1st Session, 42nd Parliament,
Volume 150, Issue 105
Tuesday, March 28, 2017
The Honourable George J. Furey, Speaker
Bill to Amend—Third Reading—Motion in Amendment—Debate Continued
Hon. Mobina S. B. Jaffer: Honourable senators, I rise today in support of Senator McCoy’s amendment to Bill C-6. I thank her for this amendment and I thank Senator Omidvar for all her work on this bill.
I will not explain the technicalities of the bill, as they were well explained by Senator McCoy, Senator Pratte and Senator Omidvar. Instead, I will speak to the fundamental values of this amendment and why it is necessary to restore the integrity of Canadian values.
I rise in favour of this amendment as, while studying this bill in committee, I was able to see several Canadian values embodied in Bill C-6: the rule of law, fundamental justice and equality among all Canadians.
This amendment is in line with the very values that Bill C-6 represents. By addressing a problematic section of our citizenship laws, the amendment will restore the integrity of our system. To understand why this change is so important, it’s important to first understand what makes the amendment necessary in the first place.
As Canadians, our citizenship is one of our most valuable rights. Prior to Bill C-24, there were many safeguards that surrounded the revocation process. If the Minister of Immigration had reasonable grounds to believe that a person obtained his or her citizenship by misrepresentation or fraud or by knowingly concealing material circumstances, the person would be protected by a system of safeguards.
Before Bill C-24, the person’s case would first have to go through the minister or someone acting on his or her behalf, then be reviewed by the Federal Court before finally being sent to the Governor-in-Council. These checks and balances reflected the integrity of our system. It recognizes that citizenship is one of Canada’s most important rights.
All of this changed with the passing of Bill C-24. The bill changed the system so that only the minister or an official representing them would have to make the decision to revoke citizenship. There is no appeal process. There is no consideration for circumstances such as compassionate and humanitarian grounds. There is no due process under this system. Therefore, there is no recognition of the integrity and fundamental justice for Canadians.
Now, Canadians are faced with no right to appeal.
Honourable senators, this is not the first time that we find ourselves faced with a situation where people are denied an oral hearing or due process. Thirty years ago, in 1985, we found ourselves faced with the same situation with a landmark case that appeared before the Supreme Court, known as Singh v. Canada.
At that time, Harbhajan Singh had come to Canada with several other refugees seeking to obtain landed status, having fled persecution in his home. The Minister of Employment and Immigration at the time denied his claim to permanent status and told them that they had no right to a hearing.
The court was very clear in its ruling on this subject. Section 7 of the Canadian Charter of Rights and Freedoms provides all people with a right to what is known as fundamental justice. For Singh, fundamental justice meant that he had the inalienable right to both state his case and know what case he had to meet. In this instance, the court ruled that he had the right to an oral hearing based ” . . . on the nature of the legal rights at issue and on the severity of the consequences to the individuals concerned.”
Senator Harder, our Government Leader in the Senate, could tell us a lot as he was the architect of the Immigration and Refugee Board. He can vouch for how important it was to have an oral hearing in front of an independent tribunal.
With the Singh decision, the entire refugee system came to a standstill because the courts held that we had to have oral hearings. For us, the Singh decision was a lesson that would have impacts for many years to come. I know this well because I was very much involved in the process both pre- and post-Singh as a refugee lawyer. For example, Citizenship and Immigration Canada now uses the principle of natural law, a part of fundamental justice in the procedural guidelines for their day-to-day operations. They state:
The principles of natural justice exist as a safeguard for individuals in their interactions with the state. These principles stipulate that whenever a person’s “rights, privileges or interests” are at stake, there is a duty to act in a procedurally fair manner.
These ideas of fundamental justice and natural justice have even affected the courts in the context of Bill C-24. During a recent case before the Federal Court, Monla v. Canada (Minister of Citizenship and Immigration), Justice Zinn ruled in favour of Mohamad Raafat Monla, who argued that the revocation of citizenship on the basis of misrepresentation was unconstitutional without due process.
Despite the impact of the Singh decision and the recognition that following cases and governments have shown it, we find ourselves once again faced with the situation where Canadians do not have the right to fundamental justice and natural justice. In fact, the legal rights put at risk because of Bill C-24 and, now, Bill C-6 go beyond those considered during the Singh case. Rather than simply denying access to Canadian citizenship, Bill C-24 goes as far as to strip Canadian citizenship without any form of due process.
Honourable senators, we should remember the lessons of the Singh case as we consider this amendment.
Presently, a permanent resident is entitled to an oral hearing, a refugee is entitled to an oral hearing, but a Canadian citizen is not entitled to an oral hearing. He is denied due process.
Honourable senators, section 15 of the Charter states that all people are equal before and under the law and are subject to the same due process regardless of their origins or how they become citizens. On this subject, Professor Errol Mendes of the University of Ottawa said:
Given that citizens have entrenched rights that permanent residents and refugees don’t have, such as the Section 6 mobility rights to stay in and exit Canada, and the most fundamental democratic rights of Section 3, they have a far more profound right to procedural justice than any other group.
In fact, these rights are not even subject to the notwithstanding provision. How can we justify granting citizens the least rights among Canadians in this case?
Allowing for a revocation without an oral court hearing instead makes some Canadian citizens more vulnerable than other Canadians. Honourable senators, Bill C-6 in its current form does not fully restore the integrity and the constitutionality of our immigration system, as pressing constitutional issues still remain.
I believe that Senator McCoy’s amendment will complete this process. I thank her for introducing this amendment. This will give Bill C-6 the integrity that all Canadians expect. The amendment will ensure that Canadians have due process when their citizenship is threatened by providing Canadians with a right to appeal their case before the Federal Court.
The choice of the Federal Court is an important one. Apart from the Immigration and Refugee Board of Canada, it is one of the only places where individuals can be sure to have an independent hearing. Lorne Waldman, a lawyer who appeared before the Standing Senate Committee on Social Affairs, Science and Technology, said:
. . . the best way would be to have an independent tribunal, the IRB, do that, but we can’t do that in an amendment. We have to have an oral hearing. The only place we can have an independent oral hearing, given the current state of affairs, is in the Federal Court.
Josh Patterson, Executive Director of the B.C. Civil Liberties Association, similarly stated:
From our perspective, there simply must be a right to a hearing with an independent decision maker. The minister alone cannot be the entity that makes such a monumentous decision, that so deeply affects the rights of individuals — indeed, their very belonging to this country.”
This amendment also ensures that this process is fair by having the minister provide citizens with the grounds and reasons for their revocation. Thus, citizens will know what they will have to respond to in court.
Honourable senators, the other very disturbing thing about Bill C-6 is that it does not enable people to put in a humanitarian and compassionate reason for why their citizenship should not be revoked. In the refugee process, there is a very lengthy humanitarian and compassionate process, where the refugee, even a failed refugee, can justify why they should live in this country.
The minister does not have to consider, under Bill C-6, humanitarian and compassionate grounds, and we have already had cases under Bill C-24 where the person that the minister designates to look at these cases says that they do not have to study humanitarian and compassionate grounds.
Honourable senators, I would like to share a story with you to emphasize why this is so important. Not considering compassionate and human rights grounds can have devastating effects on people’s lives, people who really, for all intents and purposes, believe that they are Canadians.
When we were studying this bill in committee, we heard the story of two children who had their citizenship revoked through no fault of their own. When applying for citizenship, their parents had misrepresented in their application. However, as children, they had no idea what their parents had done. These children, 15 years later, lost their citizenship. They, for all intents and purposes, were Canadians. They had grown up here in Canada. They went to school in Canada. They went to university in Canada. They were actually Canadian children. They had settled in Canada, and they had very good jobs in Canada.
The citizenship revocation was devastating for both of them. Both siblings lost very good jobs as they no longer had the right to travel with a Canadian passport, and they used to travel for their work. Both of them had jobs that required international travel.
Both siblings also found themselves with almost no opportunities to work in their field afterwards, since the revocation also barred them from obtaining any kind of citizenship for 10 years.
While these children were completely innocent and grew up in Canada while working hard in their respective roles, this is the kind of case that is dealt with when considering humanitarian and compassionate grounds, and I believe that if their case had gone to the courts, the courts would have restored their citizenship. However, our current laws, under Bill C-24 and under Bill C-6 that we are studying, leave no way to deal with the case on humanitarian and compassionate grounds.
Honourable senators, consideration for humanitarian and compassionate grounds will prevent cases like this, where people lose their citizenship despite being innocent, from ever happening again.
This is why Senator McCoy’s amendment is important. Honourable senators, let us come together to improve Bill C-6 and to have the amendment go through. We, as senators, are the keepers of our Constitution. In our Constitution, the importance of fundamental and natural justice has been enshrined, and it explicitly states that all Canadians should be equal before and under the law. I therefore welcome this amendment and an opportunity to restore the integrity and constitutionality of our citizenship law.