Bill C-14 (Historical)

An Act to amend the Citizenship Act (adoption)

This enactment amends the Citizenship Act to reduce the distinctions in eligibility for citizenship between adopted foreign children and children born abroad of Canadian parents.

Citizenship Act--Bill C-14

[Ed Komarnicki, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Mr. Speaker, I, perhaps, have a somewhat tamer point of order which is in response to a previous point raised. I want to clarify the facts referred to in the comments made by the member for Burnaby—Douglas on Tuesday, October 17, when responding to the point of order I raised in respect to Bill C-14.

Before making a ruling, I believe it is important to note that the member was incorrect when he asserted that the denial of citizenship to an adopted child was a de facto denial of an immigration visa and permanent residence status. The member made this argument to persuade you, Mr. Speaker, that there was no difference between citizenship and immigration matters so that you would conclude that the immigration appeal division of the Immigration and Refugee Board may hear citizenship matters.

The fact is that citizenship and permanent residency each have a very different status in law. Indeed, so substantial are the differences that each is defined in separate statutes, as are the procedures and applications relevant to them.

Mr. Speaker, the member would have you overlook the fact that there is nothing in the Immigration and Refugee Protection Act that provides the Immigration and Refugee Board with powers or a mandate to deal with citizenship. The procedures and process for citizenship are limited to the Citizenship Act. None of those procedures or processes refer to or relate to the IRB.

More fundamental to the argument by the member for Burnaby—Douglas is his incorrect assertion that one can look past the lack of a citizenship mandate of the IRB by finding that citizenship decisions have an impact on the applicant's visa or permanent residence status application. The member, simply put, was wrong.

The fact is that denial of citizenship has little impact on permanent residence status. It is certainly incorrect to say that a denial of citizenship is a de facto denial of permanent residence. Under the current law it is possible for a permanent resident to apply for citizenship and be denied with the denial having no effect on his or her permanent residence status.

The second significant error to the member's submission that I wish to clarify is his suggestion that the incompleteness of the amendments may be addressed by regulations to Bill C-14 by stating:

...that requirements as to its operation can be delineated in regulations developed to implement the act, and therefore the amendment meets all the tests of completeness.

The member made this argument hoping to persuade you, Mr. Speaker, to overlook the fact that the legislation that creates the Immigration and Refugee Board does not already recognize citizenship or a role for itself in dealing with citizenship matters.

The member's submission that a new role for the IRB can be delineated in regulations to Bill C-14 is incorrect. I gave my remarks on October 6 on the inadmissibility of an amendment that requires subsequent amendment of an act that was not before the committee. I do not propose to repeat those comments here but to simply respond to the member for Burnaby—Douglas' contention and clarify that there are no provisions in the Citizenship Act or the Immigration and Refugee Protection Act that would permit the making of regulations that would change the existing mandate of the immigration appeal division.

If his submission is to be taken as being that the regulations to Bill C-14 can speak to the mandate and powers of the immigration appeal division and broaden them to allow the immigration appeal division to deal with a citizenship matter, then I would refer to my previous comments on October 6 only to add that regulations to an amendment of the statute may not amend another statute that was not before the committee.

In this instance, regulations to an amendment to the Citizenship Act may not amend the Immigration and Refugee Protection Act which creates the mandate and powers of the immigration appeal division.

With respect to the royal proclamation, the argument essentially was that since there would no longer be appeals under the Immigration and Refugee Protection Act, somehow these funds could be applied to appeals under the Citizenship Act, is somewhat circular in the sense that if there is no appeal provision in respect to the adoption provision in the Adoption Act, moneys would be saved and in order for the appeal to happen we would require additional funding which would require a royal proclamation. For that reason, also, it would not be acceptable.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I would like to respond to the point of order raised on Friday, October 6 by the parliamentary secretary, regarding Bill C-14. I appreciate the opportunity to respond to the concerns raised by the Parliamentary Secretary to the Minister of Citizenship and Immigration in the House on Friday October 6 regarding the admissibility of an amendment to Bill C-14 that was passed when the bill was under consideration in the Standing Committee on Citizenship and Immigration.

As the mover of that amendment at the standing committee, I appreciate the opportunity to respond to the point of order. As we know, the amendment in question adds a new subsection to clause 2 of Bill C-14, which reads:

Any decision of the Minister under this section may be appealed to the Immigration Appeal Division of the Immigration and Refugee Board.

I would first point out that this amendment was found by the chair of the Standing Committee on Citizenship and Immigration to be in order, and it was discussed and debated by the committee and approved by a majority of members of the committee in that context.

I would like to emphasize that the parliamentary secretary made his arguments before the committee at that time.

As well, there was a vote at the committee, after hearing the arguments made by the parliamentary secretary and after hearing from other members, upholding the chair's ruling that the amendment was in order. The committee voted to sustain the chair's ruling.

I appreciate that the committee's actions do not preclude an approach to the Speaker and the House on this issue, but I want it to be clear for the Speaker that these issues were considered by the committee. I know that the Speaker has repeatedly found that in most cases committees know best when dealing with the matters before them, so I thought the fact that this amendment was debated and found in order by the committee is important.

I submit that the amendment does not go beyond the scope of the bill as passed by the House at second reading. Bill C-14 and the amendment in question are amendments to section 5 of the Citizenship Act. Section 5 deals with the question of grants of citizenship and sets out the minister's obligation with regard to the granting of citizenship. It also grants discretionary powers to the minister to waive requirements of the act in certain cases.

Bill C-14 amends this section of the act by adding a new section 5.1 that addresses the citizenship of children adopted by Canadians overseas, granting them citizenship upon application at the time of the finalization of adoption. This removes the discriminatory effects of the current law, which requires adopted children to apply for permanent resident status and then meet the residency requirements before subsequently applying for Canadian citizenship, but grants children born to Canadians overseas immediate Canadian citizenship without such an application.

Section 5 currently establishes criteria for obtaining Canadian citizenship, as well as noting situations where the minister may exercise discretion. Bill C-14 proposes a new section 5.1, which adds new criteria when dealing with children adopted overseas by Canadians. The amendment proposed by the standing committee to Bill C-14, rather than stepping outside the scope of the bill passed at second reading, merely adds a further consideration to the decision making powers of the minister as outlined in sections 5 and 5.1 by allowing an appeal of the minister's decision. I submit that this is in keeping with the principle of the bill as passed at second reading.

With regard to the parliamentary secretary's contention that this amendment provides new powers and a new mandate to the Immigration and Refugee Board beyond what is provided in the Immigration and Refugee Protection Act, I would submit that denial of citizenship to an adopted child is a de facto denial of an immigration visa and permanent resident status to that child and, as such, the Immigration and Refugee Board is exactly the body that exercises judgment and rules on such cases.

The board is the body that understands the issues related to the validity of adoptions of children by Canadians overseas by currently ruling on appeals of the denial of permanent resident status to children adopted overseas. I would maintain that the issues investigated and criteria applied currently to rule on an appeal of permanent resident status to a child adopted by a Canadian overseas will be the same issues and criteria used to rule on an appeal of the denial of citizenship to such a child should Bill C-14 and the amendment be passed into law by Parliament.

This does not, therefore, add new powers or a new mandate to the Immigration and Refugee Board beyond those already mandated and exercised. The final result of decisions appealed will change as a result of a decision, given that under Bill C-14, should this amendment carry, an adopted child will become a Canadian citizen instead of a permanent resident, but the decision making process of the appeal is essentially the same.

In this respect, no new powers or mandate are conferred by the amendment, and no royal recommendation would be necessary since no new activities are being contemplated or undertaken. No new public funds should be required in these circumstances and therefore I would argue that it does not impinge on the financial initiative of the Crown.

Mr. Speaker, this amendment was presented and its procedural admissibility was approved by the committee. In your ruling on the form and content of report stage amendments, made on March 21, 2001, you implored members to use every possible opportunity at committee to make amendments and therefore save report stage for the purpose it was intended.

Mr. Speaker, you stated:

--I would strongly urge all members and all parties to avail themselves fully of the opportunity to propose amendments during committee stage so that the report stage can return to the purpose for which it was created, namely for the House to consider the committee report and the work the committee has done, and to do such further work as it deems necessary to complete detailed consideration of the bill.

This is exactly what I have been trying to do. The amendment supports both the scope and spirit of the bill, and I contend it achieves the overriding goal the government has stated that the bill is supposed to achieve.

With regard to the contention that this amendment is incomplete, I submit that requirements as to its operation can be delineated in regulations developed to implement the act, and therefore the amendment meets all the tests of completeness. Surely the government is not asking that this House consider that legislation is incomplete unless all regulations are published before report stage. That would fly against all past practices of this place.

Thank you, Mr. Speaker, for hearing my response to the point of order raised by the Parliamentary Secretary to the Minister of Citizenship and Immigration. I would urge you to allow this important amendment to stand and be considered by the House.

[Ed Komarnicki, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Mr. Speaker, I rise on a point of order in regard to Bill C-14, An Act to amend the Citizenship Act (adoption). It is the government's view that an amendment adopted by the Standing Committee on Citizenship and Immigration to add a new clause to the bill should have been found out of order by the chair of the committee. I would ask, Mr. Speaker, that you find that the amendment is indeed out of order.

As Marleau and Montpetit note on page 661-2:

The admissibility of those amendments, and of any other amendments made by a committee, may therefore be challenged on procedural grounds when the House resumes its consideration of the bill at report stage.

The amendment in question added a new subsection to clause 2 of Bill C-14. It reads:

Any decision of the Minister under this section may be appealed to the Immigration Appeal Division of the Immigration and Refugee Board.

This amendment we suggest is inadmissible for three reasons. First, the amendment goes beyond the principle of the bill adopted by this House at second reading. As noted by Marleau and Montpetit at page 645:

If the bill has already received second reading, the committee is bound by the decision of the House and may not amend the bill contrary to its principle.

Speaker Fraser clarified this in a ruling on April 28, 1992. He said:

The committee is restricted in its examination in a number of ways. It cannot infringe on the financial initiative of the Crown, it cannot go beyond the scope of the bill as passed at second reading, and it cannot reach back to the parent act to make further amendments not contemplated in the bill no matter how tempting this may be.

The amendment would provide new powers and a new mandate to the Immigration and Refugee Board beyond what is provided in the Immigration and Refugee Protection Act which creates the board and limits the board's role to immigration and refugee matters but would not involve citizenship.

The principle of Bill C-14, as adopted by the House, was to allow for a grant of citizenship to foreign adopted children without first requiring them to be permanent residents. It was not to provide a new role for the Immigration and Refugee Board.

Second, the amendment is incomplete. As Marleau and Montpetit note on page 656:

As well, an amendment is out of order if it refers to, or is not intelligible without, subsequent amendments or schedules of which notice has not been given, or if it is otherwise incomplete.

The Immigration and Refugee Board, to which the amendment proposes appeals be made, operates under the statutory authority of the Immigration and Refugee Protection Act, not the Citizenship Act.

Even though I believe the amendment to be outside the scope of the bill, the sponsor neglected to include further amendments to the Immigration and Refugee Protection Act that are necessary to make this amendment intelligible and operational, perhaps in attempting to move an amendment that would not be seen to be out of order on those grounds.

The Immigration and Refugee Protection Act does not provide for, and the amendment does not address, providing the Immigration and Refugee Board with the power to hear citizenship appeals, establishing potential grounds for appeals, specifying the relationship between appeals to the board and existing rights to judicial review, providing the board with the power to rule on the appeal, for example, by granting citizenship which the amendment's reference to an appeal process is meaningless.

These critical authorities are established in the Immigration and Refugee Protection Act for other types of appeals heard by the board and its divisions. Similar legislative provisions would be required for the board to identify its mandate and be able to make orders to resolve appeals of a citizenship decision.

Third and finally, the reason this amendment is out of order is that it requires a royal recommendation. On May 9, 2005 the Acting Speaker ruled that a new purpose for an existing appropriation requires a royal recommendation: He stated:

The royal recommendation is also required where a bill alters the appropriation of public revenue “under the circumstances, in the manner and for the purposes set out” in the bill.

What this means is that the royal recommendation is not only required in the case where more money is being appropriated, but also in a case where the authorization to spend for a specific purpose is being significantly altered. Furthermore, on February 8, 2005, the Chair ruled:

Where it is clear that the legislative objective of a bill cannot be accomplished without the dedication of public funds to that objective, the bill must be seen as the equivalent of a bill effecting an appropriation.

The same principle applies to amendments. Since the board does not currently deal with citizenship decisions, any existing royal recommendation for the Immigration and Refugee Protection Act could not possibly cover this new purpose.

Moreover, the addition of a new type of appeal hearing could not be implemented without additional public funds, for example, for more board members to hear cases of new policy and administrative resources to support these hearings. The amendment, therefore, requires a royal recommendation.

Given those three reasons, I submit that the amendment is out of order.

Citizenship and Immigration

[Norman Doyle, Conservative, St. John's East, NL]

Mr. Speaker, I have the honour to present, in both official languages, the fifth report of the Standing Committee on Citizenship and Immigration on Bill C-14, An Act to amend the Citizenship Act (adoption), with amendments.

I have the honour as well to present, in both official languages, the sixth report of the Standing Committee on Citizenship and Immigration entitled “Stateless Vietnamese Refugees in the Philippines”.

Finally, I have the honour to present, in both official languages, the seventh report of the Standing Committee on Citizenship and Immigration entitled “Audit of the Canadian Security Intelligence Services Immigration Services”.