An act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof
Tuesday, March 15, 1988
The Legislative Committee on Bill C-77, An Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof, met at 11:05 o'clock a.m. this day, in Room 269 West Block, the Chairman, Allan McKinnon, presiding.
Members of the Committee present: Derek Blackburn, Bud Bradley, Patrick Crofton, Marc Ferland and W.R. (Bud) Jardine.
Other Members present: Dan Heap and Andrew Witer.
In attendance: From the Committees Directorate: Janice Hilchie, Committee Clerk. From the Library of Parliament: Philip Rosen, Research Officer.
Witnesses: From the Ukrainian Canadian Committee: Alexandra Chyczij, Chairperson, Legal Section, Civil Liberties Commission; Peter Rosenthal, University of Toronto, Toronto, Ontario.
The Committee resumed consideration of its Order of Reference dated Wednesday, November 18, 1987, concerning Bill C-77, An Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof (see Minutes of Proceedings and Evidence, Tuesday, December 15, 1987, Issue No. 1).
The Committee resumed consideration of Clause 2.
Alexandra Chyczij from the Ukrainian Canadian Committee made a statement.
The witness answered questions and withdrew.
On motion of Marc Ferland, seconded by Bud Bradley, it was agreed, - That the main brief submitted by the Ukrainian Canadian Committee be printed as an appendix to this day's Minutes of Proceedings and Evidence. (See Appendix "C-77/3").
Professor Peter Rosenthal made a statement and answered questions.
On motion of Patrick Crofton, seconded by Derek Blackburn, it was agreed, - That the brief submitted by Professor Peter Rosenthal be printed as an appendix to this day's Minutes of Proceedings and Evidence. (See Appendix "C-77/4").
At 12:53 o'clock p.m., the Committee adjourned until 3:30 o'clock p.m. this day.
The Legislative Committee on Bill C-77, An Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof, met at 3:32 o'clock p.m. this day, in Room 269 West Block, the Chairman, Allan McKinnon, presiding.
Members of the Committee present: Derek Blackburn, Bud Bradley, Patrick Crofton and Marc Ferland.
Other Member present: Dan Heap.
In attendance: From the Committees Directorate: Janice Hilchie, Committee Clerk. From the Library of Parliament: Philip Rosen, Research Officer.
Witnesses: From the National Association of Japanese Canadians: Roy Miki, Member of the Strategy Committee and Ann Sunahara, Legal Advisor. From the Law Union of Ontario: Frank Addario, Lawyer.
The Committee resumed consideration of its Order of Reference dated Wednesday, November 18, 1987, concerning Bill C-77, An Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof (see Minutes of Proceedings and Evidence, Tuesday, December 15, 1987, Issue No. 1).
The Committee resumed consideration of Clause 2.
Roy Miki and Ann Sunahara made statements.
The witnesses answered questions and withdrew.
On motion of Patrick Crofton, seconded by Marc Ferland, it was agreed, - That the brief submitted by The Association of Japanese Canadians be printed as an appendix to this day's Minutes of Proceeding and Evidence. (See Appendix "C-77/5").
Frank Addario from the Law Union of Ontario made a statement and answered questions.
On motion of Patrick Crofton, seconded by Bud Bradley, it was agreed, - That the brief submitted by The Law Union of Ontario be printed as an appendix to this day's Minutes of Proceeding and Evidence. (See Appendix "C-77/6").
By unanimous consent, at 5:00 o'clock p.m., the Committee proceeded to sit in camera.
At 5:30 o'clock p.m., the Committee resumed it sitting in public.
On motion of Marc Ferland, seconded by Bud Bradley, it was agreed, - That reasonable travelling and living expenses be paid to Ann Sunahara, Legal Advisor, and Roy Miki, Member of the Strategy Committee, from The National Association of Japanese Canadians, who appeared before the Legislative Committee on Tuesday, March 15, 1988 with respect to Bill C-77, the Emergencies Act.
At 5:35 o'clock p.m., the Committee adjourned to the call of the Chair.
Tuesday, March 15, 1988
The Chairman: I call this meeting to order. We will resume consideration of Bill C-77, an act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other acts in consequence thereof. Today we will resume consideration of clause 2.
On clause 2 - Binding on Her Majesty.
The Chairman: I would like to welcome Ms Alexandra Chyczij, who is going to speak for the Ukrainian Canadian Committee, our first witness. It is customary to make an opening statement, and then if time is available to subject yourself to questioning from the members of the committee. Please go ahead, Ms Chyczij.
Ms Alexandra Chyczij (Chairperson, Legal Section, Civil Liberties Commission, Ukrainian Canadian Committee): Thank you, Mr. Chairman. I would like to take this opportunity to thank you and the members of the committee for allowing me the opportunity to address you this morning.
As you have mentioned, I am speaking to you today on behalf of the Ukrainian Canadian Committee. The Ukrainian-Canadian community, who as principal victims of Canada's first national internment operations under the War Measures Act have a particular concern in addressing you today with respect to the new proposed legislation which will replace the War Measures Act.
Since its enactment in 1914, the War Measures Act has been invoked on three separate occasions, with regrettable consequences in each case. In 1914, with the outbreak of World War I, some 8,759 men, women, and children, most of whom were from the Austro-Hungarian crownlands of Galicia and Bukovyna, were interned in 26 concentration camps throughout Canada. Having been categorized as Austro-Hungarian citizens, they were deemed to be enemy aliens, and thus were assumed to pose a threat to the internal security of Canada. An additional 80,000 individuals, most of whom were of Ukrainian nationality, were obliged to register as enemy aliens, and then were required to report to local authorities on a regular basis.
In 1941, as I am sure you are all aware, the Government of Canada renewed its internment operations when it rounded up thousands of Japanese Canadians and interned them in camps throughout the interior of Canada. Finally, the third invocation of the War Measures Act was in 1970, when it was used to legitimize the federal response to the October crisis in Quebec.
In the first two cases, I would submit that it was clear that the affected communities posed no genuine threat to the internal security of Canada, and that the measures taken against both Ukrainian Canadians and Japanese Canadians were at least partially motivated by racism and wartime xenophobia. In the case of the October crisis, there is now evidence to suggest that the declaration of the War Measures Act was, at the very least, premature.
On December 17 a brief was submitted by our committee to the Standing Committee on Multiculturalism. For your reference, you will find that at table 1, appendix I, of the brief I have circulated. This brief provides further details of the nature and the extent of Canada's first internment operations. I would be pleased to answer further questions on that issue specifically, but I will go on with my other submission first.
Some have argued that Canada's first internment operations were justified, given the political climate of the time. Others, such as the Canadian Civil Liberties Association, whose submission you have already heard, have called the War Measures Act an unwarranted threat to the liberty of the Canadian people.
The Civil Liberties Commission of the Ukrainian Canadian Committee is to ensure that none of the more regrettable features of the old legislation is incorporated into the new acts or into the orders and regulations which may be made under them.
I would submit that there are potential parallels between what happened to Ukrainian Canadians in World War I and Japanese Canadians in World War II and what might happen in any future international crisis or war. Before Canada and Great Britain entered World War I, Ukrainian Catholic Bishop Nikolas Budka, in a pastoral letter to his faithful, alarmed Canadian authorities by calling upon all Austrian subjects, many of whom were of Ukrainian ethnic origin, to defend the endangered fatherland. Undoubtedly this helped create a climate that made it possible for the government to justify the measures it took against immigrants and naturalized citizens who came to Canada from the Austro-Hungarian crownlands.
Similarly, in World War II the Japanese military aggression helped provoke various repressive measures that were then taken against Japanese Canadians. In both cases the actions of the government had major and negative consequences on the affected communities.
In a society as ethnically diverse as ours, it is not difficult to imagine the multitude of problems that might arise in the event of an international crisis or war. For example, close to a million Canadians were born, or are the descendants of persons born, in territories that are now part of the U.S.S.R. In 1979 all of these Canadians were unilaterally declared to be Soviet citizens by the law of the Union of Soviet Socialist Republics on citizenship. A text of that law is contained at appendix II of the brief before you.
By that law you will see that article 3 provides that U.S.S.R. citizens are first of all persons who have U.S.S.R. citizenship as of the date the law goes into effect, which was 1979; and secondly, persons who have acquired U.S.S.R. citizenship in accordance with this law. It is the acquisition of this citizenship that is problematic.
The law in the U.S.S.R. was implemented by a decree of June 15, 1979 - not a well-publicized decree, I should note. It stated that if the circumstances relating to one's U.S.S.R. citizenship transpired before July 1, 1978, then the law of the U.S.S.R. that was in effect at that time, whatever that time might be, and in its republics, is to be applied.
Working one's way through the plethora of laws, edicts, and decrees is quite an exercise. At best, any determination of one's citizenship is perhaps an inconclusive exercise. I would like to demonstrate for you by using a case history how difficult that process can be. I will use the case of Ukrainian Canadians, because that is the one I am most familiar with, but it applies to Latvians, Estonians, Lithuanians, and any other Canadians who have emigrated from the territories that are now within the U.S.S.R.
In the case of Ukrainian Canadians who came to Canada from eastern Ukraine, which was within the czarist empire and was then incorporated into the U.S.S.R. immediately after the revolution, the case is fairly clear that anyone who lived in the U.S.S.R. at that time is obviously a Soviet citizen. However, all those who left immediately after the revolution were then required to assume Soviet citizenship voluntarily. If they did not do so on or before July 1, 1922, they did not acquire Soviet citizenship if they were outside the territories at that time.
The case of Ukrainian-Canadians from western Ukraine is a little more complex. Before 1918, the territory of what is now western Ukraine was part of the Austro-Hungarian Empire. During the interwar period the largest portion came under Polish rule, with smaller areas made part of Czechoslovakia and Romania.
During World War II, the Polish- and Romanian-ruled Ukrainian territories were annexed to the U.S.S.R., and all the inhabitants of these areas, regardless of their previous citizenship, had automatically acquired Soviet citizenship. Various decrees were issued at that time. The one that pertains to Ukrainian Canadians was that dated November 29, 1939, which provided that amongst others, former Polish citizens who were on the territory of western Ukraine and Belorussia when these became part of the U.S.S.R. on November 1 and November 2, 1939 are deemed to be Soviet citizens. There are similar decrees for Lithuania, Latvia, Estonia, and other republics. According to this law, then, most of the post-World War II immigrants from these countries have acquired Soviet citizenship.
The law then goes further, and by articles 11 and 12 deems the children of these Soviet citizens to be citizens of the U.S.S.R., regardless of their place of birth. Therefore, if one's parents were born within the territory of the U.S.S.R. and they are citizens either by birth or by acquisition after the annexation of the territories into the U.S.S.R., they are then deemed to be Soviet citizens as well.
The determination of citizenship by jus sanguinis, or by blood or parentage, is not at all unusual in international law. In fact, Canada subscribes to the same principle. However, what makes this law different is the difficulty of renouncing one's citizenship and the unilateral imposition of it on perhaps unwilling citizens. Furthermore, the U.S.S.R. fails to recognize dual citizenship, and this created problems, or at least concerns, for persons wishing to travel to the Soviet Union.
The process for renunciation of course is discretionary and it requires an application to the Presidium of the Soviet Union. I will return to that aspect of the problem in a moment.
To analogize that whole situation to perhaps a more contemporary situation, one could imagine that in the event of an international crisis in which Canada, as part of the western alliance, found itself in conflict with the Soviet Union or any of its eastern European allies, a situation might arise in which Canadians upon whom such Soviet citizenship has been imposed might find themselves deemed suspect by the Canadian government, much like Ukrainian Canadians and Japanese Canadians were during the world war periods. In fact, it is conceivable that the Soviets, in order to foment an international security dilemma for the Canadian authorities, would only have to issue a call to arms to their expatriate citizens living in Canada or the United States to provoke a federal response from the Canadian authorities, or at least public concern. And in wartime conditions xenophobia and prejudice and panic might even prevail and lead to a repeat of the internment operations that were instituted during the previous world war periods.
The Soviet citizenship law of 1978 came under scrutiny soon after it came into effect in 1979. Much concern was expressed, and in fact it was editorialized quite extensively. You will find at tab six of the brief copies of the editorials that appeared at the time expressing concern over the implementation of this law. In fact, it was quite a timely piece of legislation because it preceded the Moscow Olympics by one year. Of course at that time many people, as I recall, changed their travel plans, expressing a concern as to whether they would be in any way jeopardized by travelling to the Soviet Union with the imposition of this citizenship upon them.
At the time, the response of the Canadian government was to assure Canadians that only those who did not renounce their Soviet citizenship when they accepted Canadian citizenship fell under the jurisdiction of Soviet law. Flora MacDonald, who was then the Minister of External Affairs, indicated that in her estimation only 500 persons were so affected. However, that figure does not take into account all those Canadians who were deemed by the government in the U.S.S.R. to be citizens by virtue of their parents' having Soviet citizenship. So someone in my situation, for instance... I am a born Canadian. I have not become naturalized, so I have not had an opportunity to renounce my dual citizenship at a time of swearing an oath of allegiance or a similar occasion. I would have to take extra steps in order formally to renounce my citizenship. So the estimate of individuals affected or potentially affected is somewhat higher than was anticipated by the Canadian government at the time.
A conservative estimate based on 1981 census of Canada returns, which takes into account only Canadians of Ukrainian, Lithuanian, Latvian, Estonian, Belorussian, Russian, and Jewish origins, indicates that as many as a million Canadians are probably affected in one way or another by this law.
In 1979 the U.S. State Department responded to concerns of American citizens on this same question. American Ukrainians were then advised that an application to the Soviet government, which would be facilitated through consular channels by the State Department, would cost $98 U.S. This was 10 years ago. I assume the price has gone up since then, and if one considers the number of Canadians potentially affected, the cost of the simple renunciation of citizenship is in the hundreds of millions of dollars.
Of particular concern to the Ukrainian Canadian Committee are the definitions of emergency found in the act. I know you have heard or will hear many submissions in this regard, but I would like to draw your attention to the definition of "public order emergency". In the act, that is defined in accordance with the Canadian Security Intelligence Service Act definition, which defines a threat to the security of Canada as a foreign influenced activity within or relating to Canada that is detrimental to the interest of Canada, and is clandestine or deceptive or involves a threat to any person.
In my submission, that, as well as the other definitions under the CSIS definition, is so broad as to encompass a multitude of benign activities, or relatively benign activities. It is our fear that this broad definition, because it is too ambiguous, could provide a potential rationalization for excessive state measures of the kind we have experienced in the past.
The Hon. Perrin Beatty, Minister of Defence and responsible for emergency preparedness, I believe indicated to this committee at present he was not recommending any change to this problematic definition. Although he acknowledged there were some shortcomings in its application and interpretation, it would remain in the new legislation until such time as the CSIS Act was amended.
I would also like to deal with the incorporation of the protection of the Charter of Rights and Freedoms and the International Covenant into the new legislation. There is only one concern with respect to the protection offered by the Charter, and that is it still is subject to such reasonable limits prescribed by laws that can be demonstrably justified in a free and democratic society. Also, section 33 of the Charter provides for a suspension of civil liberties for up to five years. Therefore, in our submission, the Charter does not really afford the kind of protection one might hope to see against internment operations. I believe the new legislation is silent on the question of internment operations specifically, as I assume it will be dealt with by order or regulation under the new act.
In view of the concerns we have, we advocate a more effective balancing of emergency powers with safeguards for the protection of human rights and civil liberties. Our recommendations are contained on page 5 of my submission, but I will just review them briefly:
Thank you.
The Chairman: Thank you very much. I have one small point. When you were describing people who became citizens of the U.S.S.R. you used the verb "acquired" citizenship several times there. But the people you are more concerned about, I take it, are the ones who had it imposed upon them rather than acquiring, which is quite a different thing. Is that right?
Ms. Chyczij: Yes, those that had acquired it-
The Chairman: Did they acquire it at their own? Did they seek it out?
Ms. Chyczij: Not necessarily. The territories where they lived were annexed into the Soviet Union during World War II. The republics of Latvia, Lithuania, Estonia, and Ukraine were annexed in or about 1939. The annexation was of course a political act and therefore the imposition of Soviet citizenship was to that extent unilateral. However, they were residents of those territories.
Those individuals, when they immigrate and acquire Canadian citizenship, have the ability to renounce dual citizenship insofar as it applies to the Canadian authorities. However, the Soviet authorities still consider them subjects or citizens until such time as they make formal application for renunciation. I believe we are all familiar with the case of political and religious dissidents who apply for exit visas out of the Soviet Union and the law is so discretionary as to permit the Presidium to maintain the imposition of citizenship on these individuals for reasons of national security or whatnot.
The Chairman: Thank you very much for the clarification.
I will call on Mr. Blackburn to go first. I think in view of the shortage of time we will try to restrict it to five minutes per member and hope that we will get through, and that everybody who wants to participate will have a chance.
Mr. Blackburn (Brant): Thank you, Mr. Chairman. I would like to welcome our witness here today and thank her and her group for presenting this very comprehensive brief to the Committee. It is of great assistance to the members.
First of all, as Bill C-77 is presently written, with the Minister's amendments, do you feel we could still have internment camps and whole classes or groups of people could be interned in an international emergency, a war emergency, or possibly even the second category of emergency, public order?
Ms. Chyczij: I believe I have indicated already that the bill is silent on the specific question of internment. Presumably this will be dealt with by regulation or order under the proposed new legislation. It is not inconceivable that provisions will be, or may be, made for internment operations.
The Emergency Planning Order remained on the books, so to speak, until its revocation by the passing, or by the tabling, of the Emergency Preparedness Act. So it is that recent in our legislative history. There is no reason to believe that tradition will not be continued, and there is nothing in the bill that specifically prevents it.
Mr. Blackburn (Brant): Therefore your concern relates directly to the seventh in your list of recommendations, I would think, on page 6. Setting aside for the moment the definition of an emergency, you say all draft orders and regulations - those are secret Orders in Council - made under this proposed new legislation should be submitted for parliamentary discussion and approval. Am I right in drawing that progression?
Ms. Chyczij: Yes. And in my submission I think I qualified it perhaps even a little further, by saying it is to the extent that national security is not compromised that these details should be given public airing.
Mr. Blackburn (Brant): Would that be in a full parliamentary debate, or would that be in committee or in the oversight committee as proposed by this bill?
Ms. Chyczij: I would submit that an order to have the fullest discussion - and I know the concern over internment operations is shared by the Canadian Civil Liberties Association as well - it should undergo the same process as any legislation does. It should not escape public attention by virtue of its being regulatory in nature.
Mr. Blackburn (Brant): Most witnesses I have listened to during our hearings have been opposed to the present CSIS definition of an emergency and would like us to rewrite it or to find a new definition that ties it down more succinctly, more specifically. You are no exception, and I welcome your criticism. Do you have any proposal? Do you have anything written that we might use as a guide in our clause-by-clause discussions?
Ms. Chyczij: No, I do not. Frankly, I had thought about it, but I would be happy to provide a draft of that for your consideration at a future date.
Mr. Blackburn (Brant): Also, going back to the internment thing, I guess in retrospect, or with the wisdom of hindsight, it was a pretty despicable thing, not only for the Ukrainians but for the Japanese. We want to avoid a repetition of that kind of tragedy in the future, and we hope this bill will do it. It does not do it at present.
Are you opposed to internment per se? In World War II we called them "concentration camps" in Europe. We might as well use the same term here, for purposes of -
Mr. Heap: We called them "relocation camps" here.
Mr. Blackburn (Brant): Here we called it "relocation", yes, which is a polite way of avoiding the word "concentration". But would you like to see the prohibition of internment camps under any circumstances, under any emergency?
Ms. Chyczij: If I may, I would like to comment that they were in fact called concentration camps. If you read the brief, which is appended in appendix 1, you will see the reference there. In Sir William Otter's report, they were referred to as concentration camps in the World War I period, so the term is not misplaced.
Mr. Blackburn (Brant): Did we invent that word in Canada?
Ms. Chyczij: I would hope not.
Mr. Blackburn (Brant): It is possible.
Ms. Chyczij: At any rate, to return to your question, I would advocate very strongly the prohibition of civilian camps. With respect to military personnel, perhaps there is room for that. But I do not see any justifiable reason for the internment of civilian personnel at all.
Mr. Blackburn (Brant): They would be handled strictly in our county jails, or district jails, those who were listed.
Ms. Chyczij: I believe the provisions of the Criminal Code are sufficient. Treason is an offence under the Criminal Code of Canada.
Mr. Jardine: Mr. Chairman, dual citizenship of course is not unique to the U.S.S.R., nor to the world community at large. What is so different from this dual citizenship being imposed by the Soviet Union compared to other countries that provide dual citizenship for citizens?
Ms. Chyczij: Two aspects of it concern me. The first is the unilateral retroactive process. All of a sudden in 1978 I find myself a Soviet citizen. That is objectionable. What is more objectionable is perhaps the difficulty in renouncing that Soviet citizenship and the discretion which remains with the Soviet Union in retaining it for me against my will. That is the problematic part of it.
As I have indicated, dual citizenship is not uncommon. However in most cases when one assumes a new citizenship or immigrates to a country of one's choice, a simple renunciation at the time of swearing the oath of allegiance suffices. In this case an application has to be made, and money has to be paid, and ultimately discretion is retained by the Soviet Union.
Mr. Jardine: When you say money has to be paid, do you have to buy out of citizenship in the U.S.S.R.?
Ms. Chyczij: In 1978, when the U.S. State Department addressed the concerns of American citizens in the same situation, the cost at that time was $98 U.S. That was 10 years ago. Since that time, with inflation, the price can only have gone up. The equivalent of $98 U.S. today is in excess $100, and probably approaches closer to $200 in terms of the actual cost of processing this application. When multiplied over the number of potentially affected citizens, the cost is literally in the hundreds of millions of dollars.
Mr. Jardine: Have you had a chance to compare this with other countries that you might say have imposed citizenship; and can you give me the number of other countries that have done this?
Ms. Chyczij: No, I have not done a survey. I am sorry.
Mr. Jardine: And this goes back to the second generation with the U.S.S.R., does it?
Ms. Chyczij: Yes.
Mr. Jardine: I asked that because I was told just last week that one of our NATO countries provides for dual citizenship going back four generations. You can imagine how far back the link is from what you might refer to as their mother country. Even though they were born in Canada, and their parents and grandparents were born in Canada, they still provide citizenship for them in that country.
Ms. Chyczij: I would be curious myself, for my own benefit, to make that inquiry. If you know the name of the country, I would be happy to research it further.
Mr. Jardine: I do. I will provide it to you later. I do not want to put the individual on the spot. He represents his country in some position of note, and he did indicate that to me. I will not put it on the public record, but I will talk to you later about it.
I asked that question in the context that if other countries request to be paid to renounce their citizenship, and in your brief you are recommending that Canada bear the cost to that, I suggest it could be almost astronomical.
Ms. Chyczij: If not bear the cost, that some consular contact be established and Canadians at least be assured that this will not be held against them in the future. In other words, we would happily renounce our dual Soviet citizenship. However, if we are assured by the Canadian authorities that this will not be construed against us at a later date, then there really technically is no reason for it since under Canadian law we have been assured that we are considered to be full-fledged Canadian citizens.
However, what concerns me is what happens in a time of panic and war and paranoia, when one's neighbour learns that you are in fact a citizen of the opposing side. And in a situation where, in the example I used, if a call to arms is issued to expatriate Soviet citizens, "All expatriate Soviet citizens rise to the defence of the fatherland", that could create a certain amount of panic. In fact that is the very same situation which gave rise to the internment operations in World War I.
Mr. Jardine: Thank you.
The Chairman: I would just like clarification. Are you concerned about this dual citizenship to any degree, that if you were to go on a holiday to the U.S.S.R. they would say you are a Soviet citizen and we need you here in Moscow or somewhere? Is that much of a concern to the Ukrainian segment?
Ms. Chyczij: I am glad you have raised that, because it is something I neglected to discuss in my submissions. At tab 3 you will find the agreement between Canada and the U.S.S.R. on consular matters that were entered into in July of 1967. That consular agreement provides that citizens will not be detained arbitrarily and that in the processing of any travel documents, the place of their permanent residence will be taken into account. However, I do not know if this is still active. I have included it because I came across it in the course of my reading. However, if some clarification could be sought for the purposes of travel, that would be helpful as well.
The Chairman: I do not really see how we could put it into the bill, anything that would have any effect on the people within the U.S.S.R.
I would like to call on Mr. Crofton now, followed by Mr. Ferland.
Mr. Crofton: Thank you, Mr. Chairman. I thank the witness very much for her helpful observations.
As legislators, we found two things that are very difficult to get down on paper that can be passed and enforced; one is morality and the other is common sense. That is true, however much we might like to pass laws.
The Canadian Charter of Rights and Freedoms is pretty specific. I have some doubt that we could put words in any particular document, such as Bill C-77, that would carry any particular authority, given that the Charter of Rights and Freedoms is paramount. Anything that this or any other proposed piece of legislation might do or purport to do can only be done in accordance with certain established laws of the country, whether we are talking about acts at a given time, or compensation that might be awarded after the fact. So I do not know how helpful it would be for us to spend time trying to get words in here, if that is the override at all times.
I would like to ask this: in our normal court process, it is deemed appropriate to occasionally take somebody into protective custody. It has been suggested that the action that the government took in 1942 against Japanese Canadians was wrong and dreadful. You know, hindsight is a wonderful thing but it is very difficult to create for people today the circumstance, the atmosphere, the doubt, the fear that occurred. We did not in those days have a Charter of Rights and Freedoms in place with the various recourses available. One might even argue at this late juncture that actions taken in 1942 had some legitimacy, if only for protective custody, if you would speak to people who actually lived on the west coast, given the antipathy and the sort of actions that might have transpired had the government taken no action whatsoever. It is very difficult to anticipate.
What I am saying is do you foresee any circumstance where protective custody would be reasonable, providing the full protection of the courts was available for redress and for compensation and for all the other things?
Ms. Chyczij: Frankly, I have never heard the rationalization of protective custody used in association with the internment of Japanese Canadians. I would submit that perhaps a more realistic view of that period of history would be one of, as I have characterized it, wartime xenophobia and panic. I would be hard-pressed to believe that there was any concern for the protective custody of the Japanese themselves. I believe it was a perception of them as an internal security threat, rather than anything else.
Frankly, I would rather take my chances on the street - rather than be protected in custody. That is my personal view. I do not think there should be any room for protective custody or any internment, for whatever reason, of civilians.
With respect to your earlier comments about the protections offered by the Charter, I believe that I have addressed those earlier. My first concern was that clause 33 provides for a suspension of fundamental human rights and civil liberties for a period of up to five years. Also, one must demonstrate or show that the measures taken were demonstrably justified in a free and democratic society, which is still open to interpretation; it is not clear-cut. Finally, any invocation of the protection of the Charter requires an application by the individual affected.
It is certainly something that hovers over all of our legislation and all of our acts; but it is not inconceivable, at a time of war or crisis, that unless there is a specific prohibition against the kind of thing I am talking about, such as internment, these Charter rights could be overlooked or suspended temporarily, and then the individual would be left to seek his own recourse before the courts, which is after the fact, in effect.
Mr. Crofton: My difficulty is that you have a range of scenarios but the reality is that in time of war individual human rights are, to a degree, put on hold, however much we might want to argue against it, because people can be drafted to fight. Not everybody wants to go to war, thank you very much, but there are circumstances where the needs of the state are perceived to assume a greater importance than the rights of specific individuals, in certain categories, subject to certain protections. That is a situation where one can be drafted and told that he is going to be in the army whether he likes it or not, which in peacetime would be a huge infringement of one's civil rights. So I am not quarrelling with you; I am just saying that there are difficulties and it is not always easy to figure out how to word things when you have a Charter of Rights that provides protections, I think, in all circumstances.
The Chairman: Your time is on the point of elapsing. Have you a question that you want to put on the tail-end of that?
Ms. Chyczij: If I might just respond, my concern here is specifically with the internment question, and what we are advocating is a specific prohibition. I recognize the difficulty in phrasing and in drafting legislation in such a way as to encompass all situations; however, a specific prohibition of something that has, in the past, been a significant problem and has caused abrogation of human rights and civil liberties would help.
The Chairman: Before we hear from Mr. Ferland, I would like to make the apology I have been forced to make at every meeting we have ever had. I apologize that we do not have a copy of this in French at this time. I can assure you again, and everybody, that we will certainly have it in both languages in the official minutes.
Mr. Ferland: Thank you, Mr. Chairman. In any case I shall find it in the minutes of the meeting in which, I trust, it will be included. Its translation will then be available.
When you say to make compensation compulsory in the act, while it is currently optional, clause 46(1) provides that:
I think that it answers at least one of your concerns. Have you had the opportunity to read the minister's amendment?
Ms Chyczij: Yes. At the time my submission was drafted, I did not have available the new amendments which were recently incorporated. I think I mentioned earlier it is my understanding now that the compensation provisions have been made mandatory.
Mr. Ferland: Let us return to what seems to be the most important point for you, internment; you seem to be really concerned by it. Also in your recommendation 9, you write "that the Canadian government formally promises citizens of Eastern European origin", whose parents originate from that part of the world, etc... If one made this kind of undertaking, I think one would have to do it for everybody. We would have to treat equally all the people of this earth who decide to come and live in Canada. I think the same promise should be made to everybody. But do you not think that the Canadian Charter of Rights and Freedoms guarantees all those that choose Canadian citizenship the same degree of safety as those who were born in Canada?
Ms Chyczij: I would respond in this way. I believe I dealt with this issue in response to an earlier question. In the absence of a specific prohibition, it is conceivable. There is room under the legislation, as it is now drafted, for the provision of internment operations.
It is not so much the concern that we be afforded the protection of rights due to all Canadian citizens. We are confident that we do have that protection, but the paranoia and the fear, which might be evoked by the duality of the citizenship, would be problematic.
I suppose it is the flip side of the same coin. If there is no specific provision for prohibition of internment, then the possibility always exists and the problem of dual citizenship remains. If internment is prohibited, then we do not have the problem of dual citizenship, or the concern over dual citizenship.
Mr. Ferland: Section 33 of the Charter seemed to cause you a problem. But considering the excerpt of clause 46 that I just read, do you not think that clause 46 of Bill C-77 strengthens, up to a point, section 33 of the Canadian Charter of Rights and Freedoms?
Ms Chyczij: I am sorry. Clause 46 was the one dealing with compensation. I do not have a copy of the bill here.
Insofar as compensation, yes, but compensation is always after the fact. What I am concerned with here is a preventive measure.
Mr. Ferland: But there are several countries... I know at least two of them, apart from the USSR... France and Australia, I believe, that grant dual citizenship. I do not have the whole list but there are many countries that grant dual citizenship. I think that might create some problems. And as legislators, our problem is to try to draft legislation that cannot be amended every year but that retains a certain flexibility.
Of course, this can justify certain concerns like yours, and they are very understandable. However, since this legislation will have to be tabled in Parliament and passed by Parliament, and therefore by the elected representatives of our country, and since a Parliamentary committee will study and analyze the rules and regulations, do you not feel that it will answer a good part of your concerns?
Ms Chyczij: I am perhaps not sufficiently familiar with the process of a parliamentary review committee, and I do not know whether such hearings are public or not. I assume they are closed.
My concern is for as much openness as possible in the process. Many Canadians did not know of the emergency planning order. Most Canadians did not know that there was provision for internment operations in Canada. Most did not know that the Japanese Canadians had been interned or that Ukrainian Canadians had been. History tends to recede. My concern is that, by bringing this to the fore at the present, if in any way the wrongs of the past can be prevented, it should be done. I cannot see how that will be so in a closed-door process.
The Chairman: Before I thank our witness I would like to have a motion moved that the main brief submitted by the Ukrainian Canadian Committee be printed as an appendix to this day's Minutes of Proceedings and Evidence.
Mr. Bradley: In both official languages.
Mr. Ferland: I so move.
Motion agreed to.
The Chairman: I would like to thank you very much for your presentation. We have learned a lot this morning and certainly this committee is going to take your remarks and your brief very much into consideration.
Ms Chyczij: Thank you very much.
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Copyright © 1994 Lubomyr Luciuk
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Originally Composed: Wednesday December 4th 1996.
Date last modified: Thursday October 30th 1997.