Bill C-6 (Historical)

An Act to amend the Citizenship Act and to make consequential amendments to another Act

This enactment amends the Citizenship Act to, among other things,
(a) remove the grounds for the revocation of Canadian citizenship that relate to national security;
(b) remove the requirement that an applicant intend, if granted citizenship, to continue to reside in Canada;
(c) reduce the number of days during which a person must have been physically present in Canada before applying for citizenship and provide that, in the calculation of the length of physical presence, the number of days during which the person was physically present in Canada before becoming a permanent resident may be taken into account;
(d) limit the requirement to demonstrate knowledge of Canada and of one of its official languages to applicants between the ages of 18 and 54;
(e) authorize the Minister to seize any document that he or she has reasonable grounds to believe was fraudulently or improperly obtained or used or could be fraudulently or improperly used;
(f) change the process for the revocation of Canadian citizenship on the grounds of false representation, fraud or knowingly concealing material circumstances; and
(g) remove the requirement that an applicant be 18 years of age or over for citizenship to be granted under subsection 5(1) of that Act.
It also makes consequential amendments to the Immigration and Refugee Protection Act.

[Christopher Veeman, Executive Member, National Immigration Law Section, Canadian Bar Association]

Thank you to the committee for the invitation to appear.

I'm assuming that everybody has the submission. I'm proposing to highlight some of the points that we make in the submission, but it's there for you to review at your leisure.

Over the time I've been practising in this area, it's possible to discern two phases in Canadian citizenship law. The law was largely unchanged after the major rewrite in 1977—with the exception of the lost Canadian issue in 2009—until Bill C-24 came into effect. Leading up to Bill C-24, the perspective of practitioners in this area was that the system was in its “Byzantine” phase, if you can use that word. I say this because nobody knew what the legal test was for residency and how you qualified to become a citizen. There was a problem with the jurisprudence. The courts couldn't solve that problem, the processing times were backlogged, and Canada's interests were not being served by the old system.

The CBA supported the efforts in Bill C-24 to improve that situation. To its credit, Bill C-24 did fix a lot of those problems. The definition of residency was clarified, so we now have the physical presence definition. The decision-making process was streamlined, and also the government committed resources to processing. All those things led to the decline in processing times that we've seen.

Back in 2014 the CBA opposed many of the other parts of Bill C-24. While Bill C-24 brought citizenship law out of its Byzantine phase, in the view of some practitioners it moved it in a sort of Kafkaesque direction where, as we've heard, a person can have their citizenship revoked by a government official without any hearing. In a point that wasn't touched on yet, section 13.1 was introduced into the law, which allows the department to suspend processing of an application essentially indefinitely. These are features that in our view do not support the rule of law. Another thing we heard under the changes that came in with Bill C-24 was that the system of appeals for citizenship matters was changed to judicial review instead. From the point of view of practitioners, that's an inferior system. As we've heard, you need to get leave, and in all cases where you don't get leave, you don't get reasons. People can get an application refused, and they don't have the opportunity to get an appeal with reasons.

Our section supports many of the aspects of Bill C-6 that reverse some of those changes, in particular the national interest revocation. We were strongly opposed to that. Rather than listing all the points that we do agree with, which are in our brief, I want to point out some of the things where we think the bill can be improved.

The first one has already been touched on today by Professor Macklin, and also by the minister in his remarks last Tuesday, which is the question of ensuring there is a fair and independent process for persons subject to revocation of citizenship for misrepresentation or fraud. Professor Macklin outlined that, so I'm going to skip over parts of this. Our solution for this problem is slightly different from what Professor Macklin has proposed. The overall goal is the same, to ensure that everyone has the opportunity to at some point have their case considered on humanitarian and compassionate grounds prior to the revocation of their citizenship. In our view, it may be appropriate to consider granting the department official that discretion when they're reviewing the case and have that decision directly reviewed by the Federal Court on a reasonableness standard.

In some situations under the current law, people can have their citizenship revoked for misrepresentation, and they go directly back to foreign national status. This is the case where the misrepresentation occurred in their permanent residency application, and then they subsequently obtained citizenship.

We say that all persons who have their citizenship revoked should revert to permanent resident status, and then have an appeal before the Immigration Appeal Division to retain that status and try to remain in Canada.

In our brief we have advocated, in terms of the grant of citizenship process, for some residual discretion to grant citizenship in deserving cases where people cannot meet the physical presence test, despite strong connections to the country and a desire to become Canadian citizens. In 2014 we proposed certain definitions that might be used.

I'll just give you a couple of examples of cases that might be problematic. A pilot who lives in Canada but is flying overseas for work may have trouble meeting the three in five standard. Just as an aside, the three in five standard is an improvement from the four in six. It's slightly more flexible, but still, there may be these hard cases that will arise.

[Prof. Audrey Macklin, Professor, Faculty of Law, University of Toronto, As an Individual]

Thank you for this opportunity to make a presentation.

I will give my presentation in English but will do my best to answer any questions you might have for me in French.

I would like to echo Mr. Brouwer's congratulations to the government for the many salutary features of Bill C-6. For reasons of time, I'm going to accentuate those factors that I think perhaps still require further attention.

My presentation will be exclusively on the question of the procedure for the revocation of citizenship based on fraud or misrepresentation.

The process as it currently exists, through the amendments to the Citizenship Act made by the previous government, is such that where the government considers revoking citizenship, the minister or a delegate sends a notice to the individual concerned. The individual, the citizen, then has the opportunity to respond in writing to the allegations leading to the intention to revoke citizenship. That's done exclusively in writing, except that the minister has discretion to convene an oral hearing.

Based on whatever submissions the minister receives in response, and other evidence before the minister, the minister then makes a decision to revoke citizenship. At that point, the individual may seek judicial review before the Federal Court, but can only do so with leave of the Federal Court.

Rather than walk through a jurisprudential analysis of why I think this process probably fails to pass constitutional muster, let me just explain it through some examples.

Generally speaking, the more secure one's status, whatever it is, the greater the procedural protections one is afforded prior to a decision to remove that status. Similarly, the more important the consequences of the decision, the greater the emphasis is on procedural fairness in the course of making the decision that will have that consequence.

Bear those two features in mind while I recount that the process under the current law for revoking citizenship provides fewer procedural protections than one would have as a permanent resident before the immigration appeal division, or indeed, as an individual fighting a speeding ticket in court. I hope that illustrates to you that there might be something problematic about revoking somebody's citizenship with a thinner, less protective process than is required to lose permanent resident status or, indeed, to fight a speeding ticket in court.

I should add that in the United States, for example, citizenship revocation on grounds of fraud or misrepresentation is done through a civil court process. That is, it is done before an ordinary court using ordinary civil court procedures.

What I will do is offer a suggestion or proposal for how one might consider amending the existing citizenship revocation process in a manner that would bring it into compliance with section 7 of the Charter of Rights and Freedoms. Section 7 of the charter guarantees to everybody the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with fundamental justice.

What I am proposing here is a mechanism for dealing with citizenship revocation on grounds of fraud or misrepresentation that complies, I think, with principles of fundamental justice. Let me preface it by saying that I anticipate that the majority of cases that would come up for revocation would concern potential fraud or misrepresentation regarding the physical residence requirements for citizenship, although there are certainly many other bases upon which citizenship could be revoked.

What I propose is that the first level decision remain with a delegate of the Department of Immigration, Refugees and Citizenship. From there, I would suggest that, should an adverse decision be made, the individual has the right to appeal to an independent quasi-judicial tribunal. An example of that one could consider is the immigration appeal division of the Immigration and Refugee Board. One might choose that or one might develop some other tribunal for that purpose.

One would have to consider the composition of that tribunal. Should they be legally trained? Do you want one member, perhaps two members or three members? These are all issues to be considered.

With respect to important questions of procedure and evidence before that appeal body, I think it would be important that the burden of proof—that is, proving that the facts and the law in favour of revocation are met—be on the minister; that it be proven on a balance of probabilities; that there be full disclosure of the record, so that the citizen has access to all the available evidence; and in addition, that the parties be able to adduce further evidence on appeal.

What would the jurisdiction or the mandate of such a tribunal be? It would be able to consider an appeal on the basis of law, fact, discretion, as well as what are called “equitable” considerations, or humanitarian and compassionate discretion. Broadly speaking, this conforms to the existing mandate of the immigration appeal division with respect to loss of permanent resident status. The tribunal would have various remedial options, which again could be further explored in questions.

What happens from there? It goes from the initial decision maker to an independent appeal body that has the ability to uphold or set aside the decision made by the first-level decision maker. In the event of an adverse decision, either side could then go to the Federal Court. One might ask whether it should be an appeal or a judicial review. I would favour an appeal. I think this is a matter, certainly, for further discussion.

It is important, and here I would concur with what Andrew said with respect to denials of grant of citizenship, that it be “as of right”; that is, that there be no leave requirement.

With that, I will end my presentation here. I look forward to questions.

[Andrew Brouwer, Senior Counsel, Refugee Law, Legal Aid Ontario]

Thank you, Mr. Chair and members of the committee. It's a pleasure to be back before the committee.

I work for Legal Aid Ontario, or LAO. Legal Aid is the country's largest legal aid plan. Our mandate is to ensure access to justice for the most vulnerable and marginalized Ontarians. We do that through staff legal services, community and specialty legal clinics, and of course, funding private bar lawyers on certificates to represent our clients. Legal Aid Ontario helps almost 4,000 low-income Ontarians each day, accessing justice in the areas of criminal, family, immigration and refugee, and poverty law matters.

Legal Aid Ontario also has a law reform mandate directed to the core goal of access to justice for the most vulnerable. We have a number of key priority areas in the area of refugee and immigration law. Those are, first of all, equal access to and effective protection of charter rights; protection of mentally ill non-citizens; protection and promotion of the rights of the child; domestic implementation of international human rights law; and access to and protection of citizenship, particularly for naturalized Canadians.

We applaud the government today for introducing Bill C-6 so very early in its mandate, and we support much of what's in the bill. We're particularly pleased about the provisions scrapping the intention to reside requirement and removing the power to strip citizenship for national security grounds. We also support the changes to the language and the residency requirements for naturalization.

That said, in our view the bill's not perfect. There are some significant problems and gaps that we hope this committee can address. Of particular concern to us are five areas. I've handed out a summary in English and French of the specific recommendations we have, and I hope those are before you. I'll just go through very briefly what we're suggesting.

The first issue I know has been a topic of a great deal of debate. I'll rely on Professor Macklin on the issue of the revocation process. Legal Aid Ontario shares Professor Macklin's position on the best remedy for that, and I know that Minister McCallum has also expressed interest in looking at how to reform that provision.

The second is with respect to remedies for refused citizenship applications. Bill C-24 stripped refused citizenship applicants of their right to appeal refusals to the Federal Court, and introduced instead a remedy of judicial review by way of leave. That change imposes unjust and costly barriers to access to justice, particularly in an area that really goes to the core of what it means to be a member of society. Leave requirements in Federal Court can double the time it takes to get a remedy and double the cost of seeking that remedy; and leave refusals, as I'm sure you know, are made without reasons by the Federal Court judge, which does an injustice to the individual applicants who naturally will perceive the leave requirement as being arbitrary. They don't know why they get refused. We therefore urge the committee to amend Bill C-6 to reverse the amendments that were introduced in section 20 of Bill C-24 and return to the Federal Court appeal provisions that existed before.

Our third area of concern is with respect to the first generation born abroad limitation. We were very pleased to hear Minister McCallum affirm before this committee that there should be one class of citizen. There's no place in Canadian law, in our view, for provisions that treat citizens born on our territory differently from those who are naturalized. My grandchild will be a Canadian citizen no matter where she's born. Mr. Virani's grandchild—he is my MP—will not be, unless she's born on Canadian territory. That's an unjust distinction. We ask, therefore, that the committee amend Bill C-6 to include a provision that strikes down the first generation born aboard provision in section 3(3) of the Citizenship Act.

The fourth area of concern is with respect to the residency calculation. We supported the change to the residency requirements that were set out in Bill C-6. We ask that they be expanded so that credit can also be given for Canadian residency to those who have made a refugee claim that's been found eligible but are waiting to have their hearing. As you know, there is a massive backlog right now. People are waiting for three or four years to have their claim heard. They should get credit for that time.

As well, those who have been accepted on humanitarian and compassionate grounds at stage one should also get credit for the time. It's a two-stage process, and people sometimes wait for years to get the final approval. That period of delay is not the fault of the applicant; it's a problem at Immigration, which is just taking too long to process them. We ask that they also get half-time credit for that period.

Finally, I'd like to ask the committee to consider seriously the issue of statelessness and how this act can be amended to deal with the stateless within Canada.

We are certainly hopeful that the new government's renewed recognition of the importance of international law and global engagement will result in our signing the 1954 Convention Relating to the Status of Stateless Persons, but there is something that we can do right now with this act to make sure that we are better protecting stateless persons and coming into better compliance with international law and norms.

We have three recommendations.

The first, which is critical, is to include a definition of “statelessness” within paragraph (a) of subsection 2(2) of the act. We ask that this include both de jure or legal statelessness as well as de facto statelessness. Practically speaking, the whole point of dealing with statelessness and assisting stateless persons to get protection is to make sure that every member of society has a connection to a state.

Concerns have been expressed by various people, including in a case in the U.K. called Pham, which shows the problems when we have an overly legalistic and narrow definition of statelessness. We are proposing the following definition, which is also included in the materials handed out. It's that “stateless” means that the person is not considered as a national by any state under the operation of its law and includes both de jure and de facto statelessness.

I've handed out a little printout from the website of CIC, which includes this government's understanding and definition of those two terms, de jure and de facto.

The second provision with respect to statelessness is that we're asking for an amendment to subsection 5(4) of the act, the provision that allows discretionary grants of citizenship in special cases. We propose that statelessness be identified specifically within the act as a factor that would justify a grant of citizenship under subsection 5(4).

Finally, we are proposing an amendment to section 10 of the Citizenship Act, the revocation process. We propose adding a restriction on revocation when it might result in a person's becoming stateless, whether de jure or de facto. We believe this would provide a very significant protection against an unexpected result of a revocation decision, and we ask that you seriously consider it.

Those are my submissions.

[The Chair, Liberal, Borys Wrzesnewskyj]

Good morning. I'd like to call the meeting to order.

Pursuant to the order of reference received by the committee on March 21, 2016, the committee will now proceed to the consideration of Bill C-6, An Act to amend the Citizenship Act and to make consequential amendments to another Act.

I'd like to welcome our first panel of witnesses on the subject of Bill C-6: Andrew Brouwer, senior counsel in refugee law, Legal Aid Ontario; Audrey Macklin, professor and chair in human rights at the faculty of law, University of Toronto; and Tamra Thomson, director of legislation and law reform, and Christopher Veeman, executive member of the immigration law section, both from the Canadian Bar Association.

Welcome. Each of you will have seven minutes or less to make opening statements, and we will proceed alphabetically.

Mr. Brouwer, you're up first.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you.

I'd like to call the vote.

I'll just read through the motion to make sure that we have the wording correct, Mr. Tilson. It's that staff be invited to return before the end of consideration on Bill C-6 to provide a briefing on the process for accessing the ministerial inquiries division.

[Salma Zahid, Liberal, Scarborough Centre, ON]

I think that's a matter of process. Right now we are discussing Bill C-6 and we should go ahead with it. That is a matter of discussing a process and the officials will provide a response to that. Maybe we should go to a vote on this motion.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Chairman, a response to a question that was asked from the government as to why we would want the officials to come back. The answer is because we will have questions. They may provide a written response, but we will have questions.

For example, my constituency offices have called embassies on specific questions from our constituents, and the embassies have told us to call this general number. This is something new. We've always had assistance from the embassies. We've never had the embassies...and to be fair to the embassies not all are saying that. Perhaps they haven't heard of this ruling yet, but some embassies are saying they will not speak to us. We will have to call this general number.

Members of Parliament are asked a lot to assist constituents on immigration and other issues. This just makes our job much more difficult and it certainly fits into questions that will arise as a result of Bill C-6.

The reason the motion has been made, we may, and I expect we will, have questions of the staff on whatever responses they're giving to this ruling.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

On that point, the email that Ms. Zahid read out talks about the centralization of access for members of Parliament into one number. What's not clear from that is whether or not staff from the ministerial inquiries division have the authority to look at things like reconsiderations of rulings on citizenship decisions, as well as, for example, dealing with overseas embassies. These are scopes of responsibility that the staff that man the current central line at the central processing unit do not have.

What's not clear in that email is whether or not as members of Parliament we will still have access to the level of service and the scope of responsibility of the staff that the ministerial inquiries division provides.

The way I read that email and many of my colleagues did, your caucus included, it looks as if we would have to phone a number and have a staff member act as a middleman. That's not the best process in my opinion.

I would like more information on why this decision was made. That's simple. Also, as my comments to the officials were, my recommendation would be rather than going to a middleman that we have better training for new caucus members, so perhaps if the ministerial inquiries division is getting a bunch of requests that are out of scope or something like that, that some training is provided.

Your question about why this is happening now, the changes to Bill C-6 will impact your offices. You are going to have a lot of questions from constituents on how these new rulings might apply retroactively or if they apply to cases already in there. We're going to have a lot of requests.

I do think that again this is not a gotcha situation. Just to have the officials sit here, and whoever the officials may deem to find appropriate to do that, to answer questions, I think a lot of our colleagues across party lines would be very interested in that.

[Ali Ehsassi, Liberal, Willowdale, ON]

I wanted to remind my colleagues here, and in particular Ms. Rempel, that the purpose of today's hearing in having the officials here was to discuss Bill C-6. Further to that the officials have kindly agreed and undertaken to provide us with the information that you have requested. I don't quite understand why you think it would be necessary for these officials to once again appear before this committee.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you very much, Mr. Chair.

I would support this motion, and I think we can dispense with it fairly quickly. I think it is important for us to get clarity on what the changes are. We have heard news about this and have been hearing about rumours around this change. I have written an open letter to the minister making inquiries around that to see what the changes are. If there are changes, constituency offices are anxious, and rightfully so, to see what it means in terms of them being able to help their constituents address cases.

In that regard it would be useful as well to get information with respect to the changes around embassy offices, because those changes include the constituency office not being able to contact the local embassy offices for information about cases.

I would welcome this opportunity, but I don't want to get into a full debate about this at this juncture. Hopefully we can vote on this, and then I can get on with my other questions to the officials related to Bill C-6.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Chairman, I would move that the staff of the department be invited to return before the end of the deliberations of Bill C-6 to further brief the committee on the topic that's just been raised by Ms. Rempel. If it requires further time on the bill, that would be added to the time.

[Catrina Tapley]

Bill C-6 doesn't change any of the provisions related to revocation for reasons of fraud or for those who lied on initial applications. Nothing in this bill would change that.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you.

I have a final question. Minister, the previous Conservative government gave your predecessor the unfettered discretion to grant citizenship. Bill C-6 does not reinstate the necessity of the Governor in Council's approval for ministerial granting of citizenship. Bill C-6, as written, doesn't provide the scope to make such an amendment.

Under what circumstances, other than the humanitarian or compassionate discretion you already have, would you override or short-circuit the arms-length citizenship process, with its prerequisite qualifications and checks? Fundamentally, do you believe that a politician in the executive branch of government should have the unchecked power of granting citizenship?

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you.

Minister, under previous Liberal governments residents without legal temporary residency were allowed to include the time spent in Canada prior to obtaining permanent residence toward their residency requirement. This would include refugee claimants, persons whose sponsorship application had been approved, and those whose applications for permanent residence on humanitarian considerations had been approved.

I'm concerned that Bill C-6, as worded in proposed paragraph (5)(1.001)(a), does not consider this time as residency. I assume that you would be amenable to a friendly amendment that would clarify this issue in cases of refugee claimants, sponsorship, and humanitarian and compassionate cases.

[Mary-Ann Hubers]

There's nothing in Bill C-6 that talks about the first-generation limit, but there is in the law a first-generation limit that applies to children born abroad to a Canadian citizen. There were a number of reforms done that gave citizenship back to lost Canadians. The first one was in Bill C-37 in 2009. Then there were additional changes in Bill C-24 that gave citizenship back or gave it for the first time to a number of other lost Canadians. There were a number of individuals who were fixed by those provisions.

For those who are impacted now in terms of being themselves first generation born abroad, and they have a child abroad who's therefore not eligible for citizenship by descent, there are some avenues available to them. For example, they can sponsor that child for a permanent residence to Canada. If the child is stateless because they don't have access to any other citizenship, there's a grant in the Citizenship Act for stateless children of Canadians.