Citizenship and Immigration Committee on March 26th, 2007

[The Chair, Conservative, Norman Doyle]

I'll give you 15 seconds.

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

I guess in 15 seconds all I can say is that I certainly appreciate you taking the time and effort to bring to our attention some of the very specific things that concern you. I want to assure you that we are listening and we are hearing what you're saying. Hopefully, we will have some positive results in due course.

[The Chair, Conservative, Norman Doyle]

Thank you. You've had the last word, Mr. Komarnicki.

I thank the witnesses for being here today. Be assured that we share many of your concerns and we will be working diligently toward a resolution of your problem.

We will ask witnesses to leave the table for our second panel to come to the table.

I want to welcome our second panel to the table this morning. Panel two is Barry Edmonston, who is a professor in the department of sociology at the University of Victoria; Donald Galloway, a professor of law at the University of Victoria; and from the B.C. Civil Liberties Association, Jason Gratl, president, and Christina Godlewska, who is a student.

I think you are aware of the drill. I will go first of all to Mr. Edmonston for his opening comments, which will be approximately five minutes in length.

Please proceed.

[Dr. Barry Edmonston, Professor, Department of Sociology, University of Victoria, As an Individual]

Good morning, everyone. I appreciate the invitation to be here.

I'm going to cover three topics. I'm going to give a few introductory comments. I'm going to summarize some key numbers very briefly, handle questions, and then I'm just going to express a few cautions.

My training is as a demographer, with my academic research in demography primarily in the area of immigration. About four years ago I received a phone call from a Vancouver Sun reporter. He said he was doing a story on lost Canadians and asked how many were there. Some were saying there were a few hundred, some said there were millions. What I did was use public information from census data and estimated that there were about 85,000 lost Canadians living in the United States. That was several years ago. I continue to work in this area, more in the area of public service to help aid discussion. It's not a hot topic in demography, I must tell you, so it doesn't further my academic career very much.

What I do is I use census data from either the United States or Canada. These are public-use, confidential data files that many academic researchers and government agencies use. They don't have names or addresses, so there's nothing confidential about them. I try to define the groups as carefully as I can, one by one, and say, “If people born in 1947 to 1977 have the following characteristics, how many would there be in these different groups?”

I'll say a bit more about war brides. I look at women who were born in Europe, who would have been 15 years of age or older in 1945, who were not Canadian when they were born but report they married someone who was Canadian, in the military or otherwise, and who then came to Canada between 1945 and 1955. How many women fit that definition? The answer is about 25,000 women in Canada fit that kind of definition as a war bride. It doesn't mean they all have citizenship problems. It doesn't mean that some of them have even applied. So I think there's a big difference among the ones who potentially would have a problem, if they applied, and the ones who we see in counts from the government agency. But there are about 25,000 of them.

There were about 5,000 babies born in Europe after the war with a Canadian mother or father. There are about 10,000 lost Canadians in Canada. I mentioned the 85,000 in the United States. There are about 10,000 border babies--babies born in the United States with Canadian parents who are now back in Canada. Finally, there are about 75,000 babies born abroad with Canadian parents.

The estimates overall, then, are that about 115,000 Canadians are living in Canada with potential citizenship problems. Again, not all of them necessarily would have them if they applied, but it's more than a few dozen. There are about 85,000 in other countries.

Let me close with three cautions.

First, census data do not include detailed immigration history summaries. They are not the same as what you would get if you applied for a passport or citizenship card. So we don't get all the information that one would really want to make a one-to-one case. Nevertheless, the data are useful, I think, because they help us get a ballpark estimate of what the numbers might be.

Secondly, the estimates that I prepared are for selected groups in Canada and the United States. There may be other citizenship problem groups that I have not looked at. There are also probably people who have Canadian parents living in Germany, England, Australia who also face some of these issues. I don't know how many there might be.

Thirdly, the numbers are changing. The war brides, if we use Canadian census data right now, are about 83 years old, on average. They're not young. There are about 1,500 dying each year. There won't be very many of them left after 15 or 20 years. Those numbers are dropping fairly rapidly. One group is growing: there are about 1,000 babies born outside of Canada every year to Canadian parents. They are showing up. So we're adding at that end.

I'd be glad to take questions about anything I've done. Thank you.

[The Chair, Conservative, Norman Doyle]

We will go with the presentations first and then we'll do questions after.

Mr. Galloway, please.

[Donald Galloway, Professor of Law, University of Victoria, As an Individual]

Thank you, Mr. Chair. I would also like to thank you for inviting me here.

My name is Donald Galloway. I'm a professor of law at the University of Victoria. I specialize in immigration and refugee law. I have published some articles on Canadian citizenship law, which is a very obscure area, believe it or not. I've served as a member of the Immigration and Refugee Board.

I submitted a brief two weeks ago, and in the time that's allotted to me, I want to expand on some of the ideas I expressed there.

I want to propose to you, first, that there is a very simple and very thin conception of citizenship that underlies our Citizenship Act and the various acts that identify the rights of Canadian citizens, such as the Canada Elections Act and the Immigration and Refugee Protection Act.

The simple idea is this: a Canadian citizen is a person in whose name the Government of Canada acts and whose interests the Government of Canada has undertaken to promote. It is these two facets, these two principles, that underlie the Citizenship Act and its predecessor, the Citizenship of Canada Act.

How do we distinguish between a citizen and a non-citizen? It is not that the government has no obligations to non-citizens. Whether somebody is a permanent resident, a temporary resident, a foreign national, or an enemy combatant in war, the government has an obligation to respect the human rights of these individuals. The obligation to Canadian citizens is greater than that. The government has undertaken to look after the interests of Canadians and to promote them, not just to respect them. Similarly, the government claims to act not in the name of permanent residents or foreign nationals; it claims to act in the name of us citizens.

When did the Government of Canada start acting on behalf of Canadians? Was it in 1947, or was it much earlier? The answer, I think, is obvious. The Government of Canada made these undertakings much earlier in our history. Now, that is a simple idea that I think Mr. Justice Martineau, in the Taylor case in the Federal Court, has understood. I don't think it is an idea that the government, which has decided to appeal the decision in Taylor, has understood--that the notion of citizenship, until 1947, was very loose, but nevertheless still existed.

That's the first point, and I think that's crucial to understanding everything that follows.

The next question I want to ask, and it's the first point I make in my brief, is this: Is the government living up to its undertakings to look after the interests of Canadians and to promote them? If we look at the Citizenship Act, I think the answer is no. In the first part of my brief I try to argue that this is a continuing failure. We're not just dealing with historical anomalies concerning people who have arrived in Canada and are being mistreated or people who were born here and were mistreated. It's something that continues.

The idea that a Canadian citizen who is born overseas to a parent who was also born overseas and is a Canadian citizen can lose his or her citizenship automatically, without us hearing any story or any mitigating circumstances--they automatically lose their status at age 28 unless they register, the onus being on them to identify themselves as citizens--is going to lead, in the future, to continuing troubles.

It doesn't matter how transparent our process is or how quasi-judicial or judicial our process is in dealing with citizens or people who have lost their citizenship. If it is an automatic loss, and we don't hear their stories about why they thought their father was born in Canada and why they missed the deadline, if we don't hear these stories and act upon them, then the problem will continue.

That's the first part of my brief. The rest of my brief is in writing, and I will be happy to answer questions on it.

[The Chair, Conservative, Norman Doyle]

Thank you. We appreciate that very much.

Mr. Gratl is next.

[Jason Gratl, President, B.C. Civil Liberties Association]

I'd like to thank the committee for inviting the B.C. Civil Liberties Association to come and address the committee on this important issue.

My name is Jason Gratl. I'm the president of the British Columbia Civil Liberties Association. With me is Christina Godlewska, an articled student for our association, and she'll be presenting our brief.

[The Chair, Conservative, Norman Doyle]

You may proceed, Ms. Godlewska.

[Christina Godlewska, Articled Student, B.C. Civil Liberties Association]

Thank you.

I understand that our written submissions have arrived and are before you as of this morning. I apologize for our tardiness, but I hope you have a chance to review them.

I'm going to use what little time we have in order to outline our key recommendations and hopefully make some constructive comments regarding how the Department of Citizenship and Immigration might engage in a realignment of priorities in order to change their fundamental approach to this problem in order to better comport with the value of Canadian citizenship.

The starting point is something that Professor Galloway did an excellent job of emphasizing. We have the same starting point, which is citizenship is a right. It's not a special dispensation. It's a fundamental right, and it's more primary, more conceptually primary in a lot of ways than some of the other rights that are enumerated in the charter.

Our primary submission is that you need to send a strong and clear signal to the ministry that it is time to start taking this citizenship seriously and that doing this does not mean shutting the door on as many people as possible to keep it special, but rather doing whatever we can to make sure that Canadians are never lost or rejected or turned away by their country.

Our basic recommendation to accomplish this, the one that's emphasized in our brief, and that hasn't really come out in many of the submissions that we've heard so far.... Most people are arguing that we need a revamp of the Citizenship Act, and we agree with that on a fundamental level. However, we've also heard that you've had your funding cut for this project. We have the uncertainty of an upcoming election, and in light of this kind of political climate, what we'd like to emphasize is the idea that there is some discretion in the act. There is some discretion within the current legal framework, and this committee is in a position to urge the minister to start using this discretion to start fixing this problem now and to start changing the attitude within the department toward people with citizenship claims.

I believe that Mr. Galloway did a good job emphasizing citizenship as a fundamental right, so I'm going to focus on how we might tell when somebody has what I would call a prima facie claim to citizenship and what follows from this.

In her evidence, the minister has stated that she has created a task force within her call centre in order to deal with individual situations on a case-by-case basis. We support this step, but she has also admitted that she has, so far, only used this discretion with respect to 33 people. They're appealing the ruling in Taylor v. Canada. We have Senator Dallaire inspired to used the term “bureaucratic terrorism”, and the question is why. What is going on here? What are these people up against? We think maybe the department is taking a bit of a guilty until proven innocent approach, which is simply not appropriate in this context.

Our key recommendation is to take steps to ensure that people are dealt with in a careful and sensitive and judicious fashion when they can produce at least some evidence that they may have been or had good reason to consider themselves Canadian citizens, which is to say people with a prima facie claim to citizenship.

What might this look like? I'd like to draw your attention to three themes that emerged in the evidence presented to you already, and that we argue form the basis for this prima facie claim. The first is birth in Canada. The minister assured us several times that in most cases those who are born in Canada are Canadian. We submit that this represents a widely shared and accepted view of Canadian citizenship that deserves better recognition and protection.

The second is being born to Canadian parents. As Professor Galloway points out in his submission, one of the primary benefits to citizenship is the right to pass it on to one's children. The fact that this is a common-sense principle of citizenship is reflected in how shocked we are all are to hear that the sons and daughters of World War II veterans and tenth-generation Québécois are being denied their citizenship or stripped of their Canadian citizenship without notice while abroad.

The third is probably a little more controversial, but in a lot of these stories we hear of a big pile of administrative errors, failures of due process, and lack of notification, which adds up to a reasonably held belief in Canadian citizenship that's gone on for years. The citizenship cards are a good example, the ones without expiry dates. People are holding them because they think they're Canadian citizens, for a good reason. We think this adds up to a situation where the government should be stopped from suddenly turning around and denying them citizenship without good, charter-compliant reasons.

How this might work legally is elaborated in our written submissions, which I'll refer to you, but basically we think things should be sent to the task force and that the specialized administrators need to help people build their cases for a grant under subsection 5(4).

[The Chair, Conservative, Norman Doyle]

Okay, thank you. I'm sorry to cut you off, but I'm trying to get in two rounds of questioning of five minutes each. Instead of going with a seven-minute and five-minute round, I think we'll go with two fives. I think we have time for that.

Our first questioner will be Mr. Telegdi.

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

Thank you very much, Mr. Chair.

As we start, I would like to point out that the CBC Radio website today breaks down the number of lost Canadians, if you will, on such bases as being chattelled children, the category Mr. Chapman falls into; border babies; war brides; war babies; born-abroad babies pre-1977, and post-1977; illegitimate Canadians, affecting tens of thousands of Mennonites; as well as military brats. When one looks at those numbers, if you take the top end, you are at about 400,000 people. They include two categories—military brats and illegitimate Canadians—that Dr. Edmonston did not refer to. These weren't in his focus.

So I invite anybody to view those numbers and members of the committee to go to that webpage and take a look at them, because the numbers are quite shocking.

The question I have for the committee is about subsection 5(4), whereby the minister has discretion to grant citizenship to some and not to others, as we heard from the previous witnesses, where three siblings in one family were border babies and got citizenship under subsection 5(4), but in the fourth case they're taking a person to court and are trying to deport him out of the country.

So the question I would like all of you to respond to is the point that just as it is improper for a politician to strip citizenship from somebody, it's also improper for a politician to grant citizenship wholesale. Surely when we're dealing with these issues, we have to have a citizenship act that is charter-compliant. Could all of you please comment on this: we need a citizenship act that's charter-compliant.

[Donald Galloway]

The answer is yes, of course.

We are in a situation where, as I think as Mr. Bosdet said this morning, we have a major rule-of-law issue here. How do you get the most important aspect of your Canadian status and how do you lose it? Is this going to be governed by law, or is it going to be governed by discretion? We live in a legal society. And it is not just a matter of charter values, but basic constitutional values we are committed to and that are at stake here. We are committed to the rule of law. The answer, therefore, seems very clear.

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

The other issue I have is that the 1947 citizenship act, with all its discriminatory clauses, is 60 years old this year. The 1977 citizenship act is 30 years old this year. The Charter of Rights and Freedoms is 25 years old this year. Surely it's time we had a citizenship act that brought it all together and that is definitely charter-compliant.

I guess the only thing I can say is that the previous government was committed to bringing in a citizenship act and had funding of $20 million to do so. The Standing Committee on Citizenship and Immigration has gone on two cross-country tours, in 2003 and 2005, on this. We had a lot of the basis for a new citizenship act, and one of the things the committee decided was that it had to be charter-compliant, and that was very, very important to the committee. So $20 million is not a lot of money when you're dealing with a $200 billion budget, but it's so fundamentally important, particularly when citizenship means that you want people to embrace the charter and the constitution.

[The Chair, Conservative, Norman Doyle]

Could we have a brief answer, please?

[Jason Gratl]

I would comment briefly that there are two paths to ensure that the legislation is charter-complaint. The first is a path of litigation--that is, forcing individuals to take the time and expense of bringing the judiciary to a point at which they will either strike down unconstitutional laws or read in more constitutional provisions. That's expensive and time-consuming, and it puts the burden on the individual in a way that's unbelievably unfair and costly to that individual.

The second path that can be taken is that the legislature and its committees can take responsibility for ensuring charter compliance; that, in our view, is the more appropriate path to take.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Gratl.

We will go to Madame Faille or Mr. Gravel.

Go ahead, Madame Faille.

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

Thank you. I'm going to ask the question.

In fact, I can't be more in agreement with Mr. Galloway when he says that citizenship is a fundamental human right. I've been working on that basis since I've been sitting on this committee. As Andrew mentioned when we toured across Canada, some witnesses came and told us the same thing. There is a series of rights attached to citizenship.

I want to get you to talk about the immigration issue. I recently had a case involving young children born on Canadian soil of refugee parents, who thus sought refugee status. Unfortunately, their claim on compassionate grounds was rejected, a removal order was issued against them, and they had to leave Canada.

Mr. Edmonston, I don't know whether you have any statistics on this, on how many young children born on Canadian soil have been removed from Canada. With regard to civil rights, would you have an overview of the quality of the information that is transmitted to persons who are removed concerning retention of their citizenship?

[Dr. Barry Edmonston]

I don't have any numbers for that one. That's probably going to come out of administrative sources as much as anything, if one kept good data on that, but I'm always worried about the administrative sources, because they have very special functions as to what they collect; when I turn to them as a demographer, I often think that it's not that the numbers are wrong, but just that they're very limited and very specialized in their use.

[Christina Godlewska]

I don't have any information as to what people in that situation are told. I would say, though, given the nature of the subject matter before us, that I think there's a real benefit to having simple rules--born in Canada, you're a Canadian; once a Canadian, always a Canadian; that's the way people understand it, and I think that's for a good reason.

However, although it's tempting to think of the citizenship problem facing the committee right now along the lines of immigration, as though you're trying to balance the social safety net and national security against Canada's need for immigration to sustain growth--and I know that came up in the question period before--we want to urge that in order to get the ministry's attitude towards this problem right, we need to keep a firm focus on what citizenship means and on the fact that it's not the same thing as immigration.

We're not handing out special dispensation, deciding who's in and who's out. We need a basic understanding of what citizenship is, and then we need to defend that. It's just a different set of considerations.

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

All right.

A number of persons have come to testify before the committee over the past few weeks. It seems that a number of them did not have the necessary information or had an incorrect interpretation of their status in Canada. I don't know whether you can give us your assessment of the quality of the information that was available? In our first meeting with departmental officials, we asked some questions on the quality of information, on the department's efforts to publish the information. We were told that there had been advertising campaigns and all that. In short, we subsequently received a letter telling us the contrary, in which apologies were made for misleading the committee.

Based on your experience, what is your assessment of the information that existed at that time? How is it that a person can find himself in such an unfair situation?

[The Chair, Conservative, Norman Doyle]

We have about 45 seconds for an answer, so I'll go to the witnesses.

[Jason Gratl]

Citizenship is such a fundamental right and such a fundamental aspect of membership in our democratic community that anything shy of complete information, anything shy of personal notice to the person whose citizenship might be revoked, withdrawn, and never granted, is inappropriate and fundamentally unjust. It doesn't comport with the obligation of the government to use fair process alone to deny rights. It's not in keeping with section 7 of the Charter of Rights and Freedoms.

[The Chair, Conservative, Norman Doyle]

Thank you.

Mr. Siksay, for five minutes, please.

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

Thank you, Chair.

I want to thank you all for your presentations this morning.

Ms. Godlewska, you mentioned at the very end of your statement that a shift to helping people actually build their case around their citizenship might be helpful. Could you just say a bit more about how you see that or what it might involve?