Citizenship and Immigration Committee on April 18th, 2013

[The Chair, Conservative, David Tilson]

You have about 30 seconds.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Right.

Thank you for your presentation.

I have a question about what you proposed. You said:

The right to citizenship is a constitutional right. Revoking citizenship for whatever reason of a person born in Canada, raised in Canada, whose primary connection is Canada is arguably a violation of the constitutional right to citizenship.

Could you please expand on that?

[David Matas]

Sure. The Charter of Rights and Freedoms has rights granted to citizens. Section 6, for instance, says that every citizen has the right to remain in Canada.

As well, because the word “citizen” is embedded in the Constitution, it has constitutional significance. It is not necessarily limited or defined by the way the Citizenship Act defines it. There's jurisprudence in other countries.

In the United States, for instance, its Supreme Court has developed a constitutional jurisprudence—

[The Chair, Conservative, David Tilson]

We have to move on.

[David Matas]

—on the meaning of citizenship, which is different—

[The Chair, Conservative, David Tilson]

We have to move on, sir, I'm sorry.

Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

Mr. Matas, it's great to see you here this afternoon.

When Mr. Shory introduced the bill—and we were there for second reading. I had always thought that the big push during second reading was to try to recognize the importance of landed immigrants who come to Canada, and that if they joined the forces, their citizenship requirement would be reduced from three years to two years.

Shortly thereafter, the members started to get a bit of attention or play on it. We had a Minister of Immigration who thought he would possibly exploit this particular bill's position on the order paper and bring in a totally different agenda. Now the focus seems to be more on terrorists and taking away citizenship, as opposed to bringing in his own bill. I suspect we will have a great problem with it because it denies us the opportunity to have a good, thorough discussion about what the government, as opposed to this particular private member, might be trying to do.

The charter does give rights to Canadian citizens, and they do have a right to be able to remain in Canada. With some of the suggestions that are being made in terms of potential government amendments, we could see that issue, in particular where there is dual citizenship. As you pointed out, someone could be born, raised, and spend their entire life here in Canada, and then maybe marry someone from another country, and as a result, that individual, because he or she has dual citizenship, could have their citizenship taken away.

Given your background, do you see any potential charter issue here? I would think I would have a right to my citizenship if I were born and raised here and had never experienced any other country. The only reason I might have access to another citizenship is through marriage or something of that nature. Do you see the establishment of two-tier citizenship here?

[David Matas]

I was interested in your comments about the process, which relates to your question. I'll try to connect the two.

There's been a long history—over 10 years now—of various governments introducing amendments to the Citizenship Act to deal with revocation, for example, Bill C-16, BillC-18, and BillC-37, which have some good suggestions in them that we like. We've proposed that some of them be incorporated in here.

It's of some concern to us that all these proposed amendments—which would change the revocation process, which is not working now—are put aside, and instead we have this bill. There are some good things in the bill, and we support many of the components of it, but because it's a private member's bill—and this is a point your colleague Irwin Cotler has mentioned—it doesn't go through Justice charter scrutiny the way government bills do.

To answer specifically, yes, there's a charter right of citizenship, which is not limited necessarily to the way citizenship is defined in the Citizenship Act. It's open to anybody who loses their citizenship to say that this is a violation of their charter right to citizenship, regardless of what the Citizenship Act says.

I can't tell you whether a charter challenge like that is going to succeed or not, but it's certainly potentially there.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

In terms of that process being a government bill and the requirement to have some sort of a charter test done on it, would you suggest this is something on which there should be some sort of a legal opinion coming from the Department of Justice, as to whether or not it would meet a charter challenge? Should the government be concerned in any way with regard to what they're doing in terms of conflicting with the Charter of Rights?

[David Matas]

I suppose all members of Parliament should be concerned at all times about that issue, absolutely.

I would say that generally, when the government endorses a private member's bill, it would be useful to have a Justice charter scrutiny on it. Of course we have some whistle-blower litigation right now indicating there's been a problem with that scrutiny, and it could probably be enhanced, but it certainly is better than having none at all.

[The Chair, Conservative, David Tilson]

I'm sorry, the time has come to an end.

Mr. Chétrit Rieger, I hope I have said your name correctly finally—

[Marc Chétrit Rieger]

Sure.

[The Chair, Conservative, David Tilson]

—and Mr. Matas, we appreciate your coming and giving your comments to the committee on behalf of B'nai Brith. Thank you very much.

[Marc Chétrit Rieger]

Thanks for having us.

[The Chair, Conservative, David Tilson]

Okay.

We will suspend.

[The Chair, Conservative, David Tilson]

We will reconvene.

We have representatives from the Department of Citizenship and Immigration, all of whom have been here before.

As well, we have a representative from the Department of Justice, Mr. Glenn Gilmour, who is a lawyer with the criminal law policy section. I think you have not been here—though maybe you have—but welcome.

All of you have up to 10 minutes to make a presentation, which I gather is going to be made by Madam Girard.

You may start.

[Nicole Girard, Director General, Citizenship and Multiculturalism Branch, Department of Citizenship and Immigration]

Thank you.

Good morning, Mr. Chair and members of the committee.

My name is Nicole Girard. I am the director general responsible for the citizenship and multiculturalism branch at Citizenship and Immigration Canada.

As the chair has mentioned, I am accompanied here by my colleagues, Ms. Mary-Ann Hubers, acting director of legislation and program policy; Mr. Eric Stevens, legal counsel for CIC; and Mr. Glenn Gilmour, legal counsel at DOJ.

I'd like to thank the committee for providing us with this opportunity this morning to contribute to your discussion of MP Shory's private member's bill.

As you are aware, the bill consists of two key elements. First, the bill proposes to fast track citizenship for members of the Canadian Armed Forces who are permanent residents by reducing the residence requirement for citizenship by one year for members.

The second element of the bill, which has generated quite a bit of discussion, consists of provisions that would deem a person to have applied to renounce their Canadian citizenship or to have withdrawn, in the cases of permanent residents, their application for Canadian citizenship if they engage in an act of war against the Canadian Armed Forces.

I'd like to take just a few minutes to address some of the concerns raised by the committee members, other witnesses, and stakeholders over the course of recent hearings. These include concerns about the term “act of war”, concerns about statelessness, and some of the issues raised about due process.

First of all, concerning an act of war, as the committee has heard, the term “act of war” is problematic. This is because there is no clear definition in law of the term “act of war”. As a result, the term “act of war” would be very difficult for us to apply and could render the deemed renunciation provisions in the second part of the bill ineffective.

To address this issue and to ensure that the bill achieves its intent, Minister Kenney proposed that the committee consider amending the bill by replacing the reference to persons who commit an act of war and specifying instead that the act would apply to persons who have served as a member of an armed force of a country or any organized armed group engaged in an armed conflict with Canada; have been convicted of high treason under section 47 of Canada's Criminal Code; have been sentenced to five years or more of imprisonment for a terrorist offence as defined in section 2 of the Criminal Code, or an equivalent foreign offence for terrorism; or have been convicted of specific offences under the National Defence Act involving traitorous or terrorist acts.

These amendments would be in line with one of the main objectives of the bill, which is to deprive or deny citizenship to those who commit acts of violence and treason against Canada.

It is worth noting that similar provisions existed under the 1947 Canadian Citizenship Act.

Under that act, for example, Canadians could have their citizenship taken away if they committed acts of treason, if they served in the armed forces of another country that was at war with Canada, or if they unlawfully traded or communicated with the enemy during a time of war.

Under the current act, as was noted this morning, citizenship can only be revoked in cases where it has been obtained by fraud. Other democratic countries have analogous legal provisions to deprive people of their citizenship for reasons of treason or terrorism. For example, citizens of the United States can be deprived of their citizenship for being a member of an armed force at war with the United States and/or following a conviction for high treason. Australia also has a provision where citizens who become members of the armed force of a country at war with Australia can be deprived of their citizenship.

With regard to statelessness, the committee has heard and expressed concerns that Bill C-425's provisions could render people stateless. The deemed renunciation provisions, as currently written, would apply to dual Canadian citizens as well as legal residents of a country other than Canada. The challenge with this is that the potential result is that a Canadian citizen who is a legal resident of another country but who does not have another citizenship to fall back on could be rendered stateless. This would be in contravention of the 1961 Convention on the Reduction of Statelessness, to which Canada is a party.

To ensure that Canada respects its international commitments in this area, Minister Kenney asked the committee to consider an amendment to ensure that only Canadians with dual citizenship, whether they were born or naturalized in Canada, would be deemed to have renounced their Canadian citizenship. It's important to note that similar provisions to take away citizenship in other countries, such as in the United Kingdom, Australia, and New Zealand, also include restrictions to apply such provisions only in cases where it would not lead to someone becoming stateless.

With regard to due process, concerns were also raised in this area under the proposed bill and ensuring there would be appropriate safeguards in place. Under the current act, citizenship judges, who are independent decision-makers, are the decision-makers for renunciation cases. As the minister explained, for deemed renunciation of citizenship under this bill, the appropriate legal safeguards would be in place. CIC would gather available information to determine if the deemed renunciation provisions apply. The individual would then be notified and given an opportunity to provide additional information relevant to the decision. A citizenship judge would then make the decision as to whether or not individuals are deemed to have renounced their citizenship. In addition, individuals would be able to seek review by the Federal Court of a decision to take away citizenship.

Concerns were raised with regard to the possibility—and it was mentioned this morning—that an equivalent terrorism conviction may be from a country where there are questions about the independence of the judiciary or where membership in an armed force may have been the result of coercion. As the minister explained, to ensure that individuals in these situations are not unfairly penalized, the minister would retain discretion not to pursue applications for deemed renunciation for individuals, for example, where they may have been compelled to do something against their own volition. Such a provision would be in line with discretionary provisions under the Immigration and Refugee Protection Act.

Once again, Mr. Chair, I wish to thank you for inviting us to appear before you today. I hope these remarks have been helpful, and we would be happy to answer your questions.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you for your presentation, Ms. Girard.

Mr. Dykstra has some questions.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you, through you, Chair.

One of the repeated questions that has been asked of witnesses seems to be perhaps what I feel to be a misinterpretation of the words. One is renunciation and the other is revocation. I'm wondering if you could just briefly explain the differences between those two.

[Nicole Girard]

Thank you.

There are some key differences. This bill opens up section 9 of the act, which relates to the renunciation of citizenship. The key differences between renunciation and revocation of citizenship under section 10 of the act are as follows.

Canadian citizens can renounce their Canadian citizenship, whether they were born in Canada, whether they were born abroad to a Canadian parent as a Canadian citizen, or whether they're naturalized citizens. That decision is made by an independent decision-maker who is a citizenship judge.

This contrasts with section 10 of the act, which is the revocation provisions. The revocation provisions only apply in cases where citizenship has been obtained by fraud, and the revocation provisions only apply to naturalized citizens.

The third difference is that in fact it's not the Federal Court that makes a decision on revocation cases. That is a decision made by cabinet. The step of the Federal Court is an interim step, but revocation decisions are made by cabinet.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you very much. It's excellent to identify the differences.

The second is, again, that questions come up with almost all witnesses on the whole issue around charter compliance. In terms of reviewing a government piece of legislation and the legislation in a private member's bill, each individual ministry does indeed look at charter compliance. I'm wondering if you could comment on that.

[Nicole Girard]

That's absolutely correct. I'll make a couple of comments and then I'll ask Mr. Stevens to add comments if he wishes.

We do that review. I think the question has been raised at this committee with regard to whether these provisions would be applying equally to Canadian citizens, and they would. A number of witnesses have taken pains to point out that the bill would address Canadian citizens equally, regardless of whether they were born Canadian citizens in Canada, or to a Canadian parent abroad, or whether they're a naturalized Canadian citizen.

Mr. Stevens, would you like to add some comments about the charter aspect?

[Eric Stevens, Counsel, Legal Services, Department of Citizenship and Immigration]

Okay. There may be a slight misunderstanding here.

While it's true that the private member's bill is not drafted by the Department of Justice and therefore doesn't go through our process, what we're dealing with here is a situation where the issue that is most contentious, I suppose, is provisions about loss of citizenship. The minister has appeared and has suggested replacing the provisions that are in the private member's bill with a series of amendments. Now, all of those amendments have been drafted and approved by the Department of Justice and therefore have gone through the charter compliance test.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you very much.

One of the aspects of the amendments includes a provision for where a minimum sentence would be five years. When we went through Bill C-43 in terms of the issue surrounding the faster removal of foreign criminals, we actually lowered the bar in that regard to make it six months for serious crimes.

I wondered about your thoughts on a position in terms of how the amendments speak specifically to the length of time. If, for example, a judge were to hand out a sentence of five years less a day, would we still, based on the amendments, be able to have that individual say or state that they've actually renounced their citizenship?

[Nicole Girard]

The short answer to that question is no. The amendments to the bill contemplate a threshold of a minimum of five years. Where a minimum of five years or more is imposed, someone could be subject to the provisions of the bill, but not in a situation of five years less a day.