Citizenship and Immigration Committee on June 19th, 2006

[Mark Davidson, Director, Citizenship (Registrar), Department of Citizenship and Immigration]

Mr. Chair, the statement is here.

We've looked at the issue of how far we should go in reducing the distinction between natural-born children and adopted children and whether we can reduce it to this extent. The feeling after looking at court cases, particularly a case a number of years ago that started with the human rights tribunal and eventually led to the Federal Court of Appeal, was that we had to reduce as much as possible distinctions between natural-born and adopted children, and that would include reducing or eliminating the prohibitions under citizenship.

In the case of natural-born—or biological—children of Canadian citizens who are born abroad, there are no security or criminality prohibitions. In having those kinds of prohibitions for adopted children, the feeling is that you'd be making a significant discrimination between adopted children and natural-born children.

In reviewing that, we also need to look first at whether it would likely lead to a section 15 failure in the charter—I think the assumption is that it probably would—and whether there could be a section 1 defence of that. The challenge is to be able to argue in a section 1 defence that it's more likely for adopted children than for natural-born children to be criminals.

In asking the question, you almost give yourself the answer. Certainly we don't have any evidence in front of us that would suggest that adoptees are more likely to be criminals or security concerns than natural-born children.

[The Chair, Conservative, Norman Doyle]

Of course, you hear so much about terrorism today and of adoptions of convenience. Is there any evidence you can point to of terrorists wanting to bring children into Canada through adoption and the citizenship process, or anything like this, that has come before you or you might be aware of?

[Mark Davidson]

The short answer is no. The slightly longer answer is that the vast majority of these cases are the classic Canadian family adopting minor children, under four or five years, and the vast majority of those cases are processed very expeditiously. There is no evidence there is a problem.

The challenging cases tend to involve older children where there is some evidence of concerns about adoptions of convenience. But in terms of security or criminality concerns for adoptees, there are absolutely none.

[The Chair, Conservative, Norman Doyle]

Thank you.

Andrew.

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

Thank you, Mr. Chair.

[The Chair, Conservative, Norman Doyle]

We're going to the seven-minute round. Okay?

Go ahead.

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

To touch on what you just mentioned, you had me wondering. If somebody is being adopted who definitely has a security consideration—somebody 15 or 16 years old who might even have gone to a camp—what would the mechanism be for us to say, no, you can't?

[Mark Davidson]

The process would normally start where the parent resides in Canada. The province would do the first review. The Canadian citizen parent would apply for a grant of citizenship for this individual. If we had concerns that there was an adoption of convenience—for instance, that the purpose of coming into Canada was to circumvent the immigration or citizenship rules, or even the rules around security or criminality in the context of citizenship—the application could theoretically be refused. But barring that scenario, there would not be a mechanism for us to refuse the granting of citizenship to this kind of individual.

Again, the purpose here is to eliminate the distinction between those children born to a Canadian citizen overseas and those adopted by a Canadian citizen overseas. The goal is to reduce that distinction as much as possible.

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

I think there's a bit of inconsistency in terms of how you want to treat people, because we have cases right now where children less than a year old come to this country and 20 years down the road, for whatever reason, they never got citizenship and end up being deported. So you have that scenario, and that's because they committed crimes in Canada. And in this case, you have the other scenario in which you have people who might have committed offences and might have attended these camps all of a sudden getting a pass into the country.

Somehow that doesn't jive, in my way of thinking. You really are splitting hairs, except I think you would more...let the first ones, who have spent all their lives in Canada and gotten into trouble, stay versus being deported.

[Mark Davidson]

If the first individual was either adopted by a Canadian citizen after the 14th of—

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

No. We have families where somehow the kids spent 20 years in the country and they never took out citizenship. We'll take those people and deport them, even though they've spent all their adult life and their childhood growing up in Canada. That's the point I'm trying to make. The parents might have citizenship, because they took out their citizenship, but the kids didn't.

I have seen this happen on numerous occasions, where young kids grow up in Canada, having come here at a very early age, and 20 years down the line get sent out. That's my problem with this.

[Mark Davidson]

There certainly is a review in the immigration context for long-term permanent residents who may be subject to deportation because of the provisions of the Immigration and Refugee Protection Act. For those cases there is a fairly careful review that goes through before those individuals would be subject to removal from Canada. Again, if the individual had been adopted after February 14, 1977, even if they are not now a citizen, they would benefit from this amendment to the Citizenship Act. Likewise, anyone who was born to a Canadian citizen overseas after February 14, 1977, would gain the benefit.

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

You're going on my dime here, so let me stop you there.

My next question comes from the law association, the submission to Citizenship and Immigration by the Canadian Bar Association. Is there any way of trying to work on an appeal to the IAD? I don't know if you saw their paper. They raised some good points, and I wonder if you could take a look at it and see if you can address it, because there's a world of difference between the IAD and judicial review. Judicial review is very narrow; it doesn't go into it to the extent that IAD does, so it infers that if you go to the immigration section, you get a better deal on appeals than if you go through this section. I'm wondering if you could harmonize that by an amendment by this coming Wednesday.

[Mark Davidson]

We have seen the submission, thanks to the CBA having sent it to us. The kind of decision we're talking about here is a decision of the minister or the minister's delegate. The review mechanism that exists presently in the Citizenship Act is a judicial review. Unlike judicial reviews that exist in the immigration context, there does not have to be a leave to the Federal Court for the individuals to have direct judicial review.

By creating another kind of review, you're setting up a distinction between these children and, potentially, other children who are applying for citizenship under other provisions of the Citizenship Act. You're creating a distinction between this group and other groups in the Citizenship Act that don't have access to that review.

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

Except that if they go to the Immigration Act they have the benefit of that review, and if they go to the Citizenship Act they don't. It seems to me it would make sense to harmonize them, since we're dealing with kids trying to get citizenship. If harmonization were possible, I think it would make it a better bill. That's the point I want to make.

I'm out of time.

[The Chair, Conservative, Norman Doyle]

Thank you.

We might have to tighten up a little bit, because if we're going to stick to our schedule of closing up at 4:30 and bringing on our next group, it might be a little bit difficult, given the seven minutes for each one and then going to five-minute rounds.

Madam Faille.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

In Quebec, there are three possible methods of adoption, depending on the child's country of origin. There is the process whereby a child is adopted from a country that has ratified The Hague Convention. There is also a scenario where the adoption is finalized abroad, before the child arrives. And finally, there are cases where the adoption is finalized only once the parents have demonstrated that they are good parents by undergoing certain assessments, and that they have abided by the conditions and criteria in effect in those countries, which is the case with countries such as Thailand and the Philippines.

First of all, can you provide us with figures regarding the countries of origin of adopted children? What proportion of children are adopted in countries that have ratified the Convention, and what proportion are adopted in other countries? In what percentage of cases is the adoption finalized abroad, and in what percentage of cases does that occur only once the child has arrived in Canada? Could you also explain in detail how this is going to work?

The minister assured us that this bill had been fully reviewed by the Government of Quebec. And yet no one seems to know what the final process will entail. We don't know at what point information will be exchanged with the provinces, given that they have jurisdiction over international adoptions. Do you have any material in that regard that you could provide us?

[Mark Davidson]

Just to answer the final question first, we have been discussing this bill and the ultimate regulations with stakeholders, primarily the provinces. We've been having that conversation with provincial governments for a number of months, if not years. The bill was drafted particularly in concert with the Province of Quebec in order to guarantee that extra step that's necessary in Quebec adoptions.

We have undertaken to share the draft regulations with the provinces and other key stakeholders, and will certainly be sharing think documents, think pieces, with them over the summer.

The final process has not yet been regularized. It's likely to look very much like the present immigration process, where the adopting parent can start the process of applying for a grant of citizenship even before they have a named child. Most often what happens is that the parent contacts the province and indicates that they're interested in adopting. Preliminary communication starts with the Department of Citizenship and Immigration, and then the parent contacts the foreign country or the foreign country's agencies to identify a child. So we would start the process on the citizenship side, and once the child had been identified and the match had taken place between the parent and the child, the application would be finalized. All of that has yet to be finally nailed down, but it will be very similar to the existing process.

On the numbers from various countries, I don't have that broken down by province. We have shared some information with the committee on the number of immigration adoptions where the adoption has been finalized. That's in the range of 2,000 per year. That does not include the individuals who are to be adopted in Canada. In other words, these are adoptions that have been finalized overseas and are the best match to the Bill C-14 scenario.

Children to be adopted in Canada are the ones Rose referred to in the slide on page 6. For those individuals, the Bill C-14 process would only kick in once the adoption had been completed in Canada. In other words, they'd have to come in via the immigration process and have the adoption finally recognized in Canada--be adopted. Only after they were adopted would the Bill C-14 process take place.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Thank you. Can you provide us with detailed statistics by province?

Just to add to what my colleague was saying with respect to appeals and the parents' rights, I'd say that we are somewhat concerned about the process that has been proposed. There is also the fact that these provisions will only come into effect once it has received Royal Assent. I don't want to sound negative, but thus far, the Department has decided what provisions it wants to put in place, and we have absolutely no control over the regulations.

So, unless you can provide us with assurances that the bill will be passed in its entirety, we will continue to have concerns with respect to certain clauses.

[The Chair, Conservative, Norman Doyle]

Thank you, Madam Faille.

Bill.

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

Thank you, Chair.

Thank you for being here today.

I want to come back to where Mr. Telegdi ended up on the review process. I'm sure you know that in last Parliament, when the committee was doing its work on the Citizenship Act, we often tried to be very clear that we thought citizenship was of such importance to people and so fundamental that the review process, the appeal process, needed to be strongly upgraded. The committee in its recommendations said, specifically on adoption, that when an application is refused there should be a full appeal in the Federal Court.

I know that you raised concerns about it being an equity issue because that kind of appeal doesn't exist in other parts of the Citizenship Act. Can you expand on that a bit further for me?

[Mark Davidson]

As was explained previously, there are other kinds of decisions comparable to this decision; in other words, a grant of citizenship where the minister or the minister's delegate is making the decision.

The way the present Citizenship Act is structured--and we have to remember the act has been in place fundamentally since 1977--the review mechanism that exists for that kind of decision is judicial review without the requirement for leave. This is a review where the Federal Court is looking at the case where it's been appealed, or where a review has been asked for by the client, and determining if the decision made by the citizenship officer was reasonable. If the Federal Court judge feels the decision was not reasonable, it will be sent back for readjudication by a new citizenship officer.

The kind of appeal the Canadian Bar Association has been suggesting, either to the Immigration Appeal Division of the IRB or to the Federal Court, is something that does not currently exist in the Citizenship Act. The concern is, by creating a distinction between that group of adopted children and not giving other individuals the same kind of appeal, you're again creating a distinction between one group in the context of citizenship and another group.

On the last point on the IAD, the IRB, the Immigration and Refugee Board, has no jurisdiction in citizenship. Their mandate flows from IRPA, the Immigration and Refugee Protection Act, and there is no mechanism in the Citizenship Act for them to have jurisdiction, so there is no precedent for the IRB to pick up citizenship applications.

Finally, I think it's also important to highlight that it will be up to the parent to choose which approach they want to take. Do they want to take the IRPA process with certain extra costs to that, in other words, processing costs, but also with the benefit of the IRB or the IAD appeal, or do they want to have access via the Citizenship Act? The individual, the parent for minor children, will have that choice--of picking either the IRPA process or the citizenship process.

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

In IRPA there was an explicit provision for regulatory review, and that's not included in this legislation. I think a lot of what the legislation hopes to accomplish will be accomplished through the regulations. I'm wondering why that wasn't included, and perhaps you could comment on that.

[Mark Davidson]

Again, we have to go back to the era of the acts. The Citizenship Act has far more meat in it than IRPA. IRPA, when it was created, was very much a framework act. If we take the case of adoptions, that's a classic example. Adoption or adoptees are not mentioned at all in IRPA. I don't think you'll find any provision in the act itself that makes a reference to adoption or adoptees, whereas, with Bill C-14, a lot of the rules will actually be placed in the act.

When IRPA was created in 2001-02, the feeling was that it was appropriate at that time for the committee to have an extra mechanism to review those regulations because the bill itself was a framework bill. That's not really the case with the Citizenship Act--as I say, adoption being one of the best examples.

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

Thank you, Mr. Chair.