Citizenship and Immigration Committee on June 21st, 2006

[The Chair, Conservative, Norman Doyle]

Thank you.

Mr. Komarnicki.

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

I'd like to make a point of order on this particular motion. I'll try to put it in the context of where I'm coming from and be more particular as to why I think it's out of order.

What it plans to do--if not directly then certainly indirectly--is put in a provision for an appeal to any refusal of citizenship, and the appeal would be to the Immigration Appeal Division, which is provided for under the Immigration and Refugee Protection Act. Presently, if you go to that act, there is no provision for an appeal, so that act would have to be at least incidentally amended to give any kind of credence to this.

It would be like me saying that the body that has authority under a particular statute also has to consider things I'm interested in, and the only way it can have jurisdiction to consider those things I'm interested in or that I'm saying under this statute is by amending the other statute to allow for hearings to come from these types of decisions under the foreign adoptions act to the Immigration Appeal Division.

It would absolutely require an amendment to that act. The rules and procedures are quite clear that at the second reading of a bill you can't have either an amendment of the parent act, or an amendment of another statute.

Now, this would at least contemplate an amendment of IRPA. It would need to do that--

[The Chair, Conservative, Norman Doyle]

Let me ask the officials here. I think you're right on this, but would the refugee board have any jurisdiction over adoptions? If it required a change to the parent act, would that be in order? Can you do that?

Whether or not it's in order, of course, is for us to decide. I'm not asking you that, but can you appeal?

[Mark Davidson]

Thank you, Mr. Chair, for not asking that question.

We have reviewed this proposed amendment and have had discussions with the Immigration and Refugee Board on it. On the analysis they have given us, they feel that this amendment is incomplete. It does not provide the kind of procedural information that would be necessary for them to make a decision, nor does it spell out what the consequences of that decision would be.

The Immigration Appeal Division of the Immigrantion and Refugee Board under IRPA has no authority to grant citizenship under that piece of legislation. So certainly the analysis they have given us is that this amendment is very much incomplete.

[The Chair, Conservative, Norman Doyle]

Sorry to interrupt you, Mr. Komarnicki.

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

It captures the point I'm making. We're saying something in the context of this act that can only be effective if we deal with another act, particularly if we want the appeal to go from this body to that body that is now jurisdictionally constituted to do hearings under that act, but has nothing to do with citizenship.

In a sense, if we put this in it's like a dead-end street. You're not going anywhere because you have to expand the jurisdiction of the other body to include an appeal under this section. That's something you can't do in second reading on a bill such as this.

I'll raise another point that would need to be considered.

[The Chair, Conservative, Norman Doyle]

We would have to amend the parent act, IRPA.

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

Right. We would have to amend a statute other than this one anyway. For that reason, I think it's out of order. But I have other points of order I want to make on that.

[The Chair, Conservative, Norman Doyle]

I'll go to Madam Folco first.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Thank you, Mr. Chairman.

I too am of the opinion that it is difficult, if not impossible, with this Bill, to amend other legislation.

I would however like to put a question to our guests from the department. The appeal issue is at the very heart of this amendment presented by Ms. Faille, or of that of Mr. Siksay, since they are the same.

With regard to the appeal issue, might some amendment be moved? I do not know if you are able to answer these questions, but if you are, how might we propose an amendment that would allow for an appeal of the refusal of citizenship in international adoption cases?

[The Chair, Conservative, Norman Doyle]

Is that a question?

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Through you, Mr. Chair, they're waiting for you to—

[Mark Davidson]

Thank you, Mr. Chair.

The only way I can conceive of such an amendment would run up against the point the parliamentary secretary was making--that after second reading, such a provision would be outside the normal procedures of Parliament. We're obviously not the parliamentary procedural experts. You have your own experts for that.

[The Chair, Conservative, Norman Doyle]

Mr. Telegdi.

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

It seems to me that under the act one can apply for judicial review. It wouldn't take a whole lot, in terms of a decision to turn someone down. I think we're in agreement on that. If that's the case, instead of judicial review you could say that the Federal Court could have appeal. That doesn't seem to make a whole lot of sense when you have the appeal division of the Immigration and Refugee Board, which has more expertise in this matter.

I really don't see what the problem is. Just as you have judicial review that people can apply for, why couldn't we direct them to the appeal division to appeal a decision? That would make it consistent with the Immigration and Refugee Protection Act. I think that's what legal counsel was presenting--try to make them consistent where possible.

[The Chair, Conservative, Norman Doyle]

I have Mr. Komarnicki.

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

I made my full point on the matter of procedure. But to direct to Mr. Telegdi's point, certainly you can do it if you want to amend the other act or incidentally amend it through this legislation. But at this stage, that's not something we can do, because the bill came forward to this House with a main purpose and a main intention, and the main purpose and intention was not to provide an appeal process in a substantive form. Now, we may want to do that, but the government didn't present the bill in that way, nor are we able to amend another act to make an allowance for it.

The fact is that the judicial review process is always available to everyone, not by statute, but by other means. People can appeal on an administrative basis or on another basis to the Federal Court for a judicial review, and they do, in many cases, when an appeal is not provided. But that is a procedural matter. It's not a substantive appeal, as is suggested here, where you have a hearing de novo where you actually represent the evidence and so on.

While I'm on that point, if you were going to amend this act at this stage to have a substantive appeal process, as was discussed by the Canadian Bar Association, where you would actually have another hearing or a re-hearing of the matter, it would require additional expenditures and additional administrative personnel. And I think it would obviously constitute an expenditure of funds, and it's something this bill has not provided for and has not contemplated. As I read Marleau and Montpetit, if it's going to require an additional expenditure of funds or is going to become a charge in the public treasury, that amendment would not be allowable at this stage, after second reading, before we put it to the House.

There is no question; the kind of appeal we're talking about is a substantive one. It's one that actually would allow for lawyers and others to appear and present the evidence and new evidence--it's called trial de novo--so it's quite a substantive change to the way the process works and would involve additional people, additional facilities, and quite a new view.

And if you were going to do that in this area of the act, for this particular situation, you would have to ask what we are going to do for parents and grandparents. And what are we going to do for others who say, “If you're going to provide a level of appeal with a re-hearing in this case, how are we different, and why shouldn't we have the same process?” Then we're looking beyond the context of this bill, and we're looking at something far more major.

It's easy to make an amendment, but we need to think this thing through. My sense is that at this stage of the game, we're changing the very purpose and essence and context of this act in a way we never envisioned or thought to in the first place, and I say it can't be done.

From a point of procedure, I'm saying that this would be inappropriate at this time, not that it can't be done. It can be done under different circumstances, in a different way, and at a different time. If we want to get this legislation we've put forward through, then we should do it in the fashion it is in now. If we want to do something very different, then there is another time and hour and day for that, but not here, at this stage.

The government has the option of deciding if it wants to change the appeal procedure, of course. It can amend the act, or it can consequentially do it, but it needs to present the bill in that fashion here and now. It hasn't done that. This is so substantive that I think it's inappropriate, and on a point of order, I would ask that the amendment not be allowed as it stands in this case.

I can caution this committee that if it is allowed, it's a dead-end street. Who are you going to appeal to? Who is going to hear this? Who is going to provide the facilities? Who is going to provide the judges? Who is going to provide the hearing officers? Because there is no mechanism and no act that allows for that. That act is somewhere else.

[The Chair, Conservative, Norman Doyle]

I have two more, and then we'll call for the vote on this.

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

On a point of order, Chair, I think I was on your list a while back. I would like to know your response to Mr. Komarnicki's request for a ruling on whether this is in order or not. I think that would be helpful to us.

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

Yes, I think eventually it deserves a ruling on the point of order.

[The Chair, Conservative, Norman Doyle]

This is what we're hearing arguments on. Do you have any submission to make on that, Bill? No? Okay.

We have Madame Faille.

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

With regard to adoptions, I would simply like to know how many cases have been refused by the department at the citizenship stage.

[Mark Davidson]

The vast majority of these cases in the adoption context are for young children, and the overwhelming majority of those are approved. The refusals tend to be for individuals who are much older, and they're in the context of adoptions of convenience.

I believe that the total approval rate is in the order of about 90%, and again, the approval rate for young children, for infants, is 99%.

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

Again, the argument with regard to excessive costs does not necessarily hold, given that there are other elements of this bill that might reduce the number of refusals. I therefore believe that, in the interest of children and parents...

I do not know if you recall the statement that was made to the effect that parents are subject to various control measures, must supply a lot of information and fill out numerous questionnaires.

If the provincial authorities have not discovered cases of problem or convenience adoptions and if the acceptance rates are as high as that, then I would make this proposal for the sole purpose of granting parents the same rights as if they went through the immigration process. But given that there are hardly any refusals, there would not be any excessive costs tied to this.

You could perhaps identify a committee that might examine this issue.

[The Chair, Conservative, Norman Doyle]

Well, I've ruled on the admissibility of it, and I'm told there are sufficient funds in the operating expenditures of the department to deal with the concern you raised, Mr. Komarnicki. I'll think we'll let it go to a vote and ask the committee.