The last round of witnesses took place as CIMM proceeds to clause-by-clause review of Bill C-6 after next week’s recess (May 3).
As before, discussion focussed on revocation, particularly on the lack of procedural safeguards in cases of revocation for misrepresentation, language and knowledge testing requirements, and the need for exemptions with respect to the physical presence.
One of the more interesting aspects was the contrast in tone between discussions on revocation in cases of terror or treason. In contrast to the rhetoric/talking points of the previous government and witnesses supporting them, Shimon Fogal of Centre for Israel and Jewish Affairs (CIJA), which had broadly supported this provision, went out of his way to stress how he understood the government had a mandate and that he was sympathetic to many of the revocation concerns raised by others. If my memory and notes are correct, his intervention in 2014 was less acknowledging and understanding of other perspectives. While this may reflect CIJA taking a bit back to the centre after being perceived as too close to the previous government, it nevertheless provided a good example of how serious differences in opinion can be discussed openly and respectfully.
Details
Shimon Fogel of CIJA started by noting that Canadian citizenship is valued and respected, and is a balanced package of rights and responsibilities, with freedom, dignity and quality for all. Immigrants value being Canadian. Despite the restrictions on Jewish immigration capture is ‘none is too many’, Canadian Jews have made positive contributions to the Canadian story. CIGA supports the restoration of pre-permanent residency time credit towards citizenship, the retention of the physical presence requirement, and the maintenance of basic language and knowledge requirements. CIJA also supports that C-6 does not change the streamlined revocation procedures in cases of fraud or misrepresentation, citing the Oberlander case where the procedures were ‘abused’ to allow Oberlander to remain in Canada.
Other elements required further consideration. CIJA supports the intent to reside provision as an important element to reduce citizens of convenience. But safeguards are needed for those who intended but went abroad to pursue studies or other reasons. Amendments were needed to provide greater safeguards, including checks on Ministerial discretion through requiring going through the courts. CIJA continues to support revocation for terror or treason for dual nationals and wants the provision to be expanded to include war crimes and crimes against humanity. While CIJA respected the government mandate and arguments, it wished to encourage further reflection as terror and treason were not only crimes but an ‘insult to Canada.’
Elke Winter noted the importance of citizenship to nation building. She supports repeal of the national interest revocation provision, noting that this only exported the problem, was unlikely to be an effective deterrent, and that past legislation had resulted in negative stereotyping of Canadian Muslims, citing her recent study examining parliamentary debates, mainstream and social media.
Citizenship was an important step towards integration, an inclusive approach being more conducive to winning the ‘hearts and minds’ of immigrants. The reversion in language and knowledge requirements to 18-54 would encourage more to become citizens. Restoration of pre-permanent residency time was important for students and live-in-caregivers and recognized their Canadian experience. The reduction in residency requirements to 3 out of 5 years would enable Canada to retain the ‘best brains’ and most mobile immigrants. She also recommended implementation of TRC recommendation 94, adding reference to indigenous treaties to the citizenship oath.
Peter Edelmann started off by noting as a dual Swiss Canadian citizen, whose children are also entitled to Swiss citizenship, noted that he and his children as dual faced a possible risk that other Canadians did not. He welcomed the proposed repeal of the national interest revocation provision. He then focussed his remarks of revocation for misrepresentation, largely echoing Audrey Macklin and others who noted that lack of procedural protections given the single decision maker without any right to a hearing or comparable protections. He took issue that the Oberlander case justified this change, saying that the previous process did not by itself require such delays. Permanent residents charged with misrepresentation had a more rigorous process, with the right to a hearing by the Immigration Appeal Division and the possibility to present health and compassionate reasons. There was more procedural fairness around parking tickets than citizenship revocation. Misrepresentation could be serious of trivial. Citizens who citizenship was revoked did not revert to becoming permanent residents but rather foreign nationals who could be deported, and thus in a more precarious status.
Steven Green focussed his intervention on the physical presence requirement. While he welcomed the reduction to 3 years out of 5, physical presence could hurt a lot of people, citing examples of a CBC reporter assigned abroad or a university student at MIT or Harvard. He used the example of MPs, who spend most of their time in Ottawa but nevertheless were residents of their ridings, where their life was centred in terms of bank accounts, social connections etc [Note: stretch analogy in my view]. Exceptions were needed to physical presence and the government should revert to the tests used prior to C-24. The USA provided exceptions for those working for US companies, media or religious organizations abroad. The UK provided exceptions in terms of where the family lived, where the main business was located, and where were social ties. If the government were to keep this provision, exemptions should be provided, recommending working for a Canadian company, studying full-time or being a missionary. Failure to do so would mean we ‘would lose some great people.’
Avvy Go and Vincent Wong of the Metro Toronto Chinese and Southeast Asian Legal Clinic noted the importance of citizenship in terms of what we are as a people and nation. The rights and benefits are important to immigrants and their sense of belonging. Citizenship should not promote exclusion and should be a signal that Canada is a “welcoming place.” She was pleased to see the language and knowledge test requirements revert to 18-54 year olds, the repeal of the intent to reside provision and the restoration of pre-permanent residency time credit.
However, Wong noted a number of “serious” problems remained. He supported Green’s testimony on physical presence, adding that compassionate grounds should be another exemption for those who had to go abroad to look after ailing parents. A test could provide flexibility while addressing citizens of convenience. For revocation for fraud, the previous process with recourse to the Federal Court should be reinstated. The up front language test should be “scrapped” as it was a “double whammy,” both a language and financial barrier to citizenship. Requiring applicants to take the knowledge test in English or French was a barrier given that this required a higher level of language proficiency than the CLB-4 required to become a citizen. Many immigrants and refugees did not have time to take language courses.
Richard Kurland focussed on two points: an apparent loophole with respect to tax filings and the lack of procedural safeguards in cases of revocation for misrepresentation. He was pleased that the government had kept the requirement to file income taxes, as this was meant to ensure that applicants were residents of Canada not just for immigration but also tax purposes. However he saw a ‘gaping’ loophole in C-24’s provision to file taxes and proposed adding the words ‘to meet any applicable requirement’ to close it. He also, like a number of other witnesses, noted the “strategic design flaw” of having less procedural safeguards than for revoking permanent residency. He suggested adding citizenship adjudication to the IRB’s responsibilities or alternatively, downgrade their status to Permanent Residents to have a “modicum” of justice.
Discussion:
Revocation for terror or treason: The government side asked how CIJA could justify revocation for terror or treason in light of some of the arguments that this was perceived as singling out certain groups. Fogal noted that he was not incentive to these concerns, that this was a difficult issue and part of the government’s mandate. His support was philosophical and used the analogy of a marriage when the fundamental commitments have been broken, the solution was divorce. Repudiation of the central Canadian values was not just a criminal matter, it was a crime against Canada itself. Kurland noted that this was a matter for the criminal system not citizenship.
The Conservatives continued to focus on revocation. Fogal again noted his sensitivity to the points raised by Engelmann and Winter and that the government had some “compelling” arguments about not differentiating between different Canadians. But he couldn’t escape the fundamental philosophical problem. An act of terrorism is an “insult to Canada” and their has to be some recognition of that difference and redress.
Engelmann and Fogal entered a short inconclusive debate whether a marriage or parent analogy was more appropriate (one can’t renounce one’s child was Engelmann’s point while unfortunately, divorce was all too frequent). [Note: Fortunately, no one raised divorce procedural issues related to religions (permitted, not permitted, gender discrimination) but I would caution over-use of this analogy).]
Revocation for fraud: Not much new discussion here. Fogal reiterated his support for the streamlined process, stating that there was a legal and moral imperative to maintain revocation in these cases, which was fundamentally different than revocation for other reasons. Engelmann recommended the “relatively straightforward” process of the Immigration Appeal Division with respect to permanent residents, noting that not all misrepresentation was the same, using an example of someone who 25 years ago had submitted a fraudulent engineering diploma but had been living, working and raising a family since them and there may be grounds not to revoke. Green and Go/Wong responded similarly.
Intent to reside: The government side questioned CIJA on its support for the intent to reside provision and how it could be reconciled with the mobility rights under the Charter. Fogal noted that none of the situations lead themselves to simple solutions. We need to balance the degree of confidence that new citizens have to fully participate with considerations regarding citizens of convenience, citing the 2006 Lebanese evacuation and eventual return of some 15,000 Lebanese Canadians. Individuals normally enrich Canada by being in Canada. There was not a black and white solution but it was important to be mindful of citizens of convenience.
The Conservatives questioned Green on his opposition to intent to reside. Green noted later that as a practical matter, intent to reside could not be managed. Was it a one month commitment? 6 months? The intent to reside provision would not have changed the Lebanon situation one little bit. [Note: Intent to reside applied only to the period of time the application was in process but C-24 testimony indicated some concern how it would be implemented.]
Kurland noted the only way to address citizens of convenience was to have a very stiff passport renewal fee ($5-10,000) for non-resident Canadians who do not file Canadian taxes, or adopt the US approach of basing income tax on citizenship, not residency.
Physical presence: Some discussion related to situations where the father worked abroad to support his family in Canada. Go noted access to employment issues in Canada that led to this situation, and the risk to the husband’s permanent residency status if not working for a Canadian company. She also noted that many students studying abroad will return to Canada. Green noted that many successful business people have frequent travel abroad and just can’t meet the residency requirements and have to make the choice between their business or getting citizenship.
Criminal convictions: The NDP asked about the prohibition to become citizens for those with a criminal record abroad. Engelmann noted that the existing mechanism with respect to permanent residents already dealt with these cases. If serious enough, permanent residency can be revoked. Moreover, the provision in the Citizenship Act made no allowance for the context of the foreign conviction and he recommended repeal of this provision given that IRPA addressed this concern adequately. In subsequent questioning, Go noted the problematic nature of foreign convictions, particularly in China and Vietnam where most of her clinic clients come from.
Language/Knowledge: Same general points as before regarding the importance of language to integration, the concerns regarding up-front language testing in terms of cost and difficulty, and the “double testing” of language through the knowledge test. None of today’s witnesses spoke in favour of the current approach. Engelmann noted the higher language level required in the knowledge test and cited his personal experience of only knowing scientific terms in French [Note: during my time at IRCC/CIC, we argued unsuccessfully for Discover Canada to be written in more accessible language, along with the questions. It appears from the increase in average pass rates in 2014-15, that the questions have been made clearer and more accessible].
Go and Wong made similar points from a fairness angle, stressing the difficulty for low-income families, often refugees, noting that this effectively disenfranchised those already marginalized. Go noted an upcoming study on Chinese restaurant workers who worked long hours and did not have time to learn an official language.
Statelessness: Similar discussion as before, although Kurland noted the need to carefully scrutinize applications from stateless persons, given that they were a recruitment target for terrorists.
Multicultural Meanderings 