Citizenship and Immigration Committee on May 12th, 2008

[The Chair, Conservative, Norman Doyle]

Maybe we will get started. It's a little after 10 o'clock. We do have a quorum.

We have our first group of witnesses--well, group is the wrong word; I don't believe two constitutes a group. We have with us today, Jenna Hennebry, assistant professor, departments of communication studies and sociology, Wilfrid Laurier University. Jenna, I think we met you in Toronto.

Also, we have François Crépeau, professor of international law. Mr. Crépeau was on our video conferencing last week and it didn't quite work out. Sorry about that. It wasn't your fault. I think the problem originated on this end. We don't even know yet how it came about. In any event, we're not anticipating any problems today--thank heavens.

Welcome to both of you.

It is Monday, and people travel on Monday, trying to get their flights and what have you. Some people might be a little late, but I think we can get started. We have a quorum.

I'll put it in your hands. I imagine you both have opening statements to make. Whoever is going first, please feel free to begin on consideration of part 6, Bill C-50.

Go right ahead.

[Dr. Jenna L. Hennebry, Assistant Professor, Departments of Communication Studies and Sociology, Wilfrid Laurier University, As an Individual]

Thank you very much for inviting me here. Although I have a number of concerns that I want to bring up with respect to Bill C-50--in particular part 6, obviously--I'm going to focus on a population that I've spent a great deal of time researching and a on set of migration issues, focused on temporary migration. I want to do this because I believe Bill C-50 could have significant consequences with respect to temporary foreign worker programs and temporary migration in general. I have quite a number of concerns, but I will pour through them kind of quickly, and then we'll have a chance to come back to particular points I make, if you would like further information.

I believe the budget allocations for Citizenship and Immigration and the proposed changes to the IRPA do not address the backlog but instead encourage temporary migration. I see this taking place because the foreign worker program is a faster alternative to bringing in permanent immigrants, but it circumvents the points system. I believe this heightens the possibility for discrimination on the basis of race, country of origin, gender--since the majority of foreign workers are men--political affiliation, sexual identity, etc.

With Bill C-50, more employers may turn to the foreign worker program as an alternative, even more than they have in the last year or so. I'll speak to that in a minute. Employers, I think, will turn to this program instead of waiting, and they are already tired of waiting for the government to admit many high-skilled and low-skilled permanent applicants waiting in the backlog, as they have put it, many of whom are family members of immigrants who are already in Canada. I find it interesting, with such argued labour shortages, that we see the backlog as a problem as compared to a potential resource for the Canadian economy.

I think it's interesting that in 2007 we didn't meet our permanent immigrant targets, while our foreign worker program and the number of temporary foreign workers increased dramatically. We saw more than 150,000 foreign workers entering during that period of time.

I think what's disturbing, actually, is that there's no cap on the number of foreign workers admitted through the foreign worker program, and obviously there can be no backlog because it's employer driven. It's an entirely employer-driven program. According to Human Resources and Social Development Canada, we've seen a 122% increase in employer requests for low-skilled workers, as well as a 39% increase for high-skilled workers, between 2005 and 2007. We're going to see this pressure increase, and if we have a system that is basically pushing employers to look for foreign workers instead of waiting for workers to be processed, we're going to see that number increase.

I also believe that Bill C-50 enables increased private and economic interests driving policy in immigration. As I've mentioned, I think it encourages temporary foreign workers and therefore an employer-driven immigration system. It also creates the potential for a greater number of third-party recruiters and employment agencies, who already play a significant role for employers by locating foreign workers and setting up their contracts. There's a lot of concern about these agencies being unregulated and basically a potential for greater exploitation and criminal behaviour as well. In most provinces, these organizations are not regulated. Certainly, that is the case in Ontario.

There has also been much discussion about using the provincial nominee program in conjunction with the foreign worker program. Although this does provide a small window of opportunity for workers to gain access to Canadian residency, it does nothing to remove private interests from determining who will be Canada's immigrants. It also does nothing to regularize it, standardize it, such as providing a three-year period across the board for all workers. It does vary by program, but generally there is no direct path for foreign workers. This basically means that a foreign worker can be working in Canada for two or three years, and then at the point at which they conclude their contract and they want to stay in Canada permanently--maybe they have a Canadian spouse, or fiancé, as in my case, or they may even have a job offer--under Bill C-50 the minister would be under no obligation to even consider their application. I think that is problematic on a couple of levels.

I think Bill C-50 heightens the vulnerability of foreign workers because of that very problem where temporary foreign workers basically do not need to apply for permanent status because they may only be considered as applicants if the minister deems it so—this comes from my reading of proposed section 87.3, where it will be up to the minister to decide whether to consider that foreign worker or not.

I think it's important to note that many foreign workers apply for refugee status after working in Canada for a number of years, particularly the low-skilled foreign workers. Also, quite a number, if they don't receive any other status, we believe go undocumented or basically overstay, and this leads to a real problem, because we don't see appropriate monitoring and statistics and tracking, so we don't really know where this population is and the kinds of health risks this may pose. With respect to foreign workers, there are different procedures for evaluating health and health screening--with respect to temporary foreign worker programs--than there are for permanent immigrants. It depends on length of stay, and of course there's nothing to ensure that length of stay doesn't in fact turn into a much longer time than anticipated.

With respect to health, one more point I want to make is that really I'm concerned that the minister has not, or Bill C-50 has not, considered the impacts it might have on health screening of immigrant and foreign worker applications. I think it's important to recognize also that foreign workers, especially those in low-skilled categories, will have been foreign workers in many other countries prior to the point at which they enter Canada. This may be a different factor than immigrant populations, so you may be talking about a different set of health risks and a different set of health considerations.

I think, overall, Bill C-50 poses significant challenges to Canadian multiculturalism and social cohesion. As I've said, the foreign worker programs encourage a hierarchical system based on country of origin and often gender, and moving to a system that encourages more temporary foreign workers is problematic. I also think there are a number of challenges if you have a combination of populations working together, with foreign workers, immigrants, and Canadian citizens vying for similar jobs and having difficulty. If you have an immigrant wanting to sponsor a family member and not being able to do so, and instead they see a foreign worker coming in temporarily to fill jobs, I think that creates conditions ripe for conflict, ripe for racism, and potential problems for Canadian multiculturalism.

[The Chair, Conservative, Norman Doyle]

Thank you.

Mr. Crépeau.

[Prof. François Crépeau, Professor of International Law, Centre d'études et de recherches internationales de l'Université de Montréal (CÉRIUM)]

I will be speaking French.

But I can answer questions and reply to comments in English, if you so wish.

I had an opportunity to read the letter addressed to you by the Barreau du Québec, as well as the one from the Canadian Bar Association. I am part of the Barreau du Québec's Immigration and Citizenship Advisory Committee. I was not involved in its work, because I was abroad, although I do share its concerns. Members of the Barreau du Québec will be appearing this afternoon, if I am not mistaken. So, I will let them address the specific points they raised.

Since you have invited me to appear as an individual, I will be making my own personal observations. I would like to talk about the context and principle associated with the rights of migrants. At the present time, there is a strong tendency for people to believe that foreigners have fewer rights than the rest of the population, and that their rights are not as deserving of respect as those of others. That applies, not only in Canada, but to most countries that receive immigrants. That strong tendency is apparent in government policies, the media and in society in general. I think it warrants discussion.

Foreigners have rights. Under the Canadian Charter of Rights and Freedoms, foreigners have the same rights as other individuals protected by the Charter, except the right to vote, to be elected to office, to be educated in the language of the minority, and to enter and to remain in Canada. All the other rights apply to everyone, and that includes anyone in Canada, as well as foreigners. Foreigners are no less human than we are when it comes to protecting their fundamental rights. In that respect, the fact that they are not allowed to enter and remain in Canada does not mean that we can do whatever we like with their file. We cannot just treat them any way we like, because we are talking about immigration.

Since the 1950s, administrative law, which includes immigration law, has become so sophisticated that it is now at least as likely to violate fundamental rights as is the criminal law. When I was in school 30 years ago, we talked about the duty of fairness and procedural justice. The legal guarantees established in administrative law were intended to favour those subject to that law. With the coming into force of the Canadian Charter of Rights and Freedom in 1984, the concept of fundamental justice was introduced, a concept that obviously applies to the right to life, security and freedom for all, be they foreigners, citizens or permanent residents.

Under a progressive concept of rights and freedoms, we developed for ourselves, here in Canada, a set of individual guarantees that force the government to be accountable for its actions. They are the duty to give the reasons for its decisions, and the many forms of recourse provided under the legal system for all those who are subject to laws and regulations, either citizens or foreigners, so that there is an opportunity to review administrative decisions that affect them and affect their rights. Among other things, the Charter forces the government to justify each and every decision which is likely to impact the rights of those affected by them.

However, there is a tendency to feel that foreigners are not entitled to that treatment when it comes to immigration. There is a tendency to weaken and casualize their legal status. One notes that, under the Immigration and Refugee Protection Act, immigration law is the only area of federal law where practically all the appeal mechanisms have disappeared. They're all gone. There is judicial review, but only with leave. Appeals by right on matters of fact have disappeared. Yet, where refugee protection is concerned, questions of fact are fundamental. Now there is never any possibility of review.

Under the criminal law, two levels of appeal are deemed to be perfectly normal, but under immigration law, not even one is available. The fact that the Immigration and Refugee Board still does not have an appeal division clearly illustrates that fact. There is no avenue of appeal on the facts, and yet this is the only decision in Canada that can result in the death, torture or arbitrary detention of a person. Over the last 20 years, it was not deemed to be a normal thing to create an appeal mechanism to ensure that the facts have been appropriately assessed.

Bill C-50 also contains a number of provisions along the same lines. One provision makes it possible to render no decision—either positive or negative—which, theoretically—we will see whether the courts go along with this—would have the effect of prohibiting judicial review. Because there would have been no decision, there could be no judicial review. It is felt that the affected party is not entitled to judicial review.

The same applies to the Minister, in terms of not rendering a decision on applications made outside of Canada on humanitarian grounds, and to the officer, in terms of not issuing a visa, for the simple reason that no decision has been made.

The Minister also has the option of issuing instructions that will establish priorities regarding the decisions to be made on individual files. However, these instructions will not go through the normal process of discussion and consultation—which is what occurs in your Committee, when it studies bills or regulations—put in place to ensure that such bills and regulations consider the public interest. So, these instructions will not be subject to the normal process of accountability.

Based on the premise that underlies all of these issues, a foreigner will not be entitled to the same guarantees as a citizen, is not worthy of the same protection as regards his rights, and can be treated in a discretionary, even arbitrary manner—one that we would consider unacceptable were it to apply to us. I am here to challenge that premise.

Foreigners have the same right to dignity as we do. When it comes to the processing of their applications, they should be entitled to the same procedural guarantees. Of course, they do not have the right to enter and remain in Canada. But, as regards the process for deciding to deport or remove someone, or refuse a visa application or refugee claim, they should be entitled to the same procedural guarantees that we would demand for ourselves in similar circumstances. Why? Well, because those procedural guarantees ensure the credibility of the system in the eyes of citizens and all those who are subject to it. People can believe in the system because it provides an avenue of appeal with respect to individual decisions, as well as a consultation process, such as this one, regarding instructions.

Justice must not only be done; it must be seen to be done.

It is important to recognize that this is a matter of fairness, and not just administrative convenience, particularly since foreigners are already much more vulnerable because of their status and violations of their fundamental rights. My colleague referred to this earlier.

That was what the Supreme Court said in the Charkaoui case, after successive ministers had claimed that the provisions of the Act complied with the Charter. I think it's a shame, particularly where immigration matters are concerned—although this is not the only area—that we have decided to leave it up to the courts to remind us of the importance of protecting fundamental rights, as occurred with the Aboriginal people, inmates, gays and lesbians.

Today, the same applies to immigrants. The courts will be the ones telling parliamentarians and the government what they have to do. That projects an image of Canada to the rest of the world that, in my opinion, is extremely counterproductive and certainly inconsistent with the image it has had in the last 30 years.

If one sees democracy as a complex relationship between political representation, the protection of fundamental rights and the rule of law—in other words, access to avenues of appeal—it is quite clear that immigrants, whether we are talking about temporary workers or illegal alien workers, do not benefit from political representation.

What do they have left? Protection of their fundamental rights and an avenue of appeal in a country that believes in the rule of law. If they are denied that kind of due process, as well as any discussion of instructions that affect them, that means there is no democratic guarantee in place to protect them. From that standpoint, I think there is a need to provide all of them, and particularly specific categories of immigrants who are vulnerable, a status that includes specific legal guarantees.

In reality, we have developed for ourselves a society that tries to increasingly abide by the rule of law. The Immigration and Refugee Board is the top administrative tribunal in Canada in terms of the number of cases it deals with. It is an important group. I find it very disturbing to note that, for a category that includes many people in Canada, we are establishing a form of treatment that we would not accept for ourselves in similar circumstances and which takes us back several decades in terms of our administrative law.

Thank you.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Crépeau.

I will now go to Mr. Telegdi, who has some comments to make.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Thank you very much.

I very much appreciate your comments on fundamental rights and having the courts, at the end of the day, set the standards on the security certificate process. As you know, it was put in there for people with no status. Then it was put in there for immigrants. Then an attempt was made to put the security certificate process in there for citizens as well. I believe it was either Bill C-16 or Bill C-18.

I really am troubled by this whole notion of having more and more temporary foreign workers instead of people who come as citizens to build the country. Historically, this country was built by people with varying levels of skills. Earlier on, the fewer skills you had, the more desirable you were. I remember the men in the sheepskin coats who were brought over to tame the prairies. Now, of course, if you happen to be one of those people, we don't want you--except to bring you in under servitude conditions.

If you watch the evolution from slavery.... When you're tied to a single employer, when you're economically disadvantaged, when you really have no options where you come from, you are essentially put into the position of servitude. It really bothers me that we as Canadians would think about going down the route to that kind of a society. I just find it incredibly offensive that more and more dependence is put on this instead of bringing people to build the country.

I wonder if you have some comments on that.

[Prof. François Crépeau]

First, as you said, this country has been built by many types of people. For my part, I always think that we need a lot more refugees than we have now, and we need a lot more refugees because refugees will be thankful to have been saved from their plights in their own countries or from lingering in camps and would be happy to be given the opportunity to start new lives for themselves and their kids. I think that's a good starting point. Historically, even though they weren't called refugees and didn't come as refugees but as settlers, the Doukhobors were happy to be able to live in a land where they were free to practise their religion. To me, that's a key element.

I think we need to answer diversified needs. Entering as a temporary worker is not in itself a bad way to enter the country if conditions are in place so that it doesn't become servitude, as you were saying. That may mean a few elements are needed to give them, first, a legal status with legal guarantees so that they can protect themselves in the vulnerable conditions into which temporary work puts them, and second, a way out of that status that offers them some hope.

So there are two points. One is that we need legal guarantees; we need to make sure they are not at the mercy of the whims of the employer. We have seen that.

I think in our decision-making process we should listen a lot more to what sociologists have to say--and I'm a lawyer. I think sociologists tell us the level of vulnerability of these people. They tell us that many live-in caregivers, for example, simply don't complain; they just grind their teeth and wait until it's over so that they can get permanent residence, and then they move on.

We know that at the bar. We've had an issue at the bar of Quebec in recent years. The issue is that immigrants don't complain when their lawyers do something wrong. They simply don't. They'll find another $2,000; they'll find another lawyer, and they'll give $2,000 to another lawyer. They don't complain. The mechanism for complaints against lawyers doesn't work with immigrants, because they're vulnerable and they don't think they're going to win and they don't want to take the risk of sticking their heads out. That's a big issue, and we have to understand that level of vulnerability and provide the guarantees that go with it. That includes recourses. That includes the possibility of going on appeal. That includes making sure NGOs have the tools to defend individual people. That's the first point.

That may include, for example, live-in caregivers, if we take that example of vulnerable people. Many NGOs are rejecting the program altogether, although it serves a purpose and many families are happy to have a live-in caregiver. What we need is a lot more control. It's true that it means spending more money, but we need a lot more control and we need to have applicable laws. I'm shocked every time I have to say that the laws on job safety in Quebec don't apply to live-in caregivers, and I think that's a shame. We need a lot more guarantees to protect them while they are here.

The second point is that we need to give them a way out--and upwards, not downwards. It's not simply saying they can go back home with the little money they've made. We could think of the live-in caregiver program as a model here. For example, for temporary workers we should somehow put in a rule similar to the one we use for citizenship: if you've lived in Canada for, let's say, a total of three years--that makes 1,093 days, or something like that--in the past five or six years as a temporary worker, you have access to permanent residence. You'd need security checks and health checks and everything, but you'd have access. You've given this country the edge in terms of competitiveness and you've participated in making this country more wealthy and more prosperous--well, we are going to recognize this. You haven't broken any laws and you've been a good citizen, so we're going to give you a way upward in this society, because you've shown that you will be a good citizen. That would probably empower these migrants, who would say, “I can become a citizen in this country. I'm going to make sure, if we have proper controls, that my status is respected.”

[The Chair, Conservative, Norman Doyle]

Thank you.

I'll have to hold people to their seven minutes, because everyone is on the list and they want to get on.

Mr. Carrier.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Thank you, Mr. Chairman.

Good afternoon and welcome to you both. Your presentations were very interesting. It's great that we have at least a half an hour to talk with you. There could be a lot of questions.

I would like to begin with you, Ms. Hennebry. I missed part of your presentation because you were speaking very quickly and the interpreter had trouble following you. Do you understand French?

[Dr. Jenna L. Hennebry]

I do, but I don't speak it very well.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Mr. Chairman, we can just add one minute to my speaking time, so that Ms. Hennebry has time to be equipped with an interpretation device.

I was saying that I missed part of your presentation, because you were speaking very quickly and the interpreter had trouble following you. I am going to speak a little more slowly to give you an opportunity to follow as well.

You referred to the clause in Bill C-50 that is problematic with respect to multiculturalism. The fact is that, as regards multiculturalism, Canada is a country of refuge for a number of foreign communities.

If this bill were to grant the discretionary powers, particularly as regards the selection of temporary workers, why might this lead to conflict, in your opinion? Is there not already an issue with integration in Canada? Do you see certain problems arising as a result of a specific provision of the bill?

[Dr. Jenna L. Hennebry]

With respect to multiculturalism, there are a few key concerns with a continued increase in temporary foreign workers. As it stands right now, many of those workers find themselves in vulnerable situations. They don't have access to the settlement services that are in place for immigrants. They are largely excluded from Canadian society, and they find it very difficult to integrate, because they're not really supposed to; they're supposed to come here, do the work, and then leave. That's predominantly the case for all of the low-skilled foreign workers I'm talking about.

So that imposes significant problems already, without Bill C-50. With Bill C-50, my concern is that we'll see an expansion of that, and there would be nothing to address the present problems that are already a real concern and have been voiced by NGOs, migrants, and other researchers.

The other point is that with the discretionary powers, you have a situation where foreign workers don't have any particular path for permanent residency. Let's say they do apply. They are often without their families for prolonged periods of time. They're seen as workers, not immigrants or families--potentially not as people connected to others. I think for multiculturalism, if you have people staying in a country for two or three years or longer—in a seasonal agricultural worker program, the average is between eight and ten years to participate in the program; those people don't integrate into society. It creates more conflict, because you have groups that are basically outside the system. That's a real problem.

Also, foreign workers cannot sponsor their families, and there would be no obligation with Bill C-50 for the minister to consider that either.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

I will stop you there, because my time is going by quickly.

Why are you particularly referring to temporary workers? The bill does talk about discretionary powers in terms of accepting applications for permanent residency. However, it does not refer specifically to temporary workers which, I grant you, are already an issue. The discretionary powers would also apply to applications for permanent residency. It will be a discretionary choice, but that choice will not necessarily relate to new temporary workers.

[Dr. Jenna L. Hennebry]

I have a couple of concerns. One is that intentions are not law. The intentions may very well encourage certain groups to stay permanently. But would there be a fair mechanism to do that? Would it come down to present-day security concerns, or the minister's concerns about someone's politics? We don't know, and I would be concerned about that because it would not be written legally.

The other problem I have is that this is consistently being cited as a way to increase labour market responsiveness. This labour market responsiveness is being done as a temporary way to bring in people to feed that, instead of using permanent immigration to channel people into the labour markets.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Thank you very much.

I would like to use the little time remaining to put a question to Mr. Crépeau, who also made a very interesting presentation. I'm sure we will have occasion to come back to it.

As regards international law or the rights of all humans, you say that foreigners and immigrants have fewer rights, or none at all—or, rather, that they have rights, but that those rights are not respected under the current law. Do you feel that the large number of people applying for permanent residency, whose applications have yet to be reviewed, who have not been selected and who could easily be ignored under this bill which provides for discretionary selection, do indeed have rights, even though they are not yet immigrants? Is it your view that their innate rights are being denied them? I would be interested in hearing your definition.

[The Chair, Conservative, Norman Doyle]

Give us a brief response, please.

[Prof. François Crépeau]

According to the current rule—even before this bill came about—applications are reviewed in the order in which they are received, and then a decision is made. We are all familiar with that way of operating because it's the rule that we learned when we were in kindergarten, and it's called “wait your turn”. Underlying that is a rule of elementary justice whereby all applications should be reviewed.

What is of concern to me is that we will have a system where instructions will not have been debated collectively or democratically in different forums. They will be made on a discretionary basis and will change that rule. It is probable that a large number of people will never receive a response to their application. There will be no rule, and yet people will spend their time and money to make an application. They will try to imagine a different future, based on the fact that they have made an application, but they will never receive an answer, because this bill makes it possible for them not to be given an answer.

In my opinion, that is a violation of an individual's right to be treated with dignity, even when that individual is from another country. Of course, there is no ability to exercise a right within the meaning of the Charter if you are outside of Canada, but as far as I am concerned, it's a question of elementary dignity.

[The Chair, Conservative, Norman Doyle]

Thank you.

I'm sorry to interrupt, but we have at least three more people.

Mr. Komarnicki.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Thank you, Mr. Chair.

I find it interesting. We were on the road studying temporary foreign workers and people wanted to get into the specific issue of Bill C-50; now we're studying Bill C-50 and people want to get into the issue of temporary foreign workers. It's an interesting process.

Ms. Hennebry, when we looked at legislation, the principal purpose behind the bill was to ensure that people with the skills we need could be brought in and processed more quickly. It would seem to me that this would mean fewer temporary foreign workers. Are you suggesting that there would be more, or do you agree with me that there would be fewer temporary foreign workers if we implement Bill C-50?

[Dr. Jenna L. Hennebry]

As I read Bill C-50, there's no guarantee that they will be foreign workers or permanent immigrant applicants. My concern is that you have an increase in the number of people coming in as temporary foreign workers, with the promise of being considered for permanent residency, but you have nothing to say that this is actually going to take place.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

There are three categories under the Immigration and Refugee Protection Act: the economic class, or the skilled or less skilled worker class; family reunification; and refugees. It would seem to me that having more skilled workers coming in as a result of Bill C-50 would serve to reduce the number of temporary foreign workers. Would you agree?

[Dr. Jenna L. Hennebry]

Well, I think we see the increase in temporary foreign workers in the low-skilled sector, which is not necessarily what's being targeted with the skilled worker class as they come in through the permanent—

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Specifically, under proposed section 87.3, where do you see the reference there to the temporary foreign worker? That's not the impression I have. Perhaps you could tell me where in section 87.3 you get the impression that it relates to temporary foreign workers, or what specifically in that section tells you that.

Perhaps while you're looking at that I can direct a few comments to Mr. Crépeau and come back to you.

Mr. Crépeau, with respect to the instructions themselves that are issued by the minister, would you agree with me that those instructions would have to be charter compliant or would be subject to compliance with the charter?

[Prof. François Crépeau]

I hope so, yes, absolutely. The issue is how you can guarantee that.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

The first test to the instruction would be whether or not it's charter compliant, and then those applying the instruction, which would not be the minister in a case-by-case basis but the actual individuals in the department applying the instruction, would have to apply it in accordance with the charter, would they not?