Senate Hearings on C-6: Witnesses February 15-16

The Senate’ Social Affairs, Science and Technology (SOCI) committee started hearings this week on Bill C-6 repeal and other changes to the previous government’s C-24 legislation that made citizenship “harder to get and easier to lose”

Witnesses reflected a balance of views on the proposed changes with few surprises compared to the House Citizenship and Immigration Committee hearings last year, or for that matter, much of the discussion around C-24 in 2014.

The changed composition of the Senate compared to the 2014 C-24 review (more non-affiliated senators, Trudeau appointments) was reflected in the selection of witnesses and questions.

As expected, discussion focussed on the main elements of C-6:

Revocation (terror or treason): Witnesses from the CBA, Quebec Bar, Audrey Macklin, and Craig Forcese all supported repeal of this provision, Reis Paghtakan opposed its repeal but only for terrorist convictions in Canada, and CIJA and Julie Taub opposed its repeal in all cases. Questioning by Senators included the legal and constitutional aspects of revocation, whether or not this acted as a deterrent, and the possible impact this could have with respect to war crimes.   There was a useful discussion on the difference between revocation for misrepresentation and for crimes of terror or treason; the former pertaining to crimes committed before being granted citizenship, where misrepresentation was the issue, and crimes committed after being granted citizenship, where the issue was whether the criminal system was sufficient to handle such cases or a supplementary punishment through revocation was warranted. Needless to say, the issue of differential treatment for dual nationals and Charter rights was raised repeatedly. Forcese and Macklin noted the negative impact such differential treatment had with respect to integration and countering violent extremism.

Revocation (misrepresentation): While not part of C-6, the absence of procedural protections – paper process, no right to a hearing, no right to an appeal – was raised repeatedly with virtually all witnesses indicating this remained an issue. Most favoured a return to the previous system of appeals to the Federal Court. Taub, however, emphasized how easy it was to commit residency fraud and misrepresentation, the need for smart Permanent Resident cards to track entry and exit, but did not comment on the need or not for protections. CIJA acknowledged the need for some procedural protections but wanted to ensure that these did result in endless appeals as happened in the Oberlander case.

Language and knowledge assessment: All agreed language was important to integration. No witnesses disagreed with the proposed removal of language and knowledge testing for 14-17 year olds. Metro Toronto Chinese & Southeast Asian Legal Clinic (MTCSALC) noted time, money and educational challenges for their low-income and refugee clientele, the need for expanded language training and related supports such as child care and income support and greater flexibility to waive requirements on humanitarian and compassionate grounds. The cost of language assessment was also mentioned. CBA noted that writing the knowledge test in english or french imposed a double requirement and they would have been happy with keeping the testing requirement for 55-64 year olds but with the flexibility to do the test with an interpreter.

The most interesting recommendation was from Paghtakan, where he continues to advocate for scrapping language assessment as is a pre-requisite for economic class immigrants for permanent residency status. Duplication meant more expense to the government and more costs to immigrants. Most family class immigrants are parents and grandparents who would thus be exempt given the proposed change in age requirements while refugees could wait until they attain 55.

Chair noted earlier work by committee that showed 55-64 year olds formed about one-third of the active workforce.

Residency: Taub questioned the change in residency from four out of six years to three out of five, arguing that it was more generous than other countries and that this and other measures would increase the number of citizens of convenience. Paghtakan, while he had supported the four of six requirement of C-24, had no issue with the change to three of five given the maintenance of physical presence. The strength of Taub’s intervention on residency-related questions prompted Senator Petitclerc why all Taub’s points were so negative without mentioning the positive benefits of citizens contributing abroad. Taub cited citizens who install their family and return to the Gulf or Hong Kong where they can make more money and not pay Canadian income tax.

Intent to reside: Only Taub supported maintaining the intent to reside provision given its symbolic importance. The other lawyers testifying noted that situations can change following applying for citizenship and the consequent risk of misrepresentation cases and thus supported its repeal.

Pre-Permanent Residency time partial credit: Again, only Taub opposed restoring this pre-C-24 provision for Temporary Foreign Workers and international students, stating that this facilitated citizens of convenience.

Other issues

Oath: Paghtakan endorsed the TRC recommendation to amend the citizenship oath by adding the words “including Treaties with Indigenous Peoples” to assist new Canadians appreciate and understand this aspect of Canadian history and society.

Parental passing citizenship to children with no genetic link (in vitro): Quebec Bar raised gap in current legislation which based parental status on the genetic link (save for adoptions) rather than the relationship as in case of in vitro children.

Religious accommodation language testing: CIJA noted that many language testing centres only provided this service on Saturday (Sabbath), with extensive delays in accommodation.

Smart permanent resident card (chip or magnetic strip): Taub argued strongly that the PR card should be a smart card like any gym card that would allow tracking of entry and exit and make it easier for applicants to prove they met the residency requirements without having to search through documentation. (Comment: sounds good in theory but not a simple change, compounded by government challenges in managing complex IT projects as seen with Phoenix and Shared Services Canada.)

Fees: MTCSALC noted that the increase in citizenship processing fees from $100 to $530 made it prohibitive for many low income and refugee immigrants. The recent CBC article on the impact of citizenship fees on the number of applications was cited by Senator Eggleton. Taub argued that reduction was not just related to the increase of fees, that other factors — change in residency requirements, language testing — were also factors. She supported full cost recovery but with subsidies for low-income applicants.

MPs lobby to ease language rules for immigrants [citizenship]

More coverage on the issue of language assessment for citizenship applicants. Will see if this gets attention when Parliament resumes next week:

One critic said if McCallum agrees with the MPs to make the changes it’s a “retrograde” step.

Martin Collacott said the real goal is likely to boost the pool of Liberal voters, since the only key rights citizens have that permanent residents lack is the right to vote, obtain a passport, and obtain jobs that require a high-level security clearance.

“They’re more concerned with getting votes and not so concerned that they (new Canadians) will integrate socially and economically,” said Collacott, a former senior Canadian diplomat who writes on immigration and refugee issues for the Fraser Institute.

Griffith said says the MPs are sincerely reflecting the views of some constituents.

“Of course there is probably a political element there, of making sure they retain the ethnic vote they gained during the election, but I think they’re probably hearing those comments,” said Griffith, author of the 2015 book called Multiculturalism in Canada: Evidence and Anecdote.

Griffith said he hopes McCallum doesn’t give in to the pressure and go back to the old system, which fell short of requiring citizens to speak basic English or French.

“If you really want to help people succeed, and if you really want an inclusive society, it means they have to participate in one of the official languages,” he said.

An alternative view was expressed in 2014 by the Canadian Bar Association, which opposed the tougher requirements.

“Many immigrants over the last century came to Canada and worked in areas that did not require them to read or write in English or French but have paid taxes, attended religious institutions, volunteered in their communities, raised children and have little or no ties to their country of birth,” the statement said. “They may lack the ability to complete a knowledge test in English or French, but still possess the language skills needed to be a long-term, contributing member of Canadian society.”

Successful citizenship applicants now have to prove they have an “adequate knowledge” of one of the languages, which is defined as someone “can understand someone speaking English or French and they can understand you,” according to the Citizenship and Immigration website. It lists several tests that it accepts as proof.

The government spells out four criteria applicants must provide evidence that they’ve reached level 4 of the “Canadian Language Benchmarks” system, which has 12 levels of proficiency, with one being the least fluent and 12 being an “advanced level of proficiency.”

To reach level four they must, according to the department, be able to:

• take part in short, everyday conversations about common topics.

• understand simple instructions, questions and directions.

• use basic grammar, including simple structures and tenses.

• show that you know enough common words and phrases to answer questions and express yourself.”

Canada has had a legislated requirement since 1947 that new citizens have an “adequate knowledge” of English or French, and until the mid-1990s that ability was assessed in oral citizenship tests done by citizenship judges.

Then the Liberal government, which at the time was engaged in an austerity program to slash the deficit, came up with a standardized, and much cheaper to administer, citizenship test.

The test involved 20 multiple choice questions testing knowledge in areas such as citizens’ rights and duties, and Canadian history, geography and the economy. It was assumed that passing the test would mean the applicant also had a reasonable grasp of the language.

But a successful applicant required only a 60-per-cent score to pass, resulting in 95 per cent of participants making the grade, according to a 2012 analysis by Montreal academic Mireille Paquet.

One of the problems with the tests, according to Griffith, is that they were uniform. That meant consultants could provide “cheat sheets” to help people who couldn’t function in English or French memorize the questions and visually recognize the correct answers.

The Conservatives made their first move in 2010 to make the test more challenging, bumping the passing grade to 75 per cent and offering different versions of the test in order to discourage cheating.

Then, in 2014, the new legislation came in requiring that applicants get third-party certification that they reached the level 4 proficiency.

Source: MPs lobby to ease language rules for immigrants

Staffing cuts strain Justice Department

Confirms other reports (e.g., Justice Canada chops research budget by $1.2-million), and provides additional explanation for the large number of cases lost by the Government. An amusing, if sad, contrast between the comments of former officials and the everything is fine assurance from the political and bureaucratic levels:

Separately, in the Public Safety Department, lawyers were given just one week to draft a new law on parole, according to Mary Campbell, who retired last year from her job as the department’s director-general of the corrections and criminal justice directorate.

By her count, 30 bills on justice, sentencing and corrections are either currently before Parliament or were given royal assent in June. She likened the legislative development process to a sausage factory.

“When you’ve got a pace that says, ‘Keep the sausage machine going,’ you’re going to get errors,” she said in an interview.

Jason Tamming, a spokesman for Public Safety Minister Steven Blaney, said the government has passed more than 30 measures to get tough on crime. “Our Members of Parliament work very hard to pass the best legislation to keep our communities safe,” he said. “We expect our civil servants to do the same.”

The Justice Department, in an internal report on the criminal policy section released on its website, did not use the colourful language that Ms. Campbell did. But it spoke of lowered morale as research and statistics staff have been cut from 35 to 17, between 2008-09 and 2012-13. It said 81 per cent of the department’s lawyers said the quality of their work has suffered because of the short timelines they must meet.

However, when contacted directly, a Justice Department spokesperson said it is important to note that the criminal policy section is achieving its objectives and the government has a high degree of satisfaction with its work.

David Daubney, a former senior bureaucrat in the Justice Department who retired in 2011, said the purpose behind the research staffing cuts is obvious. “They don’t want to encumber their minds with the facts,” he said of the government. “We always at Justice prided ourselves as being ‘stewards of the criminal law.’ We were seen as the go-to place for the facts and research on criminal policy, justice and corrections. That’s certainly no longer the case.”

He said morale has dropped as advisers conclude the government doesn’t want their advice. At a recent retirement party, an assistant deputy minister he wouldn’t name “confirmed that they’re not bothering to put as much background data as they used to into anything going into the minister’s office or into memoranda to cabinet.”

In the 2010 C-37 Citizenship Act revisions, we only had three weeks to draft legislation which my staff and the lawyers were concerned about.

Not sure how much time was given to the drafting of the recent C-24 Citizenship Act comprehensive changes, but the Canadian Bar Association did comment on what they considered poor quality drafting (may be sniping between lawyers but I also found the changes hard to follow):

The government has an opportunity to improve the poor drafting in the current Act. However, Bill C-24 uses excessive cross-referencing within the Act and to previous citizenship legislation to the point of near incoherence. This results the legislation being inaccessible to the public as well as many public servants, politicians, lawyers, and judges, delayed processing times for citizenship applications and an increased backlog, and an increased burden on Canadian courts. Plain language drafting is in the interest of all parties.

Staffing cuts strain Justice Department – The Globe and Mail.

Five bills likely to stoke Harper’s conflict with Supreme Court

On the list:

C-24, the “Strengthening Canadian Citizenship Act,” received royal assent and became law June 19.

The government billed C-24 as a once-in-a-generation overhaul of citizenship law, but some of its provisions proved deeply divisive. Foremost among those is a clause that allows the government to strip citizenship from Canadian-born citizens if they’ve been convicted of treason, espionage or terrorism and have citizenship in another country.

Toronto lawyer Rocco Galati launched a legal challenge against the provision on June 25, saying the government doesn’t have the constitutional authority to make the change. That was after several earlier warnings during committee consideration of the bill.

“It appears to be against the Charter, and I expect there will be significant litigation,” Barbara Jackman, a member of the Canadian Bar Association’s National Immigration Law Section, told a Senate committee considering the bill.

The CBA also took issue with a change in the bill that asks applicants to declare an intent to reside in Canada. Citizenship and Immigration Minister Chris Alexander has brushed aside concerns, saying Canadians aren’t required to stay in the country, but critics have pointed to provisions in the bill that allow citizenship-stripping in cases of fraud, and asked whether the “intent” clause could be considered in a fraud case. The CBA said the provision is “likely unconstitutional.

”Mr. Alexander assured a committee studying the bill that it was constitutional, a point put to Ms. Jackman by the committee.“I would remind the committee that [government has] passed other legislation that, again and again, the Supreme Court of Canada has struck down just recently. So the fact that the Department of Justice and the minister say it is constitutional doesn’t mean it is,” she replied.

Audrey Macklin, a professor and Chair in Human Rights Law at the University of Toronto, echoed many of the warnings on Charter compliance but also said that under C-24, those about to be stripped of citizenship are given the onus to prove they do not hold citizenship elsewhere – which would stop the process, as Canada won’t leave someone stateless – rather than making the government prove that person does hold citizenship elsewhere. Prof. Macklin warned that such a “reverse-onus provision” also violates the Charter.

The Canadian Civil Liberties Association also has raised warnings about the constitutionality of C-24.

“CCLA is seriously concerned that Bill C-24 has created a second tier of citizenship that is incompatible with equality principles,” General Counsel and Executive Director Sukanya Pillay said in an e-mail. “…We must remember that citizenship includes rights, and to strip individuals of citizenship is to re-introduce archaic punishments such as exile and banishment – the possibility of statelessness is also a serious concern. Any arbitrary loss of citizenship is incompatible with democratic values and fundamental rights.”

Five bills likely to stoke Harper’s conflict with Supreme Court – The Globe and Mail.

C-24 Citizenship Act: Senate Hearings – 11 June

Second and last day of witnesses at Senate Committee examining C-24. Same technical frustrations with Parlvu, so again have captured as best I can.

Starting with supporting witnesses:

Martin Collacott of the Centre for Immigration Policy Reform noted these changes were long overdue. Longer residency and physical presence would reduce fraud, noting many “parked their families in Canada, benefitting from Canadian healthcare and education while they worked abroad.” Increased penalties and filing of tax returns made sense. However, the only secure way to eliminate residence fraud was through entry and exit controls. Higher language requirements were needed for more skilled labour and management and extension of language requirements to 14-64 was welcome. He supported revocation for treason or terror and noted UK has an even more strict approach (no statelessness provision). A 2012 survey showed 80 percent supported for revocation. He welcomed the Lost Canadians fix. He also stated the need for the government to end jus soli (birthright citizenship) but noted some of the challenges working with the provinces.
Sheryl Saperia of the Foundation for Defense of Democracies largely repeated her earlier testimony to CIMM. Revocation was about ‘updating the social contract of citizenship.”  It was “fitting to lose citizenship” for treason, terrorism or armed conflict. But the Bill should be tightened to terrorism in Canada, against Canadian targets or for Canadian listed entities. If nothing to do with Canada, there should be no citizenship consequences. Persons should not be able to use the Canadian passport to travel for terror; we needed to “remove this weapon of Canadian citizenship” given the freedom to travel that it entails. As before, she noted the need for a second test of due process and fairness in the case of foreign convictions. She also mentioned argued that Canadian passport applications should include an acknowledgement that engagement in terrorism or treason could entail revocation, again to reinforce the social contract.

Tim Edwards, President and Ron Cochrane, Executive Director Executive Director, Professional Association of Foreign Service Officers expressed their support for ensuring that the children born to Crown servants born abroad would have an exemption to the first generation limit to allow them to pass on Canadian citizenship to their children. No debate or discussion, apart from a quip by Senator Eggleton that “we should pass it and kill the rest.”

Opposing the Bill were:

Barbara Jackman, Kerri Froc, Barbara J. Caruso, Canadian Bar Association started with their overall assessment that C-24 discouraged persons from applying through its “layers of regulations, harder, longer and more costly process.” Like others, CBA opposed elimination of pre-P.R. time. They questioned how an applicant would prove their intent to reside and reiterated their concern that despite the Minister’s assurance regarding possible grounds for misrepresentation should one’s intent to reside change post-citizenship. CBA, like most lawyers, opposed revocation for dual nationals. It is discriminatory and takes away the “certainty of citizenship.” Banishment or exile was a way to “get through the back door what the Government couldn’t get through the “front door.”

Yuen Pau Woo, President and CEO, Asia Pacific Foundation of Canada provided a different perspective by focussing on the contribution made by Canadians living abroad. He focussed this criticism on the increased residency requirements. He believed that this would result in reduced citizenship accession rates. This would result in fewer economic benefits to Canada; if citizenship was relatively easy, more new Canadians would invest in their human capital and improve their earning power. The intent was not clear: if to punish immigrants, this would not increase attachment. If to curb abuse of social benefit programs, given that these programs are available to permanent residents, increasing citizenship requirements would not make a difference. The best mix was a high bar to entry but a relatively low bar for citizenship. The general implications of the Bill were that Canadians residing in Canada were “more Canadian than those abroad.” This was an outdated view, given the high mobility of labour in today’s world, particularly the most highly talented (“best and brightest”). Some 2.8 million Canadians lived abroad, or 9 percent of the population. Restoring voting rights beyond 5 years was an additional way to encourage attachment to Canada. Increased residency requirements would reduce both economic benefits and attachment to Canada.

Melynda Jarratt, Canadian War Brides, in a strongly worded statement, talked about the history of Canadian war brides who were initially welcomed to Canada along with their children as Canadians but the “bureaucrats changed their mind.” Canadian citizenship did not start in 1947 with the first Citizenship Act but there were many government statements and court decisions that mentioned Canadian citizenship before then. She argued for the need for a citizenship ombudsman and amnesty program to address the remaining estimated 50,000 Lost Canadians not addressed by C-24. It was also important to recognize the Canadian war dead from both World Wars as Canadian, not just British subjects. She ended by saying that it was “disgraceful” how Don Chapman was treated and not able to testify.

Particular points of interest:

  • As expected, focus was on revocation. Senator Eggleton noted the current trial in Egypt of Mohamed Fahmy, a dual citizen. If convicted, theoretically his citizenship could be revoked. Collacott noted that was a worst case and unlikely  scenario.  Revocation was needed to deal with serious acts against Canada.
  • Senator Eaton questioned Canadian Iranians who go to Iran, engage in political activity, and then “wave their Canadian passport when they get into trouble. “Why get involved if Canada is your home?” A bit odd, given the Government’s encouragement of Ukrainian Canadians and others to participate in their “homeland” issues.
  • Saperia said that not every distinction is necessarily discriminatory. People who choose dual citizenship should not view themselves as discriminated against. C-24 protected people against statelessness. Collacott, rather candidly, noted that “we can’t get rid of Canadians we don’t like” but we can for dual nationals. Caruso noted the equality and mobility rights of the Charter made this approach discriminatory.
  • A somewhat amusing exchange between Senator Eggleton and Saperia over whether revocation was really only about Omar Kadr. Saperia, reluctant to get into a debate over Kadr, cited the recent Globe article, Made-in-Canada terror is real – and it’s being ignored, said it is a broader issue.
  • Saperia stated that the decision-making process was less important than ensuring the right factors were concerned. Whether decided by the Courts, the Minister or an official was secondary.
  • Senator Tkachuk challenged the assertion that the increase in fees was unreasonable.Caruso said the increase was “overwhelming for many.”
  • Good discussion on increased residency requirements. Senator Seidman noted that 4 years out of 6 provided considerable flexibility to address work, study, or family related travel. Woo emphasized that in a world of global careers, the need to diversity Canada’s trade beyond the US and the importance of contacts, more flexibility is required. Otherwise, Canada would get a “poorer quality of applicants.” Both Collacott and Senator Eaton expressed scepticism over the benefits to Canada of such internationally mobile citizens.
  • Woo also noted that too much attention was paid to the evacuation and return of Lebanese Canadians in 2006. There was a need to protect against abuse. Evacuations could be paid by the evacuees.

Committee hearings today feature Minister Alexander, so expect a spirited exchange given the tone of some of his recent remarks on critics of the Bill.

Canadian Bar Association letter to CIC Minister Alexander

Minister Alexander sharply criticized those opposing Bill C-24 Citizenship Act revisions (Alexander blasts critics of immigration bill as C-24 goes to second reading):

“It is shameful that activist immigration lawyers, who never miss an opportunity to criticize our governments citizenship and immigration reforms, are attempting to drum up business by promoting the interests of convicted terrorists and serious criminals over the safety and security of Canadians.”

In response, the CBA wrote a reasoned response:

Government is entitled to disagree, even forcefully, to criticism. However, we should all engage in public debate in a respectful manner with a view to providing Canadians with the best legal system we can. Attacking stakeholders simply because they bring dissenting perspectives and adverse evidence on government initiatives is corrosive of Canada’s democracy. Contrary ideas are the lifeblood of democratic societies. It is through dialogue that concepts are tested in the “marketplace of ideas,” common understandings or assumptions are challenged, and governments and citizens are encouraged to think differently.

Governments should welcome the exchange of ideas and perspectives, not seek to undermine it, even if its contents are not always embraced. Your recent comments could have the effect of undermining that exchange and the integrity of stakeholders. They move beyond the substance of the CBA Section submission and seek to undermine the credibility of individuals who put their ideas forward in a good faith effort to improve the Bill. That devalues the process and erroneously implies nefarious motives to the CBA’s submissions.

Bill C-24 was introduced without a robust consultation of key stakeholders, including the CBA Section. We would welcome more opportunities to provide early feedback on your government’s initiatives before they are published, to ensure they contribute to the continuous improvement to Canada’s system of citizenship and immigration. Early and meaningful consultations would have the added benefit of potentially averting costly and unnecessary legal challenges.

Download Bill-C-24-Letter

C-24 Citizenship Act Committee Hearings – 30 April

Good overview by CBC and iPolitics on yesterday’s C-24 hearings. Apart from Martin Collacott of the Centre for Immigration Policy Reform, all other testimony expressed serious concern over the proposed revocation provisions, both on process (how the decision is taken) and substance (should we treat single and dual nationals different, is banishment appropriate?).

Naturally enough, the likelihood or not of the proposed approach being in compliance with the Constitution and Charter was raised again. Minister Alexander on Monday stated that the Bill is in “complete conformity with the requirements of our constitution” (the Government does not release internal legal opinions which are exempt under ATIP). Given the Government’s track record on recent SCC high-profile cases, and any number of other cases, not sure whether Minister Alexander’s certainty is well-placed.

Collacott’s rationale on supporting revocation provisions:

“A survey in 2012 found that eight out of 10 people…agreed that Canadians found guilty of treason or terrorism should lose their citizenship, he said, then mentioned an Ipsos Reid poll from several years earlier that reached a similar conclusion.

“Of course if we started taking away citizenship from every Canadian who was charged with a terrorism act — say, in Russia for activities in Ukraine or a lot of other places — we would have a problem. But I don’t think that’s what the bill’s aimed at. And I don’t think the bill will be misused for that purpose.”

While Collacott is correct on public opinion, having faith in the bill not being misused does not excuse the risks of overly broad drafting, even if one accepts the principle. David Matas of B’nai Brith made the point in noting that “terrorism offence” the term used in the Bill, should be narrowed to “act of terrorism”.

Citizenship has its privileges: committee debates terms of revocation (iPolitics)

Citizenship changes ‘likely unconstitutional,’ lawyers warn (CBC)

David Berger, former Liberal MP and Ambassador to Israel, focuses more on the increased residency and related requirements, arguing:

These measures are counter-productive in the 21st century when people arguably are our most important asset and we should help all of our residents to develop to their fullest potential. Immigrants are particularly critical for Canada, because they account for 67 per cent of our annual population growth.

The removal of flexibility is also out of step with an increasingly globalized economy in which immigrants can contribute to our economy and society through their activities abroad. It also contradicts the goal of the government’s highly touted startup visa which according to Employment Minister Jason Kenney aims to attract the next Steve Jobs or Bill Gates. Immigrants admitted under this program can fully be expected to spend considerable time outside Canada if they are building the next Apple Computer or Microsoft.

Citizen should encourage citizenship

Links to briefs:

Canadian Bar Association

Canadian Association of Refugee Lawyers

B’nai Brith

Centre for Immigration Policy Reform (not yet posted)

Video of 28 April First Session