether there is a way better to deal with this than this very broad wording, which worries us all. It may some day be decided that something that you and I might think is in the public interest is against the public interest.
One of the problems with the present Criminal Code provision on hate mongering is that it requires the provincial attorney general's consent before there can be a prosecution. As you know this bill, at the end, amends several other acts. It amends the Immigration Act and I think the CSIS Act. If it were considered to be a proper thing to do, perhaps this bill could amend the Criminal Code by removing the requirement for the provincial attorney general's consent, which would then allow the federal attorney general to prosecute Mr. Zundel if he continues to do hate mongering.
If that is not possible, then I for one would, with misgivings, accept this wording. I do not like it. I hate to have to trust all future governments to behave correctly. I am sure that this government would behave correctly and use it only against Mr. Zundel. That is what I wanted to say about that.
Senator Grafstein: If I may just comment on that, public interest in Canada today does have, in my view, some confines. For instance, public interest means you have to do things under the Charter. All of a sudden there are some restrictions. There appears to be a larger body of law now that would define, for Canadian purposes, what was in the public interest today, post-1982 as opposed to pre-1982. National interest is much more narrowly or differently defined today because of human rights provisions than it would have been 20 years ago. I understand the difficulty of public interest, but at the same time there are some limitations to public interest.
Mr. Narvey: I thank you for reminding me of the discussion between Senator Nolin and Professor Braen. My suggestion would be that at the clause-by-clause stage, or by the moving of a motion to amend, when you get to clause 22, you should strike out subclause 22(3).
Professor Braen says that even though the bill says that there is no review, or no appeal, the courts would intervene anyway. I agree with Senator Nolin that they would not, or at least it is problematic as to what a court would do in the face of a privative clause. If, as he says, it would be unconstitutional, then I would suggest you not pass it. I am certain that a court reviewing a decision on the public interest by the cabinet not to grant Mr. Zundel citizenship would uphold it. You do not have to protect a defendable decision from being reviewed.
The problem with saying that public interest is constrained is that, if there is nobody other than the decider who decides with no review, then it is not constrained even if it should be constrained. My suggestion on how to deal with that would be to strike out subclause 22(3).
The Deputy Chairman: I have some difficulty with what you are saying now. You are saying that we all know that public interest is general and perhaps vague. Professor Braen said very clearly that that expression is vague, but we see it from time to time in the law. Senator Grafstein referred to the jurisprudence on this.
Mr. Narvey: Absolutely.
The Deputy Chairman: It would be a great help to us if we had a study on how public interest has been interpreted by the Supreme Court of Canada. I would read it right away. However, you see, the question of setting aside the whole clause because of that is another thing.
Mr. Narvey: Not the whole clause, only the part that says that a decision is without review or appeal by any court. I would leave it all in except for subclause 22(3). The jurisprudence is very good in court, but jurisprudence is not very good if there is no court.
[Translation]
Clause 22(3) should stipulate that a judicial review will take place to ensure that the jurisprudence contains the real meaning of public interest.
[English]
I do not say strike out everything. Do not strike out subclauses 22(1) or 22(2) or 22(4) or 22(5), but strike out 22(3).
The Deputy Chairman: Because the privative clause is not useful, in your opinion?
Mr. Narvey: That is right. It is the opposite of useful. It creates a doubt where there should not be one.
Senator Fraser: I am coming at this from a slightly different perspective, being neither a lawyer nor an expert in the law. However, if I try to discern why we have a passage like this in the law, it seems to me that we are saying that there must be room for some political discretion to be exercised.
I take some exception to the categorization of the Ernst Zundel clause. I can think of a number of other people on the face of the earth whom we might exclude under any other grounds if they had managed to get themselves residency status in Canada. One who comes to mind most readily is O.J. Simpson. He was acquitted of murder. We would have no grounds under all the other avenues for saying that he is not a suitable citizen. However, the DNA evidence that was brought against him would have been conclusive in this country. I do not see how our courts can reasonably be expected to overturn the verdict of the courts in the United States. That would have to be a political decision. I do not have any problem with that. Would you respond to that?
Mr. Narvey: Yes, I would be glad to. Reasonable persons can differ. I differ with you on this matter. I do not believe that I should overrule the courts of the United States and say that O.J. Simpson was guilty. I carefully attempted not to follow the O.J. Simpson case because I felt I was not a juror and I could not replace the jurors and I was willing to let the American courts do their best or worst. However, if the cabinet believes that it is in the public interest to deny O.J. Simpson citizenship, it should have sufficient confidence in that belief to allow O.J. Simpson to pursue his remedies in court against it.
I do not want to be the judge in my own cause and I do not believe that the cabinet ought to either. If it is right, if is defendable, it will win in court. Many of us have been in court and have lost from time to time and we can say that we tried and the court was wrong that day. Perhaps we do not agree on this subject. After all, it is this committee and the Senate and not I who will decide. That is my point of view.
Mr. Wong: We must ask government what it means by "public interest." We must ask the government for what it would anticipate using this clause. Senator Fraser uses O.J. Simpson as an example, and mention has been made of Ernst Zundel. One might also pose the question in regard to the children of our former wartime enemy Iraq. How do we feel about Iraqi children or immigrants? Perhaps if the conflict were not as decisive, or had we suffered greater losses, it might be in the public interest to deny them citizenship because we were so angry that they blew up one of our battleships, or that type of thing. Where does the Government of Canada anticipate using this clause? That is what I would urge honourable senators to ask the government.
The Deputy Chairman: We will have the opportunity to ask that question, probably tomorrow or later.
Senator Finestone: I did ask the question. I was told that there are over 2,000 cases in which the word "public interest" is defined or used in the circumstances of the case. Those cases relate to the public good. That was the answer I received and I hope that will be confirmed when the professionals attend.
The Deputy Chairman: Was that information taken from the jurisprudence? When we speak about legalities, jurisprudence is important.
Senator Finestone: May I ask that you ask that question tomorrow?
The Deputy Chairman: There is no doubt that I will. The suggestion is coming from Senator Grafstein and I agree with him. I do not see why we should not study that for at least one or two days. Thereafter we may ask the minister for his opinion on this matter. After all, this is a bill of a department of the government. It is a very important bill, and not an easy one, but very interesting.
Ms Golini: I should like to project a little bit into the future in the sense that more and more what is public interest branches out to fields that in the past have not really been known -- for example, people with infectious diseases, such as AIDS. How will we act in those situations and what will happen in the future? Human beings can cause danger to other human beings often inadvertently. Where does the law stand on that?
Also, while citizenship is a natural right to people who are born in a country, our culture has not yet disassociated the idea or the concept of citizenship from the idea of merit. One not only has the right of citizenship, but one must be an upright citizen to be a good citizen. The civic engagement and the civic merit are very much related.
Here also is where I see public interest closely engaged. I see the government and the law as a kind of parent that oversees the good of the many even if it has to sacrifice the good of one. These thoughts were playing in my mind as we were talking. The future is very much an element.
Mr. Narvey: I very much support the suggestion of Senator Grafstein and Senator Beaudoin that research should be done in this field. I am a researcher and I should like to suggest to the committee another piece of research you might wish to favour. I do not know whether the government is still taking the position that it took in the House of Commons and that Senator Finestone stated in her opening speech in introducing this bill in the Senate, that the Canadian system of revocation is followed by almost all Commonwealth countries. In the legislation of the Commonwealth countries that I have reviewed, I have been unable to find the statement that a decision will be without appeal. There may be some that follow our example. There are about 50 Commonwealth countries. My suggestion is that you ask the minister and her officials if that is still their position or if they have abandoned it. If it is still their position, ask them to provide to the committee a collection of all the Commonwealth citizenship acts that they are aware so that honourable senators might test that proposition rather than relying entirely on my research. They have greater resources.
The Deputy Chairman: We will be informed by the officials tomorrow on that point. What is the situation in the other countries of the Commonwealth?
Mr. Narvey: The text of the laws of those countries ought to be provided in order that you might see whether you read them the way the officials read them. I found that each country addresses the situation in a different fashion. They have a certain similarity because they all come from the British law of 1919, but they all go in different directions, and none of them has our particular method of limiting judicial review or appeal.
Senator Finestone: In reviewing this bill, I recognized that there were problems. It is a very sensitive area. When I first looked at this bill, I thought it was a question of being a citizen and being a naturalized citizen who should never have become a citizen in the first place. I have some difficulty understanding why people are so upset, because I know that when the Federal Court Trial Division hears a matter they examine all the facts exhaustively. There are interveners on both sides as well as the witnesses. I do not understand why some think that the decisions of the Federal Court Trial Division are so badly flawed.
I did, however, think that there might be a concern when, as Mr. Matas discussed, inconsistent decisions are given by different judges and there is no way that the minister can remedy that. However, the minister can reverse such decisions by order of the Governor in Council. That seems to me to be very fair, because such persons were not here legally in the first place. They obtained citizenship by false representation, regardless of how long they had been here. They knowingly concealed material circumstances. They presented false identity. There is a whole series of criteria, be it under clause 16 or clause 28.
An issue of much greater concern to me than that is whether the best interests of the child are being served. I want to know how they will do that. I am not as uncomfortable with the rest of this.
I heard what you said with regard to the Zundel clause, but Mr. Zundel is not a very welcome guest in my country, nor would be O.J. Simpson.
Mr. Narvey: I do not say that O.J. Simpson is welcome. I have simply not addressed his case.
I hope I can convince you that Mr. Matas is indeed right that currently there is a one-way option. If the minister loses, there is nowhere that she can take the case. She cannot take it to the Governor in Council and demand that the citizenship be revoked even though the Federal Court said that fraud was not committed.
The problem of inconsistent judgments exists. If the minister can appeal, we must be fair and allow the person to appeal. According to Mr. Justice Noël, before June 1950 a person would not have committee fraud by hiding at the security screening stage facts that would have kept him or her out, because June 1950 was the first time it became illegal to lie to a security officer. Mr. Justice Lutfy says that it was already illegal.
Mr. Matas and I say that both the person whose citizenship was revoked and the minister, in the case where citizenship was not revoked, should be able to ask the Federal Court for leave to appeal. The court will usually not give leave just because you have an arguable case in law. If you have a very poor case on the facts, the court may wait until someone has a better case on the facts before granting leave. That is why we say there ought to be the possibility of appeal.
I share your concerns about the best interests of the child and I have said what I wanted to say on public interest.
I wish to say something that I have not said before. Mr. Matas was complaining that the present system takes too long and that the minister and the Governor in Council cannot seem to make up their minds. I wish to say something that I do not think has previously been said in Parliament. The minister has received advice that fairness requires her to do certain things that in 1920 or 1940 she would not have been required to do. Because she is acting as kind of a judge and has to decide whether to make a report to the Governor in Council, she has been having the Justice Department write to people who had lost in Federal Court telling them that the minister is considering making a report and asking whether they would like to make representations to the minister. In one case, a person made very extensive representations as if in a court of appeal.
The Justice Department has then written commentary on that as advice to the minister. The person asked for a copy of that in order to reply to it. I am told that the minister has decided whether to accede to that request but has not yet decided whether to convey that decision to the person. It is taking forever.
The minister is in an unfair position. She is the prosecutor. She should not be required to be the judge. She is a member of the collegial body that will decide whether she is right after she has decided whether she is right. That is an unfair process.
I am told that another person who lost in the Federal Court Trial Division has written to the Justice Department saying that he would not be making representations to the minister, as that makes no sense, but asking what the process is for making representations to the Governor in Council. I understand that advisers to the Governor in Council are trying to figure out the answer to that.
In the courts, the procedures and the time frames are known. I was glad to hear Ms Golini agree that, as the minister said, the Governor in Council should be allowed to do the humanitarian and compassionate thing.
Mr. Justice Noël said that losing your citizenship for fraud is like losing an insurance policy for fraud. If it is found that I obtained an insurance policy by concealing that I have a heart condition, I have the right of appeal. If the insurance company loses its case, it has the right of appeal. We want the right of appeal for certainty and fairness to everyone.
Mr. Wong: With regard to the issue of annulment, we understand from the previous witnesses that there is no role for consideration of appeal on merit under clause 18. If that is the case, it is a less than full appeal.
Senator Finestone: You are referring to judicial review rather than a Federal Court trial.
Mr. Wong: Yes.
Ms Golini: It is ironic that the more the public is empowered through science, research and technology to find the truth about people's pasts, the more the legal system denies that. The purpose of appeal is for people who believe that they are not guilty to be allowed an opportunity to prove their innocence. Thank goodness for DNA and other things that we did not have 20 or 30 years ago. I wish that the judicial system would move along with sociological and scientific developments in freeing individuals of the shackles of doubt and untruth. That is the basis of our claim.
The Deputy Chairman: Unless there are any other questions, I wish to thank the witnesses very much for their interesting evidence.
The committee continued in camera.