Bill to Amend—Third Reading—Motion in Amendment—Debate
On the Order:
Resuming debate on the motion of the Honourable Senator Omidvar, seconded by the Honourable Senator Gagné, for the third reading of Bill C-6, An Act to amend the Citizenship Act and to make consequential amendments to another Act.
Hon. Serge Joyal: Honourable senators, I don't want to nitpick this afternoon. I often address you in English, but I want to tell you that I also read the French version of bills.
I would like to draw the attention of the sponsor of the amendment, Senator McCoy, to the French version. At page 4 of the Order Paper, under paragraph 4, 5.1 in the French version:
In the French version it says:
(5.1) L'avis visé au paragraphe (3) ou la décision visée au paragraphe (5) est signifié à personne.
It means in French that notice is given to no one. That's what it means, because the article "la" is not there.
You are the author of the amendments, so if you want to seek concurrence to add the article "la" before the word "personne" in French, that would make the meaning equal to the other one. I will leave it there before I make my general comments.
The Hon. the Speaker: On debate, Senator Joyal.
Senator Joyal: This is the last suggestion regarding corrections. I thank honourable senators for their concurrence in that.
I will be brief this afternoon, but I want to draw the attention of honourable senators in relation to this amendment proposed by Senator McCoy that the revocation of citizenship is a very serious decision.
In fact, if you read the Charter of Rights and Freedoms, there are two sections in the Charter that recognize rights only to citizens. Generally, the rights are to a person, but there are two kinds of rights in the Charter that are recognized only for citizens. If you lose your legal condition of citizen, you cannot claim those rights. That's my first point, and I'm going to recite to you which of those two rights are very well stated in the Charter.
The second one is that section 24 of the Charter has a very specific clause that imposes upon us the requirement to manage a remedial legal system for anybody who feels that his or her rights are aggrieved or removed. That is section 24. Let me read section 24(1) of the Charter:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
So any of those rights in the Charter are subject to enforcement in court if anyone feels aggrieved.
I come back to my first proposal to you, which is: Which of the rights do we enjoy specifically because we are Canadian citizens, in our condition as citizens? Section 3 states:
"Democratic rights of citizens"
Every citizen of Canada —
And I insist not every person of Canada —
Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
The Supreme Court has interpreted that right very widely. It is the right to run in an election. It is the right to a certain division of ridings in Canada, as you know. It is the principle of effective representation. The Supreme Court has drawn a lot of conclusions in relation to that right: the right to vote with all the ensuing privileges that are entitlements of the right to vote.
Another group of rights that are reserved only to the citizens, and those are, in a way, more telling for an individual person, if I can use that tautology:
Section 6 is entitled "Mobility of citizens." I read:
(1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
As you will understand, honourable senators, when we remove the condition of citizenship from a person, from a citizen, we cannot, at the same time, deny them the right to go to court. That's section 24. If we were to curtail freedom of expression in Canada, under section 2(a) of the Charter, that person could go to the courts and challenge such a piece of legislation.
We had a debate in this chamber around this a while ago. It is the same for the protection of a person who has the title of citizen. If there is a decision to remove citizenship, that person, according to the Charter, has the right to go to court because it is a very serious right. You are removing the democratic rights and the mobility rights of a person when you remove the citizenship.
I have always been supportive of initiatives that aim to re-establish some kind of process. Senator Martin is right; there are not thousands and thousands of cases of revocation of citizenship. We are not in the refugees domain of activities here. You're totally right; a person who claims that his or her right has been revoked or will be terminated certainly has the right to be heard in court in an efficient and reasonable time period. You are totally right. That is what the Supreme Court confirmed last summer, as you know, in relation to in how many months you can expect a decision in a provincial court — 18 months — and 30 months in a superior court. The reasonable delay is an important point, and you have raised it, in my opinion, with a lot of justification.
However, we are not facing the refugee problem here that we know the refugee boards have to address. The revocation of citizenship happens. There are a couple of hundred cases, but it is not the flood of issues. I think you are totally right in relation to that.
I am very strongly supportive of those amendments because they re-establish enforceability of rights contained in the Charter. That doesn't mean that the person has to appeal to the Federal Court. The government could think of a system of appeal that would be fair. That is essentially what we aim for here. It could be the Federal Court, a superior court, an administrative court, but at least there will be a review process to make sure that the decision has been fairly taken and that the person has had an opportunity to state his or her case. That's what we call due process; a fair hearing.
I strongly support this amendment because, especially in this chamber— I am looking at Senator Bellemare — we question how we want to make sure that each bill is in sync with the Charter. I think this bill needed to be in sync with the Charter, and I am happy that the initiative was taken at the committee to highlight that point and that today we will be able, I hope, to vote on those amendments that, in my opinion, will bring the legislation into conformity with the rights of Canadians.
Hon. Daniel Lang: Will the honourable senator take a question?
Senator Joyal: With pleasure, Senator Lang.
Senator Lang: I don't think anybody argues with the premise that due process should be in place for any Canadian or permanent resident who has, perhaps, put themselves into this situation and that an appeal procedure would perhaps meet some of the areas of concern that have been expressed.
I guess the question that I have, in view of your comments at the outset, is: You referred to the Constitution and the rights of every Canadian and the right for an appeal. What I'm going to ask you is this: If we go with an appeal procedure, does that not still leave the right for an individual to appeal that decision of the review process? If it's put in place and they do not agree with the decision that's taken, do they still have the right, then, to go to the Federal Court for another appeal?
The question that I have is — and you have said this yourself in reference to Senator Martin — the question of those who play and game the system. They know that, if they appeal and they appeal and they appeal, they can spend the next 10 years here because of the backlog in the court, the problems that they have for the purposes of utilizing, going through the system.
I just read about a situation where Minister Goodale is being told by the court that he has to make a decision with respect to individuals who, for one reason or another, have had to appeal to him for the right to stay in this country in view of activities that they have been involved in. But those individuals have been appealing for 15 years.
If, like any other Canadian, you have the right to go to court if you feel, as a citizen, that your rights have been intruded upon, why don't we just leave it the way it is because that right is already there?
Senator Joyal: I think the honourable senator has raised a question that can be addressed in various ways.
First, the government, the Minister of Justice or the Minister of Immigration, in the process of appeal that can be put into place, could determine the length and the period of time for which you have to signify your intention to appeal to limit the extension to which a person would want to avail himself or herself of that right. Then, as I mentioned, there could be a way to establish an administrative tribunal and determine the reasons for appeal. You can specifically determine the reasons why the appeal could be allowed. Canadian courts have already —
I would need to have five more minutes.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
Senator Joyal: You could determine a certain route, in other words, or a basis of appeal that could also be vindicated by the court because there are examples in our administrative tribunal whereby the review is limited to a certain number of checks within the system. In other words, it's not arguing the case again from one level to the other.
In the case of the revocation of citizenship, there are possibilities to put together a system of appeal that would meet the test of fair hearing in the administrative context that would give the person who feels aggrieved the capacity to appeal from the decision.
However, there is something outrageous about the fact that the person is not heard, sends his or her argument in writing only and receives an answer, as Senator McCoy has said, with a number. When you read that you have the impression of being in a Soviet-era administration. The person has the right to be heard and the person has the right to argue. It's not the same to argue in writing as arguing in person with fair assistance or with no assistance a case in which you feel personally very much involved.
There is certainly a way to establish a more efficient system that will take into account the need to have reasonableness in terms of delay, and at the same time the maintenance of the right of the person to have his or her case heard by a Court of Justice, be it an administrative tribunal or the Federal Court.
Senator Lang: Your Honour, I would like to follow up because one of my questions wasn't asked.
At the end of this appeal procedure, and if he or she does not agree with the tribunal decision that has been set down, he or she does, then, have the right to appeal to the court again for the purpose of a hearing of his or her case under certain conditions; is that not correct?
Senator Joyal: Yes, senator, you are totally right. The superior court or the Federal Court has a general responsibility of review of due process. That's part of section 11 of the Charter. In other words, that has to be maintained at the same level as in any other case where the rights of a person are at stake. There has to be a capacity for the superior court or the Federal Court to review to make sure that due process has been observed in coming to terms with that request.
Senator Martin: I move the adjournment of the debate.
Some Hon. Senators: No.
The Hon. the Speaker: It was moved by the Honourable Senator Martin, seconded by the Honourable Senator Carignan, that further debate be adjourned until the next sitting of the Senate.
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Hon. the Speaker: All those in favour of the motion will please say "yea."
Some Hon. Senators: Yea.
The Hon. the Speaker: All those opposed to the motion will please say "nay."
Some Hon. Senators: Nay.
The Hon. the Speaker: In my opinion, the "nays" have it.
And two honourable senators having risen:
The Hon. the Speaker: Do we have an agreement on the bell?
An Hon. Senator: One hour.
The Hon. the Speaker: The vote will take place at 4:04 p.m. Call in the senators.
Motion to adjourn debate negatived on the following division: