Citizenship and Immigration Committee on May 5th, 2014

[John McKay, Liberal, Scarborough—Guildwood, ON]

No, they're convicted. If they go back to Rwanda, they're cooked.

[Sheryl Saperia]

Okay. There are two issues that would need to be evaluated. One is addressed in the bill, and one I think should be addressed in the bill. The first part that is present in the legislation is that the actual terrorist offence that they were convicted of in the other country needs to also be a terrorist offence in Canada. If there isn't an equivalent in Canada, that's the end of the matter—

[John McKay, Liberal, Scarborough—Guildwood, ON]

Well, let's work on the presumption that these are equivalent offences, because that's what the bill actually does say. If convicted, prohibition against Canadian citizens includes persons who are charged outside of Canada of an offence similar to an indictable offence as in Canada.

[Sheryl Saperia]

Exactly. What I'm suggesting, though, is a country where the terrorism charge is a purely political one. We'd actually have to evaluate whether—

[John McKay, Liberal, Scarborough—Guildwood, ON]

How do you tell what's purely political?

I'll give you another example; 16 people were listed this week by the President of Sri Lanka, and I don't know what the stage of their citizenship is here, but they're “terrorists” as far as the Government of Sri Lanka is concerned.

[Sheryl Saperia]

Right. Again, according to the actual act itself, the offence they were convicted of in the other country has to also be a parallel offence here in Canada. That's part one. Part two, though, which I believe the minister intends to consider within his discretion, but which I believe needs to be explicit in the bill, is the fairness of the conviction. Is this purely political in the other country? Is this just a matter of using terrorism to go after your enemies, because that is common in some countries—

[John McKay, Liberal, Scarborough—Guildwood, ON]

But that's a very subjective test.

We all agree today that Sri Lanka is a rogue state. We don't necessarily agree that Rwanda is a rogue state and therefore... In fact, up until recently, Rwanda has been a bit of a darling of the west because it has, in some respects, recovered from its genocide. Recovered, put that in big quotation marks. So you're leading kind of a very vague test here.

[Sheryl Saperia]

I think that there are some existing standards that we could be using in order to evaluate whether a conviction was achieved in a fair manner, whether this country does this traditionally and whether, in the particular case, the conviction was arrived at fairly.

[John McKay, Liberal, Scarborough—Guildwood, ON]

I think that's very dangerous ground.

Let me switch to Professor Macklin. I appreciate your answer, but I'm interested in Professor Macklin's response to the questions I just asked and then maybe I should... I probably am poorly advised, but—

[The Chair]

You have 30 seconds.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Oh, well, okay.

Just answer the questions that they responded to then.

[Prof. Audrey Macklin]

Let me just point out that there's a Canadian journalist who's also an Egyptian citizen who is on trial for terrorism in Egypt right now. If he is convicted, then in principle, he would fall under the purview of this act and be subject to citizenship revocation in Canada for a terrorism conviction in Egypt.

One of the dimensions of this act that I think is notable is that if we can revoke Canadian citizenship for a conviction of a terrorism offence in another country.... I guess that's because terrorism is thought to be a problem of global proportions, but if that's the case, then why are we thinking that revocation of Canadian citizenship leading to somebody becoming the problem of some other country is the appropriate solution?

Really, what that means then is that Canada gets to revoke somebody's citizenship and send them to another country. So there was a question earlier about what the world is going to think of Canada. What would the world think of Canada's having a criminal justice system that's able to prosecute, convict, and punish people, yet chooses instead to export somebody who it considers to be a terrorist, found under a court of law, to make it some other country's problem?

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madam Macklin.

Mr. Opitz, you now have the floor.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Thank you, Madam Chair.

I think people would continue to think of Canada as what it already is, a heaven on earth.

Ms. Basnicki, thank you so much for being here. You obviously personify the pain and the tragedy of that horrific act in 9/11, but you have really applied yourself in so many constructive ways to help Canadians, and in fact people all over the world, understand what occurred and to be vigilant and to guard against future instances of this. That's one of the reasons clearly you're here talking to a parliamentary committee, and I applaud that.

Ms. Saperia, I like your idea about the passport application rider. I think that makes infinite sense, and I think we'll talk about that further.

My parents came here almost 70 years ago, and they had a very challenging time becoming Canadian citizens. They had two-year contracts. They had to work hard. They raised a family, and I'll tell you 70 years on in their late eighties and mid-nineties they wave the Canadian flag as high and as proudly as anyone.

So we're working on that, and we don't ask much of people coming to this country. We ask them to obey the law and that includes no terrorism. We ask them to respect their fellow citizens and that all the old prejudices and practices should remain in the old country. And pay your taxes.

I see nothing cruel or unusual about getting rid of terrorists and traitors to my country. Especially as a former soldier, I would be really upset if anybody who had committed a terrorist act against me in the field retained a Canadian citizenship.

I'll give you a couple of examples of where they do revoke citizenship with good reason. In Britain they have revoked citizenship if it's deemed to be conducive to the public good, and there are several examples of that. In Switzerland they can revoke citizenship if an act in that way causes serious prejudice to the national interest of the country. In Australia they have done it, and in the United States they can pursue revocation for high treason or for being a member of an armed force at war with the United States. These are all good reasons and good examples of these countries.

Ms. Basnicki, I'll start with you. In the current Citizenship Act those convicted or charged with an indictable offence in Canada are barred from obtaining citizenship. The first part of this question is: do you think that goes far enough?

[Maureen Basnicki]

Again, through my lens there's no degree of how far we can go. If we can prevent other Canadians being murdered by terrorists, then we do it. I think we have to play catch-up in Canada when you mention other countries.

I look to our legislators. I look to our lawyers. There are many in here. I believe in the rule of law, and I appeal to my fellow countrymen. As a country so far we've been fairly lucky, if you will, but the threat of terrorism is not less since my husband was murdered on 9/11. It is greater.

It was mentioned before about 130 individuals who CSIS knows of who have left Canada for terror training. Can you imagine the numbers we don't know about? Without being alarming, and I don't want to be a fearmonger, it's an issue that, if we can use every tool in the tool chest to prevent such atrocities, then I'm happy that Canada is taking a positive stance.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

I would agree. To Ms. Saperia's point earlier of giving some instruction to youth who might be subject to radicalization, I know I do that on my own with various groups. I've found a lot of success in trying to turn some of those kids to better endeavours.

Prior to 1976 Canadian citizenship could be revoked for high treason, but the Liberal government of the day chose that this shouldn't any longer be grounds for revoking citizenship even though almost every peer country would disagree, and many have since added grounds for that kind of revocation or renunciation.

So in addition it is legal to revoke citizenship for someone found to have obtained it fraudulently, and clearly there used to be and still are legal and constitutional grounds to revoke citizenship.

Would you agree this would still be the case with this bill and with the suggested amendments made?

Ms. Saperia, how about you?

[Sheryl Saperia]

I do not have a problem with revoking citizenship for someone convicted of treason. I don't believe that beyond giving them a fair trial here in Canada with regard to whether they did commit that crime, once that has been established I don't think there is a problem with revoking their citizenship. I believe they have cut those ties, and then the natural consequence is the loss of citizenship.

I want to mention very quickly with regard to Professor Macklin's interpretation of the law, I, too, have a legal background and I do take issue with some of those legal interpretations, but I realize there's not enough time here—

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Sorry to be curt, but I think I have a minute left.

We know that a Canadian citizen can have their citizenship taken away if they obtained their citizenship fraudulently. Most of our peer countries have the ability to revoke citizenship for reasons, as we said: treason, terrorism, and other things. Yet, some of the critics of the bill claim that Canadian citizenship is an unalienable right.

Ms. Basnicki, how do you respond to that?

[Maureen Basnicki]

I'm a Canadian citizen, and I believe we have to find the balance between the rights of those who have been harmed in such a way with the rights of those who would do harm to Canadians.

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Thank you very much.

Mr. Toone, you have the floor.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Thank you.

Again, thanks to all of you for coming. It's been an informative session.

Ms. Macklin, I certainly appreciate the fact that you filled in at the last moment, as did I, and as I suspect Mr. McKay did. We're all here on our helicopters trying to make sense of what we're hearing here.

I want to start by pointing out, my ancestors who came to Canada many generations ago were Huguenots. By the mores of the day, they were criminals. They were traitors. They were punishable by the worst possible punishment of the day, being burned at the stake. Even back then, Canada was rather welcoming, and they came here and settled and became fine, upstanding citizens. But by the laws of the day, they were treasonous criminals.

I suspect things have improved since then, but I will point out that we've had people in this country whom we've declared traitors, such as Louis Riel, whom later on we decided to pardon. Who's considered a traitor today is not necessarily a traitor tomorrow. These things can be subjective. I don't think we can hold an objective line to these things every time.

I'll remind people that just before the Second World War, Canada refused Jewish refugees from Germany. We didn't want them here. The minister agreed to that; our government agreed to that. Things change over time. What are the mores? What's acceptable and what isn't?

Let's fast-forward into what's going on today, and I don't want to repeat what Mr. McKay mentioned earlier, which I think was right on the money. Let's talk about a Canadian who is being held in Egypt, who I think Ms. Macklin mentioned briefly. All these people are considered traitors. All these people have committed heinous crimes by the terms and definitions that exist where they are. I think we're going down a path that could be considered dangerous, especially that there seems to be a serious lack of due process that's permitted by this bill.

Ms. Macklin, you mentioned section 11 of the charter. We need to have independent and impartial tribunals reviewing these things, yet by the terms of the proposed statute in front of us we're going to have ministerial discretion with leave for judicial review being the only possible third-party option for anybody being denied citizenship. So what are the terms of judicial review? What does it mean to have judicial review? What is the likelihood of even being accepted by a court to hear a judicial review?

Ms. Macklin, can you explain to me what judicial review is, and whether this is a sufficient remedy in the case of revoking citizenship?

[Prof. Audrey Macklin]

Judicial review is a form of supervision that a court exercises over an administrative decision-maker. It differs from an appeal or the exercise of judicial authority in the course of a trial. It is limited in its scope. Often, according to the latest jurisprudence from the Supreme Court of Canada, it is intended only to disturb decisions by administrative decision-makers if they are unreasonable, which is a different standard from asking whether the decision is correct or incorrect.

There is something unique in immigration law in Canada. In all other areas of law, one gets to seek judicial review, to go to the court and ask it to supervise the decision of the administrative decision-maker on request. In immigration law, you have to get permission of the court—that is, leave of the court—to seek judicial review. It's probably the only area of law in Canada where you have to do that.

So a court won't even exercise its supervisory authority without first deciding whether it thinks the case is worth hearing. That's what this bill proposes with respect to citizenship revocation. First you have to ask a court if it will even hear the case, and then only if it gives permission to hear the case will there be a possibility for the court to set it aside using its supervisory authority.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Perhaps I can just interrupt for a moment.

With only 30 seconds left here, if there were a couple of elements that you'd like to see changed in this bill, what specifically would they be?

[Prof. Audrey Macklin]

I would remove citizenship revocation. It's unconstitutional. Other countries don't do it. I don't know what Mr. Opitz was referring to. You'll note that in the aftermath of 9/11, not a single U.S. citizen had citizenship revoked. Australia, as I read it, doesn't permit citizenship revocation in the way that Mr. Opitz described. In fact, the U.K. is one of the few outliers that do this. So it's not as if there is this worldwide trend against which we are now imposing a new law.

So get rid of citizenship revocation. I think our criminal justice system is perfectly adequate to handle crimes, criminal offences, and it does so just fine.

Second, I would get rid of the “intent to reside” provision with respect to putting that as a condition on the acquisition of citizenship by naturalization.

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Thank you very much.

Once again, I'd like to thank our three witnesses for taking the time to contribute to our study on Bill C-24.

I would also like to thank all the committee members for their cooperation.

Meeting adjourned.