Third Reading Speech: Bill C-6 – An Act to Amend the Citizenship Act

Honourable senators, before I speak on the amendment, I want to reflect a little bit on the debate yesterday. I want to thank everyone for engaging in what I thought was a vibrant, invigorating and always respectful debate. I’m sorry that my short jokes fell flat. I will revert to poetry next time. Hopefully that works better.

I also want to remark that we might disagree on many things, but I know that we agree on one very important fundamental emotion that joins us. We all love this country and we all want to work together to make it better. I really do understand.

Of course, I want to support wholeheartedly the amendment put forward by my colleague Senator McCoy because it closes a significant loophole in procedural fairness for citizens who have allegedly committed fraud or misrepresentation on their applications.

This amendment has been a labour of many months, and I would be remiss if I did not acknowledge the contributions of Lorne Waldman and Josh Patterson of the British Columbia Civil Liberties Association who have helped me every step of the way. I would also be remiss if I did not acknowledge the hard work and long hours of Suzie Seo of the Law Clerk’s Office. She worked over the last weekend in helping us get to where we are. Thank you to her as well.

As I said yesterday, Bill C-6 is a good bill, but it’s not a perfect bill. The former Minister of Immigration, Mr. John McCallum, publicly stated he would welcome amendments to Bill C-6 to fix this fairness and procedural loophole with regard to citizenship revocations. As things currently stand, honourable senators, I will submit to you that there is more due process for me if I get a parking ticket in Toronto as opposed to if I get my citizenship revoked in Ottawa.

Citizenship is, as I said yesterday, the foundation of all rights. But from the beginning, Bill C-6 had a ghost limb. I don’t know why this was not in the bill, possibly because of the haste with which it was crafted as a signature government promise to repeal parts of Bill C-24. Nevertheless, I’m pleased to have played a role in crafting this amendment. I have shared it in advance with members and various senators from all caucuses and groups who have an interest in this matter, and now we all have it in front of us.

At issue, as Senator Pratte stated, is not the grounds for revocation, fraud and misrepresentation. These have rightly been in the Citizenship Act since 1947, Senator MacDonald. We are always able to revoke the citizenship of someone who misrepresented themselves in their citizenship application. At issue, though, is stripping citizenship without procedural fairness.

I think it is only right that naturalized Canadians can lose their citizenship on grounds of fraud or misrepresentation, but I think it is wrong that only they are subject to executive decisions of the kind that Senator McCoy outlined, without the guarantees of fundamental justice enshrined in the Charter.

There are three revocation models that I think I needed to understand in order to get where I am today. Think of these three models as swings of a pendulum, one too far off on one side, one too far off on the other. Then, what we are proposing is the one in the centre because it brings us back to a centre and provides a balance to both due process, on the one hand, and timeliness on the other, so both fast and fair.

So let’s start with the first model, the pendulum at one end, which existed before 2015. The revocation process for fraud and false representation was long, but it was fair. It had three steps. It involved the minister. It went from the minister to the Federal Court, and then it went from the Federal Court to the Governor- in-Council.

The previous government rightfully decided, I think, to fix the process to address the long delays that were inherent in this three- step process, but, in doing so, it wrongfully gutted it of due process.

Now, we come to the current model, which is the pendulum swinging to the other end. It’s a one-step process now. The minister and his delegate are the one institutional stakeholder that is involved. Canadian citizens can have their citizenship revoked by a delegate of the immigration minister. We heard from Senator McCoy how far down that delegation can go, without the right to a hearing and without the right to have full disclosure of the case against them.

This is serious. It’s serious because revoking citizenship is serious, but it is even more serious because the government is revoking more citizenships than ever before. I’m not talking about the previous government only; I’m talking about this current government. You heard these numbers from Senator McCoy and Senator Pratte. Last year, I asked the then minister to halt revocations until Bill C-6 was approved, and my request was declined.

Let me provide you with some context to all of this. I’m going to give you an example of a young woman. She’s an Egyptian national. She became a Canadian citizen when she was 8 years old. Because she was a minor, her citizenship was processed under her mother’s name. In September 2015, when she was 18 years old and no longer a minor, immigration authorities served her parents with a notice of their intention to revoke her and her family’s citizenship on the basis of misrepresentation. Ms. B was never served with these documents, and her parents never told her about this notice. Although she was an adult, her parents made representations on her behalf to CIC, without telling her, and her citizenship was revoked in December 2015. She did not find out until a year later, in 2016.

Ultimately, because they had failed to serve her in person, the minister withdrew his revocation and issued a new notice, a new intention to revoke her citizenship in March of 2016. Ms. B is a student at a Canadian university and has always considered herself since she came when she was 8 years old — I was 31 when I came myself; here’s someone who came to Canada when she was 8 years old — first and foremost a Canadian. She has never lived in Egypt, does not speak the language. She has never made misrepresentations but is facing the loss of her Canadian citizenship because of her parents’ alleged misrepresentation. As you heard from Senator Pratte and Senator McCoy, there is no recourse to due process.

We asked the department, we asked the minister, in committee, about safeguards that are in place to prevent miscarriage of this administrative process, and we were told that safeguards were present. One such safeguard is the so-called oral hearing. Not being a lawyer, I think of a hearing as a very formal process, with a desk and three people and someone sitting across from you. This hearing is actually a meeting with the same D122 who signed that letter.

So 235 citizenships have been revoked, and, in the letter that is sent, it says that you are entitled to an oral hearing. So I asked the question: How many citizens whose citizenship has been revoked or who were sent this letter actually got an oral hearing? Do you want to take a guess how many, colleagues? Zero. The minister told the Social Affairs Committee on March 1, “We are committed to procedural fairness,” and this procedural fairness is what this amendment is about.

So this brings me to our amendment, which is the pendulum in the middle, fast but fair. The features that I will describe to you are not bells and whistles; they are the bare basics of due process. One, the individual will get a personal service of revocation where reasonably doable. Where the person cannot be found because they moved away and nobody knows where they are, a substitutional service order will be available, which means maybe the individual’s mother or best friend or someone who can be substitutionally served. If the person still cannot be found, the minister may then apply to the court for dispensation and proceed with revocation.

Second, the notice to the citizen must provide clear information and rights specified. It must specify, one, the right to make written representations; two, the form and manner in which the representations can be made; three, the grounds and reasons, including reference to any materials on which the minister is relying to make the decisions; and four, the right to request going to Federal Court without leave.

The individual has 60 days to write back and make representations to defend themselves, including humanitarian and compassionate grounds, like Ms. B that I talked about, which the minister must consider, not “may” consider. Currently, the regulations say that the minister “may” consider. We’re saying the minister “must” consider. If the individual chooses not to respond within the 60 days, then they have no further recourse. For this right, you use it or lose it, but the citizen can choose to respond in 60 days and say, “See you in court.”

At this stage of the process, the minister can decide, “I don’t want to go to court anymore. This is a straightforward case. I have new information in front of me. I’m going to make a decision based on the best interests of the child or based on humanitarian or compassionate grounds, or the alleged fraud actually didn’t happen.” The minister can choose to drop the case. So these cases can be swiftly and efficiently closed.

If the minister, however, still believes and is not convinced that fraud did not occur, then he refers the case to court. There is no leave requirement. There is no discretion, period. This is due process.

At the Federal Court’s trial division, the individual has a trial. There is full disclosure. New evidence can be presented. The onus is on the minister and the department to prove, on balance, the fraud, and then the Federal Court decides on revocation or no revocation.

After a Federal Court decision, there is a limited right of appeal, as Senator Pratte pointed out, to the Federal Court of Appeal. As Senator Pratte has already outlined, it is only granted if there is a serious question of general importance.

So I want to drive home two rights. First, the right to go to Federal Court and there, at a trial de novo, the right to full disclosure of the case against you. Senators, we are not talking about giving people cake. We are not talking about bells and whistles. These are the bare bones of law — the right to a trial with full disclosure, procedural justice, fairness and natural justice, a day in court, hearing the evidence against you. Anything less is an affront to all citizens.

Here is what I am asking of us, senators. This amendment corrects a serious injustice to Canadians. It creates due process where there is none. This amendment, on balance, gets it right. I look forward to sending it to the other place with your support. Thank you very much.