LS-330E
BILL C-63: THE CITIZENSHIP OF CANADA ACT
Prepared by:
Margaret Young
Law and Government Division
5 January 1999
Revised 14 May 1999
LEGISLATIVE HISTORY OF BILL C-63
HOUSE OF COMMONS |
SENATE |
| Bill Stage |
Date |
Bill Stage |
Date |
| First Reading: |
7 December 1998 |
First Reading: |
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| Second Reading: |
1 March 1999 |
Second Reading: |
|
| Committee Report: |
14 May 1999 |
Committee Report: |
|
| Report Stage: |
|
Report Stage: |
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| Third Reading: |
|
Third Reading: |
|
Royal Assent:
Statutes of Canada
N.B. Any substantive changes in this Legislative Summary which have
been made since the preceding issue are indicated in bold print.
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| |
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TABLE OF CONTENTS
BACKGROUND
DESCRIPTION
A. Interpretation (Clause 2)
B. The Right to Citizenship (Clauses 3 - 12;
Clause 14)
1. Birth on Canadian
Soil
2.
Derivative Citizenship
3.
Citizenship by Naturalization
a. Residency
b. Knowledge of an Official Language and of Canada
4. Children
Adopted Abroad
5. Deeming
Permanent Residence
C. Loss of Citizenship
1.
Derivative Citizenship
2.
Renunciation and Revocation
3. Annulment
Orders
D. Restoration of Citizenship (Clauses 19
- 20)
E. Prohibitions (Clauses 21 - 28)
1. Denial of
Citizenship in the Public Interest
2. Denial of
Citizenship on National Security Grounds (Clauses 23 - 27)
3. Denial of
Citizenship on Other Grounds (Clause 28)
F. Administration (Clauses 29 - 38;
Clause 44)
1.
Citizenship Commissioners
2.
Certificates (Clauses 35 - 38)
3. Offences
(Clauses 39 - 42)
4.
Regulations (Clause 43)
5.
Delegation of Minister’s Powers (Clause 44)
6.
Disclosure (Clause 45)
G. Status of Certain Persons in Canada (Clauses 47 -
54)
H. Transitional and Consequential
Amendments (Clauses 55 - 68);
Repeal and
Coming into Force (Clauses 69 and 70)
I. The Oath of Citizenship (Schedule)
COMMENTARY
A. Changes to the Residency Requirement
B. Knowledge of Canada
C. Children Adopted Abroad
BILL C-63: THE CITIZENSHIP
OF CANADA ACT
Bill C-63, An Act respecting
Canadian citizenship, received first reading in the House of Commons on 7 December 1998.
The bill would modernize outdated parts of the citizenship law, strengthen and clarify
some provisions that have been contentious, replace current procedures with a new
administrative structure, and introduce some additional powers to deny citizenship. It
would also introduce measures to emphasize the importance of citizenship. The new Act
would repeal and replace the current Citizenship Act.
BACKGROUND
Prior to 1947 and the
introduction of the first Canadian Citizenship Act, there was legally no such thing
as Canadian citizenship. Both native-born and naturalized citizens were British subjects.
In 1977, the current Citizenship Act came into force, making extensive changes to
the law. Citizenship became more widely available, since the Act, for example, reduced the
required period of residency from five to three years as well as removing the special
treatment for British nationals and the remaining discrimination between men and women.(1) The 1977 Act also provided that Canadians could hold
dual citizenship, reversing the previous situation in which Canadian citizenship was lost
upon the acquisition of the citizenship of another country. Although minor amendments have
been made to Canada’s citizenship law over the years, Bill C-63 represents the first
major overhaul of it since 1977.
The changes have been a long time
coming. In early 1987, the government announced plans to bring in amendments to the Act,
and issued a discussion paper entitled Proud to Be Canadian which outlined a number
of issues and options for change and called for public comment. No further significant
parliamentary action was taken at that time, however.
The Liberal government elected in
1993 announced its intention to overhaul the Act, and asked for the advice of the Standing
Committee on Citizenship and Immigration. The resulting Committee report, Canadian
Citizenship: A Sense of Belonging, was presented to the House of Commons in June 1994.
It raised a number of issues now addressed in Bill C-63, as well as some others that have
not been included.
DESCRIPTION
Bill C-63 contains many features
that are identical or very similar to the existing provisions in the law. The description
of the bill in this section will therefore concentrate on proposed provisions that would
differ from those in the current Act.
A. Interpretation (Clause 2)
Two provisions in the
interpretation section of the bill are of interest. Clause 2(2)(b) deals with Indians who
are registered under the Indian Act, but who are not citizens. The bill proposes
that such individuals who chose to become citizens (likely to be few in number) would on
registration be deemed to be permanent residents, thereby allowing them to begin the
naturalization process.
The other provision of note is
clause 2(2)(c), under which a person would be said to reside in Canada on any day when he
or she was physically present in Canada and not subject to a probation order, on parole or
incarcerated. The implications of this provision will be discussed in more detail below.
B. The Right to Citizenship (Clauses 3 –
12; Clause 14)
1. Birth on Canadian Soil
Bill C-63 would continue the
current rule that children born in Canada are Canadian citizens at birth (clause 4(1)(a)).
The only exceptions (as now) would apply to the children of foreign diplomats and their
employees (clause 4(2)).
2. Derivative Citizenship
Currently, any person born abroad
of a Canadian parent is automatically a citizen. This concept is often called derivative
citizenship. Second and subsequent generations born abroad are also automatically
citizens, but they lose their citizenship unless, by age 28, they have registered and have
either lived in Canada for one year immediately prior to the application or have
established a substantial connection to Canada. The bill would limit the possibility of
automatic citizenship to the second generation born abroad, and would place more onerous
requirements on such individuals seeking to retain citizenship past the age of 28 (clause
4(1)(b)). Clause 14 specifies that the person would have to apply to retain citizenship
and would have to have resided in Canada for at least 1,095 days (a total of three years)
during the six years before the application. As will be discussed below, actual
physical presence would be required during the three-year period. This would be the same
residency requirement to be placed on all permanent residents wishing to become citizens.
To mitigate the potential
statelessness that might befall the third generation born abroad, clause 11 would provide
that citizenship would be granted, upon application, to a person under 28 years of age who
had never acquired (or did not have the right to acquire) any country’s citizenship
but who had been born abroad to a parent who was a Canadian citizen. To qualify, the
person would be required to have spent at least three years of the preceding six in
Canada, and must not have been convicted of an offence against national security. What
such an offence might be is not specified and there is no such specific category of
offence in either the Canadian Security Intelligence Service Act or the Criminal
Code.
3. Citizenship by Naturalization
a. Residency
Bill C-63 would introduce a
number of changes to the requirements for attaining citizenship other than by birth. One
of the most important of these would add precision to the residency requirement. The
important change would be the definition of residence as physical presence in Canada
(clause 2(2)(c)). As originally introduced, the bill provided that a permanent
resident would be required to reside for a total of three years (1,095 days) out of the five
years (currently four) preceding the application (clause 6(1)(b)). The current provision
allowing an applicant credit for time spent in the country before becoming a permanent
resident would have been eliminated.(2) In
committee, the bill was amended to extend from five years to six the proposed period
within which an applicant could accumulate residence, while another amendment restored the
credit for time spent in the country, limiting it to lawful presence. An exception to
the physical residency requirement would be made for the foreign spouses of Canadian
citizens working abroad with the Canadian armed forces, the federal public service, or the
public service of a province (clause 6(2)).
The proposed objective residency
requirement – actual physical presence for a total of three years (1,095 days) within
the specified period – would end the considerable uncertainty in the current law.
Although the Act currently requires a three-year period of residency, that word is not
defined. As a result, judicial decisions with radically differing interpretations of the
residency requirement have seriously complicated the law. The very year after the current
Act came into effect in 1977, a case decided by the Federal Court held that actual
physical presence in Canada was not necessary in order to fulfil the requirements.(3) What was needed, the judge held, was that the applicant
show a significant attachment to Canada throughout the period, even if physically absent.
This could be established by such indicators as a retained residence (although not
essential), accounts in Canadian banks, investments, club memberships, provincial driving
licences, and so on. The result, in its extreme form, has been that some applicants have
been granted Canadian citizenship even though their total time actually in the country
amounted to mere days or a few months.
Other judges of the Federal
Court, however, disagreed strongly with that approach and were unwilling to excuse lengthy
absences from the country. The contradictory caselaw that developed around this issue led
to unpredictability and uncertainty in the law, and in the view of some, seriously
compromised the residency requirement, and the value of Canadian citizenship in the
process. The 1994 report of the Standing Committee recommended that the definition of
residency in the Act should require a meaningful degree of physical presence.
b. Knowledge of an Official Language and of
Canada
Bill C-63 would continue the
requirement for applicants to demonstrate an adequate knowledge of an official language
(clause 6(1)(c)). Applicants would also continue to be required to demonstrate that they
had an adequate knowledge of Canada and the responsibilities and privileges of citizenship
(clause 6(1)(d)). Currently, applicants are permitted to use an interpreter for this
purpose. Bill C-63 as originally introduced, however, would have required them to
demonstrate their knowledge of Canada in one of the official languages. This provision
was removed in committee. Lest either requirement prove too onerous for certain
individuals (perhaps the aged or house-bound), the power of the Minister to waive the
language requirements on compassionate grounds would continue. (Both tests are
currently waived for people over 60, and the Minister stated that this would continue to
be the case.)
4. Children Adopted Abroad
New provisions would govern the
citizenship rules for Canadian citizens’ children adopted abroad (clause 8). Under
the current law, children adopted abroad are required to become permanent residents before
proceeding to citizenship. This has several implications. First, it means that the
children must pass the medical exam required of all applicants for permanent residence, or
receive special permission to proceed.(4) (They must also
pass the statutory criminal and security checks.) Second, it means that children adopted
by Canadian parents who are living abroad and who wish to continue doing so cannot become
permanent residents and, therefore, cannot become Canadian citizens.
Bill C-63 would provide that a
minor adopted abroad in accordance with the laws of the countries of both the child and
the parents would become a Canadian citizen upon application. Three additional
provisions would also apply: the adoption would have to have been in the best interests of
the child (added in committee); it would have to have created a genuine relationship of
parent and child; and it must not have been undertaken in order to circumvent any
requirements for admission to Canada or for citizenship. The original provision that the
new rules would apply only to adoptions that took place after they came into force was
changed in committee; the rules would now apply to all adoptions that took place after
14 February 1977.
During discussion in committee,
and subsequently in the press, questions were raised as to the scope and meaning of the
amendment requiring an adoption to have been in the best interests of the child.
Departmental officials explained the proposed change as a way of meeting the concerns of
the provinces, which were said to centre on medical examinations. Officials stated that
the additional criterion would permit broader and more complete regulation of the
adoption/citizenship process, including the power to require medical examinations and home
studies.
5. Deeming Permanent Residence
Clause 10 would introduce a new
provision whereby the Minister, "for the purposes of the Act" (that is, in order
to grant citizenship), could deem a person who had resided in Canada for at least 10 years
to be a permanent resident. This provision would cover cases in which people had
erroneously believed themselves to be Canadian citizens. The proposed provision would give
explicit authority for actions currently taken under section 2(2) of the Act.
C. Loss of Citizenship (Clauses 13 – 18)
1. Derivative Citizenship
The loss of derivative
citizenship (clause 14) has been discussed in the previous section.
2. Renunciation and Revocation
As in the current law, Bill C-63
sets out the circumstances under which a person could renounce Canadian citizenship
(clause 15). The criteria would be very similar. The renunciation could be revoked, as
could a grant or resumption of citizenship, if it were later found that the person had
obtained, renounced or resumed citizenship by false representation or fraud or by
concealing material circumstances (clause 16). It should be noted that the current Act
refers to the person "knowingly concealing material circumstances." Bill
C-63 as originally introduced would have dropped the word "knowingly," which
would have made revocation easier. The word was restored, however, in committee. A new
provision (clause 16(4)) would have provided that orders revoking the citizenship of a
person could also name any person whose citizenship had been acquired through that person;
this would have applied to children. Witnesses criticized this clause in committee and
it was dropped.
The current mechanism for
challenging a revocation order would remain essentially the same (clause 17). Upon
receiving a report from the Minister signifying the intention of the government to revoke
citizenship, the person could request the Minister to refer the matter to the Federal
Court – Trial Division. New to the process would be the requirement for the Court to
decide the matter on a balance of probabilities (clause 17(1)(b)). This would clear up
some conflicting decisions in the Trial Division as to the proper test to apply.
3. Annulment Orders
In addition to the existing
mechanism for revoking citizenship described above, Bill C-63 would give the Minister a
new power to issue an annulment order (clause 18). This order could declare that any
obtention, retention, renunciation or resumption of citizenship was void. The power would
be required to be exercised within five years of the original citizenship decision, and
would apply in any case where the person had used a false identity, or had been originally
ineligible to be granted citizenship for any of the reasons in clause 28. That clause sets
out numerous grounds of ineligibility for citizenship, including: criminality, implication
as a war criminal, certain Immigration Act infractions, security concerns, and so
on. The person would have to be given notice regarding the proposed order, after which he
or she could make written representations to the Minister. An annulment order would
signify that the person had never attained citizenship. Thus, anyone who had acquired
citizenship through the person whose citizenship had been annulled would automatically
lose citizenship also.
The procedure for annulment may
be contrasted with the revocation procedure (current and proposed), which involves the
Minister, the Governor in Council and, at the request of the person concerned, the Federal
Court. In a revocation case, the Court itself has to be satisfied that the person obtained
citizenship by false representation, by fraud, or by concealing material circumstances. To
do this, the Court holds a full hearing.
It will be remembered that one of
the grounds for making the proposed annulment order, the use of a false identity, could
easily be comprised in the criteria for revocation -- false representation, fraud, or
concealing material circumstances. In the case of an annulment order, however, no appeal
would be permitted. Although the decision of the Minister would be reviewable on judicial
review to the Federal Court, the grounds of review would be considerably narrower than if
an appeal were allowed, and a full hearing would not be held. An amendment adopted in
committee specifies that the Minister would have to inform affected persons that the order
had been made, and advise them of their right to apply for judicial review.
D. Restoration of Citizenship (Clauses 19
– 20)
Bill C-63 would continue the
current provisions for restoring citizenship, with only a few modifications. Currently,
individuals who lose their citizenship must first be admitted for permanent residence, and
may apply for citizenship after spending the year immediately before the application in
Canada. The bill would instead require individuals in this position to reside in Canada
for at least 365 days in the two years immediately preceding the application (clause 19).
Again, the important change would be that the new definition of residence would require
actual physical presence.
A new provision would ensure that
individuals who had lost their citizenship and who were the spouses of Canadian citizens
working abroad for the Canadian armed forces, or the federal public service, or the public
service of a province would not be penalized because of their non-residence (clause
19(2)). Each day out of the country would still be counted as a day toward the 365 days
needed to resume their citizenship.
E. Prohibitions (Clauses 21 – 28)
1. Denial of Citizenship in the Public Interest
Bill C-63 would introduce a new
power to permit the Governor in Council, upon a report from the Minister, to deny a person
citizenship "where there are reasonable grounds to believe that it is not in the
public interest for the person to become a citizen" (clause 21). The power would not
only be new but would also represent a conceptual change from the present law, under which
citizenship is a right, not a privilege, providing that objective criteria have been
fulfilled. Although there is no definition of "public interest," the new
provision might be used, for example, to deny citizenship to an individual known to
distribute hate literature but who otherwise fulfilled the criteria.
In order to trigger this section,
the Minister would be required to provide the person concerned with a summary of the
contents of the proposed report to the Governor in Council. The person would then have 30
days in which to respond in writing to the Minister. If the Minister proceeded with the
report, and the Governor in Council agreed, the latter would order citizenship to be
denied. The decision of the Cabinet would not be subject to appeal or review by any court,
and would be valid for five years. The order would be conclusive proof of the matters
stated in it.(5)
2. Denial of Citizenship on National Security
Grounds (Clauses 23 – 27)
Bill C-63 would retain the
existing procedures for denying citizenship on national security grounds, with a few
changes. As now, the process would be triggered by a report by the Minister to the
Security Intelligence Review Committee stating that there were reasonable grounds to
believe that the person had engaged or would engage in an activity that was a threat to
the security of Canada, or an activity related to organized crime.
Within 10 days of the report to
the Review Committee, the person concerned would be informed of it and the possible
consequences. The Committee would investigate, using procedures set out in the Canadian
Security Intelligence Service Act; as soon as practicable, the Committee would send
the person concerned a summary of the information available to it. In a new provision, the
Review Committee would be required to have regard to whether the information could be
disclosed without injury to national security or to the safety of persons (clause 23(5)).
When it had completed its investigation, the Review Committee would report its conclusion
to the Governor in Council and to the person concerned, although not necessarily at the
same time.
If for any reason the Review
Committee found itself unable to act (for example, if there might be a perception of
bias), the amendments to the Act made in 1997 would be continued. They provide that a
retired judge would assume the investigation and report to the Governor in Council
(clauses 24 – 26).
If the Governor in Council
declared that the person was a security risk, the application for citizenship would be
rejected. A new provision would specify that such a declaration would be final and not
subject to appeal or review by any court.(6) The bill
would increase the duration of a declaration from two years to five (clause 27).
3. Denial of Citizenship on Other Grounds (Clause
28)
Bill C-63 would expand somewhat
the list of prohibitions relating to the granting of citizenship. Indictable offences
committed outside Canada would now be taken into account and treated in the same way as
those committed in Canada. The prohibition regarding offences committed elsewhere would
extend to the whole process: being charged with, on trial for, and requesting appeals and
reviews of such offences (clause 28(c)). Being convicted of an indictable offence
committed abroad (even if the foreign offence had been pardoned) would add at least three
years to the time needed to attain citizenship. For the first time, being convicted of two
or more summary conviction offences would be considered, and would delay citizenship for
one year.
The bill would also preclude
citizenship for anyone under a removal order, or subject to an inquiry under the Immigration
Act that could lead to removal or the loss of permanent residence status. Clause 28
would also include as prohibitions the procedures previously discussed, such as the
revocation, annulment, public interest, and public security processes.
F. Administration (Clauses 29 –
38; Clause 44)
1. Citizenship Commissioners
Bill C-63 would introduce major
changes in the way citizenship applications are dealt with. The current citizenship
judges, headed by a chief judge, would be replaced and their substantive duties taken over
by public servants, acting under the delegated authority of the Minister (clause 44).
Their ceremonial duties would be taken over by full-time or part-time Citizenship
Commissioners, who would be appointed by the Governor in Council, during pleasure, for
terms of up to five years (clause 31). The positions would be remunerated. A Senior
Citizenship Commissioner could be designated to oversee the Commissioners and coordinate
their activities.
In order to be appointed,
Citizenship Commissioners would be required to "have demonstrated an understanding of
the values of good citizenship and be recognized for their valuable civic
contribution" (clause 31(6)). Their duties would be: to preside at citizenship
ceremonies; to promote citizenship; to provide the Minister, on request, with advice on
citizenship applications, the exercise of the Minister’s discretion, and how best to
evaluate citizenship applicants’ knowledge of an official language and of the rights
and responsibilities of citizenship; and to carry out any directions of the Minister
(clause 31(7)). It is not clear how the advisory side of the Commissioners’ mandate
would be accomplished, nor why the Commissioners would be particularly well-suited to
provide such advice.
Bill C-63 emphasizes the
importance of the citizenship ceremony in heightening new citizens’ awareness of the
responsibilities and privileges of citizenship, and would direct Citizenship Commissioners
regarding both the purpose and content of the citizenship ceremony (clause 33). Among
other duties, Commissioners would be required to:
- Underline the importance of the ceremony as a
milestone in the new citizens’ lives;
- Ensure that the oath was taken with dignity and
solemnity; and
- Promote a strong sense of civic pride, including
respect for the law, the importance of voting and participating in public affairs, and
respect and understanding between Canadians.
2. Certificates (Clauses 35 – 38)
With one exception, the rules
regarding the issuance, surrender, cancellation and return of citizenship certificates in
these clauses can be found in the present statute or regulations. The bill would add a
certificate of renunciation of citizenship upon the approval of a renunciation application
(clause 35(2)).
3. Offences (Clauses 39 – 42)
Bill C-63 would modify one
offence provision in the existing law, add a new one to cover citizenship officials, and
update the penalties:
Citizenship
officials who falsified documents or statements, participated in a bribe, or contravened
any part of the Act or of the regulations would be guilty of an offence (clause 40 (1)(a)
and (b));
Individuals who
bribed (or tried to bribe) an official, or impeded a citizenship official or who, not
being citizenship officials, pretended to be so, would be guilty of an offence (clause
40(1)(c-e));
The penalties upon
conviction on indictment would be raised to a fine of $10,000 (currently $5,000) or
imprisonment for a term of not more than five years (currently three years), or to both;
and
The three-year
limitation period for summary conviction offences would begin to run when the Minister
became aware of the matter, not, as now, when the alleged offence took place.
4. Regulations (Clause 43)
The
bill would widen the power of the Governor in Council to make regulations in a number of
areas. These areas include:
5. Delegation of Minister’s Powers
(Clause 44)
It is interesting that the
mechanism for assessing and approving citizenship applications, and governing all of the
other administrative work relating to citizenship, is not readily apparent from Bill C-63.
As noted above, the current administrative duties performed by citizenship judges would be
taken over by public servants and, possibly to some extent, Citizenship Commissioners.
(Indeed, this has already happened to the extent permitted under the current Act.) All
their decisions would be taken in the name of the Minister, who, by virtue of clause 29,
would have the legal duty to examine all applications under the Act and to inform rejected
applicants of that fact and of the availability of judicial review in the Federal Court.(8) All of those decisions could be, and would be,
delegated. Clause 30 also provides that the Minister could reverse any decision that
appeared to contain a "material defect." This would permit reversal of faulty
decisions without forcing an applicant to proceed to Federal Court.
Clause 44(3) specifies that only
a Canadian citizen could be appointed as a Registrar of Citizenship, determine a
person’s status as a citizen, or make a decision on an application to obtain, retain,
renounce or resume citizenship.
6. Disclosure (Clause 45)
Unless the person objected, a new
provision would permit the name of a new citizen to be disclosed to the Speakers of both
Houses, thereby allowing the Parliamentarians representing the area where the new citizen
resided to offer congratulations.
G. Status of Certain Persons in Canada (Clauses 47 – 54)
These provisions would be
virtually identical in substance to those in the current law. They deal with: the status
of British subjects, and citizens of the Commonwealth and Ireland; the power of a province
to restrict the holding of property by non-citizens and the limitations on that power; and
the equality of citizens and non-citizens in the courts.
H. Transitional and Consequential
Amendments (Clauses 55 – 68);
Repeal
and Coming into Force (Clauses 69 and 70)
Clause 55 specifies what would
happen to pending applications should Bill C-63 be passed and come into force. All
proceedings relating to an application would be dealt with under the new Act, with the
exception of any applications that had reached a citizenship judge. However, the new
provisions regarding denial of citizenship in the public interest and the national
security provisions would apply. The existing powers of citizenship judges in these
cases would continue as if the current Act were still in force.
Under clause 56, citizenship
judges would automatically become Citizenship Commissioners, with the same term of office.
Upon the coming into force of
Bill C-63, the current Citizenship Act would be repealed (clause 69).
Bill C-63 in its entirety, or any
part of it, would come into force on a day (or days) chosen by the Governor in Council
(clause 70).
I. The Oath of Citizenship (Schedule)
Taking the oath of citizenship is
a mandatory part of the citizenship process. The current oath is as follows:
I swear (or affirm) that I will
be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of
Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada
and fulfil my duties as a Canadian citizen.
Bill C-63 would replace that by
the following:
From this day forward, I pledge
my loyalty and allegiance to Canada and Her Majesty Elizabeth the Second, Queen of Canada.
I promise to respect our country’s rights and freedoms, to defend our democratic
values, to faithfully observe our laws and fulfil my duties and obligations as a Canadian
citizen.
It should be noted that removing
the words "Her Heirs and Successors" does not imply that pledging allegiance to
the British Crown would end with the death of the present Queen. Section 35 of the Interpretation
Act states that, in every enactment, the phrases "Her Majesty," "His
Majesty," "the Queen," "the King," or "the Crown" mean
the Sovereign of the United Kingdom, Canada and Her other Realms and Territories, and Head
of the Commonwealth. Thus, upon her death, the reference to Queen Elizabeth would
automatically be read as a reference to the succeeding monarch.
In committee, the words
"to defend" were changed to "to uphold" to satisfy the concerns of
conscientious objectors, who feared that the word "defend" might imply military
service.
COMMENTARY
The Standing Committee on
Citizenship and Immigration reviewed the bill after second reading in the House of
Commons. A number of witnesses before the Committee noted that the procedure evaluating
citizenship applications would be changed to an administrative system, from one where the
citizenship judge enjoys a measure of independence. Some questioned that change,
particularly when it was coupled with the removal of trials de novo in the Federal
Court and their replacement with more limited judicial review.
Questions were raised about the
proposed new power of the Minister to annul citizenship granted in cases where a false
identity had been used or the person had been ineligible. Concerns centred on the
sufficiency of the process governing annulments. Witnesses also questioned the vagueness
of the new power of Cabinet, acting on a report of the Minister, to deny citizenship in
the public interest.
Some witnesses questioned the
need to have Citizenship Commissioners at all, while others felt that these were important
and asked for their role to be defined more precisely.
A few groups felt that the
proposed oath was inadequate, for a variety of reasons.
The changes to the derivative
citizenship provisions (governing individuals born abroad to Canadian parents) were of
interest to those who would be directly affected by them. They argued strongly for the
retention of certain provisions at present in the Act, or for transitional provisions to
soften the impact of the proposed changes on their community.
As noted earlier, Bill C-63 would
not change the rule that birth on Canadian soil confers Canadian citizenship. One of the
groups that addressed this issue in committee opposed maintaining the status quo,
but the others supported its retention. In committee, the Minister and officials
maintained that the policy would remain the same in the absence of data showing that it
gave rise to a significant problem.
Finally, a number of witnesses
challenged the fact that the enabling clause 43(i) would give Cabinet the power to define
"spouse" for the purpose of the Act. They argued that important changes to core
definitions relating to marriage and the family should be made by Parliament, not in
regulations.
More extensive commentary on
other contentious aspects of the bill appears below.
A. Changes to the Residency Requirement
As noted above, the current
residency rules for citizenship are fraught with difficulties. In the absence of a
definition of "resident," the rules are inconsistently applied by judges;
outcomes are therefore unpredictable, with citizenship having been granted in some cases
to virtual strangers to the country. Bill C-63 would clarify and simplify the
requirements: actual physical presence in the country would be necessary for a total of
three out of the five years ? changed to six in committee ? previous to the
citizenship application.
The proposed changes before
amendment were strongly criticized in committee. Noting that, in a global economy,
business people have to move around, immigration lawyers and representatives of
ethno-cultural groups stated that the proposed rules would act as a disincentive for
business people considering immigration to Canada and would be unfair to others forced
to spend considerable time outside the country for other reasons. On the other hand,
it may be pointed out that, even if individuals who need to travel extensively cannot
qualify for citizenship at a certain point in their working lives, they can still maintain
their permanent resident status.(9) They are hardly
"locked in" to Canada, as one critic was reported as saying.
Another criticism was more
practical. It is that the proposed system would not work because there is currently no
objective or independent way of proving a person’s physical presence in Canada. Fraud
in this regard is not difficult because Canada does not keep records of who enters or
exits the country. Although officials can ask an applicant for citizenship for whatever
documentation might assist in proving physical presence, at the end of the day the
government must rely on the honesty of applicants. In committee, departmental officials
acknowledged the difficulties but maintained that fraud could be minimized through the
development of profiles, quality assurance, and the use of a variety of documents.
A number of witnesses also
strongly opposed eliminating the current provision whereby time spent in Canada before
permanent residence was achieved counts towards the residency requirement for citizenship
purposes. (It will be remembered that the credit is now one-half day for every full day of
residence, to a maximum of one year.) Refugee advocates argued that the impact of
eliminating this provision would be particularly hard on claimants accepted as refugees in
Canada, since processing times can be long, and certain refugees without adequate identity
documents must wait for a further five years to be landed. As was noted previously, this
provision was reintroduced in a modified form in committee. Following the amendment, the
half-time provision would apply to individuals once they had achieved status in Canada;
that is, refugee claimants who had been recognized by the Immigration and Refugee Board,
and visitors and permit holders within the meaning of the Immigration Act.
B. Knowledge of Canada
A number of witnesses at the
committee stage also objected to the proposed requirement in Bill C-63 for the answers to
the test on knowledge of Canada and the responsibilities and privileges of citizenship to
be given in an official language without the assistance of an interpreter. Some argued
that denying the use of an interpreter would raise the required language level to one
above that of merely "adequate knowledge," while others argued the potential
unfairness of the requirement for such groups as homemakers, the disabled, and those who
had been tortured. Departmental officials maintained that the level of language required
would be relatively basic, and that there was no intention to raise the level above
"adequate" and thereby impose an unfair barrier; however, they noted the
importance of basic language skills both to daily living and to participating in the
democratic process. As noted previously, the provision that would have denied the
assistance of an interpreter was removed in committee.
C. Children Adopted Abroad
As noted above, children adopted
abroad would become Canadian citizens upon application, without having to first become
permanent residents. As noted, in Committee an amendment provided that the bill would
apply to all adoptions after 14 February 1977. All witnesses who addressed this issue
supported it in general, although some questioned the requirement that adoptions completed
abroad would have to conform to the laws of the country of the child and the parents.
Officials responded that they were responding to both the spirit and the letter of
international conventions on inter-country adoptions.
Witnesses questioned what
procedures would be used for assessing whether children adopted abroad met the
requirements; that is, whether there was a bond of parent and child, whether all adoption
laws had been complied with, and whether the adoption had been intended to circumvent
Canadian immigration or citizenship law. Currently, visa officers make these kinds of
decisions in assessing the application for permanent residence of an adopted child
sponsored as a member of the family class. Departmental officials suggested that this
practice would continue.
If a visa officer refuses an
application (a common occurrence), the sponsor currently has a right to appeal to the
Appeal Division of the Immigration and Refugee Board. The Board considers all aspects of
the case, including any humanitarian or compassionate factors that may exist. Witnesses
pointed out that, under the proposal in Bill C-63, because there would be no application
for permanent residence, that there would be no sponsor, and therefore no appeal to the
Immigration and Refugee Board would be possible. Parents could apply for judicial review
to the Federal Court, but the grounds would be significantly narrower and the procedures
more formal than under the existing system. Thus, it would appear that parents would be worse
off in cases of rejection under the proposed system than in cases of rejection under
the present system. Some witnesses suggested that parents refused citizenship for their
adopted children should be able to appeal to the Board; however, officials pointed out
that the Immigration and Refugee Board handles only matters that arise under the Immigration
Act.
It should be noted that the
adoption provisions in Bill C-63 would apply only to children whose adoptions were
completed abroad. They would not apply to children sponsored to Canada for the purpose of
adoption in this country. These children would still have to become permanent residents
before being admitted to Canada.
From 1992 to 1997 inclusive,
almost 11,000 children who had been adopted abroad or were to be adopted in Canada were
landed.(10) Of these, most had been adopted abroad.
Still, in that period, over 900 children, representing 8.5 % of the total, came to Canada
before the adoption was finalized.(11) These children
would be unaffected by Bill C-63 and would continue to have to become permanent residents.
(1)
There remained a question of discrimination that was recently settled by the Supreme Court
of Canada. Before 1977, children born abroad of women who were Canadian citizens would not
have qualified for citizenship; under the current Act, such children are required by the
Act to make an application for citizenship and undergo a criminal and security check. In
contrast, children born abroad before 1977 to a Canadian father need only register their
births. In early 1997, the Supreme Court held this provision to be discriminatory and in
violation of section 15 of the Canadian Charter of Rights and Freedoms. See Benner
v. Canada, [1997] 1 S.C.R. 358.
(2)
The credit allows an applicant to accumulate one-half day for each day of residence to a
maximum of a year.
(3)
Re Papadogiorgakis, [1978] 2 F.C. 208.
(4)
Data from Citizenship and Immigration Canada show that, in 1995 and 1996 respectively,
approximately 56 and 43 children to be adopted abroad were refused visas for medical
reasons. Of those, perhaps four or five per year would have received Minister’s
permits to proceed. Data for 1997 are not available.
(5)
It should be noted that, in principle, there is no such thing as an absolute discretion to
make a decision. Even in the face of a "privative" clause stating that no review
by any court would be possible, the courts could decide to intervene in the case of a
serious breach of the principles of fairness during the process of denying citizenship.
(6)
As noted in footnote (5), such a privative clause might not be successful in precluding
judicial review by the courts in an appropriate case.
(7)
Previously some offences (those contained in clause 39(2)) had been punishable only on
summary conviction. The exception to the rule that all offences would be dual would be the
general offence provision in clause 39(5) whereby contraventions of the Act for which no
punishment is specified would be summary conviction offences only.
(8)
Specifically informing rejected applicants of the availability of judicial review would be
important because the current right to appeal to the Federal Court would disappear.
(9)
It should be noted, however, that there are residency requirements for maintaining
permanent residence.
(10)
Information received from Citizenship and Immigration Canada.
(11)
That figure is slightly skewed by higher percentages in 1992 and 1993; in the last four
years, either 6% or 7% of the total have been children coming to Canada to be adopted.
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