Citizenship and Immigration Committee on May 31st, 2023

[The Chair, Liberal, Salma Zahid]

I call this meeting to order.

Welcome to meeting number 68 of the House of Commons Standing Committee on Citizenship and Immigration.

A reminder to all the members that we will be meeting for three hours today, so the meeting will continue for three hours. We'll try to have a little break halfway through.

Today, pursuant to the order of reference of Wednesday, November 16, 2022, the committee will resume consideration of Bill S-245, an act to amend the Citizenship Act, granting citizenship to certain Canadians. We are continuing our clause-by-clause study of the bill.

When we left off, we were debating the amendment moved from the floor by Ms. Kwan, which is a new version of NDP-8.

The floor is open for debate. Thank you.

Mr. Kmiec.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Thank you, Madam Chair.

I think I had the floor when votes happened on Monday, so I was about to begin my line of questioning.

I've had some time to compare the two versions. I'm not sure which version I prefer, or whether I think some subamendments might be necessary to bring it back to the previous one. Can the department officials maybe explain what the difference is between the two, the original NDP-8 and this new version of NDP-8? I want to understand the differences in how adopted children and adoptive parents would be affected.

[The Chair, Liberal, Salma Zahid]

Go ahead, Ms. Girard.

[Nicole Girard, Director General, Citizenship Policy, Department of Citizenship and Immigration]

Thank you, Madam Chair.

As was stated in the previous hearing, one of the important differences is that this version does not include grandparents for the purposes of the connection test, so the connection test is available solely for parents.

I'll turn to my Department of Justice colleague in case there is anything else she may wish to mention.

[Erika Schneidereit, Counsel, Legal Services, Department of Citizenship and Immigration]

Thank you for the question, Madam Chair.

My understanding is also that the amendment includes a number of cross-references to previous amendments that were already passed, so it's sort of a coordinating amendment.

[The Chair, Liberal, Salma Zahid]

Thank you.

Mr. Kmiec.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

In the latter part of the amendment it reads, “Paragraph 5.1(4)(b) of the Act is replaced by the following”, there's a paragraph here, and at the very end, it makes a reference. I'll just read the last part of it. It says, “and, at the time of their adoption, neither of the adoptive parents was a citizen who had a substantial connection with Canada.”

Is this “substantial connection” a reference to the substantial connection test that this committee has amended, or is it a different substantial connection test?

[Nicole Girard]

No, that's correct. It's the connection test this committee has voted on.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Is it possible to have two different substantial connection tests for different parts of the legislation, one of which would apply only to adoptive parents? For example, if we were to amend this to have a different one, is that something that's possible to have within the bill? Could a different part of the bill have a different substantial connection test you could apply?

I'd also like to hear if there's a judicial opinion on that. Would that also stand up in court if it was amended to have two different tests for two different situations where a person is either trying to regain or retain their citizenship?

[Nicole Girard]

Madam Chair, it's open to Parliament to legislate. As has been mentioned before, this amendment is seeking to make the connection test available for international adoptees where there's a Canadian parent with the same connection test that was previously voted on by the committee, which would apply to natural-born children. As discussed previously, it's looking to minimize those distinctions between the natural-born and adopted children of a Canadian with respect to the second generation born abroad in both cases, so while it's possible, it's not necessarily desirable for the purposes of equity with regard to this proposed amendment.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Could I hear from the legal services official? What would happen if the committee were to amend it or, in the future, if the government or any member through a private member's bill were to amend the original substantial connection test to exclude adoptive children?

I tried to do a subamendment at the time that would have made it a consecutive 1,095 days. We considered doing things like applying a test to see whether a person would.... If they have a criminal record, that would be grounds for not being able to show or demonstrate a substantial connection.

If this stays as it is but applies differently to adoptive parents and adoptive children who are trying to regain their citizenship—I actually like that idea—is that likely to stand up in court, or is that likely to cause a lot of problems?

[Erika Schneidereit]

Thank you for the question.

As we've said, in general it is open to Parliament to legislate however it sees fit. The scheme of the act, for example, currently has an interpretation section, which is definitions that apply throughout the act. It's my recollection that this specific substantial connection definition is included in that interpretation section or that it will be.

If there is an interest or an intention, the way the act is structured right now, you have interpretation provisions that apply throughout. I can't think whether, off the top of my head, there are other specific definitions in other pieces, but of course if there were a term that only applied in one section of the act, that would be specified in that one section.

The scheme of the act is set up to have a general definition section and then specific provisions in other areas, if that's helpful.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

As you say, you can't recollect an example that would be a similar situation, but the Supreme Court found years ago that you couldn't prohibit Canadians overseas abroad from voting. There used to be a limit. After five years you couldn't vote. Through a point of equity that we've heard many times now—fair point—the Supreme Court raised the point that it was a violation of the constitutional rights of citizens.

In this situation, either through amendments that we do here or through amendments that could be done in report stage, to protect adoptive parents and adopted children.... I quite like this amendment generally. I'm just trying to get down to...if we were to amend the original substantive connection test, they not be impacted by anything we do with that particular one.

I also understand that if this bill passes here, it will go back to the Senate for review, and potential amendments could be made there on the substantial connection test. I just want to better understand. In other court cases and something similar to this in legislation, can you use the same word but, for different sections of the act, have a different interpretation as a direction given to judges who may consider it and the department in order to try to handle that? That's what I'm trying to get at.

[Nicole Girard]

Yes, Madam Chair, the member is correct that, in theory, if not in practice, it's certainly possible to legislate different tests, but that's not what's proposed here because the natural-born children and the adopted children of a Canadian in the second generation and beyond are in a similar situation. Therefore, it's proposed under this amendment to have a consistent test with regard to connection.

It is possible, however. The member is correct.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

On this one, because this would be different in the way we apply the rules, has the department ever done an assessment to determine the potential impact on existing adoption processes and regulations internationally? I think this will only impact international adoptions. Correct me if I'm wrong, but this will only impact international adoptions with the automatic right to citizenship for adoptive children that would basically make them equal. Basically the rule applies to the first generation exactly the way it would to those who are naturalized in Canada.

Has the department done an assessment in the past? Is one being done while this committee is considering this legislation?

[Nicole Girard]

I'm not aware of any such assessment, but as I think I've stated before, it is desirable to have this mirroring amendment benefiting international adoptees in the second generation where we have Canadians who are adopting internationally to have the same connection test available. This will benefit potentially all those who are already first-generation Canadians born abroad who may either have children abroad themselves in the future or choose to adopt internationally, should Parliament choose to pass the bill.

Thank you.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

My next question is going to be this: Are there processes at IRCC for identifying and distinguishing between various adoption systems internationally?

I have a follow-up to that, but that's my first one.

[Nicole Girard]

Madam Chair, as I mentioned previously, there are dedicated staff in the department for the purposes of processing citizenship applications, including proof of citizenship applications for international adoptees. There are criteria, as I mentioned previously, that are standard to be met in these cases. These are around three considerations: ensuring the best interests of the child; that there is a genuine parent-child relationship, as I mentioned; and then there are other legal criteria to be satisfied. The adoption has to be legal in the country where it took place and in line with the laws where the Canadian is living.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

My understanding of this amendment and how this would work, then, is that the adoption is legal in the place that it takes place. This would apply equally to Canadian parents adopting, from Canada, a child internationally or two Canadians who are parents overseas who adopt in another jurisdiction. Is that correct?

[Nicole Girard]

Yes, that's correct.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

There's nothing in this legislation.... Again, in 2009, there were unforeseen consequences, and then we had 2015. We've been through this before.

There's absolutely no difference in these amendments. They will both be treated equally.

[Nicole Girard]

Yes, that's correct.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

That question I had goes back to the first one, because they're related.

There are processes in place for the Canadian government to determine whether an adoption done overseas, in another legal jurisdiction, is done according to those laws in place in that jurisdiction. Is that the paperwork that needs to be provided to the department during the adoption visa process when coming to Canada?

[Nicole Girard]

That's correct, yes.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Okay.

In that process, and in your experience as well, has there ever been a court case or an issue where, years afterward, the department was found not to have done all the work, where there were changes made in processes, or where that idea or concept was litigated in Canadian courts where there was disagreement between parties on whether the adoption was indeed legal?

Has there ever been a case like that?