Comments on the Standing Committee on C-18, proposed citizenship bill

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Comments to the Standing Committee on Citizenship and Immigration on Bill C-18 (An Act respecting Canadian Citizenship) 21 November 2002

 

Introduction
The Canadian Council for Refugees is an umbrella organization committed to the protection of refugees in Canada and around the world and to the settlement in Canada of refugees and immigrants. About 180 organizations from across Canada are members of the CCR. We seek full respect for the human rights of newcomers and the successful integration of refugees and immigrants into Canadian society.

The Canadian Council for Refugees has been actively involved in discussions on earlier versions of this bill, introduced in the Thirty-Sixth Parliament (Bill C-63 in the First Session, and Bill C-16, in the Second Session). While the current bill incorporates some improvements over those earlier bills, there remain some provisions that raise serious concerns. Furthermore, some new provisions in Bill C-18 are worrying, notably the new powers permitting the revocation of citizenship based on secret information which must appear offensive to anyone who believes that Canadian citizens are entitled to fair process.

Equality of all citizens
The Canadian Council for Refugees welcomes the clearer articulation in Section 12 of the equal rights and obligations of all citizens, without regard to the manner in which they acquired citizenship. At a time when the discriminatory practices of the US immigration services have caused Canadian citizens to be treated differently based on their place of birth, it is particularly important for Canadians to emphasize our commitment to the equality of all citizens.

It is therefore of concern that the provisions of the bill do not seem to fully reflect the principle that all citizens are equal. Some of the proposed ways in which citizenship could be annulled or revoked do not respect the right to fair process, meaning that some citizens, but not others, face the prospect of being unjustly deprived of their citizenship.

There is also inequality in terms of the right to pass on citizenship to one’s children. Thus, a Canadian citizen who is second-generation born outside Canada must be careful not to give birth outside Canada herself, because her baby will not be a Canadian citizen (and might even be stateless). This applies even if she has lived in Canada all her life apart from the first few months. On the other hand, a citizen by birth in Canada or who came to Canada as an immigrant does not need to worry about, for example, taking a job in another country and having a baby there, since the baby will be a Canadian citizen.

Recommendation: Add a provision stating that a person is a Canadian citizen if born outside Canada to a person whose application to retain citizenship under Section 14 was accepted.

Statelessness
Canadians need to be concerned that the global problem of statelessness has, if anything, been increasing in recent years. Members of the Canadian Council for Refugees more and more report that there are people in Canada in a legal limbo, because they have no rights here, and as stateless people, they have nowhere else to go to. While the numbers of stateless people in Canada is probably relatively small, many people around the world find themselves in this situation.

We look to the Canadian government to play a leadership role in addressing the worldwide problem of statelessness. Unfortunately, although Canada is a signatory to the 1961 Convention on the Reduction of Statelessness, we have not signed the 1954 Convention relating to the Status of Stateless Persons. We have been urging the Government of Canada to review this gap and have Canada sign the 1954 Convention.

Recommendation: Take steps to have Canada sign the 1954 Convention on the Status of Stateless Persons.

In the meantime, it is important for the Committee to look carefully at the proposed Citizenship Act, with a view to making it conform with the objective of reducing statelessness. This is important not simply for those who are or will be directly affected by our legislation, but also so that the Canadian legislation can serve as a model internationally, as part of efforts to solve the problem of statelessness.

One simple but important provision that could usefully be added to the Act would be a clause stating that the Act is to be interpreted in a manner consistent with the principle of reducing statelessness. This would reflect our international obligations towards reducing statelessness.

Recommendation: Add a provision stating that the Act is to be interpreted in a manner consistent with the principle of reducing statelessness.

Section 14 (already part of the current Citizenship Act) provides for Canadian citizens born abroad to lose their citizenship at age 28, if their own parents were Canadian citizens born abroad. In this era of globalization, when so many Canadian citizens are working and studying outside Canada, we can expect this to apply to more and more Canadians.

Because it affects people born after 1977, the Section 14 provision will begin to have effect in 2005. It may lead to the creation of statelessness if a person does not meet the requirements for keeping citizenship, even though she might have led most of her life in Canada.

Suppose, for example, a Canadian woman (let us call her Anna) who was born abroad gives birth, also outside Canada, to a baby. Anna returns to Canada and brings up her daughter, Mariam, in Canada. At aged 22, Mariam, having lived all but the first months of her life in Canada, goes abroad to pursue advanced studies and returns to Canada at aged 26. When she turns 28 she will lose her Canadian citizenship and may become stateless, because she does not meet the three-year residency requirement in Section 14. Maybe she should have applied to retain her citizenship at aged 22. But who will explain this to her?

This problem could be addressed by adding an exception to the Section 14 rule to the effect that citizenship would not be lost if the person would be stateless.

Recommendation: Amend Section 14 to include an exception to the rule regarding loss of citizenship if the person would otherwise be stateless.

Section 11 of the bill attempts to address the problem of the creation of statelessness. It would not help Mariam’s situation because again it requires three years residence within the previous six years. But it might potentially help her child, should she have given birth while studying abroad. However this child born abroad and potentially stateless has a dilemma. He could become a Canadian citizen if he could live in Canada for three years. But if he is stateless, on what basis could he live in Canada? How could he even travel to Canada?

Both of the dilemmas presented above could be resolved simply by deleting subsection 11 (d) (ie. the requirement of three years’ residence in Canada).

We also draw attention to the fact that the age limit of under 28 appears arbitrary. Should we not be concerned about a stateless person who is already 28 or 29, given that this person is the child of a Canadian citizen?

Finally, on this point, we note that 11 (e), requiring that the applicant have always been stateless, will exclude some stateless people. In recent years, we have seen how political changes have turned people who used to have a citizenship into stateless people. This, for example, has been the experience with the break-up of the Soviet Union. A person who has a Canadian parent should not, we would argue, be allowed to remain stateless, simply because she once had a citizenship of which she has now been deprived. (If there are concerns about people making themselves eligible by renouncing their citizenship, this could be explicitly excluded).

Like the three years’ residence requirement and the age limit, this limit is drawn from the1961 Convention. However, the Convention only says that the Contracting State "may make the grant of its nationality" subject to these conditions: it does not in any way recommend that these conditions be imposed. We are by no means obliged to restrict ourselves in this way. These conditions constitute a floor, not a ceiling, and we believe Canada can afford to aim higher than the floor.

Recommendation: Delete 11(c) and (d) and amend (e) to read "is stateless and has not become stateless through the renunciation of a citizenship."

Revocation of citizenship through certificate process
Bill C-18 continues a new provision, modelled on a similar provision in the Immigration and Refugee Protection Act, that would allow a Federal Court judge to revoke a former immigrant’s citizenship without the citizen being permitted to see the evidence against him or her. A decision to revoke by the judge cannot be appealed or judicially reviewed.

The Canadian Council for Refugees considers this process fundamentally unjust within the immigration context. It is no more just within the citizenship process. It is furthermore contrary to the principle of the equality of citizens to have a process in which citizens who acquired their citizenship as a result of immigration to Canada can lose their citizenship without the right to hear the evidence against them and without right of appeal, a process which persons born in Canada are not subject to.

Recommendation: Delete Section 17.

Annulment of citizenship
Bill C-18 gives the Minister of Citizenship and Immigration new powers to annul citizenship. This means that Canadian citizens who have been granted citizenship after immigrating to Canada may lose their citizenship without due process and without even the right to a hearing.

The completely new powers to annul citizenship are contained in Section 18. This section would allow the Minister to annul a person’s citizenship, within 5 years of the person becoming a citizen, if the Minister is satisfied that the person was ineligible or obtained citizenship by using a false identity.

Insofar as this provision allows the annulment of a grant of citizenship that should never have taken place, it may seem reasonable and attractive. However, it is not always a simple and straightforward matter to determine whether citizenship was illegitimately acquired. For example, a citizen might be falsely accused of false identity by someone with a personal grudge or by foreign government authorities with an agenda of persecution. The bill itself foresees that the person concerned might have something to say in his or her defence, providing for the giving of notice and an opportunity for the person to make written representations. But who decides between the arguments of the Minister, who believes citizenship was illegitimately acquired, and the citizen, who disagrees? The Minister. A system in which the accuser is also the judge clearly does not protect the interests of justice.

The citizen whose citizenship may be annulled is not even entitled to know in full the evidence that the Minister is relying on to annul the citizenship. The bill only says that the citizen should receive "a summary of the grounds for the proposed order."

Furthermore, the bill does not say that the Minister must be convinced beyond a reasonable doubt that citizenship was illegitimately obtained. The Minister need only be "satisfied". This sets a low standard which permits the annulment of citizenship even in cases where there might be legitimate differences of opinion. It undermines the possibility of effective recourse in the courts, since the courts will generally be forced to defer to the Minister’s decision about whether he is "satisfied".

The process outlined in the current bill for stripping citizenship fails to meet international standards with regard to adequate remedy. There are serious issues at stake and the consequences of the decision will have a profound impact on the life of the person concerned. This needs to be reflected in the standards of procedural justice offered.

Recommendation: Amend the bill to provide for decisions on annulment to be made by an independent decision maker, with a right to a hearing with full due process rights, including the right to notice, to disclosure and to counsel.

Cabinet powers to refuse citizenship are too broad
Bill C-18 (Sections 21 and 22) gives Cabinet the power to refuse citizenship on the basis that a person has "demonstrated a flagrant and serious disregard for the principles and values underlying a free and democratic society." The government background material cites hate-mongers or human rights violators as examples of persons against whom the provision might be used. The Canadian Council for Refugees is deeply committed to the struggle against hatred and human rights abuses. Nevertheless, the provision is worrying. Because there is no definition of the principles and values, Cabinet could interpret it in many ways. Future governments might have very different ideas of who should be denied citizenship.

Furthermore, the lack of due process must in itself be a concern, since it is also a principle and value of a free and democratic society that individuals be entitled to fair treatment under the law, as measured against clear standards. A closed door discussion in Cabinet, without any access to process and with no clear definition of what conduct is unacceptable does not meet the test of fair treatment.

Section 28 includes a long list of prohibitions, which include prohibitions against people who have committed crimes or who are inadmissible under the Immigration and Refugee Protection Act (for example, for human rights violations). If there remain some categories of person which the government would like to exclude from citizenship, they should be added to Section 28, not dealt with under special Cabinet powers.

Recommendation: Delete Sections 21 and 22.

Prohibitions
Section 28 includes a significantly expanded list of prohibitions against grant of citizenship. Of particular concern for refugees are paragraphs 28(c) and (d) which deal with charges and convictions outside Canada. It is part of the tactics of persecution in some parts of the world for states to falsely accuse their opponents of serious crimes. Refugees may be granted protection in Canada precisely because they are fleeing trumped up charges or an unfair conviction in their home countries. It would be perverse in the extreme to grant a person protection because of trumped up charges and then deny citizenship based on those same trumped up charges. Persons who did not come to Canada as refugees may also face unfair charges or be wrongly convicted in another country, sometimes because they have made enemies by speaking out against injustice.

Recommendation: Amend 28(c) and (d) to include an exception where the charges are abusive or the conviction reached in an unfair process.
 
 

RECOMMENDATIONS

1.    Add a provision stating that a person is a Canadian citizen if born outside Canada to a person whose application to retain citizenship under Section 14 was accepted.

2.    Take steps to have Canada sign the 1954 Convention on the Status of Stateless Persons.

3.    Add a provision stating that the Act is to be interpreted in a manner consistent with the principle of reducing statelessness.

4.    Amend Section 14 to include an exception to the rule regarding loss of citizenship if the person would otherwise be stateless.

5.    Delete 11(c) ("less than 28 years of age") and (d) (residence in Canada) and amend (e) to read "is stateless and has not become stateless through the renunciation of a citizenship."

6.    Delete Section 17 (revocation of citizenship through certificate process).

7.    Amend the bill to provide for decisions on annulment to be made by an independent decision maker, with a right to a hearing with full due process rights, including the right to notice, to disclosure and to counsel.

8.    Delete Sections 21 and 22 (denial of citizenship on the basis of "a flagrant and serious disregard for the principles and values underlying a free and democratic society.").

9.    Amend 28(c) (criminal charges outside Canada) and 28 (d) (conviction outside Canada) to include an exception where the charges are abusive or the conviction reached in an unfair process.

Nov 2002