CIMM Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, April 5, 2000

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[English]

The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Good afternoon, colleagues and guests.

I would like to welcome the Forum for Young Canadians. They are with us this afternoon.

Hopefully you'll learn about some of the good things we do in this committee. Committee work is a very important part of what we do on a daily basis here. Of course, nothing gets to the House of Commons unless it comes through a committee. Hopefully the time you spend with us this afternoon will be instructive and educational. I wish you all the best in your endeavours.

Mr. Steve Mahoney (Mississauga West, Lib.): Do we have to be on our best behaviour today, then?

The Chair: Yes. You'll all have to be on your best behaviour so that we can show them what we're really like.

Mr. Steve Mahoney: All right.

The Chair: We're resuming consideration of Bill C-16, an act respecting Canadian citizenship. We're resuming consideration of clause 2.

Before I introduce the witnesses, I wonder if I could just discuss a couple of things as they relate to Bill C-16. As you know, the plan was that after these witnesses we were going to move towards clause-by-clause consideration tomorrow.

In light of the fact that there is another important announcement coming down from the minister with regard to the new Immigration Act, I think it would be courteous on our part to cancel the meeting of the committee for tomorrow so that everyone, including the opposition, of course, can have the opportunity of attending the news conference and making known their thoughts on the bill.

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I would hope that in doing this in the spirit of cooperation it means that next week we would take the two days, Wednesday and Thursday, to complete the clause-by-clause consideration of Bill C-16 and hopefully table it before we leave for the two-week break.

Also, what I might suggest and add is that if there are amendments coming forward, not only from the government side but from the opposition side, perhaps they can be given to the clerk as soon as possible. We can put them all in a package and have them given to all of the committee members before we meet on Wednesday and Thursday, for the purposes of hopefully working together in the spirit of cooperation to see if we can't accommodate those amendments regardless of where they come from. I would hope that this can be done. I understand that Leon has indicated he's prepared to do so.

Bernard, I don't know whether you will have some amendments. I'm sure you will. Anyway, in the spirit of cooperation....

Having said all that, I'll move to our witnesses, the Canadian Bar Association, with Mr. Trister and the rest of the group.

Mr. Trister, you might want to introduce the rest of the group. We welcome the Canadian Bar Association to the committee hearings.

As you know, Bill C-16 is a successor of Bill C-63, which you participated in. We didn't have the opportunity of inviting all of the numbers of witnesses that testified on Bill C-63, but all of their testimony will be read into the record for Bill C-16. We have invited some who haven't appeared before on Bill C-63 or who had something entirely new.

I looked at your submission, your letter to me, and I made the decision because of some of the new information you had that you wanted to speak to the committee directly about. Therefore, I welcome you and look forward to your presentation. Hopefully you'll take about ten minutes on the presentation so that we can have the rest of the time of twenty or so minutes to ask you some very good questions.

Thank you again for taking the time and the effort to shed some wisdom on Bill C-16.

Joan.

Ms. Joan Bercovich (Senior Director, Legal and Government Affairs, Canadian Bar Association): I'll just take two minutes to introduce ourselves.

The Canadian Bar Association is a national association of lawyers, judges, students, and law professors across the country. The mission of the CBA is to participate in the improvement of the law and the administration of justice. The submissions we make to your committee are hopefully made with that objective in mind.

Our brief will be presented by Mr. Ben Trister and Ms. Gabriela Ramo, both immigration lawyers in Toronto. Mr. Trister will make the bulk of the presentation. Ms. Ramo will speak particularly to the adoption issues. Both are available for questions after the presentation.

The Chair: I promise not to make any lawyer jokes this afternoon.

Ms. Joan Bercovich: That would be good. Thank you.

Mr. Benjamin J. Trister (Treasurer, National Citizenship and Immigration Law Section, Canadian Bar Association): That would be a refreshing change from my office.

Thank you very much for the opportunity to appear. We do propose to address newer issues, but let me start by saying that the Canadian Bar Association has changed its position, I think, with respect to this bill since we last appeared before you. The reason for that is that many of our concerns have been accommodated. Some do remain, and we'll touch on those insofar as new developments have occurred, but I wanted to clearly state on behalf of the Canadian Bar Association that in totality, while no bill is perfect, this one is sufficiently acceptable to us to endorse. We look forward to its passage subject to the following comments or concerns.

You know that one of our primary concerns was the residency issue. Without reliving that concern, I'll simply say that it was our hope that if citizenship was going to be made more difficult to attain by requiring a physical presence, the ability to maintain permanent resident status would be made either easier or clearer or would at least be sensitive to Canada's own best interests.

In the past few years, we've had discussions with the department, and the department has floated several suggestions relating to the elimination of returning-resident permits and adopting a change in the record of landing that would be valid for a certain number of years—you'd have to renew it based on certain conditions. These issues have come and gone, and they tend to resurface.

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Insofar as residence is concerned, let me say the CBA is satisfied with the two principal changes that were made: a move to a six-year period instead of a five-year period, and counting half-days in Canada toward the physical presence requirement. But we are concerned of course, not being privy to what's going to be in the bill. We look forward with anticipation to the new Immigration Act and likely would request that we come back here and revisit how the residency maintenance provisions of that legislation would interact with Bill C-16.

One of our concerns regarding residency, as you know, was the ability to identify people who could not satisfy the physical presence requirement but whose stays abroad were in the interest of Canada, such that we might want to give them citizenship. We're advised by department officials that the minister is sensitive to this issue and proposes to deal with the issue by creating policies that would allow her to grant citizenship to persons whose stays abroad, although lengthy, could be excused by reason of their extraordinary service to Canada.

The phrase “extraordinary service” I believe exists in the present legislation and has been considered a very, very high standard. Some people would describe it as, if you need citizenship to be in the Olympics for Canada, then you'll qualify, but other than that, it might be tough. So if the minister is going to create policies that would identify people whose stays abroad are of benefit to Canada, we respectfully submit that the wording of the legislation should not imply the same current high standard that exists for exercise of that discretion.

So we propose to you that in clause 9, the words dealing with extraordinary service to Canada be changed so that the clause reads:

In order to alleviate a situation of special and unusual hardship or to reward services of significant benefit to Canada, the Governor in Council may, after being informed by the Minister of the situation or the services, direct the Minister to grant citizenship, without delay, to a person.

We provided that wording to you in a document we've given to the clerk, just outlining some technical amendments the CBA would support. This one is not really a technical amendment—it's a substantive one—but we think it is more in line with the minister's powers, as we're told she contemplates exercising them, on the issue of residence.

The Chair: Ben, you alluded to that amendment, and the clerk has just given to me. We'll make sure the rest of the committee members get copies of that. I was looking in your brief for it, and it's not part of the brief; it's separate.

Mr. Benjamin Trister: Right.

The Chair: Thank you.

Mr. Benjamin Trister: Concerning Bill C-16's review mechanisms and specifically clause 30, the government has kindly provided us with a draft paper prepared by the Regulatory Consulting Group Inc. It just came out this week, so I don't know if you've had the benefit of seeing it. Presumably at some point you will, if you haven't.

Let me say we consider that particular work on clause 30, as described in this brief, very well done. We support its conclusions regarding how decision-making on reviews of decisions needs to be separated from the rest of the bureaucracy so as to give the impression that the decisions are objective and made fairly.

There's a summary, which I'll just briefly read for the record. The report calls for:

A separate structure that reports directly to the Minister on matters dealing with its substantive responsibilities.

The designation of a Chief Review Officer who has sufficient signing authority to handle routine budgetary matters relating to the review function, including travel and training of review officers.

An administrative relationship be established with the Integration Branch which would also assist in personnel functions.

Appropriate firewalls be established between the functions of the review unit and other departmental activities relating to citizenship decisions.

Review officers do not perform other functions in the Department.

Review officers who are appointed from various sources taking account of the variety of expertise that may be required.

Consideration be given to the need to establish a credible reputation for fairness and professionalism when appointments are made.

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Let me say—and I hope my friend Joan won't get upset with me for saying this—the citizenship appointments that have been made of judges who operate under the present system have been thought to occasionally be patronage, if I may say so.

The Chair: Say so.

Mr. Benjamin Trister: Simply stated, we're not in favour of that kind of appointment system for these kinds of decisions. The kinds of decisions that are going to be made by the review unit, especially as they relate to adoption, which Gabriela will talk about later, are decisions that require an understanding of family law and of other areas of law, societal factors, social work issues, and all these kinds of things that really need to be dealt with by people who are highly skilled. So we urge you to consider the findings of the report, and we just want you to know we endorse them. Gabriela will talk a little bit more about how the report deals with adoption issues.

Lastly, I would just say the technical amendments before you I unfortunately did not have time to translate. I had a family emergency. So I apologize for that.

The Chair: We'll get them done and send you the bill.

Voices: Oh, oh!

Mr. Benjamin Trister: That's very kind. Thank you.

Ms. Gabriela Ramo (Member, National Citizenship and Immigration Law Section, Canadian Bar Association): Good afternoon. I will try to be as brief as possible so that we may keep on schedule.

Bill C-16 introduces a new test when determining the ability of a child adopted from a foreign country by a Canadian citizen to obtain citizenship. Paragraph 8(a) introduces the test that the adoption must be in the best interests of the child before citizenship can be granted to a child adopted by a Canadian citizen abroad.

Let me start by saying we're not here to suggest we oppose the concept of protecting the best interests of the child. I'm sure all of us in this room agree that the protection of the best interests of the child is crucial. Our concern is that the citizenship application process is neither the right forum nor the right time for a consideration of the best interests of the child.

The issue is that you will have visa officers, who, with all due respect to visa officers, are not trained or equipped to make decisions of the nature required by a test of best interests of the child. The best interests of the child is a concept that family law judges, social workers, and child right advocates have struggled with, because it is not an easily defined term. I believe it would not be possible for a visa officer, who does not have the background, training, and sensitivity required to make these decisions, to be in a position to make solid decisions regarding the best interests of the child. I also don't believe that in times of fiscal restraint we have the budgetary resources to engage in the type of training that would be required to allow visa officers to make those decisions.

In terms of timing, at the point when a family is applying for citizenship for an adopted child they have adopted abroad, they are at the end of a process, a very long and onerous process, where they've already gone through a number of tests to prove their suitability as parents and the suitability of the match between the family and the child. It is not an appropriate time, once, in most cases, a parent-child relationship has been established, to then revisit the issue of best interests.

In addition, we have concerns with the vagueness of the term itself. “Best interests of the child” sounds like a wonderful term, but what does it mean? It's open to varied and wide interpretation, especially in the hands of untrained individuals, who may bring their own inappropriate biases into play, especially in our era, when many adoptions involve issues such as interracial adoptions. It could potentially be interpreted in such as way as to actually result in not protecting the best interests of the child.

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We understand the concerns of the drafters of the legislation in dealing with adoptions of convenience and inappropriate adoptions. But in paragraphs 8(b) through 8(d), the bill provides for checks and balances in this area by requiring that there be a genuine parent-child relationship created by the adoption and that the adoption not be entered into for convenience.

These are issues that these officers have traditionally looked at under the old system, where a child born abroad and adopted by Canadian citizens would be required to go through the immigration process. They looked at whether it was a genuine parent-child relationship and whether there was any aspect that gave rise to a belief that it was an adoption of convenience. The best interests of the child is a completely new test that these officers have not dealt with before.

Also of concern is the fact that decisions regarding the best interests of the child have normally fallen within the purview of the provinces. We have concerns that this particular test of the best interests of the child under Bill C-16 will result in court challenges as to the constitutionality of the federal government making these provisions in an area that has largely been left to the provinces.

My final point, to wrap up, relates to the report Ben had mentioned. The report speaks at length to the issue of adoptions under the citizenship bill and clearly identifies this as the area that is likely to give rise to the most section 30 challenges and to the most complex issues.

The report suggests that there should be a separate stream, a review stream for these applications, and that the individuals reviewing the applications should be experts from outside the department, such as retired family court judges, academics, practitioners, social workers. There's a recognition in the report that the area of adoption and the area of best interests of the child are best left to the experts who have the training and expertise. We clearly agree with that statement. I think it's fair to say that the report indicates that there are concerns at the departmental level about the application of this test.

The Chair: Thank you.

We'll go to questions. We'll start with Leon.

Mr. Leon E. Benoit (Lakeland, Canadian Alliance): Thank you, Mr. Chair, and welcome, ladies and gentlemen.

I'd like to start by following up a little bit on the adoption area in clause 8 and the best interests of the child. In provincial legislation, the phrase “the best interests of the child” is used and obviously it's interpreted. Are you saying it's very difficult to interpret and it shouldn't be used at the federal level for that reason, or because it's provincial jurisdiction mainly? Is that the issue here? Is it both?

Ms. Gabriela Ramo: We have both concerns. We have a concern with the ability of this provision to sustain a constitutional challenge because we believe it's encroachment on provincial rights.

In addition, we're also concerned about the actual interpretation of “best interests of the child” and the fact that the officers who would be at the federal level making decisions don't have the appropriate training, ability, and sensitivity to deal with these issues. At the provincial level they're normally dealt with by social workers, family law court judges, individuals who have through the course of their careers devoted themselves to this particular issue or to aspects of this issue.

Mr. Leon Benoit: So at the provincial level it would be mostly social workers who would determine what the best interests of the child are?

Ms. Gabriela Ramo: Most likely. The concept arises mainly in the area of custody and access in divorce cases. In those cases, even family law judges, who deal with these cases on an almost daily basis, will often require the assessment of the family situation by a social worker before they will render a decision on the best interests of the child.

Mr. Leon Benoit: Okay.

In paragraph 8(b) you mentioned the “genuine relationship of parent and child”. I'm concerned about both of these terms or phrases being used in legislation because I don't think either is very definitely defined. Do you have any concern about the definition of a parent-child relationship?

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Ms. Gabriela Ramo: I think concerns could arise. However, it is less vague a term than the concept of the best interests of the child. In the past, in determining whether adoptions were entered into for convenience, that is one of the things these officers have looked into. I think there can be clear indicators of a parent-child relationship that are a little bit less open to interpretation than a broad test of best interests of the child.

In a world of trade-offs, where you need to balance interests, you do need something in the legislation to prevent abuse. As concerned as we are that children adopted abroad be given the same rights vis-à-vis citizenship as children born to Canadians abroad, I think we also need to balance the interests of preventing fraud in the system. That fraud, when perpetrated, will harm the child. So as part of protecting the child, we need to have some limits.

Mr. Leon Benoit: I believe this best interests of the child came in actually during clause-by-clause on Bill C-63. It was something totally unanticipated, even by the government members, judging by their reaction. I'm wondering if you have any idea of where that came from, why that came up at that late stage in Bill C-63. Furthermore, what do you think should be done with it? Should it be stricken from this document?

Mr. Benjamin Trister: Certainly you can ask the department officials, but I gather that this was inserted at the request of the provinces. There are provinces who don't have any means of controlling adoption abroad and they want the test imposed when someone is given citizenship because they're not going to have the opportunity to impose the test. There are some legitimate concerns. The problem is that it's an imperfect world. Is this solution too imperfect to adopt? It may be.

Mr. Leon Benoit: I think all of you would have a pretty good practical knowledge of how the system works. To your knowledge, could provincial officials be involved in the process at a very early stage to try to determine the best interests of the child, as they do in adoptions on a provincial level? Is there any way that can be done in a practical way?

Mr. Benjamin Trister: When you deal with the bill, it's just a broad framework. There are a lot of details to be worked out. It's entirely possible that although the provinces may not foresee a role for themselves in this process, they may have to have a role in the process at the end of the day.

Mr. Leon Benoit: It may actually save them a lot of time and money if they're involved at the early stages rather than later on.

Ms. Gabriela Ramo: I would just add to Ben's comments that most provinces do have a process by which families are vetted, home studies are prepared, and social workers provide reports to the courts on whether the adoption is finalized. There are some international adoptions that actually are finalized within the provinces themselves where the court is provided with information.

Most provinces do have in place a mechanism already. I believe it is inappropriate to impose, in a federal piece of legislation, a really problematic solution to the problems of a few provinces. I think the appropriate solution for that is at the provincial level.

Mr. Leon Benoit: In terms of the residency test and the physical presence, this is something I know you've spoken out against probably right from the first time you saw it. I actually agree with the physical presence being required, but I think when a law is put in place there has to be a way to enforce the law. I'm concerned that it would be very difficult for the department to do that.

One departmental official, when they appeared here in questioning on Bill C-63, actually said they wouldn't worry about applying it generally. It's only when they had a case that they wanted to have a close look at for some particular reason that they maybe would look at it for that individual and try to gather the necessary information to determine whether someone had actually been physically present or not.

I'd just like you to comment on that and whether you think there is a practical way of testing the physical presence.

Mr. Benjamin Trister: We weren't going to touch on how we felt before, but suffice it to say that we still have that concern, obviously. We think the government is engaged in an exercise of risk management. They know people are going to lie, and they're trying to increase the penalties for lying as a means of deterring people from lying. That's one approach.

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Another approach is that over time, with technology, perhaps they'll be in a better position to measure these things. In the long run, I think there'll be more integrity to the system than there can be now technologically. We view that really as a choice the government has to make. It's not for the bar to say.

Mr. Leon Benoit: Would you agree or disagree with the statement that if a law is to be put in place in this country, there should be some practical way of enforcing that law?

Mr. Benjamin Trister: Proper law-making would dictate that you have to be able to back up what you're requiring of people, in order to protect the integrity of the system as a whole, certainly.

Mr. Leon Benoit: Exactly.

Mr. Benjamin Trister: I'm not saying the government hasn't figured out a way to do that. It's just not my area.

The Chair: No one would file tax taxes, of course, if there was.... There's such a thing as voluntary compliance in our great society, and 95% of abiding by the laws relies on the good faith of citizenship and citizens, right? I would hope so, unless you wanted to make lawyers a heck of a lot more money than they're already making, and that means—

Mr. Steve Mahoney: You said no lawyer jokes.

The Chair: Oh, I'm sorry.

Mr. Leon Benoit: If I could say something on that, Mr. Chair, in the Income Tax Act and with Revenue Canada, there are some very good audit processes. I would suggest that because of the fact that people know the law is extremely serious law and that it's an extremely serious offence if you try to cheat in some way, because of the audit process, and because of the type of issue you're dealing with when it comes to income tax, it's much more readily enforceable than this. This is a much more difficult thing to enforce.

I do have a problem with laws being put in place when they're not really enforceable. You may be right that the technology will exist down the road, but we're talking about law that will come into effect at the time this legislation is passed.

Mr. Benjamin Trister: What it comes down to is a policy-making decision between the efficiencies of having a system like this and the risk management. That's the government's purview.

The Chair: Steve, if you could share the time, there are others. I think what we'll do is aim for 10:10, and Bernard.

Mr. Steve Mahoney: Just really as more of a comment on that aspect, at every level of government, we make laws all the time that are difficult to enforce, but they're put there with the idea of the good faith that most people are law-abiding citizens. I think there are ways to enforce this, but we don't want to get into a situation in which we'd be so rigid that we'd be taking away people's freedoms. I think you can go to the other extreme on it.

I want to deal with adoption. It's my understanding that provinces currently deal with adoption, and that the federal government deals with admitting people into Canada. My interpretation of this situation is that Bill C-16 really builds on that relationship. In other words, we would look to the provinces to either object to the adoption or not object to the adoption, prior to making a decision in actual implementation of the decision-making process. I'm just a little concerned about what you're looking for. Putting it into some kind of ingrained policy or into the act or the regulations might cause it to become so regulatory and bureaucratic that it's going to make life a lot more difficult for people trying to adopt in that situation.

Ms. Gabriela Ramo: I would agree that to ingrain it in the legislation makes life more difficult. It makes it far more bureaucratic. As the system stands now, when a family sponsors a child they have adopted abroad to bring to Canada for immigration, the provinces provide an opinion. No visa officer will issue you a visa allowing you to bring the child to Canada until the province has issued that opinion, usually in the form of a letter of no objection.

We don't have an objection to that process. The objection we have is to a process that adds an extra layer of once again having to meet those objections at the end stage of the process of adopting a child. It would make it more bureaucratic, and it would make it more difficult and much more stressful in a situation that is already quite stressful for the parties involved.

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Mr. Steve Mahoney: I'll look into that myself, because I don't interpret that as requiring a double letter of no objection from the province. I thought that once the adoption was accepted provincially, it....

The other thing is that the one province that would have its hands on all of this—adoption and the immigration system—would be the Province of Quebec, of course, because it has chosen to be involved in that. The other provinces have a right to choose, but have chosen not to for whatever reason. So what you're looking for may well work easily in the province of Quebec, but I'm just concerned it would be more bureaucratic in the rest of the country.

You want me to share, so I'm going to have to go quickly.

On physical presence, again my understanding is that the minister has in essence said she agrees with a certain amount of discretion. I'm again not sure how far we want that to go. You may like or not like the current minister, you may like or not like a future minister of a future government, or policies may change down the road. When you give really broad flexibility in that regard, I think it could lead to potential political abuse, which I don't think we'd want to see any more than bureaucratic abuse. So there needs to be a balance.

I think this minister has indicated that she's in favour of some flexibility. I have yet to see what that means. Presumably it means that if they're overseas but maintaining a home and a family and are required to be there while the entire family can qualify for citizenship, but the parent or the sibling can't because they're out of the country for economic reasons or whatever, there should be some quid pro quo there. Do you agree that she's looking at that flexibility now, and are you happy with that?

Ms. Benjamin Trister: I understand that she is, and we're happy that she is. We just think the legislative structure that is adopted has to allow the minister the ability to give citizenship to people who aren't physically here when she thinks it's in Canada's best interest to do so. It's that simple.

The Chair: Rick.

Mr. Rick Limoges (Windsor—St. Clair, Lib.): Thank you, Mr. Chairman.

Further to that one issue, my understanding was that the minister wanted to reserve the right of cabinet to make exceptions. For example, as my colleague just started to say, a situation might arise in which the entire family is here or the entire family qualifies except for one of the parents, let's say, because that parent happens to be out of the country for reasons of employment. We're in a global economy, and this person might be out of the country excessively because of business interests that he or she may have. Under those circumstances, it would make sense that everybody else qualified because they're physically here, so let's make an exception that mom or dad can also be a citizen.

That's the type of example I'm thinking of, as opposed to the extraordinary service to Canada, the Olympian example that you used. They are clearly at different ends in terms of flexibility. Does it make sense that we allow that kind of flexibility, and do you anticipate that this is going to be something that is rather the exception, as opposed to a common occurrence?

Mr. Benjamin Trister: These are complicated issues because they are so fact-based. The problem with trying to put these things into legislation, as opposed to empowering officers to deal with them on a case-by-case basis, is that....

For example, say you have somebody who can't earn a living to the standard they want to. They then go back and renew their contract with the employer they had before they came here. The only benefit to Canada that would exist in that circumstance would be that the family here is taken care of instead of maybe being on welfare. Basically it's in the interest of the family, but it's not so much in the interest of Canada, okay?

The detriment is that we may have selected the person for his or her skills, and now that person has gone back and we don't have the benefit of those skills in this labour market. So there's a separate evaluation for that kind of person from what there would be for an employee of a multinational executive who has been here for thirty years as an immigrant or something, and then gets transferred abroad for a few years and then can't meet the physical presence requirement or whatever.

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There are different issues, different interests that Canada has, and that the policy has to attend to and deal with. And I don't know that this can be done in the law, so I think the minister has to do it through guidelines. We look forward to hearing what she has to say about it, and we'll comment on it when she produces it.

Mr. Rick Limoges: It doesn't sound like we're that far apart, in terms of where the minister is going and what you're suggesting, only that clarification is yet required.

With regard to the new test of the best interests of the child, in terms of the need for that type of test to be in the legislation, is it legitimate to say that there could be a situation, for example, where we could make somebody a Canadian citizen through our federal process and then find, because the provincial government is offside with it or something, that unless there was some overlap or some recognition of provincial jurisdiction in the best interests of the child to be determined by courts or however it's going to be determined, we could have a citizen here who is without parents legally? Is that a concern, or does the fact that we're making them a citizen legitimize the adoption that was done overseas?

Ms. Gabriela Ramo: Clause 8 provides that citizenship would only be granted in a situation where the visa officer is satisfied that there is a genuine parent-child relationship. So I think that clause of the bill would take care of concerns about having a child who doesn't have a genuine parent relationship here.

Mr. Rick Limoges: Thanks.

The Chair: I know that the witnesses are in a hurry too, as I understand it.

[Translation]

Bernard.

Mr. Bernard Bigras (Rosemont, BQ): First of all, I would like to welcome you to the committee. It's a great pleasure to meet you.

Most of my questions deal with adopting children abroad. Last week, officials who testified before us tried to convince us that there were no problems between the federal and provincial governments with respect to the mechanisms that would be established.

Obviously, we support what is in the best interest of the child. I believe that the whole process which leads to sponsorship and permanent residency before acquiring Canadian citizenship, places children in an uncomfortable situation. We also need to understand that in Quebec, there is a civil code which is quite distinct and that Quebec is an exception. Unless I am mistaken, Quebec courts up until now, have had to make a final decision in each case when in comes to international adoptions. In paragraph 2 of page 3, you state:

This legislation would allow provincial and territorial government decisions to be overridden by federal visa officers [...] with little or no experience in this area.

Am I to understand by this sentence that a visa agent could overturn or strike down a decision made by Quebec courts in an international adoption case?

[English]

Ms. Gabriela Ramo: To answer the first part of the question, Quebec has probably the most extensive adoption process of any of the provinces. “Tight” is a bad word for it, but the process that takes the most control over international adoptions is probably in Quebec.

Our concern is we don't know what “best interests of the child” means. We don't know what officers will use to come to the conclusion in terms of what is in the best interests of the child. So I cannot answer your question whether this would give the power for a visa officer to override the decision. On the face of it it could, because you could have a situation where the adoption has been approved through the provincial mechanisms and at the level of the creation of the legitimate relationship between the parent and child all those checks and balances are in place, and then you have a visa officer who's looking at the best interests of the child on this broad test, for which we do not have a definition...and could superimpose that decision.

[Translation]

Mr. Bernard Bigras: So as I understand it, a visa officer could—and I emphasize the word "could"—overturn a decision rendered by Quebec courts. In such a case, would it not be better and preferable to establish some sort of integrated approach between the federal government and the provincial government, which is what the Quebec government and the Quebec courts are asking for? Would it not be preferable that both governments and both jurisdictions talk to each other, precisely to avoid this type of overlap and to avoid diving head first into Quebec's civil code?

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[English]

Mr. Benjamin Trister: My understanding is that the federal government is talking to all of the provinces, that this whole thing was motivated by the provinces, and that the federal government is working with that level of government to attend to these issues.

I had heard at one point from an official that they might delay proclamation of this particular clause and let the rest of the bill go forward until these things were worked out. I haven't heard that recently only because I haven't asked.

You're going to be faced with the same thing with the Immigration Act, because it's just the broad strokes of it. The details are not legislative, and they require some leap of faith, I think.

The Chair: Thank you, Bernard.

I predict that probably this will have to be clarified in the clause-by-clause. We'll make sure that from the administration we get as much clarification as needed based on the questions that have been asked by yourselves, the committee members, so that it's as clear as it can be exactly in terms of jurisdiction, in terms of definition, in terms of criteria. So we would appreciate it.

Before I let you go I must ask you one quick supplementary question, which has to to with the residency test. As I read your brief, I've always been of that mind, and I think I'm closer to your position. I don't know why we want to put people through the hoops, and the government through the hoops of being able to check. In my opinion, once you have an attachment—that means you apply, you and your family or whatever, to come to this country and you begin to pay taxes, have a home, and it begins to pull on your heart strings, like it did for me back in 1954—why don't we just say unless you become a criminal and you're here for three years you get the big prize? That means being a Canadian citizen.

I don't know why we're putting ourselves through these complicated hoops. That's exactly what we're doing. I think you said more flexibility is probably important to the global economy, and the fact is that this is a real mobile global sort of situation. Is that a far better approach—to keep it simple, and unless you become a criminal and you spend your time, and you pay your taxes, and you have an attachment to this country, after three years you should be entitled to become a citizen?

Mr. Benjamin Trister: I think it's a question of degree. The government believes that the Canadian people support the idea that citizenship is a significant prize, and that a degree of physical commitment to the country is necessary.

The Chair: Of course.

Mr. Benjamin Trister: So if they have that simple way of processing and they back it up with some flexibility, then hopefully everybody's needs will be met.

The Chair: So 1,065 days gets you the big prize. That's what it comes down to, right? That's physical presence.

Thank you very much, and I know that you have to get going.

Mr. Benjamin Trister: I do.

The Chair: We do appreciate not only your present input but also the interventions you made before on Bill C-63. Obviously you made an impact, because some of the changes you suggested, along with other witnesses, were instrumental in bringing forward Bill C-16 with the amendments that are closer to a way.... I guess your qualified approval of this bill is a tribute to some of the work done by the witnesses and the former committee. So thank you very much, Gabriela, Joan, and Ben.

We'll go to the Greater Quebec Movement: Giuliano D'Andrea, president, and Deepak Awasti, who is the director and executive member. We would ask them to come to the table.

[Translation]

Giuliano and Deepak, welcome to you both.

[English]

I want to again thank you for taking the time. I believe you didn't get an opportunity at Bill C-63 to appear. So thank you very much for agreeing to meet with us today and give us some input on Bill C-16.

• 1620

Without any further ado, perhaps a presentation of about ten minutes would allow the three parties to get about twenty minutes of questions, if we could. Thank you.

Mr. Giuliano D'Andrea (President, Greater Quebec Movement): Let me introduce our movement first. It's very possible that many of you have not heard what the Greater Quebec Movement is and what its activities have been over the last number of years.

Our movement is largely one from the Montreal area, a movement of people who are different from the earlier generation, in that we see perhaps federalism, and perhaps even our identity as Quebeckers, a little bit differently. We are trying to reopen dialogue in our province, in our city, between the different groups, which we feel lately has entrenched itself into certain positions.

When we took notice of Bill C-16, we found, as with so many other bills, both at a provincial and a federal level, that certain issues are not being fleshed out enough. Certain issues are not really addressing many of the concerns of our constituency, of many of the people who are members of the Greater Quebec Movement.

When we look at the term “citizenship”—and I guess there was a paper done, entitled A Sense of Belonging—and the whole question of l'appartenance, we often find that we don't see our concerns reflected in that.

I'd like to begin with a little analogy, a little story. It's a very cloudy day, and it will bring out the perspective and the concerns we have.

The story is about a bartender. One day there was a bartender who happened to see a duck coming into his establishment. Looking at the duck and feeling rather curious, he saw the duck jump on the stool and ask for some ale. The bartender was amazed at this and served him the ale. The duck drank it, looked at his watch, and in perfect English said “Oh, I have to get back to work. Thank you very much.”

The bartender turned to one of his customers and said “Did you just see what I just saw?” He said “Yes, that's Stanley.” “Stanley? Who's Stanley?” “He works across the street as a plasterer.” The bartender thought he had seen a miracle.

He found out that there was a circus in town. So the next day Stanley came in and hopped on the stool, and it was the same thing. He looked at his watch and asked for a drink. The bartender looked at him like some kind of phenomenon, and he said to him, “Stanley, do you know the circus is in town? I'm sure they would hire you.”

Stanley looked at him and didn't seem to understand. He said “What do you mean?” He said “Seriously, you're a phenomenon. Don't you think you should apply to the circus?” He said “The circus? What's that? Is that the thing that comes in and out of town, that stays here for a month and packs up?” He said “Yes.” “Is that the organization that puts up these huge tents made of canvas?” He said “Yes.” “Well, what would the circus need with a plasterer?”

The problem often is that as new immigrants, potential citizens, and so on and so forth, a lot of the people I know in my community feel like that little duck. What people are looking at is something different from what their perspective is.

Bill C-16, for example, talks about citizenship and talks about.... Well, actually, I'll address first what it doesn't talk about.

What does it mean to be a citizen? Where is the sense of belonging for someone who's becoming a citizen in Quebec?

Quebec is a little bit different from the rest of Canada. We all know that. Often, on the ground level, we find a lot of people who go through the ceremony, who become Canadian citizens, and often say to themselves that there are these two solitudes here and there's a bit of a dilemma. There are issues like, to what kind of language institution shall I send my child? You'd be surprised, but often they don't seem to be 100% aware of what the dynamics are. Our movement is concerned about the fact that many of our minority communities are moving out of Quebec. There is a diaspora. That issue is rarely discussed.

• 1625

We note that in subsection 33(1), “A person who takes the oath of citizenship shall take it during a ceremony for that purpose.” I imagine it's a 45-minute ceremony.

Paragraph 33(2)(d) says,

promote a strong sense of civic pride, including respect for the law, for the exercise of the right to vote and for the participation of citizens in public affairs....

We would like to see it fleshed out a little bit. Which civic pride? Which community is he being integrated into? Often we find that over there in Quebec there's a sense that the two governments are acting on different planes, and it would be nice to set aside perhaps part of the ceremony to indicate a little bit of the difference that exists in Quebec, so as to facilitate that integration process, which we often don't see.

The other issue we're a little bit concerned about is of course the denial of citizenship on the grounds of public interest and national security. It seems to open potentially a very broad interpretation.

We recall, for example, the Osvaldo Nunez incident, where you had a member of the Bloc Québécois who was a naturalized Canadian citizen, who because of his affiliation with a sovereignist movement was accused in no uncertain terms of having betrayed his oath or having been...I won't say a traitor, but certainly a person who was not loyal to the oath he took to Canada.

I don't want to get into the politics of why that happened, but I can tell you that over the radio shows in Montreal the issue went on for weeks. It raised an issue with us, many of us who come from ethnic communities, many of us who you will no doubt imagine are federalists. Does that mean, for the Canadian who was not born in Canada but was naturalized, that even after becoming naturalized, his loyalty to Canada can be questioned, whereas for someone who is born in Canada that loyalty is not questioned?

When we looked at the issue and we saw that on the one hand there were grounds for denying citizenship, the question that came to mind for us was could it be possible that there would be a misinterpretation or a suggestion somewhere that an immigrant who may have sovereignist tendencies could be denied citizenship or harassed because making him into a citizen may go against the public interest? We want to see a little bit of tightening of that section.

Those were generally the concerns we had with Bill C-16 from a Montreal federalist perspective.

The Chair: Thank you.

We'll go to Leon, and then Bernard.

Mr. Leon Benoit: I'd like a little bit of clarification. In terms of the revocation of citizenship, you say you'd like to see it tightened up. Could you expand on that and let me know specifically what you'd like to see?

Mr. Giuliano D'Andrea: We're a little bit concerned about two areas, of course. One is that once you become a citizen, your citizenship can be revoked. The other one is making it more difficult for you to become a citizen.

In both cases, we're somewhat concerned that if you give someone citizenship, are you giving him a right or are you giving him a privilege? The concern we have is whether the state can act as the state giveth and the state taketh away. That's one issue.

The second issue, of course, is when you have broad terms like “public interest” that are not spelled out, my reading tells me that when an issue is that vague, you can have a very loose interpretation of it.

Mr. Awasti.

• 1630

Mr. Deepak Awasti (Director and Executive Member, Greater Quebec Movement): If I might just add, what it essentially comes down to is classes of citizens. That is to say, under the Constitution everyone is protected.

If, for example, under a Criminal Code offence, I were to be convicted of a crime, it would seem excessive if I were to be deported because I was a naturalized citizen, when for the same offence a person who was born here would be sent to jail for ten years. There is a discrepancy. We are essentially creating two classes of citizen on the basis of citizenship—or better yet, how one received one's citizenship. I think that is in itself problematic.

Mr. Leon Benoit: Of course, once someone becomes a citizen they're treated the same.

Mr. Deepak Awasti: No. Again, you can still be deported.

Mr. Leon Benoit: But not based on what you do after the time you become a citizen.

Mr. Deepak Awasti: Our understanding is afterwards as well.

Mr. Giuliano D'Andrea: As long as you're a citizen, yes. But the citizenship can be revoked if there are provisions where you can revoke a person's citizenship. That's our understanding, and perhaps we're wrong.

Mr. Leon Benoit: That's certainly something I hadn't picked up in here at all. Certainly if some false statements are made, or someone committed a serious crime before they became a citizen and that wasn't brought up during the process, then citizenship could be revoked on that basis. But my understanding is that once you become a citizen, you can't have your citizenship revoked based on what you do from that time forth.

The Chair: That's true. The past might be problematic, but not what you do in the future once you get your citizenship.

Mr. Giuliano D'Andrea: Right.

Mr. Leon Benoit: I'll just pass, Joe. If I think of one, there may be a short question after.

The Chair: John and Andrew.

Mr. John Bryden (Wentworth—Burlington, Lib.): Just very quickly, I was around when Osvaldo was there, and the only one who questioned his right of citizenship based on his ethnicity was a guy by the name of Jacques Parizeau, who blamed the loss of the referendum on the ethnics and the moneyed interests.

We were in the House of Commons at the time that announcement was made. I remember calling over to Osvaldo and pointing out that Parizeau meant him. Certainly at no time during the referendum did any of us, at least as far as I know, question the right of the Bloc Québécois to speak as they wished to speak, and to talk about separation if they wished to talk about separation.

This is a free country. It is a country in which—whether you are a naturalized citizen or whether you were born here, it matters not—you can speak your mind. Short of sedition or treason, which I believe are on the books and apply to all citizens, there was no prejudice toward Osvaldo because he was a naturalized Canadian, other than that shown by one Jacques Parizeau. That's all I have to say.

Mr. Giuliano D'Andrea: Well, you're right. There was a problem in Quebec when that comment was made, and a lot of us were quite upset.

Mr. John Bryden: Rightly so.

Mr. Giuliano D'Andrea: In fact some of us were actually quite proud, because by the flip side, if we caused the referendum to fail, I guess it means that ethnics in Quebec have a voice and have some power. There are two ways of looking at it.

The Chair: If we could all stick to the subject matter, which is citizenship, not the referendum, sovereignty, or federalism, it would be helpful as we try to build a citizenship act for this great country that has a whole bunch of parts to it, a whole bunch of cultures, two great languages, and three founding nations.

Who's next? Andrew.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): I want to clarify something in the bill. If somebody commits an offence subsequent to becoming a Canadian citizen, there's no revocation. The revocation applies to people committing certain acts prior to becoming citizens, and that includes things like war crimes and misrepresentation to obtain citizenship.

• 1635

The one issue we have heard concerns about, which I certainly have some concerns about myself, is the revocation process itself. It's not that I do not agree that people should have it revoked in certain circumstances, but it's the process it goes through.

Right now, as far as the courts are concerned, you get a hearing before the Federal Court, Trial Division judge. Once he makes a determination, it is not subject to appeal. A concern I have is that when anybody in Canada is charged with an offence, they have a right to appeal a decision. That's why we have the Supreme Court over there, at the far end of the Hill. That's the right of every Canadian citizen when they are charged by the law, except in the case of revocation. They don't have the process.

Mr. Giuliano D'Andrea: We share that concern, certainly, and we noted that in the text. At the same time, I'd like to go back to the other issue, the issue of political philosophy.

If a person does indicate that he is.... And I know you are indicating to me that it will be interpreted in a very narrow fashion, or for exceptional cases when a person's political acts will prevent them from.... I mean the exceptional nature of denying someone citizenship. But when I read the oath—and perhaps I'm misreading it—my concern is whether there is room for interpretation, in the way it's structured, that a person who is an overt sovereignist could be denied citizenship. If the answer is no, then it meets my concern.

But the concerns we had, certainly in the Montreal area during the Nunez incident.... Perhaps it was misinformation. Perhaps we misinterpreted what occurred in Parliament, but the information we got was that here you had a person who apparently took an oath, a person who became a Canadian citizen, and then suddenly he was a sovereignist and was betraying, of course, the oath he took.

Again, the public reaction we got in my part of the country was that there were a lot of people shaking their heads and saying yes, these people betrayed their oath, and they should be held accountable for it if they do that. As long as the reading is very tight and it does not mean that political philosophies or sovereignist movements go against the public interest, then we're satisfied with the bill. That was the concern we had in that particular section.

The Chair: Are there any other questions?

Unfortunately, Mr. Bigras, who wanted to have some questions, is not here. He had to leave to do something else.

We're on a tight schedule. I want to again thank you for your insight and for bringing to light some questions you have. I hope at the end of the day the new Citizenship Act will reflect the values of all people, regardless of where they come from in this country. We have a great, diverse country, with great, diverse cultures. Quebec is very unique in itself, also.

I'm sure you feel, as I do, very proud to be Canadian. Especially for some of us who weren't born here, the rights, privileges, and responsibilities that come with citizenship are taken very seriously. We appreciate that. Thank you very much, Deepak.

Members, we're going to ask our third witnesses, the Canadian Immigration Policy Council, Mr. Howard Greenberg and Mr. Carter Hoppe, founding members of the organization. Again, this organization did not have the opportunity of formally making a presentation on Bill C-63, and has asked to make a presentation on Bill C-16.

• 1640

Welcome to the committee, gentlemen. I understand you have an opening statement. I'm sure we'll have some questions. Thank you very much for attending.

Mr. Howard D. Greenberg (Founding Member, Canadian Immigration Policy Council): The Canadian Immigration Policy Council is a rather new entity. It arose out of a group of professionals—lawyers, economists, academics—who thought that the immigration policy deserved a closer study from an economic perspective. There seemed to be a lot of discussion about immigration on the technicalities, the legislation.

The Canadian Bar Association has done a wonderful job in terms of identifying pitfalls and areas of concern, but there seemed to be a gap in terms of discussing economic policy interests and discussing legislation from a corporate employer perspective. The intention of the Canadian Immigration Policy Council was to address just that.

Mr. Hoppe and I are lawyers. We are past chairs of the Canadian Bar Association national sections and our provincial sections and are both certified in the Province of Ontario by the Law Society of Upper Canada. We're not here so much in that capacity as we are as people who have had over 20 years of experience inside the legislation, inside the policy.

We have melded our abilities and perspective together with those of Professor Don De Voretz, one of the leaders in immigration data and policy, from Simon Fraser University; Professor Nina Cole, from Brock University; Professor Jeffrey Reitz, from the University of Toronto; and Paul Swinwood, who is chair of the Software Human Resources Council. A lot of expertise is coming together to give a different focus to some of these issues. That's what CPIC is here today to talk about: the economic or the corporate perspective on this citizenship legislation.

Having said that, the dilemma that arises in terms of the residency requirement is specifically what we want to address today. This committee is well aware of the fact that the economy has turned global and that the border has dropped for many of these large multinational companies who are really doing projects on a worldwide basis simultaneously.

I'll point out one interesting phenomenon, which I'm personally acquainted with in regard to my own clients as well as in terms of our own research and discussion amongst us, that is, in the software field there is a new concept growing of global software development.

I can tell you that many of these new start-up companies that have come to the Ottawa area who are doing software development are doing it here in Ottawa at the same time that they are doing it in Bangalore and at the same time that they're doing it down in the Silicon Valley in Sunnyvale, California.

What they do is that they piece together this software from various locations. The turnaround time that one would expect in the corporate environment of software development, which was normally somewhere between six months to a year and a half, now has a timeframe of about seven months from start to the time it hits the marketplace—in order to be globally effective.

Many of these corporations, in order to share expertise across borders, will have their workers go down to the United States or out to Europe for the sole purpose of joining with their European operations or their U.S. operations and sharing this information. One of the concerns that arises, both in terms of daily visits to the United States or weekly visits to the United States or more long-term assignments, is that these workers are less and less inclined to go outside of Canada if they're unclear as to how that's going to affect their status or if it's going to delay the acquisition of their citizenship. That presents the primary issue that is before us to discuss with you today.

Mr. Carter Hoppe (Founding Member, Canadian Immigration Policy Council): Having said that, we were pleased when the amendment from the original three years in a five-year period in Bill C-63 was changed to three years in a six-year period. I think we would have agreed with the comment made in the summary for Bill C-16, where it was mentioned that:

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. They are hardly “locked in” to Canada, as one critic was reported as saying.

But the point of departure for us coming here today was the widely disseminated version of the Immigration Act. And I guess we'll know tomorrow morning at 10 o'clock whether or not, as was reported in The Globe and Mail this morning, there may be a requirement that a person must spend two years of every five years physically in Canada even to maintain permanent resident status.

• 1645

So while three years in six years contemplates somebody taking a chunk of their life at the behest of their employer, let's say, and working abroad for a three-year period, as soon as that person crosses 731 days or whatever it is, they won't be able to get to the citizenship stage because they may have lost their permanent resident stage. It affects the ability of these corporate individuals or corporate transferees to plan their affairs and to gauge whether or not they can accept overseas assignments. Anything that stands in the way of that, we would suggest to you, is something that you really ought to be thinking about very carefully before you write it in stone.

For example, might it not be subject to regulations? For example, you may find tomorrow morning that the two years of physical residence in a five-year period under the Immigration Act is subject to the regulations. In other words, the minister may give some credit to people—for example, corporate transferees—who have to spend more than three years outside of Canada. Wouldn't it make sense? I mean, shouldn't citizenship and immigration go hand in glove? It's fortunate, I think, that the introduction of the immigration legislation is imminent as early as tomorrow.

Mr. Howard Greenberg: To take off on that point, interestingly enough there's always this legislative and policy debate as to how much you should put in legislation and how much you should grant to the minister of the day by way of regulations.

I guess it's somewhat remarkable in this legislation that clause 6 in and of itself has no regulation-making power attached to it. There was an intention to carve out the general specific rule and only allow subsequent parliaments to deal with that issue, and then to create this clause 9 power—which I'll get to in a moment—for the purposes of special cases. I would suggest to you that this is probably a very dangerous approach.

I would much prefer that we put ourselves in the hands of the presiding minister of the day to articulate a regulatory regime that would create exceptions to the rule based on how the economy is doing at that moment and what the flows are like than to have to look back to Parliament again or to depend on clause 9 for your relief. I'm not sure at the end of the day how I'd want to word that regulation; I'm not quite sure whether we should even address that today. Clearly we're too far down the road to rewrite the bill in a substantive way in terms of all the criteria you should meet in order to extend the time or to have the time outside of Canada count towards citizenship.

Mr. Carter Hoppe: But unlike clause 9, the Canadian Immigration Policy Council doesn't think that those circumstances should be limited to special cases. In our view, it should be any kind of reason to be outside of Canada that is in the economic interests of Canada.

Mr. Howard Greenberg: In fact, I'd go a step further to the committee. I would suggest that it would be very dangerous to use clause 9 as your remedial provision to address these issues. If you look at the specific wording, you couldn't take corporate interests and bring it within “special and unusual hardship”. I certainly hope we're not going to twist the terminology that far such that we're going to try to capture these workers' aspirations and intentions in that part of the legislation.

And “to reward services of an exceptional value to Canada”.... Well, it has to be obvious that the wider you cast the net on who you're rewarding, if you effectively dilute the value of that provision to the point where you're.... What are we going to do? Are we going to reward 25,000 people by way of identifying them as a group and reward them by saying...? How does that get considered? Does the minister delegate that authority down by instrument to determine who gets rewarded? Or is the minister going to do a rewarding process once a month in her office? I mean, you—

Mr. Carter Hoppe: If the minister is going to write that criteria and publish it, you may as well call it a regulation.

Mr. Howard Greenberg: And at this point, you see, you start looking like a regulation and talking like a regulation. You might as well just be a regulation.

Mr. Steve Mahoney: Like the duck.

Mr. Carter Hoppe: Like the duck story.

Mr. Howard Greenberg: Like the duck story.

So at the end of the day.... This point is probably from the business perspective. In our view, from just watching this discussion, business interests really haven't been looked at that closely. I would suggest to you to that there are a lot of employers in Canada who are going to suffer extreme difficulty with their employees wanting to move to take up projects elsewhere in a shorter period of time.

A voice: That's right—

The Chair: Excuse me.

Was there a second point to your presentation? Does that cover the full extent of your presentation?

Mr. Carter Hoppe: This is it.

Mr. Howard Greenberg: That was the only issue we—

The Chair: Great, thank you. Then we'll move to questions.

Mr. Benoit.

Mr. Leon Benoit: What was in Bill C-63 originally was a clause that allowed government or federal civil servants, I believe—I'm going from memory—who had business outside the country not to include that time, or to consider that, I guess, as time where they had a physical presence in the country. I'm not quite sure that was the exact interpretation. A concern was that when you allow that for a federal civil servant and not for a private business person, there is an inequality or unfair treatment.

• 1650

Mr. Carter Hoppe: I think it was the spouses of federal employees who themselves were citizens.

Mr. Leon Benoit: That's right.

Mr. Carter Hoppe: And they wouldn't be able to take foreign postings if that meant a separation from their spouse, who would want to be able to qualify for citizenship.

Mr. Leon Benoit: That's right. I know I certainly called for it to be made fair, or to be dealt with one way or the other. I didn't specify which way. But it's an interesting—-

The Chair: Well, you have to be on one side of the issue or the other.

Mr. Leon Benoit: Or you can straddle them. You can ride the fence a long ways—something I haven't a habit of doing, though.

The Chair: I thought that's what the Liberals were always accused of.

Mr. Leon Benoit: Yes, that's exactly right. As I said, I don't have a habit of doing that.

I would like to ask.... I understand your point here. Have you been able to take any kind of reasonable estimate of how many people having this in the Citizenship Act might cause hardship to?

Mr. Howard Greenberg: If I could take a run at that, we know we're coming in at the lower end of the levels, 200 to 220. We know that of the levels each year, the skilled worker component consists of approximately 50% of the total mix. So if we're bringing in 175 from overseas, 50% of those represent skilled workers who potentially could be working for corporations who may need the mobility. So as you start working through the logic of it, you can see that if you start aggregating.... Now, you're probably going to go back three or four years for your group. You could be talking about a sizeable group of people who are impacted by this.

Mr. Carter Hoppe: Don't forget the skilled workers that we're attempting to attract from around the world are the best and the brightest—at least we hope so—and every time we bring in a new selection system we raise the bar. So if you truly are attracting the best and the brightest from around the world, then the potential for those people being the very types of people that Canadian corporations might want to involve in their overseas operations...the upside is big.

The Chair: Stay tuned for tomorrow, by the way, on that matter too.

Mr. Carter Hoppe: Exactly. However, are we likely to see regulations tomorrow? We're probably just going to see the bill, as I understand it.

Mr. Leon Benoit: The promise was made by the minister that the regulations would be made public at the same time as the bill was.

A voice: At first reading?

The Chair: No, not at first reading. I'm sure we'll ask the minister this when she appears before the committee on the new bill, but I think the commitment was that the regulations would be tabled with the committee before the bill was actually tabled with the House of Commons, before third reading and royal assent or whatever.

Mr. Leon Benoit: Well, that's quite different from the way I understood it. But we'll see.

The Chair: I'm not going to speak for the minister. That might be one of your questions tomorrow, Leon, of the minister at the news conference.

Mr. Leon Benoit: Yes.

The number you said, by the way, that 50% of the total number of immigrants—which was 174,000 last year—are in the independent category, isn't anywhere near accurate. In fact a vast majority of the people who are listed under any of the independent categories are family members who come in because they're dependants rather—

Mr. Carter Hoppe: Are you talking about the principal applicants, the ones who are selected?

Mr. Leon Benoit: Yes.

Mr. Carter Hoppe: On the other hand, what we don't know—at least I've never seen any information on it—is how many of the spouses could also have been principal applicants. To my knowledge, we don't measure spousal—

Mr. Leon Benoit: I've never seen any figures on that. It would be very interesting to see that.

Mr. Carter Hoppe: Right.

Mr. Leon Benoit: So you're assuming in your numbers that a high percentage of spouses would be—-

Mr. Carter Hoppe: It's anecdotal, but in our experience a spouse who is himself or herself highly skilled is often married to a similarly highly skilled spouse. So to say that only the principal applicant is a highly skilled person is something we can't really measure, I don't think.

• 1655

Mr. Leon Benoit: Yes. It'd be really interesting to have those figures. It's an interesting point, and I think we do need some more debate and discussion on it. It will of course be dealt with to some extent in the Immigration Act, that two years out of five.

Mr. Carter Hoppe: Right, and we have to see how tight that two years out of five is. If there are broad exceptions to that, fine. If there aren't, then someone who took a two-year posting abroad, which I think is a usual type of posting, would then be locked in for the next three years—forget about qualifying for citizenship—just to maintain permanent resident status. So a very important piece of information to have is what that immigration regulation will be.

Mr. Leon Benoit: I want to state to you, just as a comment, that I disagree with you wholeheartedly that more should be left to regulation. You can change legislation, and if it's done in a way that is more cooperative than our current process, you can change it quite quickly.

Mr. Carter Hoppe: We can give you some language.

Mr. Leon Benoit: And I would fully suggest—

Mr. Howard Greenberg: We just thought that the practicality of doing that kind of revision at this stage.... I'd put my faith more in the minister of the day than in not having anything there at all.

Mr. Leon Benoit: Not having anything there at all? I don't—

Mr. Howard Greenberg: In terms of being able to impact the qualification period at a later time. If this legislation passes in its present form, there's going to be no way, other than using clause 9, to count this time outside of Canada. Now, that's a very dangerous situation.

The Chair: Well, I'll take you up on your offer, Mr. Greenberg. Between now and next Wednesday or Thursday, why don't you put something down in writing for us to take a look at as to how we might deal with it better.

Mr. Howard Greenberg: Yes.

Mr. Carter Hoppe: Excellent.

The Chair: If I could, since I don't see any questions on this side, I want to talk a little bit about this residency thing.

You've heard me; I think I agree with where you're coming from. But who would have the discretion? You see, we're moving from a judicial-based system to an administrative-based system, and hence we won't have the judges who in the past have had some discretion with regards to residency as opposed to physical presence, which now we're changing. Who would you anticipate as having the discretion in those regulations to determine that question of residency or physical presence, or however you're going to deal with it, unless you go back to a judicial-based system? Is that what you're suggesting?

Mr. Carter Hoppe: The immigration or visa officers, who today adjudicate applications for returning resident permits, unfortunately on some loose criteria in this area.... But if you had the criteria specified either in the legislation or in the regulations, a transfer associated with a bona fide Canadian company, for example, or a transfer associated with some kind of business or joint venture with a foreign company or something like that would be eligible for this treatment.

The Chair: But it could still be done administratively, that discretion, as opposed to giving it to the citizenship commissioner or something like that.

Mr. Howard Greenberg: As a parallel or analogy, if you look at the way work permits are issued now, there are certain exemptions from the normal rule that arise by subsection 20(5) based on significant benefits for Canada. The manual does a fairly good job of articulating those kinds of circumstances, and then it's applied worldwide in a more or less consistent way.

The Chair: I don't know if you've had an opportunity to look at other countries, but obviously when you put up the Canadian test to the other international tests in the global economy, I think you will find, based on the United States, Britain, Australia, and others, that on this three years out of six, Canada probably is right in the middle of the pack. I don't know if you've done any further studies with clients as to whether or not there are other countries that in fact are thinking of changing and are relaxing their own rules, because it's becoming a competitive factor in attracting the best minds in the world—obviously they are coming here to work—and eventually keeping them here as citizens. I would think that's ultimately what you would want.

Have you done some really good case studies with regard to that kind of competitive factor?

Mr. Howard Greenberg: I don't know to what extent the committee has looked at the American scenario, but I understand that in the United States there's to be a special exception for an employer that is a U.S.-owned company. For example, a Canadian subsidiary in the United States that sent a worker out to England would not enjoy the special privilege, but a U.S. employer...that individual would not be at all prejudiced by the time outside of the United States for the purposes of qualifying.

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The Chair: I can only tell you that—and maybe we don't have the exceptions—in the United States, of course, it's five years continuously resided, and then it says they must be physically present for at least half of that time. So it's two and a half out of five, but I don't know about the exceptions and how—

Mr. Howard Greenberg: But that clock doesn't run. If you're transferred from a U.S. national company, that clock doesn't run the way it does.... It preserves the rights of that U.S. employee.

The Chair: It may very well be. I'm just telling you that the exceptions to the case may very well be very compelling and we might want to look at them.

Any other questions?

Mr. Greenberg and Mr. Hoppe, thank you very much for your intervention and for giving us those things to consider. We really appreciate it. I think we'll see you back for whatever that C number is for immigration in the near future too. Thank you very much.

Members, we will now adjourn until Wednesday, April 12, at 3:30. With your approval, we might even go a little longer than six o'clock, so that we can start the clause-by-clause on this bill and finish by Thursday, hopefully.

An hon. member: Could we get a note to that effect?

The Chair: Yes. We'll just remind you.

Also, perhaps everybody could get their amendments to the clerk as quickly as possible so we can bundle them up and have them before we start on Wednesday. In the spirit of cooperation, if we discuss it amongst each other, we might find there is some support here, there, and everywhere.

Thank you very much.