C-71 Senate committee hearings: My take

2024/12/09 Leave a comment

While I have followed the debates and discussions regarding “lost” Canadians over the years, this was my first time testifying on the issue in the context of C-71 along with many familiar faces. My one ongoing observation is despite all the language around up to one million “lost” Canadians, the reality is that most “lost” Canadians appear not want to be found, with only about 20,000 citizenship proofs issued (2 percent) since the first fix for those who lost their citizenship. 

The other general comment pertains to the government’s policy choice of not having the same time limit to meet the residency requirement as for Permanent Residents. The statement by officials that this is intended to make it easier and more flexible for applicants suggests that officials, and likely the minister, have not learned many lessons from the overly facilitative approach for Permanent Residents, international students and temporary workers, all of which the government has since rolled back.

We shall see the SOCI report in a few weeks and will see what points they took on and which ones they don’t.

The following is my take on the major points raised during Senate’s SOCI pre-study hearings on the Bill. 

Connection test: 1,095 days cumulative with no time limit (C-71) vs within 5 years: My earlier article and formal submission advocating for the residency requirement to be limited to the same 5 year period as per citizenship applicants provoked discussion at the Senate’s SOCI, with a number of senators questioning the rationale for the government’s decision. 

Minister Miller argued that it was unlikely that the residency requirement would be “spread over forty years” and that a longer time period still means a “fairly important connection,” citing Lebanese Canadians as an example, the “Canadians of convenience” example that was the genesis of the first generation cutoff.  (Miller’s riding is about three percent Lebanese ethnic origin). The Minister also indicated concerns that the five-year limit would create another series of “lost Canadians.” 

Officials further noted that the aim of C-71 was to be facilitative, citing examples of persons coming to Canada annually for summer vacations or family visits. Notably, neither the Minister nor officials addressed the operational complexities of a residency requirement with no time limit. Most witnesses and senators support a connection test.

The appropriateness of a residency-base connection test was accepted by most witnesses.

There was some discussion about whether the lack of a time limit increased the risk of “citizens of convenience,” with the Minister not believing it would (I had previously indicating more likely without a five-year limit).

The possibility of using the electoral list as a basis for a connection test was raised. Given that only about 57,000 persons living outside Canada were issued ballots, only a small fraction of those living abroad, hard to see how this would be a valid alternative.

Numbers affected and operational impact: The Minister and officials provided existing operational data but, beyond generalities, did not share any more detailed internal analysis. There are about 700 applications under the interim measures for those affected by the first generation limit. The Minister does not anticipate that “wild scenarios of hundreds and thousands” will materialize. Officials did not appear to have undertaken any analysis similar to that in my submission that provides estimated orders of magnitude. The other element of note is that the understandable focus was on the immediate cases, those born abroad and unable to transmit their citizenship. There was little to no discussion of the future operational impact and numbers when those second generation children born-abroad had children of their own also born abroad (as is the case of my grandson, who would have to meet the residency test). 

Awareness and clarity: Predictable and legitimate calls for efforts to make those affected aware of the change, with officials indicating their efforts to make persons aware of the interim measures with work underway to prepare once Bill C-71 comes into force. The issue of readability of the current Act and the need for a new Act in lay language was raised, with the Minister noting his agreement in principle but not a priority in the final months of the government’s mandate.

Indian status and citizenship: That some Indigenous persons have Indian status but not citizenship and vice versa was raised, with the Minister noting “ridiculous situations” and that citizenship should be automatic but there were examples of First Nations that were not Canadian.

Adoptions: The CBA raised the issue of the difference between naturally born children, whose citizenship starts on the day of birth, in contrast to adopted children, who only obtain citizenship when the adoption is approved, recommending that the US and British approach of the effective date of adoption being the date of birth of the child. Hard for me to see any practical impact of current policy or substantive inequalities but understand importance to adoptee parents. 

Similarly, I find it difficult to understand the arguments that internationally adopted children, citizens by grant under S 5.1 are being discriminated against compared to naturally born children. (If I recall correctly, the direct route under S 5.1 was a response to parents who wanted their adopted child to be treated identically to a natural-born child, and not under the Permanent Resident pathway as an immigrant. In my view, hard to have it both ways and there does not appear to be any substantive differential treatment in C-71). 

The Minister himself, noting the test applies to the parents, not the child, did not see an inequality. Officials in a clear presentation clarified that natural and adopted are treated as similarly as possible and that not requiring the connection test for international adoptions could mean that citizenship could be passed on through generations without residency in Canada.

Transcript below (preliminary): “If Bill C-71 is amended to eliminate the substantial connections test in the international context and begins to treat adopted persons as if they were naturalized citizens and not citizens by descent, as is in the case for children born abroad to Canadians, this will result in differential outcome for the two groups. Children adopted abroad by Canadians would benefit preferential treatment compared to children born abroad to Canadians, who would then be subject to different and more onerous requirements in order to pass on citizenship by descent. 

If Bill C-71 were to eliminate the substantial connection requirement, again in an international adoptions context, it could mean that a child born abroad and adopted to a Canadian parent could then also adopt a child abroad and pass on citizenship despite never living in Canada. This would mean citizenship by descent could be passed down through generations of people who have never lived in Canada.”

When I worked on these issues some 14 years ago, I always found a graphic was helpful on how C-71 would work with my effort below: 

Filed under C-71, Citizenship Tagged with

Canada’s controversial ban on adoptions from several Muslim countries sparks court challenge

2024/01/23 Leave a comment

Another case to watch (hard to understand rationale for difference with USA, UK and Australia which allow the practice, when government does not appear to have articulated the reasons):

A major challenge of Canada’s ban on adoptions from several Muslim countries is set to play out in the Federal Court — a move some legal observers say wouldn’t be necessary if the government wasn’t upholding what they call a “discriminatory” policy.

The case, which could be heard as early as April, comes more than five years after the federal government promised to review the ban introduced when the Conservatives last held office. Since then, the Liberal government has refused to say whether that review took place or what it involved, despite repeated inquiries from CBC News.

In 2013, Canada suddenly put a stop to adoptions from Pakistan, arguing Shariah law doesn’t allow for birth ties between a parent and child to be severed and that the Islamic principle of guardianship (kafala) could no longer be recognized as the basis for adoption. The United States, United Kingdom and Australia all continue to allow adoptions from Pakistan, despite Canada’s claim that doing so would violate its commitment to the Hague Convention.

While on paper the ban applied only to Pakistan, an investigation by CBC’s The Fifth Estate found that in practice, immigration officials quietly extended it to other Muslim-majority countries, including Iran, Sudan, Iraq, Qatar, Afghanistan and Algeria.

An access-to-information request on the ban turned up dozens of redacted pages, including a June 25, 2013, memo marked “secret,” titled “Canadian programming to counter the terrorist threat from Pakistan” — raising questions about what national security might have to do with the adoption of children.

One legal observer said that not only is the ban discriminatory, but it unfairly puts the burden on individual families to argue the validity of their religious traditions.

“Frankly, I’m shocked that the government has not revisited this legislatively,” said Faisal Bhabha, an associate professor at York University’s Osgoode Hall Law School in Toronto. “A case like this should really not fall on the shoulders of a family.

“The last thing they need is for their government to be telling them what their religion prescribes or doesn’t prescribe…. I don’t see how this case could not be successful.”

Pakistani court gives permission for adoption

At the centre of the court challenge is a Toronto woman who became the caregiver to her sister’s three children while living in Pakistan after her sister’s death. Since 2012, Jameela Qadeer has cared for her sister’s son and two daughters as if they were her own, with their father unable to do so.

“When their biological mother died, I knew that I would do anything I could to make sure that they never felt motherless,” she told CBC News, recalling how they’d sleep in one bed together so they wouldn’t feel alone.

A major challenge of Canada’s ban on adoptions from many Muslim countries is set to play out at the Federal Court. Jameela Qadeer took in her sister’s three children after her death more than a decade ago. A Pakistan court recognized her as their adoptive mother but after an abrupt 2013 change, Canada says the Islamic legal principle of guardianship Pakistan and other countries use doesn’t meet the bar of a parent-child relationship.

Now separated from the children, she said, “I think about that now and as I’m going to sleep.”

As an Ahmadi Muslim facing persecution in Pakistan, Qadeer moved to Canada more than six years ago with her biological daughter, first with protected status and now as a permanent resident. But she soon learned Canada wouldn’t recognize her sister’s children as her own.

Pakistan has no official adoption law. Instead, like many other Muslim countries, it relies on the principle of guardianship, which preserves lineage to protect inheritance rights, for example.

To facilitate adoptions abroad, Pakistan’s courts routinely grant permission for those with guardianship orders to complete adoptions in other countries. That was the case with Canada until the 2013 ban.

Qadeer, whose husband has been working in South Africa, formalized her guardianship of the children in Pakistan in 2017. In 2019, after Canada’s refusal to recognize the children as her own, she turned to a Pakistani court, which declared her their adoptive mother.

Canada still refused the children’s application to join her, with an immigration officer saying that “the guardianship arrangements confirmed by the courts in Pakistan do not create a legal parent-child relationship.”

When Qadeer first applied in 2017 to bring the children to Canada, all three were minors. Today, they’re 19, 23 and 25 years old. Asked if their ages could hurt the case, their lawyer said what matters is the date the application was filed.

Qadeer said Canada’s refusal to recognize the children as her own means they could be ripped away from a mother for a second time.

“I would feel like I’ve gotten heaven on Earth” if the children were here, she said.

‘I believe the law is discriminatory’: lawyer

Qadeer’s Toronto-based lawyer, Warda Shazadi Meighen, said she believes the constitutional challenge is the first of its kind.

“I believe the law is discriminatory,” she said in an interview.

The crux of the case, Shazadi Meighen said, is that if the children had been adopted through a legal system not based in Islamic law, Canada would recognize their adoptions — meaning their very identities prevent them from being together as a family.

The children “are unable to reunite with their adoptive mother in Canada and unable to access permanent residence, unlike adopted family members of protected persons in Canada who do not follow Islamic law and/or are not of Pakistani origin and based in Pakistan,” Qadeer’s court filing says.

The filing says Canada’s refusal to recognize Qadeer’s relationship with the children violates the Charter of Rights and Freedoms, specifically Section 15 (equality rights), Section 2(a) (freedom of religion) and Section 7 (right to security of the person).

“The bottom line is there is no other parent for these children,” Shazadi Meighen said.

In 2018, Pakistan’s High Commission in Ottawa said the claim that Pakistan’s legal system did not allow for adoptions was false. “We believe that the ban from the Canadian government is unjustified,” spokesperson Nadeem Kiani said then.

At the time, then-immigration minister Ahmed Hussen’s press secretary told The Fifth Estate: “We have asked the department to initiate a review of this policy and begin consultations with Pakistan as well as provincial and territorial governments to determine a path forward to regularize adoptions from Pakistan.”

Government not commenting on case

Asked by CBC News if that review ever happened, Immigration, Refugees and Citizenship Canada would not say. The department also said it could not comment on active litigation cases.

“We understand and sympathize with prospective parents who have experienced hardships while trying to bring children under guardianship placement from Pakistan to Canada,” spokesperson Mary Rose Sabater said in an emailed statement.

Source: Canada’s controversial ban on adoptions from several Muslim countries sparks court challenge

Filed under Immigration Tagged with , ,

How Canada barred adoptions from Muslim countries — and used Shariah law to do it

2018/10/30 Leave a comment

Not as simple as presented in the article. Shariah is the basis for family law in Pakistan and government policy is to obey local laws in adoptions, although it appears to be the case that the exceptions granted by Pakistani courts were not fully factored in.

And I don’t buy the assertion by some of those quoted in the article that national security concerns (regarding babies or toddlers) were a significant consideration:

At the Pakistani orphanage where he was abandoned at birth, little Imran packed his things and said goodbye to the children who weren’t so lucky.

At four years old, Imran believed he would finally have a family.

“Say goodbye to me,” he said. “My mom is coming to take me to Canada.”

That was two years ago. He never made it — all because of a controversial policy that’s kept hopeful Canadians separated from children they had created a space for in their hearts and their homes.

But after a year-long investigation by The Fifth Estate, that may change. The federal government says it will review a decision going back to 2013 when Canada banned adoptions from Pakistan without warning.

At the time, dozens of families’ lives were put on hold — many who had already been matched with a child.

Sarah was one of those hopeful parents, ready to bring Imran home from the orphanage in northern Pakistan. But a world away in Toronto, she finds herself a mother without a son.

The Fifth Estate has agreed to conceal Imran and Sarah’s identities because she feared going public might make it impossible for them to be together.

Mother and child in the eyes of Pakistan, Sarah is too afraid to send Imran photos of herself, worried she’ll become just another person to let him down.

“What if it never happens? I’m going to be the second mother that abandons him?”

She’s not alone.

The Fifth Estate has found Canada quietly extended the same restriction to virtually all Muslim countries. The reason: According to the federal government, adoptions aren’t permissible under Shariah law— even if parents had court orders from Islamic countries explicitly authorizing them.

Documents obtained through access to information legislation reveal the extent to which Canadian officials were delving into the particulars of Shariah law and in the process, bringing adoptions from Muslim countries to a near-halt.

And while the current government may have inherited the policy from its predecessor, families whose lives were brought to a standstill as a result of the Conservative-era decision are calling on the Liberal administration to explain why it has upheld a ban based on a murky set of religious principles they say the Canadian government has no business wading into.

A chance for a new life

It was 2012 when Imran was left a newborn at the Ceena Health and Welfare Services centre in northern Pakistan. The non-profit organization provides health and education support as well as care for abandoned babies in the remote valleys of Gilgit-Baltistan — a place where pregnancy outside marriage is highly taboo and can come with extreme danger to mother and child.

In this region, it isn’t unheard of for babies deemed illegitimate to be buried alive or left in dumpsters.

Some years earlier, Sarah made up her mind that she wanted to adopt and began working to get the necessary approvals.

In Canada, provinces and territories decide whether to allow an adoption after an in-depth application and interview process called a home study and extensive background checks. When the Ontario government sent Sarah a letter approving her to go ahead with the adoption process from Pakistan, her future looked bright.

All that was left was to be matched with a child who needed a home.

Adopting from Pakistan isn’t straightforward. Like Canada, the country’s laws are based on the British system. But they also draw from Islamic tradition, which generally holds that a child’s biological ties must never be severed.

In Pakistan, one of few options for children in need is a guardianship, which can be compared to fostering. A guardianship is the legal form of what’s known in many Muslim countries as kafala: a child receives the care that comes with being part of a family but the guardians don’t replace biological parents.

Pakistan has no official adoption law. But to provide a chance at a new life for the tens of thousands of orphaned or abandoned children there, the courts can grant permission to a guardian to take a child abroad for adoption — as they did for Imran.

Each year, Pakistan’s courts allow dozens of children to be taken to countries such as the United States and the United Kingdom for adoption.

It was the same for Canadian parents until 2013, when the federal government abruptly closed the door, leaving the lives of more than 50 families on hold.

According to the federal government at the time, continuing with adoptions from Pakistan violated Canada’s commitment to the Hague Convention on international adoption. Under the convention, it argued, it could only process adoptions where a parent-child relationship was created in the child’s home country — something it argued was impossible under Shariah law.

That’s a view not shared by the United States and United Kingdom, which are also Hague Convention members. Both countries allow citizens who have been approved for adoptions to bring their child home through a Pakistan court order. Back at home, the adoption process is finalized under domestic laws.

Why the sudden change in Canadian policy? The answers aren’t immediately clear.

‘Strictly prohibited under Shariah’

Emails from 2013 show federal officials were rounding up support from the provinces and territories for the ban, with bureaucrats becoming increasingly preoccupied with the intricacies of Islamic law.

“It is reasonable to assume that … a change in the child’s parentage is strictly prohibited under Shariah law,” reads one document dated June 2013 from federal officials to the provinces and territories.

“In the Islamic view, the child does not become a true child of the ‘adoptive’ parents…. Kafala, then, neither terminates the birth parent-child relationship nor grants full parental rights to the person (guardian),” it goes on.

For Canada to be in the business of interpreting Shariah law is baffling, said Sarah.

“I have had two judges, Pakistani judges from courts over there, say ‘Take this child, go to Canada and adopt him,’ ” she said. “So the judges in Pakistan don’t understand their own faith? Their own laws? But Canada knows better?”

Emails from federal officials in 2013 show the push for the ban appeared to the originate with Canada’s High Commission in Islamabad, which said the number of adoption cases was growing exponentially. In response to the push, federal officials hurried to put the policy in place, not wanting to tip off Canadian families or adoption agencies until they did so.

And while at first some provinces seemed to resist the push coming from the High Commission, by July 2, parents were waking up to a notice posted on the government’s website telling them adoptions were no longer possible.

Exceptions were supposed to be made for families far enough into the process. But while Sarah and several others began their adoptions well ahead of the ban, many found themselves facing roadblocks when the policy came into effect.

Saskatoon-based immigration lawyer Haidah Amirzadeh, who has taken on numerous cases of Canadians separated from the children they’re the guardians of, wonders if the ban wasn’t simply part of a federal government attempt to limit immigration from Muslim countries.

I would say it was politically motivated,” Amirzadeh said.

Whether or not that was the case is difficult to say. The documents obtained by The Fifth Estate surrounding the adoption ban don’t necessarily tell the whole story. Multiple pages are redacted.

But one of them, dated June 25, 2013, is a memo marked “secret,” titled “Canadian programming to counter the terrorist threat from Pakistan.”

The memo, addressed to the then-minister of foreign affairs, was sent just days before the moratorium went into place and raises the question of what national security could have had to do with banning adoptions from Pakistan.

For Osgoode Hall law professor Faisal Bhabha, who researches the intersection of law and religion, the idea of the federal government concerning itself with religious doctrine isn’t new, but it is unnerving. He argues the Harper government in particular tended to invoke conservative beliefs in the context of national security — where he argues they used it to stereotype people.

“This is another form of profiling in a way,” he said. “I would not put any nefarious motive beyond the previous government.”

Canadian officials quietly expand ban

In the aftermath of the ban, heartbroken parents took to the media worried they’d never be united with their adopted children. At the time, the hope among some parents and advocates was that the policy might eventually be overturned.

But until now, it appears the federal government has only defended the decision. As recently as 2017, Immigration Minister Ahmed Hussen’s office did exactly that.

“The legal regime in Pakistan does not allow for or recognize the concept of adoption,” read a letter from Hussen’s office to one parent still fighting the ban. Guardianship orders, it continued, don’t allow children to be adopted in a guardian’s country of residence.

There was no acknowledgement by the federal government that the Pakistani courts routinely grant explicit permission to parents living abroad to complete adoptions in their home countries.

The Fifth Estate contacted Pakistan’s High Commission in Ottawa, which said Canada’s claim that Pakistan doesn’t allow for adoptions is simply false.

“We believe that the ban from the Canadian government is unjustified,” commission press minister Nadeem Kiani said in an interview. “Citizens of Canada should be allowed to adopt children from Pakistan.”

While on paper the ban applies only to Pakistan, it appears Canadian officials extended the same reasoning to adoptions from almost any Muslim country. In 2015, CBC News obtained hundreds of pages of documents about the decision, uncovering that Canada hadn’t ruled out broadening it.

In 2017, a spokesperson for Immigration, Refugees and Citizenship Canada confirmed Pakistan wasn’t alone.

While on paper the ban applies only to Pakistan, it appears Canadian officials extended the same reasoning to adoptions from any Muslim country. (Habiba Nosheen/CBC)

“Under federal law, the same rules would apply to a kafala/guardianship order from any foreign state,” wrote Nancy Caron.

As it turns out, Canadian officials have been restricting adoptions from various Muslim countries on an ad hoc basis for at least a decade — saying those countries don’t allow adoption and citing Shariah law.

Court documents show Canadian visa agents did just that in cases dating back to 2008 involving Iran, Sudan and Iraq. And as recently as 2017, four orphaned brothers were barred from coming to Canada from Yemen on the same grounds.

Amirzadeh says she’s seen cases from Qatar, Afghanistan and Algeria blocked for the same reason.

‘Not for the state to make decisions’ about religion

For Bhabha, Canada’s argument that adoption is prohibited in Shariah law amounts to outright discrimination.

“It imposes a burden on adoptions that pertain only to children that have a particular ethnic, national, religious identity,” he said. “It can deny them the benefit of being adopted.”

Besides, he said, “it’s not for the Canadian state to make a decision based on what is Shariah-compliant … it’s not for the state to make decisions about what the correct interpretation of a religion is.”

And while the ban originated with the previous government, Bhabha argues it’s up to the current one to explain why it has continued to implement it.

The Fifth Estate made multiple requests for an interview with Hussen. He declined, instead sending a statement through his spokesperson.

“We have asked the department to initiate a review of this policy and begin consultations with Pakistan as well as provincial and territorial governments to determine a path forward to regularize adoptions from Pakistan,” press secretary Mathieu Genest said in an email dated Oct. 5.

“Harmonizing the laws of two countries can often be challenging and rather than trying to overcome these obstacles, the Harper government imposed a moratorium on all adoptions from Pakistan.”

How long that review might take and whether Canadians in the process of adopting when the ban went into place can expect action in the meantime, the email didn’t say. Genest also didn’t say whether Canadians blocked from adopting from other Muslim countries can expect any relief from this review.

“This decision has not been revisited by this government until it was brought to our attention.”

…

Source: How Canada barred adoptions from Muslim countries — and used Shariah law to do it

Filed under Citizenship Tagged with ,