Mr. Speaker, it is a pleasure to speak on Bill C-84. Although the bill is very simple and straightforward, it concerns the Citizenship Act and the Immigration Act.
The bill would allow a retired judge to review cases where SIRC is deemed incapable of fulfilling its responsibilities. While the bill is very straightforward its history is not. Before landed immigrants obtain Canadian citizenship their backgrounds are reviewed. Some individuals applying for a Canadian citizenship have involved themselves in activities that can be deemed to be a threat to the security of Canada. Therefore, there is a process in place to prevent these individuals from becoming Canadian citizens, as there should be.
Sections 19 and 20 of the Citizenship Act define the procedure that is to be followed. These procedures are: If the Minister of Citizenship and Immigration is of the opinion that there are reasonable grounds to believe that the applicant for Canadian citizenship will engage in activities that will constitute a threat to the security of Canada, the minister may make a report to this effect to the Security Intelligence Review Committee or SIRC as it is more commonly known. Within 10 days of making this report to SIRC, the minister shall notify the applicant of the report. SIRC is then required to conduct an investigation. The applicant is sent a statement of circumstances that sets out the grounds that give rise to the minister's report.
Following its investigation, SIRC then reports the results to the governor in council. The governor in council may then make a declaration that there are reasonable grounds to believe that the applicant will engage in activity that constitutes a threat to the security of Canada.
Such a declaration precludes the applicant from being granted Canadian citizenship but only for a two-year period. The applicant can then make another application. What constitutes a threat to the
security of Canada and how SIRC conducts its investigation is all laid out in the Canadian Security Intelligence Services Act.
Section 48(2) of the CSIS act states that during the course of the SIRC investigation, the applicant, the Minister of Citizenship and Immigration and CSIS may all present evidence and make representation either personally or by counsel.
I would like to refer to the Zündel case. This case which has inspired C-34 concerns the application of Ernst Zündel. Mr. Zündel has obtained enough notoriety that I do not believe that it is essential to repeat his claims to infamy.
Suffice it to say that Mr. Zündel immigrated to Canada on September 2, 1958. On October 24, 1993 he applied for Canadian citizenship. On August 5, 1995 he was notified by the Minister of Citizenship and Immigration at that time that the minister had made a report to SIRC pursuant to subsection 19(2) of the Citizenship Act. The letter informed Mr. Zündel that there were reasonable grounds to believe that he would engage in activity that constitutes a threat to the security of Canada. The letter also stated that the minister made his determination based on information and advice provided by CSIS.
On August 31, 1995 the executive director of SIRC, Maurice Archdeacon wrote to Mr. Zündel advising him that SIRC had received the minister's report concerning his application for citizenship. The letter also advised that SIRC would send Mr. Zündel a summary of information available to SIRC to permit him to be as fully informed as possible of the circumstances giving rise to the minister's report.
On October 30, 1995 SIRC sent a letter to Mr. Zündel advising him that a review committee was conducting an investigation and included a statement of circumstances that gave rise to the minister's report. The letter advised that the activities which CSIS believed he would engage in were those described in paragraph 2(c) of the CSIS act which defines threat to the security of Canada to mean "activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political objective within Canada or a foreign state".
On November 22, 1995 counsel for SIRC and others met with Mr. Zündel and his lawyer to explain the investigative process and answer any questions.
In a letter dated December 11, 1995 Mr. Archdeacon wrote to Mr. Zundel's counsel to advise him that SIRC was prepared to proceed with the hearing part of the investigation. A number of adjournments postponed the hearing phase of SIRC's investigation, but then in a letter of February 26, 1996 Mr. Zundel's counsel requested another adjournment so he could file an application for judicial review on the grounds of a reasonable apprehension of bias on the part of SIRC.
The basis of Mr. Zundel's allegation of bias was a report written by SIRC entitled "The Heritage Front Affair". In a letter dated February 28 Mr. Archdeacon refused the request. On March 21 a motion was brought before the Federal Court of Canada seeking a stay of proceedings concerning the SIRC hearing that was scheduled for March 25 and an order for an expedited hearing ofMr. Zundel's application for judicial review.
Madam Justice McGillis refused to grant the stay of proceedings but she granted the motion for an expedited hearing. On June 10 and 11 the application for judicial review was heard before Justice Heald of the federal court in Ottawa.
After dealing with a number of procedural motions the court got down to the narrow issue of the case to decide if SIRC should be prohibited from carrying out the proceedings mandated by section 19 of the Citizenship Act. First the court had to determine what test for bias was applicable to the case while acknowledging that all administrative boards owe a duty of fairness to those whose interests they must determine. The courts have recognized that the duty of fairness varies depending on the nature and function of the particular board.
For example, a board that performs policy formation should not be susceptible to a charge of bias just because it expresses opinions prior to its hearings. On the other hand, administrative boards that are primarily adjudicative in their functions are expected to comply with the standard applicable to the courts. In arguments before the courts counsel for the Minister of Citizenship and Immigration argued that SIRC's role is closer to a policy formation board, while Mr. Zundel's counsel argued that it was primarily adjudicative and therefore attracted the higher standard of impartiality mandated by the informed bystander test.
In determining where on this broad spectrum SIRC's function fell, the judge reviewed SIRC's mandate under section 19 of the Citizenship Act, which in the words of SIRC's executive director was to conduct an investigation to determine whether there were reasonable grounds to believe that Zundel would engage in activities that constituted a threat to the security of Canada.
The judge noted that while the applicant, the minister and CSIS could make representation, SIRC's investigation would be conducted in private. Once SIRC completed its investigation it would make a report to the governor in council. It is the governor in council that upon SIRC's report decides whether or not to declare there are reasonable grounds to believe that Mr, Zundel would engage in activity considered a threat to the security of Canada.
The court pointed out that while it is not disputed it was the role of the governor in council and not SIRC to make the final decision,
SIRC's role could not be understated. It is SIRC that conducts the hearing at which it assesses the witnesses and weighs their evidence. It is SIRC that receives the submissions of the interested parties. It is SIRC that takes all the available information and issues the report.
Since Mr. Zundel could not make representation before the governor in council, the only opportunity for him to challenge the allegations against him was in front of SIRC. The court determined that while SIRC was not the ultimate decision maker as to whether there were reasonable grounds to believe that Mr. Zundel would engage in activity that constituted a threat to the security of Canada, SIRC played a vital and paramount role in that determination.
In the judge's view the function of SIRC at least in relation to section 19 of the Citizenship Act came closer to the adjudicative end of the function. Thus it attracted the standard of impartiality that was required by the informed bystander test. Once the federal court came to this conclusion it was then faced with the process of applying the informed bystander test for bias to the Zundel case.
Mr. Zundel claimed that the view of SIRC in the Heritage Front report gave rise to reasonable apprehension of bias against him. While the court ruled that the accuracy of the content of the Heritage Front report was irrelevant to the issues, it was important to note that SIRC offered the report and made the statements contained therein. In other words the court did not have to decide whether SIRC's findings in the Heritage Front report were valid. What was important to this case was the fact that SIRC made those findings.
Having been involved for over 19 months in the study of the Heritage Front report, it was very evident to me that SIRC had made statements about Mr. Zundel which were very biased in their nature. The court quickly found that the statements of SIRC in the Heritage Front report were extremely similar to those used by the Minister of Citizenship and Immigration in another incident. It is not terribly surprising because CSIS is a source of information both for the Department of Citizenship and Immigration and SIRC. It was evident that the conclusions in the evidence given by SIRC from the information received from CSIS led to the bias in the report that was reported.
The Reform Party believes some individuals have landed immigrant status in Canada who should be denied Canadian citizenship. Bill C-84 is an attempt by the government to undo the difficulties created by the Security Intelligence Review Committee overstating in the report and being too political in its discussions and deliberations. It has placed the government in the position where it has to protect Canadians and Canadian citizenship by tightening the rules and regulations to allow a retired judge to take the job that SIRC should have been able to do on its own.