At the first set of hearings with witnesses, the majority were supportive of the main changes in C-6 given their concerns regarding Charter rights, due process, and removing barriers for the more vulnerable.
There were a few committee procedural disputes, with the Conservatives challenging the Chair’s discretion in asking questions and asking for use two meetings to discuss issues related to live-in-caregivers, likely both strategies to delay passage of the Bill. The Government side voted down both motions.
The first hour was dedicated to legal and related issues, with Legal Aid Ontario (Andrew Brouwer), Audrey Macklin of UofT Law School, and the Canadian Bar Association Immigration Law Section (Christopher Veeman) testifying. Their presentations and answers to questions reinforced each other. All supported removal of revocation for dual citizens convicted of terror or treason. I will post written briefs as received (they will likely be posted on the CIMM site).
Legal Aid Ontario emphasized their broader mandate to ensure equal access to charter rights, noting the rights of the mentally ill and children in particular. It shares Macklin’s point on the need to ensure that revocation for fraud and misrepresentation has comparable procedural safeguards to other areas, including recourse to the Federal Court. Refugees should get pre-decision time 50 percent credit for permanent residency time to qualify for citizenship. Brouwer made a number of recommendations to improve protections for stateless persons, both those who are legally as well as de facto, and that statelessness should be considered a factor in granting citizenship.
Macklin focused on revocation for fraud and misrepresentation, explaining the protections that existed prior to C-24, with the general principle that the more secure one’s status, and the more important the consequences of losing it, meant the greater the protections needed. The changes made by the previous government meant that those accused of fraud or misrepresentation would have less protection than permanent residents similarly accused, or even those facing a speeding ticket. Procedural protections were needed. First level decision-making should be delegated, with provision for appeal to an independent quasi-judicial body such as the Immigration Appeal Division. There should be various remedial options for the Federal Court to appeal or review.
The CBA noted that it welcomed some of the changes in C-24 that provided greater clarity on residency, streamlined decision-making and the increased resources to address the processing backlog. It agreed with Macklin, calling C-24’s misrepresentation revocation provisions ‘Kafkaesque.’ The CBA also questioned IRCC’s authority to suspend processing of incomplete applications essentially indefinitely. Loss of citizenship should mean reversion to permanent resident status. Some discretion should be provided with respect to physical presence for those whose work takes them overseas but who are based in Canada, citing pilots as an example.
Questions:
Government side:
Q: Would the risk of giving citizenship judges greater flexibility not mean less consistent decisions?
A (CBA): Possible, but that type of discretionary decision-making exists and this provides flexibility to address those with strong cases.
Q: To address statelessness, what provisions would be recommended, and would these be best dealt with in C-6 or separate stand alone legislation?
A: LAO): Within C-6, including a definition would be particularly helpful. Larger issues include ratification of the 1954 statelessness convention, an improved process to determine status similar to other countries like the UK, and amendments to humanitarian and compassionate (H&C) guidelines and the grounds for invoking statelessness.
Q: Why is revocation like banishment and how would the previous revocation provisions of C-24 been incompatible with the Charter?
A (Macklin): Explained mainly with respect to s 7 of the Charter as being cruel and unusual punishment. The normal Ministerial powers do not include punishment, with revocation being a double punishment in addition to jail time. Earlier SCC jurisprudence on the right of prisoners to vote provided a precedent for this reasoning.
Q: For those whose families are in Canada but who work abroad (example from Gulf), physical presence means they may never meet these and not become Canadian. What suggestions do you have to address these kinds of situations?
A (CBA): During C-24 hearings, our submission recommended IRCC discretion the tests in the previous IRCC policy manual 5, pages 6-7 for a nuanced assessment of connection to Canada. This should be delegated to officials.
Physical presence is black and white, easier to apply, and thus improves processing speed. Trade-off between speed and allowing exceptions. Macklin noted that one can have both clear rules with allowable exceptions.
Q: What is the logic of the CBA in not wanting to require tax returns?
A (CBA): There are already provisions in the Income Tax Act so no need. Risk of misrepresentation revocation in case someone did not file.
Opposition questions:
Q (C): With respect to revocation, people want to feel safe. Three jurisdictions have introduced or passed similar legislation: UK, France (still in Senate) and Australia. Any reaction to the fact that other countries had adopted a similar approach to C-24? Tilson went on at some length to make his points.
A (CBA): From a practical point of view, not sure how revocation makes us safer. Better to keep them in a jail; expelling them means they may come back later. (MP Tilson noted that revocation and expulsion would happen after jail time).
A (Macklin): France had abandoned its proposed bill. Australia had no entrenched bill of rights. There was ongoing litigation in the UK over revocation practices. More interesting, many countries had not implemented such measures, including the USA. As to question whether revocation made us safer, her understanding was that terrorism was a global problem, one that we should not export elsewhere. She cited the absurd example of a dual Canadian-British citizen, convicted of terrorism, and a ‘race’ to see which country would revoke first.
Q (NDP): What are the implications of the provisions on foreign criminality as a bar to citizenship? On language testing, is not the requirement to do the knowledge test in an official language a form of double testing?
A (LAO): There are justifiable concerns that someone who comes from a repressive regime, that the regime could lay a charge to prevent that person from becoming a Canadian citizen.
A (CBA): CBA advocates a return to the previous system where the knowledge test could take place before a judge with an interpreter.
Q (NDP): Does the steep increase in citizenship fees result in hardship, and would you recommend the government entertain measure to reduce this hardship.
A (LAO and Macklin): Obvious barriers particularly on refugees. Refugees need citizenship and government should be mindful not to erect barriers.
Q (NDP): What should be the considerations for invoking H&C? At what stages?
A (Macklin): Crucial throughout given no law or regulation can cover all situations. Factors need to be specified.
Q (C) : Under what conditions should citizenship be revoked? Fraud, lying?
A (CBA/Macklin): Yes, for misrepresentation. There could be consideration for long-term residents. Macklin added that the misrepresentation should be material, that citizenship would not have been granted if known. A statute of limitations could be introduced. MP Saroya questioned having a statute of limitations, asking what about war crimes? Macklin noted there was no statute of limitations for war crimes or crimes against humanity. She added, in response to a further question, that citizenship is a limited tool to address safety and security, the criminal justice system and enforcement were more effective.
Second Hour
This was a broader discussion, featuring former Ambassador James Bissett, Debbie Douglas of OCASI, and Ihsaan Gardee of NCCM.
Bissett indicated his opposition to C-6, reiterated his well-known belief that five-year residency was needed. He talked about citizens of convenience, citing the Lebanese evacuation of 2006 and eventual return to Lebanon. His prime argument is that there are two classes of citizenship: natural born (by accident) and choice (naturalization). He then added to that dual citizens (which either can be). Canada was not the only country to revoke citizenship, citing the UK. He mentioned the CSIS analysis of some 130 radicalized Canadian fighters abroad.
Douglas supported C-6 but argued for greater flexibility in the physical presence requirement with citizenship judge discretion. She noted the difficulty older applicants may have in passing the test; while she believed in its importance, it should not be a condition. Moreover, older applicants should be allowed interpreters in the knowledge test. Up-front language testing was an issue, particularly the cost, and should be eliminated for those who have met all other criteria. There should be greater clarity on the disability exemptions beyond vision and hearing.
Gardee focussed his intervention of the revocation for terror or treason, welcoming the proposed repeal of this provision in C-24. He noted that this had created considerable unease among Canadian Muslims as it created two classes of citizens. Repeal was urgent and he reminded MPs of the Maher Arar case. He mentioned C-51 as another measure that disproportionately singled out Canadian Muslims and should be repealed.
Questions
Government-side:
Q: Asked whether Bissett wanted to comment with the previous witnesses raising the issue of Charter consistency of C-24’s revocation provision.
A (Bissett): While aware of his concerns, as far as he knew it did comply with the Charter as the Dept of Justice would have reviewed the Bill and not let it go forward if not compatible (Note: bit naive given previous government’s record before the courts). C-24 had not been challenged and there was one case of revocation. The CBA speaks for lawyers but “many other lawyers perhaps disagree or have some doubt.”
Q: Asked about the number of different categories of citizen and whether further categories were not possible, and should the criminal system have different rules for different categories.
A (Bissett): System inherently set up for three classes of citizen: natural-born (accident), naturalized (choice), dual nationals. If one chooses and takes the oath, revocation appropriate for terror or treason. More symbolic than anything else but worthy of penalty.
Q: Cited earlier Bissett article arguing that all Muslim immigrants should be interviewed and that Charter undermines Canadian security.
A (Bissett): Replied that he believes all immigrants should be interviewed and that electronic review of applications not adequate to detect fraud. Went on to say that interviews should apply to countries where terrorists come from, which are mainly Muslim, and that no one hires an employee with an interview. He noted the extent of fraudulent documents in Bangladesh and that the current system of no interviews was both ‘dangerous and silly’.
Opposition:
Q (C) : Importance of language to new Canadians, integration, inclusion, overcome barriers? What about proposed Quebec legislation and emphasis on learning French to overcome inclusion issues? What about their proposed transitory certificate to be evaluated after three years before being fully granted immigration status? What about the requirement to sign a statement of adherence to Quebec values?
A (Douglas): Language is important to function and many can and do. Has not read the Quebec proposals but is doubtful about the idea of a requirement to sign a statement on Quebec values.
Q (C) : There has been no quantitative research by IRCC on the impact of no longer requiring language assessment for 14-17 and 55-64 year olds yet there is large percentage affected. What are the implications and issues around language training”
A (Douglas): We have a robust system but resources are always an issue. The C-24 changes were not evidence-based and were ‘arbitrary.’ (Note: What goes around comes around …) C-6 goes back to a proven system. For refugees and particularly women refugees, it is often hard to pass the knowledge test. For many, coming from situations of violence and war, spending a generation in a refugee camp, some may not be able to pass the language assessment.
Q (NDP): Noted that her mother, who only had a grade 6 education, would have failed language and knowledge requirements. She asked about the barriers posed by these requirements, and the associated costs.
A (Douglas): The 14-17 years olds have spent time in Canadian schools and never understood why language assessment was required. For older women, they ‘pick up what it means to be Canadian’ and an interview with a judge can determine that. Refugee women should have interpretation where required. There are also disability issues like those who are hard of hearing where waivers may be appropriate.
Q (NDP): Any suggestions to reduce these financial barriers and improve language training?
A (Douglas): Eliminate up-front language fees. Ensure language training available on weekends and evenings. Invest in childcare and transportation to language classes.
Q (C) : Asked about the problems faced by caregivers.
A (Douglas): Settlement agencies deal with many caregivers, with the main issues being long waiting periods for permanent residency status and associated residency issues.
Surprisingly, the Conservatives spent some time on the younger cohort affected (14-17 year olds) despite the fact that they would have all (or virtually all) been in school for 3-5 years and thus be competent in English or French (I always suspected this was a ‘backdoor’ way to ensure civics education).
Multicultural Meanderings 