Citizenship and Immigration Committee on April 16th, 2013

[The Chair, Conservative, David Tilson]

I call the meeting to order. This is the Standing Committee on Citizenship and Immigration, meeting 75, Tuesday, April 16, 2013. We're studying Mr. Shory's private member's bill, Bill C-425, which is an act to amend the Citizenship Act.

We have three witnesses before us for the first hour. We have Professor Catherine Dauvergne from the University of British Columbia. We have Mr. Bal Gupta who is chair of the Air India 182 Victims Families Association. We have from Toronto, on video conference, Mr. Lorne Waldman, who is with the Canadian Association of Refugee Lawyers.

Professor Dauvergne and Mr. Waldman have appeared before us before. Welcome to all of you.

We will start with Professor Dauvergne, you have up to eight minutes.

[Dr. Catherine Dauvergne, Professor, University of British Columbia, Faculty of Law, As an Individual]

Thank you and good morning.

Thank you for giving me the opportunity this morning to speak to you about Bill C-425. It seems destined to become a major attack on the principle of citizenship in Canada.

Let me start with two comments that supersede all others on this matter.

First, citizenship implies a fundamental relationship between an individual and the state.

Destroying this relationship as a form of punishment hearkens back to the ancient punishments of banishment and exile. It has no place in contemporary Canada.

Second, such a profound change to our Citizenship Act such as the one the minister is proposing must not be done by a process like this, by a private member's bill. That process reduces the time allowed for debate and for this committee to do its work and it protects the changes that the minister is proposing. This is controlling democracy.

For this reason, this morning, I'm directing my remarks to what I anticipate the bill may look like at the time it returns to the House. I will make four points.

First, stripping dual citizens of Canadian citizenship would constitute arbitrary punishment. Second, denationalizing potential terrorists will provide an avenue to escape the full force of the law. Third, such denationalizations will foster global and Canadian insecurity. Fourth, there's no good or principled reason to follow the path of the United Kingdom.

I thank you, Mr. Chairman, for letting me know when my time will elapse as I don't have a clock in front of me.

[The Chair, Conservative, David Tilson]

I will give you a notice.

[Dr. Catherine Dauvergne]

Turning to my first point, arbitrary punishment, it's a fundamental principle of our criminal law that punishment be proportional and that it be deserved. Depriving dual citizens of Canadian citizenship because of suspected terrorist activities or even because of proven conviction for terrorist actions cannot meet this standard.

Such punishment will necessarily be arbitrary because, first of all, many individuals do not make an informed or independent choice about whether to become dual nationals. These choices are determined by their parents, by their states of nationality, by accidents of their birth, or by all three of these factors acting in concert. It's often very difficult to renounce citizenship. Some individuals who make good-faith efforts to be solely citizens of Canada may not have these efforts recognized.

Many dual Canadian and American citizens are currently discovering just how difficult it can be to renounce American citizenship. For example, as the United States moves to extend the extraterritorial reach of its tax laws, we've heard quite a lot about this. Finally, whether an individual will or will not be a dual citizen will principally be determined by the laws of another state. We ought not to let an unpredictable variety of other nations determine how Canadians are to be punished.

My second point is that denationalizing terrorists will allow some to escape the full force of the law. Terrorism is a global phenomenon. In the global fight against terrorism Canada has one of the strongest and best-resourced justice systems. We have strongly committed ourselves to the difficult and intricate work of prosecuting those who threaten our security in this way. Citizenship provides one potential basis for criminal prosecution. In some cases, severing the links of citizenship will limit Canada's capacity to prosecute individuals.

One of Canada's concerns in the global fight against terrorism is that some countries are not as vigorous in condemning terrorism as we are. Some places are seen as potential places of refuge for those who would perpetrate such acts against us. We must not act in a way that reduces our capacity to act against potential terrorists. Maintaining the bond of citizenship helps Canada maintain its legal jurisdiction over all individuals.

My third point is closely related to this one. It is that denationalizing terrorists will increase global and Canadian insecurity. I imagine that the point of stripping a terrorist of citizenship is to ensure that he or she can be deported, or if they are outside the country, to ensure that they can not return. There is of course a certain intuitive appeal to this, but it does not withstand scrutiny.

Global terrorism today does not respect international borders. We need no reminders of this. Banishing those we suspect of terrorism does not make us safer. It merely removes them from our surveillance, from our monitoring, and from our control. It will not, alas, ensure that we are safe from them. Indeed, it may make us less safe if they are sent away to quiet, dark corners of the world where it is easier to plot against us unnoticed. Our commitment to the international community must mean that we cannot simply deport the people we fear. This is an invidious form of global Nimbyism. There is no advantage to us as Canadians in pooling dangerous people in unruly places.

Finally, I wish to briefly address the route that the United Kingdom has taken in stripping terrorists of British citizenship. Britain amended its nationality law in 2002 and then again in 2006. It's now possible in Britain to withdraw citizenship from individuals on the basis that it's not conducive to the public good for their citizenship to continue. Under this new provision, between mid-2006, when it came into force, and mid-2011—which is the time when I have the most recent statistics I could find—the U.K. has initiated denationalization provisions against 13 people, primarily because of suspected links to terrorist activities. One woman is not in that category; she was found to be a Russian spy.

A number of these cases have not been successful denationalizations and they are still working their way through the courts in various appeal processes. The primary reason the appeals are so protracted is that the British courts are having enormous difficulties with the intricacies of the citizenship laws of other countries.

None of these individuals has faced a judicial process in relation to their alleged terrorism activities, although this may end because one individual, Abu Hamza, has now been extradited to the United States. It's notable that the U.K. was unable to strip Hamza of his citizenship because it was found that his Egyptian citizenship was no longer valid, since he had taken out U.K. citizenship. He has recently been extradited to the U.S. completely apart from citizenship and having solely to do with a will to prosecute terrorists.

The United Kingdom is an outlier in this case. Few countries have taken these kinds of actions. The 20th century history of denationalization, if we look at it by the numbers, is dominated by the National Socialists, the Nazi regime, in Germany and by the U.S.S.R.

I thank you for your attention this morning, and I welcome your questions.

[The Chair, Conservative, David Tilson]

Thank you for your concise notes. I like concise professors. It makes things very clear. Thank you for your presentation.

[Dr. Catherine Dauvergne]

Thank you very much.

[The Chair, Conservative, David Tilson]

Mr. Gupta, you have up to eight minutes, sir.

[Dr. Bal Gupta, Chair, Air India 182 Victims Families Association]

Good morning. I thank the committee for giving us an opportunity to testify from the perspective of victims impacted directly by the most heinous violent crime in Canadian history, namely, the terrorist bombing of Air India Flight 182 on June 23, 1985.

The Air India 182 Victims Families Association strongly supports Bill C-425, an act to amend the Citizenship Act. The bill proposes to reduce the residence requirement for Canadian citizenship by one year for permanent residents who serve in the Canadian Forces and to trigger the renunciation of Canadian citizenship for those who engage in acts of war against the Canadian Forces.

These provisions, if enacted into law, will on the one hand encourage, acknowledge, and support those who put themselves on the front lines for Canada to protect our freedom and democracy, and on the other hand, act as a deterrent against those Canadians who violently demonstrate their opposition to our freedom and democracy by engaging in acts of war against the Canadian Forces.

I speak to you not as an expert in legal or constitutional matters but as a victim of the worst violent terrorist crime in Canada. In the Air India 182 tragedy, I lost my wife, Ramwati Gupta, to whom I was married for over 20 years. In a tragic moment, I was left as a single parent with two young sons who were 12 and 18 years of age at the time.

This tragedy was the result of a terrorist conspiracy conceived and executed on Canadian soil by criminals who brought their problems from India into Canada. The terrorist bombing killed 329 innocent persons. Most victims were from Canada, starting in Newfoundland and going to British Columbia. Only P.E.I. was not touched by this tragedy.

They came from almost all religious faiths and included atheists, Buddhists, Christians, Hindus, Jains, Muslims, Sikhs, and Zoroastrians. Eighty-six victims were children. Twenty-nine families were completely wiped out, including the husband, the wife, and all their children. Thirty-two persons were left alone; the spouse and children were gone. Seven parents in their fifties or late forties lost all their children. Two children lost both parents. The terrorist criminals took away our Canadian democratic rights to life and liberty, and peace and prosperity. Sadly, the real culprits are still roaming free in Canada and elsewhere.

As families of the victims of the bombing of Air India 182, we have suffered and continue to suffer incalculable grief and pain, which we do not wish to befall any other Canadian in any future terrorist activities. Part of our mission is to speak out on crime, violence, and terrorism to ensure that Canada is safer and more secure for its citizens.

Bill C-425 has two provisions. The first provision in the bill proposes to reduce the residence requirement for Canadian citizenship by one year for permanent residents who serve in the Canadian Forces.

Currently, the Canadian Forces are reportedly on duty in Afghanistan, Jerusalem, Egypt, and Mali, and in the Indian Ocean off the Somali coast. Canadian Forces are not an occupying force. They are either working as peacekeepers or fighting on the front lines against terrorism and other violent crimes, such as piracy on the seas, which fuel terrorism and lawlessness. These overseas criminals and terrorists have no hesitation in exporting terrorism into Canada or luring and embracing misguided Canadians in their causes.

Thus, our soldiers on the front lines are defending our freedom, our democracy, and our democratic values and rights. This first provision in Bill C-425 acknowledges, encourages, and supports the loyalty of permanent citizens who have joined the Canadian Armed Forces and have put themselves on the front lines for Canada.

The second provision in the bill strips Canadian citizenship from those Canadians with dual citizenship who engage in acts of war against the Canadian Forces. By waging war against the Canadian Forces, such persons clearly demonstrate that they have no loyalty whatsoever to Canada and attach no value to the Canadian democratic system. Thus, they do not deserve Canadian citizenship, which they are using as a matter of convenience to further their criminal and terrorist activities.

A Canadian engaging in acts of war against the Canadian Forces is not a far-fetched scenario. Today, terrorism is an international phenomenon and terrorists, in most cases, may have worldwide connections. Prosecuted and proven cases, such as Khawaja in Canada and the Millennium Bomber in the U.S.A, are well-known examples of Canadians connected to terrorist activities outside Canada. Also, in the last few years there have been many reports of highly indoctrinated persons from different parts of Canada leaving our soil—sometimes disappearing without trace—to join terrorist training camps or terrorist activities in other countries. Some of these individuals have reportedly disappeared and are presumed killed abroad, leaving their Canadian families to grieve in silence.

During the last four weeks I have seen several news reports, and I'll enumerate them. There were two Canadians involved in a terrorist attack on a gas plant in Algeria, and they were alleged to be the ringleaders in some reports. There was a Canadian sentenced to two years in prison for terrorist conspiracy in Mauritania, as well as a Canadian with dual citizenship involved in a deadly bus bombing in Bulgaria last summer. CSIS is aware of dozens of Canadians, many in their early twenties, who have traveled or attempted to travel overseas to engage in terrorism-related activities in recent years. A Canadian—these are the news items—lost a bid to lead Syria's rebels. One of Syria's rebel groups, namely al-Nusra Front, formally pledged allegiance to al-Qaeda leader al-Zawahiri. There were two, actually, last week; one I saw only last night.

Most probably there are many more unreported cases of Canadians involved in terrorist activities around the world. Given appropriate right—or wrong—circumstances, such individuals may engage in acts of war against Canadian Armed Forces on duty abroad and may pose a potentially mortal threat and danger to our soldiers.

The second provision of Bill C-425 provides a deterrent against such a possibility. Also, note this, such Canadians will have no hesitation in importing their terrorist activities into Canada to further their perceived just cause, similar to what led to the terrorist bombing of Air India 182. It is also worth noting that some other countries, such as Australia and the United States, and I heard the U.K., already have similar policies in place. This bill will bring us in line with them.

In summary, we, with the first-hand experience of the aftermath of the most heinous act of terrorism in Canadian history, the terrorist bombing of Air India182, ask all members of Parliament to support Bill C-425. We sincerely believe that Bill C-425 will be a step, however small, in keeping Canada free from terrorism, so that no Canadian will suffer what we have suffered, and it deserves support from all members of Parliament.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Gupta. You say you're not an expert, but unfortunately, you are. On behalf of the committee I thank you for your presentation.

Our final speaker for the first hour is Mr. Lorne Waldman, who is the president of the Canadian Association of Refugee Lawyers. Welcome again to the committee, Mr. Waldman.

[Lorne Waldman, President, Canadian Association of Refugee Lawyers]

Thank you very much.

Mr. Gupta, before I start, I want to say that I've certainly met with some of the members of your organization and I've heard their pain and I certainly share it. It was a terrible tragedy and I'm sending my sympathy. I know that nothing can bring back your family. I deal in my office every day with people who are victims of torture and terrorism. I understand what you're going through.

Having said that, it's my respectful view that good public policy has to consider other factors beyond victims' rights, and when we look at this bill, I just don't think it's good public policy. Perhaps I can explain to you with all respect why I differ with your viewpoint.

First, as my previous colleague noted, it's difficult to comment about the bill without the specifics, but I'll do my best based upon the legislation and also based upon Minister Kenney's comments. I was able to read his public comments on the planned amendments with respect to the legislation. Based upon those comments, I'll express my concern.

The bill would deprive Canadian citizenship of persons who had a second nationality. The first problem, and I think it was alluded to by the first speaker, is that it's extremely difficult to determine when people have a second nationality. It's a task that we as refugee lawyers are confronted with all the time. People claim refugee status. They may be a citizen of some country, but they may possibly have a claim to a second country and if they do, they're not entitled to refugee status in Canada. They must seek the protection of their second country of nationality.

Anyone who deals with refugee law knows that it is often an extremely difficult task to determine, in any set circumstances, whether or not a person has dual nationality. You have to interpret foreign law and interpret how that law will be applied without having the benefit of approaching the foreign government, especially because some of these governments are hostile. So the first difficulty that this bill presents is that it is directed against people who have dual nationality and it will very often be extremely difficult to determine that.

The second related problem is that there are a lot of Canadians who may be dual nationals without even knowing it. They become victims of this legislation without even having the knowledge. The law in India recently changed. I'm not sure if there's a possibility of dual nationality anymore. It used to be that there was not, but I believe it's possible. In some countries, for example, if I'm not mistaken, Iran, if one of your parents is Iranian, you are Iranian and you have no option of renouncing your citizenship.

There are people who may be born in Canada who will have no idea that they're dual nationals and who could be subject to this legislation based upon interpretations of a citizenship act by foreign citizenship law in Canada by Canadian officials. It puts Canadians in a difficult position of not knowing whether they will or will not be subject to a piece of legislation because it will depend on the interpretation of the citizenship laws.

The other thing that happens is that obviously the law will be applied at the specific time when the person allegedly commits an offence. The person may now not be a citizen, but the citizenship law of the country can change. There's talk now about changing Canadian citizenship laws. So the laws may change so that persons who do not have a claim may have a claim. We create a situation where there's this huge uncertainty as to who will be affected by the law, first because we're applying foreign law to determine dual nationality, and second because the foreign law can change and we have no control over that. That's the first problem.

The second, even more serious problem is the question of how the law will be applied. If my understanding of the minister's comments is correct, it would apply to Canadian citizens who are convicted outside of Canada of certain offences that are equivalent to offences in Canada. I can just give you three examples of why this issue is problematic, because we're relying on foreign justice systems to determine whether or not Canadians should have their citizenship rescinded.

Take the case that I'm personally involved in, the case of Bashir Makhtal. He's a Canadian citizen. He fled Ethiopia at a very young age and wanted to give up his Ethiopian citizenship. He wanted nothing to do with it. He was accepted as a refugee. He came to Canada.

He was back in Kenya and was kidnapped by the Ethiopians and put in a show trial. Minister Baird has been advocating for his release with the Ethiopian authorities for three years. He was convicted of treason, which presumably would be one of the offences. Based upon the proposed law, Bashir Makhtal, whose release John Baird has actively tried to secure, would face deemed renunciation of his citizenship, because he was convicted of treason in a false show trial in Ethiopia. So relying on foreign governments to determine whether or not people will lose their citizenship is usually problematic.

I could cite other cases. There's the case of Saeed Malekpour, a Canadian citizen who was convicted in Iran of defaming Islam, which could conceivably be considered treason. Of course we know that Prime Minister Harper raised the case of Huseyincan Celil in China. He was convicted of the equivalent of treason and would have his Canadian citizenship deemed to be renounced based upon this legislation, based upon a trial that all international observers said was unfair.

So how are we going to apply this legislation if we rely on foreign jurisdictions to hold fair trials with regard to the types of convictions that often come from show trials inflicted on people in countries that don't have a rule of law?

The final concern with respect to this is about the process. I was recently consulted by someone who was interested in seeing what the process was for renouncing citizenship, so I've had the opportunity to look at the legislation. The long and the short of it is that there's no due process at all. A person makes an application for renunciation. It's sent to the citizenship office. It's reviewed by an official and then put to a judge who reviews it, and if there are no concerns, approves it.

In the case of a person who would have his citizenship deemed to be renounced, based upon what the process is now, that person would not be entitled to any due process. In other words, he or she would be deemed to have applied for renunciation once he or she was convicted of the offence. That decision would go to a Citizenship official, who would review it to determine whether the requirements had been met, and then to a judge who would not be required to conduct a hearing.

[The Chair, Conservative, David Tilson]

You have less than a minute, Mr. Waldman.

[Lorne Waldman]

I'm just tying up.

[The Chair, Conservative, David Tilson]

Thank you, sir.

[Lorne Waldman]

There are huge problems with due process in this legislation as it's currently envisioned. You cannot deprive someone of citizenship without giving them a right to be heard and a right to make submissions, especially given the other concerns I've expressed.

Thank you for your time and consideration.

[The Chair, Conservative, David Tilson]

Thank you, sir, for your usual good presentation.

We now have questions from the committee.

Mr. Menegakis.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you, Mr. Chair. I want to thank our witnesses for being here today.

Dr. Dauvergne and Mr. Waldman, welcome back.

Mr. Gupta, thank you so much for sharing your very personal story with us. I was very interested in hearing the comments and views of someone who's been deeply affected by a very heinous act of terror.

We know that Canadian citizens can have their citizenship taken away if they have obtained it fraudulently. Almost all of our peer countries have the ability to strip someone of citizenship for reasons of treason, terrorism, and other things. Yet critics of this bill claim that Canadian citizenship is an inalienable right. How do you respond to that? More specifically, do you believe that citizenship should never be taken away regardless of how violent and disloyal one's actions are?

Perhaps I can start with you, Mr. Gupta.

[Dr. Bal Gupta]

Maybe I'm too opinionated. I think Canadian citizenship is being used as a matter of convenience by many people, and we have to be careful. Of course it should not be stripped unless it is really necessary. At the same time, you don't want to make Canada a penal colony. By that I mean the easiest way to get into Canada is to commit a heinous crime somewhere else and to come in as a refugee. You are sure to never be removed because there will be danger of torture where you committed the crime.

In my view, anybody who commits a crime, particularly against the Canadian Forces, has no loyalty to Canada. As I said in my presentation, he does not value Canadian freedoms and rights, and he or she—pardon me for using the word “he”—doesn't deserve Canadian citizenship. It's not an inalienable right.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Dr. Dauvergne, would you care to comment?

[Dr. Catherine Dauvergne]

Absolutely. There's an enormous difference between the provisions that a country puts in place in terms of granting individual citizenship in the first place and the provisions that a country puts in place about stripping citizenship rights. It is perfectly within the purview of the government to make it more difficult to naturalize, and it's something that may be behind this bill that people may be interested in considering.

It's not accurate that most comparator nations have similar provisions. The United States doesn't have a provision that allows for stripping citizenship under a broad terrorism provision. Really, the country that is most closely paralleled is the United Kingdom, which is why I brought some facts about the United Kingdom to the table. They've had enormous difficulty with this, and they simply haven't been able to strip citizenship from the people they most wanted to because of the way the citizenship laws of other countries operate. None of those individuals have actually faced a trial. I think it's enormously important that Canada persist in trying to use all measures that it can to bring people to justice who are involved in heinous and violent activities, and maintaining a link of citizenship may prove one measure of doing that.

Thank you.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you.

Mr. Waldman, I was somewhat struck by a couple of your comments. In one of them you said that many Canadians may have dual nationality without even knowing they'll become victims of this legislation. You are aware, sir, that we are talking about people who perpetrate crimes and crimes of terror against Canada here. Certainly you're not suggesting that terrorists are victims.

Would you agree that when an individual chooses to commit an act of terrorism or treason, they have effectively rejected the Canadian values that are part and parcel of Canadian citizenship that they swore to uphold? In other words, they have renounced their citizenship.

[Lorne Waldman]

With respect, obviously, I don't know what the legislation says but my understanding is that it will apply to foreign convictions. If it does, the determination of whether or not a person has committed a crime is left to foreign governments. With some foreign governments, we trust their legal systems, but as I pointed out to you, Mr. Celil was convicted of treason in China. If the legislation strips people of citizenship based upon their convictions for certain types of offences committed abroad, and the minister mentioned treason as being one, then people will be deprived of citizenship and will be victims, because they were victims when they were convicted. As well, they're going to be victims again because they're then going to have their citizenship stripped based upon a fraudulent conviction abroad.

That's the concern that I'm expressing, sir.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Mr. Waldman, you also mentioned Mr. Saeed Malekpour. I'm keenly aware of the Malekpour case. Mr. Malekpour did not perpetrate any crimes anywhere, plus, I might add, he's not a Canadian citizen. He is a permanent resident in my riding of Richmond Hill, and I'm not sure how bringing him up as an example is pertinent to the discussion here today.

We have heard from witnesses that “act of war” is not clearly defined in domestic or international law. When immigration minister Jason Kenney appeared before our committee, he recommended that the committee amend the bill to include acts that are more commonly defined in law. He suggested terrorism, high treason, and those who serve as members of the country's armed forces who are engaged in armed conflict with Canada, be added as grounds of deemed renunciation of one's citizenship.

Dr. Dauvergne, would you agree with that? Why, or why not?

[Dr. Catherine Dauvergne]

I certainly agree that “act of war” is not well defined in international or domestic law. I think it's inappropriate to deal with any of these matters as a question of deemed renunciation. The notion of a deemed application for renunciation is the thinnest of legal fictions, which is designed to narrow, to the greatest possible extent, the amount of due process that is involved. This is a much more streamlined process in our current Citizenship Act than even revocation proceedings. Revocation proceedings take place when there is a suspicion that an individual has obtained citizenship fraudulently, and there is more process related to that. So the notion of adding any number of potential crimes vaguely, moderately, or well defined to a deemed application for a renunciation process seems highly problematic.

[The Chair, Conservative, David Tilson]

Thank you, Professor Dauvergne.

Ms. Sims.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you very much, and I want to thank all three presenters.

Mr. Gupta, the tragedy of Air India haunts Canadians today because it is one of the greatest acts of terrorism to be committed against Canadians. I have many constituents in my riding whom I'm in close contact with on a regular basis. I know that the pain you feel today has not been mitigated with time. I appreciate your perspective.

I have a number of questions. My first question is for Mr. Waldman. In your opinion, Mr. Waldman, would this legislation ensure due process under the law? Let me ask a series of questions and then you can answer them together, because we have such a short time that we like to make maximum use of it.