Citizenship and Immigration Committee on May 10th, 2012

[The Chair, Conservative, David Tilson]

Good morning. We will convene the meeting.

This is the Standing Committee on Citizenship and Immigration, meeting number 44, on Thursday, May 10, 2012. This meeting is televised.

The orders of the day, pursuant to the order of reference of Monday, April 23, 2012, are Bill C-31, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act.

We voted on clause 19 as amended, so we will proceed with clause 20.

Shall clauses 20, 21, and 22 carry?

Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I would like to speak to those.

[The Chair, Conservative, David Tilson]

You want to speak to those? Which one?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Clause 20, if I may, Mr. Chair.

[The Chair, Conservative, David Tilson]

Okay, sir, go ahead.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

I'm not too sure if I have the ability, but if I could, I would suggest that we delete clause 20.

[The Chair, Conservative, David Tilson]

[Inaudible—Editor]

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

No, I don't. I don't have the actual motion, but I would suggest that the committee could always talk about it, and then if the government side sees the merit they might want to consider looking at deleting clause 20.

The reason for this, Mr. Chair, is that the change from “reasonably practical” to “as soon as possible”—and that's really what's happening in clause 20 when it comes to Canada Border Services deporting someone—has a fairly significant impact. I suspect that maybe the government, through oversight—I'm not really sure—has put in this change.

When we say “reasonably practical”, there are many situations that might arise when someone who's facing a deportation—an emergency situation such as a medical condition, something on humanitarian or compassionate grounds that might allow for the person to stay for an extra day or two. What we're doing by making this change in clause 20 is we're taking away discretion from our Canada border security people, and they've used good discretion in the past.

We do believe it is quite problematic. I'm not too sure to what degree the government is aware of it. Maybe I would look to Mr. Dykstra to see if he might want to provide some comment, or possibly even to legal counsel. Why is it that when it comes to deportation we're taking the discretion away from our civil service that would enable them to recognize emergency situations, so that they could in fact allow an individual to stay an extra day or two if an emergency were to happen, as opposed to saying to a border officer in regard to deportation that it is “reasonably practical” for that person to be leaving tomorrow, or there's a good reason for the person to stay the extra day versus what we're saying, “as soon as possible”? I think changing the words will have a significant impact.

I don't know if Mr. Dykstra would like to provide comment on it. I raise it only because I think it would be a mistake for us to incorporate that specific change.

[The Chair, Conservative, David Tilson]

Yes.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you, Chair.

I wouldn't mind getting a legal perspective on this. Mr. Lamoureux has articulated a point that does have a legal connotation, so I'd like to refer to Ms. Irish to respond.

[Jennifer Irish, Director, Asylum Policy and Programs, Department of Citizenship and Immigration]

I'll refer that to our legal counsel, Matthew Oommen.

[Matthew Oommen, Senior Counsel, Legal Services, Department of Citizenship and Immigration]

As the honourable member indicated, there is something of a shift intended behind the change in the statutory provision. The provision was always intended to confer a very limited discretion on a removals officer to defer enforcement of the removal order, for example, in emergency situations. The difficulty we've encountered is that the Federal Court, in interpreting that provision, has significantly expanded the ambit of that jurisdiction. The intent of the amendment is to indicate that in fact the jurisdiction is rather limited, as the Federal Court of Appeal has repeatedly upheld. Basically, it's to send that signal. Where there are logistical impediments to removing someone, for example a medical emergency, the removals officer will retain the discretion to defer enforcement of the removal order. But it is intended to signal that the provision confers a very limited jurisdiction on the removals officer, as was always the intent of that provision.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Chair, the concern again is that whether it was intentional or unintentional in terms of the severity, the concern has to be that when you put in “as soon as possible”, it doesn't leave very much leeway either way, and it's a fairly strong message.

I wonder if there's a way it could be softened, at least to a certain degree, so that if there is a medical emergency—if an individual is having issues with their appendix—you don't want to put that person on a plane. Some might interpret it as there not being any choice. I could see it being somewhat problematic going forward, which could cause embarrassment for government and the bureaucracy as a whole.

[The Chair, Conservative, David Tilson]

Mr. Lamoureux, the issue you have raised may be an issue of policy. The department is here to answer questions requiring explanations, legal comments, but I wonder if you're getting into an area of policy that someone else should answer—

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

It certainly is possible. Mr. Chair, maybe if—

[The Chair, Conservative, David Tilson]

Maybe Mr. Dykstra, as opposed to Mr. Oommen.... I simply don't think it's fair to ask the department questions of policy.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Then maybe I would look to Mr. Oommen to provide....

Is there another option to “as soon as possible” that you feel would allow for that discretion, not being quite as specific as the legislation is today?

[The Chair, Conservative, David Tilson]

Well, you know—

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I guess that's policy.

[The Chair, Conservative, David Tilson]

Mr. Dykstra, would you help me here?

[Rick Dykstra, Conservative, St. Catharines, ON]

Sure. I'm always here to help you, Chair.

I understand what Mr. Lamoureux is doing. I appreciate Mr. Oommen's description. That was a very clear indication of the difficulties we've faced, from a legal perspective, and how we're trying to address it.

I would actually argue a little bit differently from Mr. Lamoureux, in that “the order must be enforced as soon as possible” leaves a great deal of discretion in terms of dealing with issues such as the medical issue you outlined. I think that is a good example.

Certainly, with respect to a removal order and a serious and significant medical condition standing in the way of someone flying, it allows authorities to be able to at least get that person the treatment and medical help needed in order, obviously, to survive whatever that serious condition might be. It does leave some discretion for the individual making the decision. I think it could have been a lot more finite in terms of actually being a lot more specific than “as soon as possible”.

A lot of us in our daily lives use ASAP as a way of describing what we need to get. But we're not laying down the law with anyone; we're only suggesting that the request is to be done as quickly as possible. The fact that we actually use that type of language within the bill itself I think suggests there is a little bit of room for officials to make the appropriate decisions.

(Clauses 20 to 22 inclusive agreed to on division)

(On clause 23)

[The Chair, Conservative, David Tilson]

We are now on clause 23 and Liberal amendment 12.

Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I believe we're withdrawing that one, Mr. Chair. We're withdrawing Liberal amendment 12 and Liberal amendment 12.1.

[The Chair, Conservative, David Tilson]

Liberal amendment 13, Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Chair, I would move that Bill C-31 in clause 23 be amended by replacing line 31 on page 12 with the following:

and who is 18 years of age or older on the day

To briefly explain, Mr. Chairperson, it's in recognition that the bill tends to identify minor age at 16 years, and we're suggesting that it be 18 years. This is an amendment you'll see...there are actually several amendments that deal with increasing the age from 16 years to 18 years.

I'm not too sure where the government stands on that particular issue. I do understand that the New Democratic Party is with us, based on some of the amendments they have also submitted, so it would be great to see a consensus between the three parties in recognition that we increase the age—this would relate to issues such as detention—from 16 years to 18 years.