Evidence of meeting #75 for Citizenship and Immigration in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was terrorism.
A video is available from Parliament.
Conservative
Roxanne James Conservative Scarborough Centre, ON
I understand your comment. Thank you, Mr. Waldman.
Conservative
The Chair Conservative David Tilson
Just for the future, this has happened before. People may not like the answers that people give, but you asked the question and you have to let him finish. I'm directing that to you, Ms. James, but quite frankly, you're not the only one who does it.
Yes?
Conservative
Roxanne James Conservative Scarborough Centre, ON
I did ask a question. I heard the answer and he was providing more to the answer than was necessary for me to get my answer to my question. Although I do—
Conservative
Conservative
Roxanne James Conservative Scarborough Centre, ON
Thank you. I do respect you as the chair, but I would like to just stress that as a member of Parliament, I can ask a question and get that specific answer. I don't need to hear everything else around it. Thank you.
Conservative
The Chair Conservative David Tilson
You also have an obligation to be courteous to witnesses.
Madame Groguhé.
NDP
Sadia Groguhé NDP Saint-Lambert, QC
Thank you, Mr. Chair.
My thanks to our witnesses for joining us this morning.
My question goes to Ms. Dauvergne.
In your remarks, you pointed out the limited scope of this bill in terms of pursuing criminals and the ability to fight effectively against terrorism. In fact, there is an impression that it creates a legal void in terms of pursuing those criminals effectively. You also mentioned the arbitrary nature of this bill. I would like to go back to that as well.
Do you feel that this measure is discriminatory in that it will apply to people with dual nationality?
I would also like Mr. Waldman to answer that question, please.
Professor, University of British Columbia, Faculty of Law, As an Individual
The issue of arbitrariness is very important to our criminal law. The way in which stripping people of their citizenship is arbitrary is that it is not tied to the severity of the crime. It is not tied to the degree of condemnation. It is not tied to anything about the crime.
It is tied to the accident of whether or not an individual has dual citizenship, and that will mean, for example, that it will be a type of punishment that can apply to people who share citizenship with Iran, but it will never apply to people who share citizenship with Egypt. It will mean that it is a punishment that, in advance, we would not know in many cases whether or not somebody would share a citizenship with Syria or possibly the United States. It is discriminatory in that sense, yes.
NDP
President, Canadian Association of Refugee Lawyers
I don't think I have anything to add to what my friend said. In my view, the arbitrariness is based upon the facts that were pointed out. It will be difficult for people in advance to anticipate whether they fall within it or not. It will be difficult for the courts to determine actually whether they fall into it or not. The process is also arbitrary.
Someone asked about the right of appeal. The difficulty we have is that there is no set right of appeal, so presumably the only right would be a right of judicial review at the end of the determination by the citizenship judge, without any right to a hearing. A process that has such serious consequences, which doesn't provide for due process and doesn't provide adequate review mechanisms, is hugely problematic and could be considered arbitrary on those points as well.
NDP
Sadia Groguhé NDP Saint-Lambert, QC
Very good.
I would like to hear your comments about statelessness. Under this bill, an affected individual would see his second nationality taken away.
In your opinion, are we not running the risk of creating cases of statelessness and thereby contravening the 1951 Convention relating to the status of refugees as well as the 1961 Convention on the reduction of statelessness?
Professor, University of British Columbia, Faculty of Law, As an Individual
As the legislation is currently drafted, it does not attend to the question of dual nationality. I believe that both Mr. Waldman and I have been proceeding on the basis that an amendment will be made because that amendment was requested by the minister to apply this only to dual citizens. It would be very difficult in international law.... It would be a direct contravention of international law to increase the amount of statelessness in the world, absolutely.
Conservative
The Chair Conservative David Tilson
Our time has expired.
I want to thank the three witnesses for appearing. You all gave outstanding presentations and have been very helpful to the committee, and on behalf of the committee, I thank you.
We will suspend.
Conservative
Rick Dykstra Conservative St. Catharines, ON
I'm not going to take up too much time, but I do feel it's important to point out a couple of things. One is that the government did submit last night to all members of the committee three specific amendments. While they weren't brought up in the previous panel and I understand why—the panellists didn't have a copy of the amendments—they do indeed address the issues that have been raised by the committee. They are not necessarily being agreed to by the opposition, but they do address the specific issues related to statelessness. All three of them were also given to Ms. Dauvergne just so that she had them. I think her comments were specific to this issue and she commented a number of times about the minister's commitment to amendments. Those have been submitted ahead of time and I know the clerk has indicated they're not official until the close of time, in terms of when they are to be submitted prior to clause-by-clause consideration, but they are here at the request of the opposition and also obviously to alleviate some of the concerns that have been raised.
The second point, and I'll be very quick, Mr. Chair, is that we have this ongoing issue with witnesses who do tend to go on a little bit longer than needed in terms of responding to a question. We as individuals, as members of Parliament, only have five or seven minutes to be able to ask questions. It would be helpful from time to time if you could remind the witnesses that we only have a very short period of time. It does cause us to interrupt the witness when they tend to go on a little bit because we want to get our questions on the table.
I would seek your indulgence to remind folks of the need to be short and to the point, because we do not have a lot of time to ask questions.
NDP
Jinny Sims NDP Newton—North Delta, BC
I have a point of order, Mr. Chair. It's very brief.
I know we got the amendments last night and we've treated them as confidential and embargoed. Am I to presume now that we can...? Okay. Thank you.
Conservative
The Chair Conservative David Tilson
We will proceed. We have three witnesses before us. Two have been here before. We have Professor Audrey Macklin, who is with the faculty of law at the University of Toronto. We have Martin Collacott, who is with the Centre for Immigration Policy Reform.
Both of you have been here before, as I have said. I'm wondering whether I have been here too long. I'm starting to wonder whether I should be calling people by their first names.
We also have the representatives from the Canadian Coalition Against Terror: Sheryl Saperia, who is the adviser and the director of policy for Canada, Foundation for Defense of Democracies, and Maureen Basnicki.
Welcome to the four of you.
We will start with Professor Macklin. Each group has up to eight minutes.
Prof. Audrey Macklin Professor and Chair in Human Rights, Faculty of Law, University of Toronto, As an Individual
Merci. Thank you for the opportunity to address the committee.
I thought I'd begin with a reminder about Canadian history. Although it is the case that in the 20th century stripping of citizenship and deportation or exile of citizens is uniquely associated with the Nazis and the Soviet Union, Canada has its own experience doing that. In 1946, after the Second World War, the Canadian government stripped the citizenship of 10,000 Canadian citizens and “repatriated” them to Japan, a country that many of them had never been to. At that time, John Diefenbaker, who was in opposition, referred to this initiative as the very antithesis of the principles of democracy.
The proposal to strip citizenship of Canadian citizens is presented through the language of deemed renunciation. But, of course, as predecessors have pointed out, that is a legal fiction. In effect what is being done is removing or denying people certain rights guaranteed under the Canadian Charter of Rights and Freedoms. Those include the right to life, liberty, and security of the person, under section 7; the right to be free of cruel and inhuman treatment or punishment; and section 15 equality rights.
To use the language of deemed renunciation, then, is to create the illusion that people have somehow voluntarily, through their own actions, waived their constitutional rights. In fact, the Supreme Court of Canada has enunciated a fairly strict test for proving that somebody has waived their constitutional rights. It must be voluntary, and it must be done with full knowledge of the consequences of that waiver. I think it is very unlikely that one could look at the provisions of this bill and construe deemed renunciation as a voluntary waiver of constitutional rights.
Reference has been made as well to the practices of the United States. I'm not sure why the view has been expressed that the United States actually strips people of citizenship for so-called unpatriotic acts. That's simply incorrect. In a series of Supreme Court of the United States judgments in the 1950s and 1960s, the Supreme Court of the United States effectively found unconstitutional the U.S. equivalent of this deemed renunciation. It's called in the United States “expatriation”. In a famous case called Trop v. Dulles, involving someone who was stripped of citizenship for desertion under one of the so-called expatriating acts, the Supreme Court of the United States Chief Justice Warren said:...the deprivation of citizenship is not a weapon that the Government may use to express its displeasure at a citizen's conduct, however reprehensible that conduct may be.
In other words, he was saying—
Conservative
Professor and Chair in Human Rights, Faculty of Law, University of Toronto, As an Individual
Great.
Citizenship revocation is a form of punishment, and in the U.S. Supreme Court's view, cannot be used in this weapon-like fashion. It goes on to say, “It is a form of punishment more primitive than torture”. Why? Because “the expatriate has lost the right to have rights”.
If it's clear then to us that citizen revocation is a form of punishment—that's what it is, you can dress it up as deemed renunciation, but in effect it's punishment—then the question becomes what policy problem is this additional form of punishment solving? When you enact a new law, then presumably there's a problem that you want to solve with it.
Let me take you back for a moment to think about the world many centuries ago, when exile and banishment were routinely used. They were routinely used in situations where the modern state, as we understand it, didn't yet exist, meaning that systems of penal justice had not yet developed. We didn't have systems for putting people on trial, judging them, and most importantly, incarcerating them as a form of punishment. So exile and banishment, at that time in history, were used to get rid of dangerous people who were considered criminals, and who the state could't otherwise deal with.
But of course now we have a criminal justice system. We put people on trial, they are judged, and they are sentenced. We have a variety of forms of punishment, but those punishments do not include banishment or exile. Why? Because within our state we can punish people.
So the question then becomes, in what sense is our existing criminal law, and its system of adjudication and punishment, inadequate to the task when talking about the acts that are prohibited under this citizenship revocation law? Why are they inadequate for these crimes and not for other crimes? Why are they inadequate if the person happens to be a dual national, but obviously adequate if the person is not a dual national?
If the person is only a citizen of Canada, or if the person commits heinous acts that don't happen to fall within the purview of this citizenship bill, then we presume our criminal justice system is perfectly able to manage it. So the question becomes why wouldn't it be able to manage it in these circumstances? I submit to you that there's no good answer to that, and that's part of the reason that accounts for the arbitrariness of this law.
What is, then, the goal that is sought to be achieved here? I suggest to you that it is primarily symbolic, to express our outrage and our view of the despicable nature of the acts that some people commit, and the idea that those acts are inconsistent with holding certain values of Canadian citizenship. I suggest to you that the Supreme Court of Canada has found that symbolic benefits of rights violations, simply put, don't cut it. If Parliament can infringe a crucial right simply by offering symbolic and abstract reasons, then judicial review reduces to a contest of “our symbols are better than your symbols”. These outcomes aren't compatible with the charter. There is nothing that this law seeks to achieve, in terms of the protection of Canada or the expression of our abhorrence of violent and despicable acts, that is not currently achieved by our criminal justice system.
If it is correct, and I think it's indisputable, that citizenship stripping is a form of punishment for bad acts—the kinds of acts including criminal offences listed in the citizenship bill—then we must also ask the question, who in our system of government is responsible for judging and meting out punishment to people?
When somebody commits a crime—let's say a sexual assault or a murder—do we send it to the Minister of Justice to determine the guilt or innocence of that person, and then, upon the determination of that Minister of Justice, put them in jail? No, we don't do that. We understand that it would be a gross breach of our separation of powers. It's not the job of elected officials to make those judgments of people; it's the job of judges.
What this law does is take a form of criminal punishment and give it to elected politicians to mete out to individuals. That, in turn, is inconsistent with our system of government, the separation of powers, and basic notions of justice.
Thank you.
Martin Collacott Spokesperson, Centre for Immigration Policy Reform
Thank you, Mr. Chairman.
May I begin by congratulating Mr. Devinder Shory for his thoughtful and indeed inspiring bill honouring the Canadian Armed Forces.
I'd like to comment on both aspects of the bill—shortening the wait time for citizenship and also revoking citizenship. I'll begin with the second.
The government, I gather, is considering recommending that the provisions of the bill be extended to include engaging in acts of terrorism and treason. I strongly support such a broadening of the provisions. In fact I recommended something along these lines in a paper published in 2006, when I proposed that applicants for citizenship be required to take an oath swearing that not only were they fully committed to Canadian values and would give their complete allegiance and loyalty to Canada, but their actions in the future would reflect these commitments. I went on to say that anyone who subsequently acts in a manner that is in serious conflict with these commitments, such as involvement in terrorist activities, should have their citizenship revoked.
My particular proposal wasn't acted upon but it caused lots of discussion, and I was happy with that.
As I think the minister pointed out, most democratic countries are much tougher on revocation of citizenship than we are. It doesn't always work. As some of our legal experts have pointed out, in Britain this has been challenged. I think this is still under discussion. I think they have good reason for being tougher.
As well, there is strong public support for revocation of citizenship under certain circumstances. Mr. Shory mentioned to the committee a survey he commissioned last year where he found that eight out of ten people agreed that Canadians found guilty of treason or terrorism should lose their citizenship. A poll taken some years earlier by Ipsos Reid found that three out of four Canadians supported revocation of citizenship of people who obtained it and then went on to commit serious crimes, and that 35% of respondents even supported measures for revoking it in the case of people born in Canada.
I won't comment on the dual citizenship issue right now, but I would like to mention one other possibility that the committee might want to consider, that the government might want to consider, and that I don't believe has been raised so far—the question of revoking the citizenship of Canadians convicted of terrorist offences in other democratic countries. Those are countries that have a good human rights record and a judicial system based on the rule of law.
As Mr. Waldman pointed out in the last session, are we going to revoke citizenship on the basis of what China has done, or some other non-democratic country? I think it's important that we don't use convictions in countries like China to revoke citizenship. I think we do have to make that distinction.
A proposal along these lines was in fact floated several years ago by Peter MacKay when he was leader of the Conservative Party in opposition. He recommended Ottawa revoke the citizenship of Fateh Kamel when the latter returned to resume residence in Canada, after spending several years in a French prison following his conviction on terrorist charges in France. In my view, the terrorist act, if it's a serious act, doesn't have to have been committed against Canada. It could have been committed against another democratic country.
I do agree that there has to be more elaboration of what due process is. This issue has been raised. I think we do have to have a fairly clear-cut due process. I would hope that this is elaborated on, if the bill is going to be agreed upon.
I'd like to comment on the other element of Mr. Shory's bill, that permanent residents who have served at least three years in the Canadian Armed Forces become eligible to apply for citizenship one year earlier than the usual three years of residence. As I think has already been pointed out, this would in fact apply to a fairly small number of people. I think someone from our military said there are only about 60 people in the military who don't have Canadian citizenship. I think it's a good symbolic gesture, but it's a fairly minor one.
I do have some problems I'd like to raise with the current rules for gaining citizenship. In 1977 we had the current Citizenship Act passed, which reduced the waiting period from five to three years. I think that was a mistake. We have one of the shortest wait periods in the world. I think only New Zealand, among western countries, has such a short wait period.
I think the reasons for that.... While it was put in terms of making new Canadians feel part of the social fabric earlier, in fact there's fairly good evidence that it was for political purposes, that the party in office when someone gets citizenship expects the new Canadians to vote for them. There was a similar case in the United States in 1996, in which the Democratic administration rushed through the citizenship of tens of thousands of people prematurely, on the assumption that they would vote for the Democrats. So I think we have to revisit our Citizenship Act in general, particularly concerning the length of time required to get citizenship. There are a number of good reasons for this, unrelated to this particular bill.
One is that many people acquire citizenship and then move abroad again. We experienced this in the case of the Lebanon evacuation in 2005, during the Israeli-Lebanon conflict. Tens of thousands came back to Canada, and I think it cost us about $70 million. It would have been better if people had to wait a full five years, which is much closer to the international norm. Some countries, such as Germany, Norway, and Switzerland, require eight years, and the U.S. and Britain, I think, five years. I'm not sure why we shortened it to three.
There are also security reasons. CSIS has pointed out that hard-core terrorist groups sometimes try to get one of their members to acquire Canadian citizenship because it's much easier to travel if you have a Canadian passport than if you have a Yemeni passport, for example. We have increasing evidence of Canadians who use their citizenship to travel abroad and become involved in terrorist activities. I think there are security reasons as well for revisiting the Citizenship Act.
Those, Mr. Chairman, are my major comments.
I believe questions have been raised about the arbitrariness of some of the proposals, in that they would apply only to people with dual nationality. I'm like Mr. Kenney. I would prefer to be able to withdraw citizenship from anyone who has committed a serious act of terrorism, particularly against Canada. But I recognize that we have ascribed to the international Convention on the Reduction of Statelessness, and so we have an issue that we have to deal with.
Thank you very much, Mr. Chairman.
Conservative
The Chair Conservative David Tilson
Thank you, sir.
The final speakers are Ms. Saperia and Ms. Basnicki.
The two of you have up to eight minutes. Thank you for coming.