Citizenship and Immigration Committee on April 21st, 2016

[Jenny Kwan, NDP, Vancouver East, BC]

I want to thank all the witnesses very much for their presentations.

Just to carry through on the question around revocation and on the issue around misrepresentation or fraud, is it my understanding, Mr. Edelmann, that the issue here is to ensure that there is a process for each case to be considered? That is not to say that if someone misrepresented, they should automatically have their citizenship revoked or not revoked, but it is simply to ensure that there is due process and a fair process in place. Am I assuming correctly that is what you are requesting that the committee consider?

[Peter Edelmann]

That's correct.

My position is not that there shouldn't be revocation in these circumstances but that there should be a more rigorous process and that people shouldn't be put in a more precarious situation when they become citizens. In the example that I gave of the engineer with a misrepresentation from 25 years ago, when that person shows up in my office and asks me if they should become a citizen when they know they've misrepresented and there's not much they can do about it, my advice to them is to not become a citizen, because their situation will become more precarious once they become a citizen. Once they're a citizen, if an officer decides they've misrepresented, they will go all the way back to being a foreign national—an inadmissible foreign national—and they can be removed with no process.

[Jenny Kwan, NDP, Vancouver East, BC]

In the same vein, might this argument not also apply to those with a criminal record abroad? As it stands right now Bill C-6 did not make any changes relative to Bill C-24 in that if you have a criminal record abroad for an indictable offence, you are automatically exempt from consideration. You will not become a citizen here in Canada.

We have seen situations like Mr. Fahmy's, whereas in other jurisdictions the judicial system might be different. There might be other factors that should be considered. I wonder what your thoughts are on that issue, and whether or not there should also be a proper process to deal with that as opposed to an automatic decision.

[Peter Edelmann]

I think that's a different stage in the process. At that point, we're talking about the acquisition or the grant of citizenship or the bars to the grant of citizenship. In my view, the problem with that is that there already is a mechanism in the act for dealing with that. A permanent resident who has committed a serious crime or who has been convicted of a serious crime overseas can lose their permanent resident status and is then not eligible to become a citizen.

The problem with building it into the Citizenship Act as an on-off switch is that there's no room for context. There's no room for looking at whether or not this is in fact a serious crime and whether or not the person should be barred from citizenship. It simply says that if you've been convicted of these types of offences overseas, you are not eligible for citizenship. In my view, the appropriate process should be that if it's serious enough, take away the person's permanent resident status. If it's not serious enough for them to lose their permanent resident status, then let them get on with integrating into Canadian society and becoming a citizen.

In my view, there's already enough mechanisms in IRPA to deal with that, and adding it into the Citizenship Act would create problems rather than solving anything.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you.

I guess you're calling for that provision to be amended or revoked from the bill itself.

[Peter Edelmann]

That would be my recommendation.

[Jenny Kwan, NDP, Vancouver East, BC]

Can I just touch on the issue around language?

This committee has heard about the issue of double testing, particularly for immigrants whose language capacity.... They have to do the test on the knowledge of Canada in either French or English. That's deemed to be double testing and I wonder what your thoughts are around that.

[Peter Edelmann]

I think the double-testing issue is the fact that you do a language test to be able to become a citizen, and you need to meet the CLB 4 benchmark. Testing knowledge and testing language are two separate criteria that have been set out by Parliament, and we can debate their scope and whatnot, but if you're going to have a knowledge test it should be separate from the language test. You're testing knowledge.

What's happening right now is that the knowledge test, by virtue of having to be done in English or French, becomes a second language test and arguably is a language test that might be hard for someone who can otherwise pass a CLB 4. They're having problems passing the knowledge test because of the language, not because of the knowledge.

Test the knowledge separately from the language would be my recommendation.

[Jenny Kwan, NDP, Vancouver East, BC]

What was the system before Bill C-24?

[Peter Edelmann]

You could do the knowledge test with the assistance of an interpreter, so you would be testing knowledge separately from language. You test the knowledge of Canada, but you do it through an interpreter.

You might know the history of Canada inside out, but if you can't do it in English then you're not going to pass the test even though you might be very knowledgeable about Canadian history.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you.

I'm just going to touch on the issue around humanitarian and compassionate considerations. You touched on that in your presentation.

Can you tell me about the importance of why that should be considered when someone's application for citizenship is being revoked?

[Peter Edelmann]

In some circumstances what you're dealing with is that there's no statute of limitation on misrepresentation.

The example Mr. Fogel gave of a misrepresentation in 1954 is a very serious misrepresentation. There's no doubt that in those circumstances it may well be appropriate to go after somebody who misrepresented themselves 60 years ago. However, in other cases, if somebody.... Take the example of the engineer that I gave you earlier, if they misrepresented 60 years ago and have since become an engineer and have established themselves here, there may be factors that make taking their citizenship away unfair, even though technically they did misrepresent.

There's a big difference between the scope of the misrepresentations we're talking about and the context of somebody's status—how long they've been here and their establishment here. I would say those factors are relevant here and should be considered.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Mr. Edelmann.

Mr. Chen, you have seven minutes, please.

[Shaun Chen, Liberal, Scarborough North, ON]

Thank you, Mr. Chair.

Mr. Fogel, you cited historical examples to demonstrate your support for citizenship revocation, and as you know, under Bill C-6 citizenship can still be revoked for reasons of fraud or misrepresentation. You seem to be satisfied that these grounds should remain for those that willfully, as you put it, commit fraud. How do you determine willful fraud?

Some critics have argued that under the current legislation a single immigration officer is empowered with making that decision of whether or not to revoke citizenship on these grounds. It seems to me it's quite a subjective decision. What are your thoughts on this?

[Shimon Fogel]

I wouldn't disagree. I think there's a compelling case to be made for putting into place the kinds of protocols that would ensure that while there's sufficient flexibility to distinguish between, with some nuance, different kinds of misrepresentation and context and so forth, that we should also put into place safeguards from the kinds of arbitrary decisions that could be made by single individuals who are evaluating cases.

I think there's room for putting into place the kinds of mechanisms that would ensure that the individual has the protections of law without undermining the core principles that inform the whole Citizenship Act.

[Shaun Chen, Liberal, Scarborough North, ON]

Would you support a full hearing or a right to appeal for those cases where citizenship has been revoked for fraud or misrepresentation?

[Shimon Fogel]

The chairman will be very pleased with this response because it's brief: yes.

[Shaun Chen, Liberal, Scarborough North, ON]

Good.

Currently there are two organizations that have launched a lawsuit. They argue the current process for citizenship revocation under Bill C-24 is not only problematic for the stated grounds that are related to national security, but they argue that charter rights are violated. They believe these elements of the current law are out of line with a free and democratic society.

What is your opinion of their claims?

[Shimon Fogel]

I'm not sufficiently familiar with the arguments they're advancing to offer comment, I'm sorry.

[Shaun Chen, Liberal, Scarborough North, ON]

Okay.

I would throw the question out to the other witnesses.

[Prof. Elke Winter]

I'm not aware of the case, either, so I can't comment.

[Peter Edelmann]

In terms of the positions taken by the other organizations, I'm not sure what the positions are that you're suggesting.

[Shaun Chen, Liberal, Scarborough North, ON]

Okay. Their position is, essentially, that the current process of citizenship revocation, which is what we've been discussing, and specifically the revocation of citizenship based on grounds of national security, are violating the charter rights of individuals.

[Peter Edelmann]

I can say there are several lawsuits that have been—and our office has been involved in at least one case—challenging the current provisions, in that taking away citizenship without a hearing is a problem. It's a problem of procedural fairness. It's a problem with respect to taking away a right as fundamental as citizenship.

The rights of citizenship are integrated into the charter itself, in terms of fundamental rights to vote, mobility, and moving in and out. It's a fundamental status to take away with no hearing.

[Prof. Elke Winter]

Yes, I've heard about the same claims. I'm not a lawyer, so I'll let my legal colleagues speak on that.

What is the alternative to taking away citizenship? What about other countries, should they do that too? Where does it lead? There seems to be a race toward taking that away and the individual having to pay for it. It really means to say to someone, “You have no country”, and in a world of nation-states that is a harsh sentence.