Citizenship and Immigration Committee on June 19th, 2006

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

I'm just curious about something the previous witness mentioned with respect to the appeal process. I'd like to deal with that for the moment. You said that giving access for some citizenship applicants would create inappropriate distinction for others who do not have an appeal under some applications for citizenship within the act itself.

I appreciate that you're saying those who apply now in the normal fashion under IRPA have a trial de novo process, but what if you then create another appeal by trial de novo by amending the act? What about other provisions of the act and other applications for citizenship that would not have the appeal by trial de novo? How do you answer that question?

[Stephen Green]

I think that under the present Citizenship Act there are different modes of appeal for various situations. Section 5.1, regarding a grant of citizenship, deals mostly with situations in which people have come to Canada as immigrants and have to satisfy residency requirements, and have certain knowledge. If you are refused by a citizenship judge, you have the right of appeal to the Federal Court, and that's it. There is no further right of appeal; there is just the trial level.

In the present amendment you have before you today, under section 5.1—and we heard from the witnesses that it's a different mode of appeal—you will have the right to go for judicial review to the first level, then you will have an automatic right to go to the court of appeal. So there is no privative clause, meaning you can't stop going.... You can go with respect to adoptions. So we have this distinction already within the act.

Furthermore, regarding the grants of citizenship, if I am a Canadian and my child is born abroad after 1977.... The majority of the grants of citizenship involve just a documentation process, in which I show I'm a citizen, and this is my child, and that's the issue.

In this process, we're looking at many things. We're looking at the best interests of the child and whether there is a genuine parent-child relationship. At least we know that to start. So I don't know if I really accept the distinction, or at least that distinction, because it exists already.

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

So you're saying there are substantive differences between the act portion and actually what we're dealing with here in adoption under this amendment.

[Stephen Green]

Yes.

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

The other item that I was going to ask a question about was with respect to some of the considerations within the act that you say are similar to what exists under IRPA and some that are not. The ones that exist in the act are obvious ones. Regardless of where you're taking them from, they are the kinds of things that you would expect. But the rest is left up to regulations, and of course that builds in a certain element of flexibility. You see a need for some flexibility if you're dealing especially with adoptions in foreign jurisdictions, and you may want to react to that. Going through regulations is a lot simpler than actually passing an act, as we know. What's involved in getting a piece of legislation through the House is quite different from regulation. So comment on that.

Secondly, when the regulations are going through, there is of course a process through which they're gazetted, and there is input that can be made with respect to those regulations and input by various parties, which is not necessarily brought back before a committee.

Now, it seems to me that bringing it back before the committee for some input is maybe an extension of what already exists. Why would that be necessary? Do you not think that a certain measure of flexibility is okay? Rather than having some of these items enshrined in the act, isn't it wiser to leave it up to regulation and, I suppose, department officials and those who deal day-to-day with these issues to implement them in the normal fashion? I mean, it's not just peculiar to this bill. Regulations do get passed in the fashion that's suggested.

[Stephen Green]

I think flexibility is a great thing, and I don't think it would ever be undermined by coming to the appropriate committee. The public would come forward, the experts would come forward to give their opinions, and you would be able to question them about these regulations.

It was so important for the Immigration and Refugee Protection Act to put that in. And that was dealing with foreign nationals who don't have a right to come to our country. Now we're dealing with the Citizenship Act, which I would submit to you is on a higher level, more so than the Immigration and Refugee Protection Act. It is so important that the regulations before you be discussed.

We're talking about children. We want to protect those children. We want to stop the trafficking of children.

I think it's best served if it comes before committees like this one, where we have the flexibility. It's debated and discussed. We hear from the department, and you hear from witnesses.

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

You're not suggesting for a moment that these be put into the legislation. As you were discussing, there is a list of a couple of things within legislation, but not as fully as they are set out in IRPA. You're not suggesting that they actually be enshrined in legislation, you're just suggesting that they come back to the committee via the regulation process.

[Stephen Green]

Yes.

Perhaps I wasn't clear. What I'm suggesting is to put in the act that they “must” come to the committee. Then the committee decides, as it does under the Immigration and Refugee Protection Act. That's all I'm saying.

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

So you're actually tying the committee's approval to legislation?

[Stephen Green]

Exactly.

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

Is that fairly common in pieces of legislation you've reviewed?

[Stephen Green]

I've really only reviewed the Immigration and Refugee Protection Act; it's quite voluminous. It was a very important part.

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

It seems to me that it's not normally a practice to have amendments come back before the committee for approval.

[Stephen Green]

I can't comment, but it seems, just as it is with the Immigration and Refugee Protection Act and with this bill, that we're given the framework but we don't know....

Many of the acts in the past, as one of the witnesses said, had lots of meat. We don't have the meat. So when we're dealing with not-meaty acts and bills, I think it's important.

[The Chair, Conservative, Norman Doyle]

Thank you.

On behalf of the committee, I want to thank you for coming here today to give us this information. It was a lot of information that the committee can chew on for a while.

Again, thank you very much.

[Stephen Green]

Thank you.

[The Chair, Conservative, Norman Doyle]

Now we have to get on to the last piece of business on the agenda, which is the notice of motion from the honourable Andrew.

Andrew, is there any further comment on it?

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

No, just that the motion read, “Resolved, that in the opinion of the committee, the government should...”.

[The Chair, Conservative, Norman Doyle]

So it's in the opinion of the committee now, instead of in the opinion of the House, that the committee should...one, two, three, four?

I guess we will call for the question.

Go ahead, Ed.

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

There is one point I want to make in reference to this. It goes back to the Standing Order 108 argument I made--I'm not going to raise a point of order on this one--which is to simply suggest, quite appropriately, that the matter probably might have been better being put forward through another committee.

Secondly, it has a substantial allegation of facts in the “whereas” clauses that are difficult for the committee to substantiate. Ultimately, it's the kind of thing where the committee could say, look, we'll bypass the actual requirements of Standing Order 108; the essence of the motion is to commemorate the 50-year anniversary of what happened.

So given that, and the fact that we don't dispute the end result—and I've talked to Mr. Telegdi on that—I won't be raising the point of order, although I think it's raisable. As stated earlier, it's still not in the same category.

[The Chair, Conservative, Norman Doyle]

So those last four items are part of the motion now.

Do you want me to read these?

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

Yes. But there is one point I want to make on the way it ties in to the committee--and I'm mindful of that--and that is that because of the events of 50 years ago, a real paradigm shift happened in the way Canada dealt with refugees. It expanded to one of the members of the committee who came from Uganda, and the boat people, and the Czechs. This was a total, new...it was the golden age for immigration.

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

Then again, the issue is not the substance of what you're attempting to accomplish; it's how it's being accomplished and the buildup to it. So I'm not going to raise that point of procedure, except to say that's the kind of thing--

[The Chair, Conservative, Norman Doyle]

You're not going to raise that.

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

Right, although I could.