Citizenship and Immigration Committee on April 30th, 2014

[The Chair, Conservative, David Tilson]

This is the Standing Committee on Citizenship and Immigration, meeting number 23.

We are studying Bill C-24, An Act to amend the Citizenship Act and to make consequential amendments to other Acts.

This meeting is televised.

We have three representatives from the Canadian Bar Association: Christopher Veeman, Barbara Jackman, and Kerri Froc. Good afternoon to you, and thank you for coming. We also have Robin Seligman, a lawyer—this is lawyers' day—and we have, from British Columbia by teleconference, Richard Kurland, who is well-known to this committee and also a lawyer. You will all have to be very careful with what you say today.

Ms. Jackman, are you speaking on behalf of the Bar Association?

[Barbara Jackman, Member, National Immigration Law Section, Canadian Bar Association]

Yes, I am.

[The Chair, Conservative, David Tilson]

You have up to eight minutes.

[Kerri Froc, Staff Lawyer, Law Reform and Equality, Canadian Bar Association]

Thank you, Mr. Chair and honourable members.

The Canadian Bar Association is pleased to appear before the committee today to address Bill C-24, the Strengthening Canadian Citizenship Act.

The Canadian Bar Association is a voluntary association of 37,500 lawyers across Canada, whose primary objectives include promotion of the rule of law, improvement of the law, and improvement to the administration of justice. It's in the spirit of this mandate that the members of our immigration law section have made the comments we've submitted to you in writing and we will speak to you about today.

Chris Veeman, an executive member of the CBA's immigration law section, and Barbara Jackman, a member of the section, are here with me today. I will now turn things over to them to address the substance of our comments on the bill.

[Christopher Veeman, Executive Member, National Immigration Law Section, Canadian Bar Association]

We all share the goal of strengthening Canadian citizenship. In the CBA's view, a full public debate on this topic is very important.

We understand that the last time there were significant amendments to the act in 1977, the government published a white paper and cross-country forums were organized to make sure that all citizens of Canada were able to be involved in the discussion. We would encourage the government to consider a similar approach in this case. Many of the proposals in the bill come out of the blue in some respects, and we're reacting without knowing the true rationale.

I'm going to talk about two of the topics that we covered in our submission: the grants of citizenship, and a particular aspect of that, the intention to reside in Canada.

In general, the CBA is of the view that this bill, which is entitled the Strengthening Canadian Citizenship Act, proceeds on the assumption that by making something harder to obtain you increase its worth. The CBA takes the view that citizenship is a bundle of rights that should be assessed on the rights that it gives to the holder. Simply making it harder to obtain doesn't make it better.

Bill C-24 does make it harder for people to become citizens of Canada, but in the CBA's view, it doesn't enhance the rights that accrue to citizens. The CBA takes the position that the bill diminishes Canadian citizenship by focusing solely on administrative efficiency in determining citizenship applications, reducing appeal rights for people involved in citizenship matters, and the topic that my colleague's going to discuss, permitting the possibility of banishment of Canadian citizens.

In terms of grants, Bill C-24 focuses on efficiency in the handling of citizenship applications. Unfortunately, in the CBA's view, this efficiency is achieved at the cost of the Canadian values of discretion and compassion. The only residency that's recognized under the bill is physical presence in Canada. In our submission we point to a number of examples that are published in the CIC's citizenship processing manual CP5, which shows the types of situations that, in the CBA's view, merit consideration for citizenship applicants. As an example, consider a young permanent resident who wins a Rhodes Scholarship and is off to study at Oxford. Bill C-24 might force such a person to forsake either the opportunity offered by the scholarship or their citizenship application.

I want to talk briefly about the “intention to reside” requirement. As you'll see in the submission, the CBA has concerns with this provision. First of all, contrary to the rest of the thrust of the bill, it's the CBA's view that this will complicate the adjudication of citizenship applications. Trying to determine someone's intention at the time of application is next to impossible.

The other problem that this provision creates is discrimination between natural born citizens, who have no obligation to reside in Canada, and naturalized citizens.

I'm realizing I'm already almost out of time, so I'm going to turn it over to Barbara.

[Barbara Jackman]

I'm going to cover the revocation of citizenship. Someone will have to tell me when I'm out of time.

There are three points I want to make. Taking away citizenship from someone born in Canada because they may have dual citizenship and have committed an offence proscribed by the act is new. That's a fundamental change. For people who are born here and who have grown up here, it can result in banishment or exile. It's a step backwards, a huge step backwards—and it's a huge step being taken without any real national debate or discussion about whether Canadians want their citizenship amended in that way.

When we teach our children in our schools that section 3 of the Charter gives a citizen the right to vote in an election and section 6 gives citizens the right to live, to enter, remain, and leave Canada freely, we don't tell them that it's just a matter of statute—that when Parliament's upset about something young Canadians may do, because this is directed at young Canadians who've committed offences in other places, and that because it doesn’t like what young Canadians do, it is going to change citizenship and take it away from people. That's fundamental.

That's a fundamentally different concept of citizenship that needs to be addressed. It needs to be discussed and debated. We think that it could raise serious human rights concerns. It does raise serious human rights concerns. It may well contravene the Charter. The Supreme Court of Canada has already ruled in the past that we can't exile Canadians. By redefining who a Canadian is, you achieve exile. That's not right. It's against the Charter. It appears to be against the Charter, and I expect there will be significant litigation.

Another problem with it is that it's retrospective, and then another problem with it, yet again, is that it only affects those persons who may have citizenship in another country. People will have to prove that they don't have citizenship in another country, even if they don't actually have a passport from that country, so people who can't claim citizenship through a grandparent are safe from being exiled. People who may be able to claim citizenship through a parent or grandparent aren't. They'll be exiled from Canada. It may also breach the Charter in that it discriminates against people based on the nationality laws of another country.

One of the other problems is the grounds for the loss of citizenship.

Am I over the eight minutes?

[The Chair, Conservative, David Tilson]

You've got one minute left.

[Barbara Jackman]

Okay. One minute.

The grounds for the loss of citizenship are very broad. You just have to look at the Canadians that took the Greenpeace boat, who acted for Greenpeace, and climbed on the Russian oil platform. They were charged with piracy and hooliganism, carrying seven- and fifteen-year sentences. They could be stripped of citizenship if they had access to another nationality. That's not sufficiently serious to take away citizenship.

[The Chair, Conservative, David Tilson]

That's it?

[Barbara Jackman]

Well, I thought my time was up. If I have more minutes, I've got one other point.

[The Chair, Conservative, David Tilson]

No. You've got about 30 seconds.

[Barbara Jackman]

Okay, well then, on the minister’s decision; you shouldn't take decision-making away from the courts. There's no independent and impartial decision-maker in this process. To take citizenship away from someone is a fundamental change, and to give it to a minister or a politician to make that decision without any kind of fair process is simply wrong.

[The Chair, Conservative, David Tilson]

Thank you.

I've never seen a lawyer waste 30 seconds.

Ms. Seligman, you are next, and you have up to eight minutes.

[Robin Seligman, Barrister and Solicitor, As an Individual]

If you could give me some warning, that would be great.

[The Chair, Conservative, David Tilson]

I'll do my best.

[Robin Seligman]

Thank you very much.

I very much support the Canadian Bar Association's position. I'll try to elaborate on some of the points that we were not able to because of time constraints.

We're very concerned—and I'm very concerned—about this serious change in direction of citizenship. It makes citizenship more vulnerable and totally insecure.

Once again, please remember this impacts people born in Canada, so people who have never lived in another country but might , through relatives or grandparents, have a claim to citizenship.

Looking around at the names in this room, I can tell you that most people here probably have a claim. It affects people that have Italian parents, British parents, U.K. parents, Chinese parents, and of particular concern is that every Jewish person in Canada has the right to move to Israel and claim Israeli citizenship. In effect—and I've provided materials on the right of the law of return—every Jewish person in Canada can be impacted by this legislation, because they could claim status in Israel.

Of particular concern to me as well is the reverse onus that this legislation puts on a person to prove that they would not become stateless, so I ask that you look at proposed section 10.4 that specifies this.

Also, there are no appeal rights. It only talks about a leave for judicial review, and if I have time I'll talk about what that means.

To be honest with you, if a person gets a parking ticket in the City of Toronto, or probably anywhere in Canada, you would have more judicial rights and appeal rights and the right to a fair hearing than you would under the Citizenship Act as proposed under Bill C-24. As a parking-ticket holder you have a right to a fair hearing. Under the Citizenship Act, as proposed, there is no hearing. It is up to the minister to decide whether there's a hearing or not. This can be very political, and these decisions should definitely be taken out of the hands of a minister.

As well, there's no discretion. There's no humanitarian and compassionate review, or allowing a decision-maker to review the full circumstances of a case. The legislation appears—as Barb said—to be focusing on young Canadians who have committed acts that seem to be heinous. However, if you look at the definition of terrorism under the Criminal Code, it's very broad. It includes funding, giving money, giving a donation. For example, right now we see Mohamed Fahmy, the journalist, who is in Egypt in jail. He would be caught under these provisions. He's been charged with terrorism in Egypt for helping put the Muslim Brotherhood's position by reporting through the news. This would be covered under our legislation. Do we really want this type of thing to happen? Is this what we want citizenship to be valued at? Or not valued at?

I respectfully submit that if you've read the legislation, read the details, you may not fully comprehend how broad the provisions are and how many people they'll capture. And I clearly don't think that most Canadians would understand this, so I fully support proper debate and discussion across Canada about this legislation and its broad ramifications.

As I said, almost everyone in this room, or their children or grandchildren, would probably be affected because they might have a claim to citizenship in another country. So it doesn't only affect those who are citizens of other countries now. If they have a claim based on the laws of another country, then they would be affected by this legislation. Once again, it's very broad in terms of terrorism and the offences that would qualify under this act.

Do I have more time?

[The Chair, Conservative, David Tilson]

You have five minutes.

[Robin Seligman]

The proposed grounds for citizenship revocation can be grounded in the political context. In many countries, allegations of terrorism are used to punish political opponents. They are facilitated by low thresholds for convictions and unfair trials, and harsher sentences can be applied. All you have to do is equate these to Canadian law—under which, as I said, Mr. Fahmy's charges would be equatable to a Canadian charge under our legislation—and you're caught by the legislation. Once again, the minister may have a hearing or may not.

I said I would discuss the appeal rights. Under the legislation as proposed, you would have to get leave to appeal to the Federal Court, which means permission to go to court. I would like to explain the difference between what an appeal is and what leave for judicial review is.

A leave to appeal, which is a very difficult test—and only 15% to 20% of the cases in Federal Court are granted leave—is a very legalistic test based on errors of law and judicial oversight. The Federal Court judge cannot substitute their decision; they cannot receive new evidence; and they can't make any findings on humanitarian grounds, so it's a very legalistic paper process. It has nothing to do with the full appeal based on new evidence or other circumstances surrounding the case. There is no in-person hearing. The lawyer or the person concerned can only make in-writing submissions on leave to appeal.

I think it's very important that this committee understand there is no review, because I've heard government workers say, “Well, it can be reviewed at the Federal Court.” It's leave to appeal, which is very limited in scope and doesn't allow for any substantive review of new evidence and doesn't allow a substituted evaluation, whereas an appeal would allow those. As I said, a parking ticket would give you more rights in court than these provisions do.

Today, for example, in the newspaper, the Toronto Star, Ottawa has declared a charity organization to be a terrorist organization. It's called IRFAN, the International Relief Fund for the Afflicted and Needy. This is an example. Many Canadians have donated to that charity. If you donated to that charity, to take a broad perspective of what terrorism is in Canada, you could be caught under the provisions of section 83 of the Criminal Code for having funded an organization.

The humanitarian wing of this organization provided money to help children and the needy. Again, this is an up-to-date example of the type of activity this minister might categorize as being under these provisions, but we don't know if somebody else in the future may consider this type of activity. Funding and donating money would be covered under the provisions of terrorism under the act. This is an example out of the paper today.

As well, the five-year sentence is specifically for terrorist attacks—all other sentences under the legislation talk about life sentences— inside Canada or overseas. As we can see from the cases of many Canadians who are overseas dealing with these types of situations, usually the penalties would be much greater than five years. So five years is almost a slap on the wrist for this type of activity, and that should be seriously reconsidered.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you, madam.

Mr. Kurland, welcome back to the committee. I'm always pleased to hear your presentations. Whether we like them or don't like them, they're always very good.

You have up to eight minutes, sir, to make a presentation to us.

[Richard Kurland, Lawyer and Policy Analyst, As an Individual]

Thank you, Mr. Chair, and I'm delighted to appear, if remotely, before the honourable committee with apologies that I could not be physically present.

Having said that, I'd like to focus on and highlight the dramatic and pragmatic positive changes to the citizenship act and point out a systemic design failure in a portion of the act that may have unintended consequences.

What is most pleasing is the requirement to file a tax return. This is a game changer. Families can plan in advance economically what it means to receive and maintain Canadian citizenship. The duration of six years, given the lifetime commitment to Canada, is reasonable and overdue.

Requiring four years on six years with a minimum of 183 days in a year for four years on those six years cuts a Gordian knot. For the first time, we have a pragmatic, transparent threshold to access Canadian citizenship. That is long overdue.

There is an issue, a design flaw, that I would like to point out in proposed paragraph 10(3)(a). I'll read the relevant portion: “Before revoking a person's citizenship or renunciation of citizenship, the Minister shall provide the person with a written notice that specifies a) the person's right to make written representations”.

That's insufficient.

How is it that to revoke refugee status, the person is entitled to an oral hearing? How is it that to revoke the status of permanent residence, the person is entitled to an oral hearing? A citizen has no right to an oral hearing when faced with revocation?

That's a design flaw and I would respectfully point out that Ms. Jackman, Ms. Seligman, and others may not be too far off point when they illuminate the strength of the charter to defend individual rights when confronted with this situation.

So that's really the heads-up. It is an easy fix, it is a quick fix, but on the whole, we got it right on this bill. And I'll donate the time to questions subsequently.

[The Chair, Conservative, David Tilson]

Here they come, Mr. Kurland.

Mr. Opitz is first.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Thank you, Mr. Chair, and to our witnesses, thank you all for appearing today. I truly appreciate it.

Richard, I'm so used to seeing you sitting at the end of the table, not on a TV screen. I don't know how I'm going to manage, but we will, I think.

Folks, thank you very much again for your submissions. But Christopher, you gave some examples at the beginning.

Listen, my parents came here at the end of the Second World War, from very trying circumstances, and it wasn't easy for them to get citizenship. Back in the day, you had a two-year contract. You were given a job for two years and you had to do it. And oftentimes, especially Allied veterans were taking over jobs that were previously vacated by former prisoners of war. It was rather galling, quite frankly. But they managed, they stuck it out, and they carried on. And, quite frankly, my parents have valued Canadian citizenship. They're 94-years-old and 87-years-old, respectively, and they've never been prouder to be Canadian citizens, which they've imparted on us all. Yes, I was born in this country, and I'm very proud that I was born in this country, and I've served this country for many years in the military.

So when we have provisions, by the way, that allow those members who are permanent residents serving in the Canadian Forces to fast-track their citizenship, I think that is just the absolute right thing to do for people who are prepared to put their lives on the line for Canada.

So I think putting in provisions that allow people to earn their citizenship and understand the value of being a Canadian makes a lot of sense. To use Richard's words, it's pragmatic, it's dramatic, and people have to understand that value.

We have a Discover Canada guide that tells people. First of all, we talk about people committing offences in Canada. They shouldn't come to this country to commit offences in the first place. It's in the Discover Canada guide. You don't immigrate to be a criminal in somebody else's country. Sometimes people do, and maybe with that intent. But this is something that very clearly we should take to heart. And we built up that Discover Canada guide, our Conservative government, to clearly tell people what is acceptable and not acceptable in this country, how to vote, what our procedures are, what our democracy is like. It's a very clear guide, I think, for people to follow.

When this bill was created, by the way, it was vetted very clearly through the justice department, by our lawyers. But, Richard, I take your point on proposed section 10, and that's obviously now part of the record and I think that's going to get examined by us. But here are a couple of questions to you, so I don't go off on a tangent and eat up all of my time.

Listen, a common misconception of the bill is that the “intent to reside” provision is unconstitutional. And on Monday, we had Minister Alexander before us, and he confirmed that the bill had been checked not only with the legal team at Citizenship and Immigration Canada, as I just said, but, of course, with the justice department. And I know that you particularly support the aspect of defining “residence” in the bill, in the law.

So do you believe that by defining “residency” in the bill, that this not only strengthens the value of Canadian citizenship, but also ensures that residency fraud is reduced, if not eliminated entirely?

Your comments, sir.

[Richard Kurland]

That, in spirit, is precisely the direction to be taken. I have some concerns regarding the process. It has been pointed out that the shortcomings of the absence of an appeal is something to be seriously considered as well. Intent to reside is one heck of a slippery phrase. At what point is it measured? What if circumstances change? Who will be making this decision? Will the person concerned have the right to make representations in written form and orally before the decision-maker?

I would just point out the value of having Ms. Jackman present. That's the lawyer who was unsatisfied with the absence of an oral hearing for refugee determination. And we know what happened after that in the Singh decision. So yes, we're on the right path, we have the right spirit, the intention is good, but the purpose of a standing committee is to fine-tune the letter of the law, to meet those objectives, and that's what we're doing now.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

I've also discussed in public the new decision-maker model going from three steps down to one step. How will this drastically improve processing times, in your view? And the second part of that question is, is it therefore important that this bill gets passed as soon as possible in order to ensure that those in line get those faster processing times?

[Richard Kurland]

I think those in line should abandon their applications and apply under the new system, where they satisfy physical presence requirements. Be first in, first out.

Yes, the tools needed to expedite citizenship processing are now present in the proposed legislation. I can see, operationally, processing times reduced from the present four-year zone to under 18 months.

As well, people forget. Because of the elegant simplicity of the residence calculation, you're entitled to use, as human resources, individuals at, with all due respect, a lower-pay grade to do the math in particular applications, so we can do more files faster, for less money.