Citizenship and Immigration Committee on June 19th, 2006

[The Chair, Conservative, Norman Doyle]

Thank you.

You left three minutes, and thank you very much for that.

Mr. Komarnicki, you've got seven, if you want to use them.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Following up on what the chair was pursuing and Mr. Telegdi mentioned with respect to security concerns and also criminality, the argument was that if you made a distinction, there may be a problem with a charter breach and a problem of justification under part 1. This act relates to those over 18, and for that category in this particular act, I'd say from 18 years of age on they could come through an adoption. Would that argument still apply for the charter, or would that survive a charter challenge? How strong are you in that position of it not being justified under part 1, particularly for those 18 and over?

[Mark Davidson]

I'll give the policy answer first, but I'll ask my colleague Alain Laurencelle to speak, as well, from the legal side.

The idea would be, as I hear it, that we would have two rules, one for adoptees who are over 18, where they would be subject to criminality or security prohibitions...but not for adoptees under 18. So you're creating two distinctions there. You're creating the obvious age distinction among adoptees, but you're also still creating a distinction between individuals who have been adopted and individuals who are natural-born.

So my previous comment about that going against the purpose of the bill still applies. You would still be saying--and you'd still have to come up with a section 1 defence--that individuals who have been adopted are more likely to be criminals or security threats than individuals who are not adopted, because you're not saying to someone who was born to a Canadian citizen 18 years ago or 20 years ago that their citizenship is subject to a criminal test.

I'm not sure if Alain wants to add anything to that.

[Alain Laurencelle, Counsel, Integration and Admissibility Team, Legal Services, Department of Citizenship and Immigration]

Yes. I think that the operative comparison here is what you've just mentioned, Mark, in looking at the situation. The two groups include the person who is adopted by a Canadian abroad, versus the person who was born to a Canadian citizen and now, at age 18, 19, or 20, is involved in criminal activity. How do you make that justification under the charter? And asking the question is, in essence, responding to it.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

It would seem to me that it would be easier to make that justification for those who you know are a security risk and have criminality issues when they're adults than those who are not. That is the issue I was getting at.

I'd like to go back to another question that was posed by members opposite. It was the fact that, as we now have it, those going through the regular channels and applying for permanent residence before adoption would actually have the ability to an appeal de novo, where they would actually have a hearing and a decision, whereas those applying under the act would go through a judicial process that is very different. It's more technical, it's procedural, but it's not substantive.

So what we have here is a group, essentially, a parent who might be prompted to go both ways: going through the other process in case they want an avenue of appeal de novo, and at the same time going under this act because it may be a quicker way to go. Isn't that creating a distinction between those who proceed in the normal fashion, which they still can, and those who don't? The distinction is quite severely different because of the fact of the trial de novo, notwithstanding that it has some differences with the rest of the act. Isn't that a legitimate concern?

[The Chair, Conservative, Norman Doyle]

Can I have a one-minute response? Then I think we have to go to the Canadian Bar Association.

Thank you.

[Mark Davidson]

I guess the response would just reiterate the same point, and that is that within the citizenship context, we need to look at reducing the distinction as much as possible. That is, again, the purpose of the bill. Treating these adopted children, giving them a kind of citizenship appeal that isn't available to naturalized children, would harm that protection of the distinction. In a sense, we've got the best of both worlds, though, because we're allowing the individual to continue to choose to do the IRPA process or to apply directly for a grant of citizenship.

[The Chair, Conservative, Norman Doyle]

Obviously we have a lot of interest in asking questions. We will have two quick little questions: one from Blair, one from Nina.

Blair.

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you, Mr. Chair.

Are there transitional rules so that when somebody applies under the age of 18, and then during the process becomes over the age of 18, they are subject to criminal and security checks?

[Mark Davidson]

There are no criminal or security checks in this bill for these adoptees, so there's no mechanism for it. There's no requirement for a transitional provision. None of the adoptees who fall under Bill C-14 are subject to criminal or security prohibitions.

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Because they're under 18?

[Mark Davidson]

No, because it would be inappropriate to have those prohibitions and not have them for natural-born children. We want to make adoptees and natural-born children as close as possible.

[The Chair, Conservative, Norman Doyle]

Thank you.

Nina.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

What does the American government do with respect to security and criminal checks for adoptions?

[Mark Davidson]

Every country handles these kinds of situations a little bit differently, but as I recall, the Americans actually do not have a security and criminality provision. I'm saying this with a bit of a question mark in my own mind. I know that the Americans actually don't have a direct mechanism like this for citizenship, because the individuals have to apply first under the immigration provision, and it's only by their arriving with an immigrant visa can they actually become a citizen. So Bill C-14 provides a much more direct mechanism for citizenship.

[The Chair, Conservative, Norman Doyle]

Thank you very much.

On behalf of the committee, I want to thank you for coming along. You've given a lot of good information. It's too bad we don't have more time, but there it is. Thank you.

We will just give our witnesses time to move out, and the Canadian Bar Association will be taking the chairs in just a moment. We have to bear in mind as well that we have committee business after the Canadian Bar Association. We have a fairly straightforward motion from Andrew that we have to deal with.

Right now, on your behalf, I welcome the Canadian Bar Association: Stephen W. Green, executive member, national citizenship and immigration law section; and Tamra Thomson, director of legislation and law reform.

Welcome. It's good to have you here today. You have a presentation to make to us. Generally, it should be in the order of about 10 minutes. Anyway, feel free to go under or a little over that; we won't smack the gavel.

I'll just pass this over to you.

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair.

The Canadian Bar Association is very pleased to appear before this committee today on Bill C-14, with these particular amendments to the Citizenship Act. We have addressed these issues before this committee before, in previous bills in previous Parliaments. Our written submission has been circulated to you in advance. Given the questions that you asked of the past witnesses, I know several of you have read it. We're glad to see that.

The Canadian Bar Association is a national association, with about 36,000 members across the country. The primary objectives of the organization are improvement in the law and improvement in the administration of justice. It is in that light that we have made our written submission and make our comments to you today.

I'm going to ask Mr. Green, who is a member of the executive of the citizenship and immigration law section, to address the substantive issues in the bill.

[Stephen Green, Executive Member, National Citizenship & Immigration Law Section, Canadian Bar Association]

Thank you very much, and I thank you for the opportunity.

The intent of the bill is to unite Canadian families as quickly as possible following the adoption by a Canadian parent of a child from a foreign country. This result is achieved by granting citizenship to the adopted child upon the finalization of an adoption, thereby eliminating the process of a Canadian citizen having to sponsor that child, and then as soon as that child comes to Canada, having the child be immediately--quite candidly, that day--able to apply for a grant of citizenship.

The CBA section supports the bill’s intention to streamline the system by having the system put in place. Steps need to be taken to correct the difference in treatment between adopted children and natural-born children in the present Citizenship Act. The bill, however, is not in keeping with the legislative safeguards in the Immigration and Refugee Protection Act and the immigration and refugee protection regulations that protect the interests of foreign children adopted by Canadian parents, including compliance with the Hague Convention.

Under the current law, as you've heard from some of the previous witnesses, a person must be sponsored to come to Canada if they are adopted, and then they apply through the present Citizenship Act to be granted their citizenship. The bill eliminates this. But we wish to comment on some of the problems or shortfalls we see with respect to this bill.

First is non-compliance with IRPA and the regulations. The contents of Bill C-14 were originally drafted many years ago, when the governing legislation with respect to immigration was the Immigration Act and those regulations, the legislation that preceded the current Immigration and Refugee Protection Act. The old Immigration Act defines what “adopted” means, and you'll see how similar the present bill is with respect to that old law. It states:

"Adopted" means a person who is adopted in accordance with the laws of a province or of a country other than Canada or any political subdivision thereof, where the adoption creates a genuine relationship of parent and child, but does not include a person who is adopted for the purpose of gaining admission to Canada...

So you see that they've taken the old act and put the words in the present bill.

IRPA and the regulations expanded the definition of the family class to include a child whom the sponsor intends to adopt in Canada. Regulations make it clear that in a foreign child adoption they must look at the best interests of the child. That is done by regulation. I would just mention some of these regulations...and it's interesting to see which is silent.

We heard from one of the other witnesses that the Citizenship Act has a lot of meat. I don't think there's so much meat in this particular amendment, and you'll see why.

The regulations dealing with IRPA define best interests of the child, all the way through paragraphs 117(3)(a) to (g). Some of those include: before the adoption, the child's parents give their free and informed consent to the child's adoption--that's what best interest is about; the adoption creates a parent-child relationship; the adoption was in accordance with the laws of the place where the adoption took place; the adoption was in accordance with the laws of the sponsor's place of residence; if the sponsor resides in Canada at the time the adoption takes place, the competent authority of the child's province of intended destination must have stated in writing that it does not object; and it goes on.

So how much meat is there really in this new bill?

Assessing whether an adoption is in the best interests of the child has a legitimate purpose, for protecting against child trafficking--and we are all concerned about that--and adoptions of convenience.

The immigration and refugee protection regulations talk about the role of the provinces and how important it is. There's silence here. The rights and interests of the provinces and territories must be respected in any federal legislation that deals with subject matter that is intended to be within the purview of the provinces and territories. That being said, in our previous submissions in 2002 that dealt with Bill C-18, we discussed how the layering of the province's involvement can be quite confusing for many adopting parents.

Notwithstanding the above problems with respect to the provinces, we have to deal with IRPA and the regulations, and the provinces are involved. The lack of consistency between this bill and the Immigration and Refugee Protection Act and regulations is, in our submission, not appropriate. We cannot have this, and it is our submission that to avoid this problem we have to really look at the regulations. The regulations are important.

Just as in the Immigration and Refugee Protection Act, there is a provision when we are dealing with regulations under this act that they go before a committee like this. It is our submission and recommendation that a provision similar to subsection 5(2) of the Immigration and Refugee Protection Act should be included in Bill C-14 to ensure that any regulations implemented under Bill C-14 are brought before the appropriate committee for further consultation and discussion and to ensure consistency with the Immigration and Refugee Protection Act regulations and those of the provinces and territories.

Without that, we will have confusion. This will protect. One of your members stated, before the committee had looked at this, how important appeal rights are. I would submit also that this is extremely important, because we need to know the meat, and I think the meat should come before this particular committee.

Our next concern is loss of appeal rights. Canadian adoptive parents who sponsor their children for permanent residence, if that application is refused, have the right to go to the immigration appeal division of the board. The immigration appeal division has the right to have a full trial de novo.

They can hear everything. They can hear from the adoptive parents; they can hear from the natural parents; they can hear about custom and usage. And it's so important—I have appeared many a time before the board—to talk about customs in adoptions. You have to get that before people to fully understand it.

So this appeal is a full appeal, but under the proposal, that is gone. Under Bill C-14, the application is for grant of citizenship to adopt a child. If this application is refused, the Canadian will only have one resort for judicial review. Other members have commented to say it is a very limited review. It is a review based on paper, on affidavits from both the people who are appealing and from the visa office abroad.

Then the question becomes that if you are successful at your appeal in the Federal Court, the matter is referred back to a different visa officer, unlike the situation with the appeal board, which has the right to say, “I grant you your adoption. Your adoption is valid in law, and we're going to give you permanent resident status.” It is not so with the Federal Court. It goes back, and we go through this process.

What we would submit is that if someone were considering this process, they would do both in order to protect their appeal rights: they would file an application for citizenship and file a sponsorship, protecting their rights. It's double the workup for the Department of Citizenship and Immigration. It's not double the cost, because a grant of citizenship, I believe, is $100, and to do a sponsorship it's $150. That's what we see would be happening, and there would be a tremendous waste of resources.

So the CBA section recommends that parents have a right of appeal from a decision to refuse a grant of citizenship to adopt. This may be accomplished in two ways, we submit: amending the Immigration and Refugee Protection Act to expand the jurisdiction of that board to include reviews of refusals to grant citizenship to adopted children of citizens; or in the alternative, amending Bill C-14 to state that a refusal of citizenship under proposed section 5.1 is deemed to be a refusal of a visa, entitling that person to go before the board.

It is this board that is expert in this matter. They have been doing it for years.

Those are our submissions with respect to the bill.

[The Chair, Conservative, Norman Doyle]

Thank you very much. I would imagine we have quite a number of questions lined up for you.

We'll go to Andrew, and I guess we'll have seven-minute rounds. I think we'll be breaking around 22 or 23 minutes after the hour to deal with motions.

Andrew.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

I'm going to be splitting my time with Borys.

Mr. Green, there's one thing that haunts me when we're dealing with international adoptions. A number of years ago, there was a special on television relating to a nine-year-old Romanian girl who was adopted after Ceausescu fell. I'm not sure if you saw the program, but she came here and the Canadian parents sent her back to Romania within a year. This resulted in terrible hardship for the child, and it was done under existing adoption rules.

What bothered me about it was that the child's experience became incredibly negative. It truly caused her incredible pain because she ended up losing her Romanian citizenship. When she went back to Romania, she couldn't go to school because she wasn't a Romanian citizen and she couldn't afford to pay the fees. That really bothered me.

Did you see the show? What can we do to try to guarantee that those things do not happen?

[Stephen Green]

I did not see the show, but I don't think this legislation really deals with that type of issue.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

No, it doesn't.

[Stephen Green]

It could be that a Canadian had a natural-born child who was born in Romania, brought to Canada, and sent back. Yes, the trafficking of children is a terrible thing.

I think other legislation may be able to deal with it, but I don't think the present amendments will address those types of issues.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

No, they won't. But in some way, would the commissioner of citizenship have a role in that?

[Stephen Green]

I can't comment. I'm sorry.