Bill C-17 (Historical)

An Act to amend the Immigration and Refugee Protection Act

This enactment amends the Immigration and Refugee Protection Act to allow officers to refuse to authorize foreign nationals to work in Canada in cases where to give authorization would be contrary to public policy considerations that are specified in instructions given by the Minister of Citizenship and Immigration.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Mr. Chairman.

We are now dealing with clause 207, which also talks about the issue of instructions, so I'll speak to that more broadly. We do have, as I indicated, a great number of problems with that. The instructions, as to what's going to happen here and the scheme that's established using these instructions...it makes it very difficult for the public to examine it and to understand what's going on.

The Canadian Bar Association said they wrote the ministry looking for an example of the proposed instructions, or the kind of criteria that would be used to instruct officers. They received no example in response, and they were very concerned about that.

Again, they said what I said earlier. The focus should be on ensuring that working conditions for newcomers in Canada are appropriate, safe, and non-exploitative, and ensuring that the criminal laws are strictly enforced against those who exploit vulnerable people.

We're talking here about the exploitation of women, perhaps in keeping with some of the other concerns about women being exploited for sexual purposes. But again, there were expert witnesses, people who provided testimony on previous occasions. For example, at the Citizenship and Immigration Committee on January 30, 2008, Professor Leslie Ann Jeffrey of the University of New Brunswick stated as follows:

It is very problematic that Canada would choose to address the issue of potential exploitation of migrant labourers by attempting to stop their legal migration rather than addressing the conditions of work. Trafficking most often occurs in precarious forms of labour that are unprotected by labour laws, government oversight, and union organization.

The fact that they're working in vulnerable sectors is what gives rise to the concern here, and the response.... Instead of depriving these migrant workers of an opportunity to work in Canada—they may be in vulnerable sectors, but they're also sectors where it's very difficult to get Canadian workers. That's why they're given work permits in the first place, because these workers are necessary to the economy or to the enterprise that is looking for them, and because they wouldn't qualify if Canadian workers could be found to fill those jobs. It is an opportunity for migrant workers to have the chance to enter Canada for work purposes—and we're talking about legal migration. In order to fix the problems, the focus should be on fixing the labour laws themselves.

There was another concern raised by Ms. Janet Dench, who was the executive director of the Canadian Council for Refugees and also testified on the previous iteration of this, Bill C-17. On January 30, 2008, at the same meeting of the Citizenship and Immigration Committee, and she said:

Not only does [this legislation] fail to protect the rights of trafficked persons already here in Canada, but furthermore its approach is condescending and moralistic. It empowers visa officers to decide which women should be kept out of Canada for their own good.

Once again, the concern here was raised by the Canadian Council for Refugees, which, through another witness on the same day, said that the main objective of anti-trafficking legislation must be to protect the human rights of trafficked persons, and that the bill doesn't do that.

There's a whole series of aspects of this bill that we are trying to improve upon by making amendments, some of which have unfortunately been ruled out of order. But the point is that we don't believe that this bill adequately addresses those concerns.

It fails to provide an opportunity for parliamentary oversight of the instructions in order to be able to determine through parliamentary debate—committee or otherwise—what the effect of those instructions could be, and frankly, it fails to be concerned that the application of this particular provision is actually aimed at the objectives that were proposed, and not used for some other reason, as raised in the concerns of the Canadian Bar Association—the unfocused and awfully broad statement of whatever instructions under public policy that the minister might choose to give.

Those are my comments, Mr. Chair.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Did we forget Bill C-50 or Bill C-17?

(Motion negatived)

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

That's fine. We'll certainly take that through.

I want to make one point before we move into the study itself. We have partially completed Bill C-17, having heard some witnesses, but have not concluded that process, and we need to conclude it. It should be the first order of business when we get back, unless we're going to have further meetings at this point.

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

The first point I want to raise is that we still have some unfinished business from this session when we come back. We must not forget Bill C-17. It needs to be completed--we're part way into it--before any study starts.

To speak to the motion itself, there's probably some agreement on the committee's part that the point system should be looked at or studied. Indeed, Mr. Telegdi brought a person before the committee not that long ago to point out some of what could be considered the issues or concerns related to the point system. There's no problem with dealing with the point system, but whether one needs to travel to Australia and New Zealand to be able to deal with the point system is another matter.

It would seem to me that the problems or issues we have with the point system can be studied here. We can certainly get the people who are knowledgeable of the Australian system here either by teleconference or by actually having them come here, as one or two persons, as opposed to having the whole committee, and everything that goes with it, going there.

So I would proposed an amendment to that motion that deletes the words “and that, as part of the study, the Committee travel to Australia and New Zealand to examine the analogous systems in those countries”. I would so move.

Motions in Amendment

[Ted Menzies, Conservative, Parliamentary Secretary to the Minister of Finance]

Mr. Speaker, on behalf of the government, I am pleased to rise to speak in absolute and sincere opposition to the proposed amendments to Bill C-50, amendments that would seek to effectively delete the government's proposed improvements, and I emphasize improvements, to the Immigration and Refugee Protection Act, which are contained in part 6 of Bill C-50.

I note that the amendments originate with my colleagues in the Bloc Québécois, but they are supported by my colleagues down the way in the NDP. Sadly, this is yet another occasion where the NDP, despite its rhetoric, will vote against crucial measures proposed by this Conservative government to help immigrants.

The NDP's track record on immigration is a sorry one at best. In this Parliament alone, the NDP has voted against $1.3 billion for settlement funding, after a funding freeze of 10 years under the previous government. The NDP also voted against the establishment of a foreign credentials referral office. It voted against cutting the immigrant head tax, which our government cut in half, despite the NDP.

The NDP has even voted against providing increased protections for vulnerable foreign workers. Its continued opposition to Bill C-17 is preventing vulnerable foreign workers, who could be subject to abuse and exploitation, from getting protection that they need and deserve.

Despite their talk, the New Democrats do not step up to help newcomers to Canada. This Conservative government, however, does and continues to do so with our immigration changes proposed in Bill C-50.

Our proposed amendments in part 6 of the budget implementation act addressed the legislative roots of Canada's broken and overloaded immigration system. Neither Canadians nor prospective newcomers to our country benefit from an immigration system that, due to its systemic deficiencies, forces prospective immigrants to wait for up to six years before their applications are looked at, let alone processed.

The current system is especially problematic, since by 2012 fully 100% of our net labour growth will come from immigration. The systemic flaws in the current immigration system continue to hinder our country's ability to meet the needs of newcomers and the social and economic needs of our country. Urgent action is required. That is why changes to the Immigration and Refugee Protection Act were included in budget 2008.

“Advantage Canada” 2006 identified that Canada needed the most flexible workforce in the world, an issue that is critical to Canada's future. Without our proposed legislative changes, the uncontrolled growth of the immigration backlog will continue, the backlog we inherited, by the way, from the previous Liberal government, which currently stands at over 900,000 people waiting in line to come to Canada.

This backlog is unacceptable. Urgent action must be taken so the backlog can be reduced. A new and more efficient processing system is desperately needed, a system that is both responsive to the needs of the newcomers and the needs of Canada.

To move toward accomplishing these goals, the legislative changes contained in part 6 of Bill C-50 are absolutely essential. The fact is Canada faces serious international competition in attracting people with the talents and the skills we need to ensure our country's continued growth and prosperity.

Compared to the United Kingdom, Australia and New Zealand, we are the only country that does not use some kind of occupational filter to screen, code or prioritize skilled worker applications. Compared to other countries, Canada's system is simply not flexible enough. While Australia and New Zealand are processing applications in six to twelve months, if nothing is done, processing times in Canada will reach ten years by 2012. As more people submit applications and our current obligation to process every application to completion remains, the backlog continues to grow and Canada's labour shortages worsen.

If we do nothing to address the problem, we risk having families wait even longer to be reunited with their loved ones and we risk losing the people our country needs from other countries. Because those countries are in fierce competition with us for the skills and talents that newcomers bring, our government believes that without this legislative intervention the system is destined to collapse under its own weight.

It is important to note that the legislative changes contained within Bill C-50 are but one aspect of the government's approach to addressing the backlog problem. These legislative changes would prevent the backlog from growing, but let me be crystal clear on two key points about these proposals.

Contrary to the misinformation that is out there, we will not be placing any limits on the number of applicants that we will accept. Canada remains open to immigration and anyone can still apply.

However, under the proposed legislative changes, we will not have to process every application. Those applications not processed in a given year can be held for future consideration or returned to the applicant with a refund of their application fee. Individuals in this category would be welcome to reapply. The result would be that the backlog will stop growing and actually start to come down.

This flexibility in managing the backlog would accomplish three things. It would help reduce the backlog and ensure that immigrants have the jobs they need to succeed and allow our country to continue to grow and prosper.

Once these changes are implemented, the immigration backlog will stop growing and will begin to decrease the long lineup waiting news on entry to Canada through other important measures our government is taking.

Among other things we have committed over $109 million over five years to bring down the backlog.

Other steps that would be taken include: organizing visa officer “SWAT teams” to speed up processing in parts of the world where wait times are the longest; providing additional resources to these busy missions; helping build capacity to meet future levels and increasing demand; and coding applications in the existing backlog with the appropriate national occupational classification code and destination province where they are requesting to reside, so applicants with the skills we need can be referred to provinces for possible selection by provincial nominee programs.

Part 6 of Bill C-50, when combined with these non-legislative measures funded in budget 2008 and beyond, would act to control and reduce the backlog and speed up processing. Because immigration is so important to Canada's future, we need a modern and renewed vision for immigration.

These proposed changes are part of a vision that involves creating a more responsive immigration system, one that allows us to welcome more immigrants while helping them get the jobs they need and building better lives for themselves and their families, because their success is our success.

Urgent action is required. Part 6 of Bill C-50 and all of budget 2008 would deliver this much needed action.

I end by expressing my gratitude to my colleagues opposite in the Liberal Party who have so graciously helped our Conservative government ensure speedy passage of our budget legislation through the House. I am pleased the Liberal Party supports our proposed immigration measures and budget 2008. I am pleased the Liberal Party recognizes that budget 2008 and Bill C-50 are full of positive measures for all Canadians, those present now and those soon to be here as well.

I encourage all members of the House, especially my colleagues in the Liberal Party, to defeat these detrimental amendments to Bill C-50 and continue to work toward its speedy passage unamended.

[Francisco Rico-Martinez]

I have been working with immigration refugee agencies in Canada for almost 19 years. What you see in Bill C-50 and what you see in Bill C-17, and you hear presentations about it, is basically the dream come true of the bureaucrats. It is the position we have been listening to from the bureaucrats of Immigration Canada for the last 18 to 20 years. They want to have power to reject applications. They want to have power to not accept them, ignore them, screen them, whatever.

I am repeating what you said, but that is basically the position of the NGO sector. We are basically receiving, in the form of a bill, the position of the bureaucrats of Immigration Canada every time, and now we receive Bill C-17 and Bill C-50, or whatever.

[Alex Stojicevic]

If the goal of the minister would be, for example, as she tagged to Bill C-17, parameters to prevent certain vulnerable persons from being issued work permits, she can issue an operations memorandum on this point. She can have her staff instruct her people in the field to be very mindful of particular issues, and that will have an effect on how many visas are issued.

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

Please answer the question I posed to you with respect to Bill C-17. What are these strong guidelines that you suggest would achieve the same goals? What are they? That's the question.

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

My time is limited, and my question to you is to deal with what you meant by saying strong guidelines would achieve the same goal with respect to Bill C-17. That's what you made reference to.

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

It's inappropriate to go otherwise, and this committee has been allowed to do that. I don't agree with that, but I think in fairness it needs to be balanced out.

You said there needed to be strong guidelines, as opposed to using Bill C-17 and the instructions that are there. What did you mean by saying strong guidelines would achieve the same results? First of all, we're dealing with vulnerability of workers; you're saying we could deal with that issue of protecting them because it's not restricted to a particular category of person. What do you mean by strong guidelines, and what might they look like?

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

I accept that. There will be a time and a place for that to be discussed.

Going back to Bill C-17--which we are discussing, and which we should limit our discussion to--it's absolutely appropriate.

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

And both Bill C-17 and any other bills that deal with instruction have to be charter-compliant, do they not?

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

First, isn't there a difference between exercising discretion...? Bill C-17 is the one that's before this committee, and you talked about that.

[Alex Stojicevic]

If I may, and I'll try not to comment on Bill C-50 within the parameters here, but Bill C-17 is effectively wrapped in the same language. Mr. Chan talked to you about 45 workers who didn't get visas from the Canadian consulate in Shanghai. He raised that in his testimony. What he didn't say is that the minister's office intervened in that case and had 20 permits issued. I know this because this is a case out of my law office. I'm not suggesting for a minute that this government and this minister aren't sensitive to specific issues where there are ministerial instructions or where there are laudable objectives from both ministerial instructions and/or a change that would give more discretion over which categories are going to be processed. But that's an example of the minister—under the current act, the current legislation, and the current framework—assisting in the facilitation of a visa, of a series of visas, where there was some element of controversy.

So to suggest the system now isn't responsive to those kinds of problems is simply incorrect. And that begs the question, from our perspective, of why you need this legislation then. This minister has made it abundantly clear that she will entertain full public consultation, etc., on any changes, but who's to say that the next minister won't?

To me, to the member's point, that's actually the problem. From the perspective of the end-user who doesn't read the Canadian media every day, this system becomes a lot less transparent and a lot less objective. If we're relying on the minister's staff and on the department officials to continually update information, you're making a system that is complicated right now that much more so.

[Alex Stojicevic, Chair, National Citizenship and Immigration Law Section, Canadian Bar Association]

Thank you for this opportunity to speak to you today, Mr. Chair and members of the committee, about some important issues that you are travelling across the country to study. I've heard some of the discussion that occurred before us here, and you certainly have a lot of lively issues that you're considering.

I don't envy you your task of balancing a lot of different regulatory or legislative changes and their impact, as well as conflicting priorities that you're being asked to look for here.

I speak to you as chair of the citizenship and immigration law section of the Canadian Bar Association. The CBA is a voluntary association of approximately 37,000 lawyers, notaries, law teachers, and students across Canada. My section has approximately 900 members who practise immigration law across the country. Our mandate includes seeking improvement in the law and administration of justice, and that's the lens through which I am speaking to you today.

I would like to address specifically two of the issues you have raised, although given the liveliness of some of the other things you've talked about, I have views also on the live-in caregiver program and other programs. But I'll leave that for the members.

In any event, the two issues in particular—and you have copies of my speaking notes—are the impact of Bill C-17 on temporary foreign workers and the issue of undocumented, as well as licensed, immigration consultants.

We've raised our concerns with the government about both of these issues. We do have existing submissions to the minister's office on both.

Our concern with Bill C-17 really flows from the broad and relatively unreviewable powers it gives the minister, which, in our view, risk eroding the rule of law, plain and simple. We think the existing measures within IRPA and the existing regulations and processing procedures can be used more effectively to meet the government's objectives. In many instances, including as far as Bill C-17 is concerned, in terms of the stated goal, which was to protect certain workers such as strippers from being exploited, it can be done in other ways that don't require Bill C-17. Ministerial instructions are too severe and too unnecessary an approach to take when, instead, strong guidelines from the minister's office would likely achieve the same goal.

Also, we wonder if it's necessary to have a system of ministerial instructions centralizing power in the minister's office when we have a handful of these stripper visas issued to begin with. I've heard conflicting reports of between 4, 18, and 20. It seems not very many to really have to change a law. If that's the principal motivation, we question that somewhat.

The existing act and the existing procedures provide for transparency and objectivity that we feel Bill C-17 erodes. We have some of the same concerns on the government bill that was put forward, I'm told, in the House today, Bill C-50. If you take a system that's already difficult for the end user, that at least now has some rights accruing to the end user by the use of such words as “shall” be issued a work permit, or “shall” be issued a temporary resident visa or permanent resident visa, and if you erode that objectivity by changing the language to “may” or by having a scheme of ministerial instructions, you make it that much more complicated.

That's the danger of eroding the language in the act, as far as we're concerned now, even though we recognize that there are some really legitimate public policy objectives that inform some of these two bills. Certainly, we applaud the government for moving forward on those objectives. It's just that I'm not sure legislative changes, especially the ones that are being contemplated, are necessary for those objectives.

We ask that you recommend that the government use the measures that exist in the act, rather than the issuance of ministerial directions, to fulfill these legitimate public policy directions.

The cornerstone, in our view, of the proper administration of justice is transparency, and our concerns with the direction the government has taken with Bill C-17 and with a number of legislative initiatives, including the other one that I alluded to, Bill C-50, is to sacrifice clarity and transparency for the sake of giving more direct control over processing issues to the Minister of Citizenship and Immigration. This trend, in our view, will have the net effect of centralizing authority over processing in the hands of the minister and the department, rather than where it exists now, which is within the body of the regulations.

It is a very interesting line that we're taking. The minister has gone on public record today as saying that any changes she puts forward in these ministerial instructions, under both bills, will involve consultation with stakeholders and will also be pre-published and gazetted. As far as that's concerned, we applaud the minister, but what about the next minister or the minister after that? Once these powers—the ministerial instruction power under Bill C-17 and also, potentially, under Bill C-50, the ability to pick and choose which immigrant visa categories that are already provided for in regulation can be moved forward.... We are concerned that this centralization isn't necessary for the government to meet its immigration objectives. What's more, it causes a risk of abuse down the road from either the department or from a future immigration minister, if not this one, using it in ways that are fundamentally undemocratic and that will not allow immigration changes to be properly debated, in this body or any other, but rather will involve senior government officials talking to other senior government officials to make policy.

We recognize the need for flexibility, and we recognize that the minister and the government are dealing with some very complicated and challenging problems, balancing numerous different and competing policy goals. This has been the reality of our system for as long as I've practised immigration law. It's not an easy balance to maintain.

Certainly building a system that's responsive to both Canada's current economic needs and long-term economic needs as well as its humanitarian objectives is a challenging one. Despite the fact that this goal requires a certain degree of flexibility to adapt to economic changes, it must not be at the price of a system that uses objective criteria. This risks the use of arbitrariness, upon which I've already commented, and essentially allows the minister to override objective criteria that are already contained in regulations, and this, we feel, is wrong. Canadians want transparency.

Another issue I want to address today is immigration consultants. I have a lot of personal knowledge of the history of this brief in particular. It was the Law Society of British Columbia that brought forward the Mangat case in the late 1990s, which resulted ultimately in the Supreme Court of Canada deciding that there was a role for immigration consultants to play if they were regulated. What we have is the Canadian Society of Immigration Consultants as a result.

I want to address two issues there. First, the Canadian Bar Association has some concerns that at the moment CSIC appears to be poorly funded to handle disciplinary measures. It is at least worth investigating how good a job they are doing so far in terms of disciplining their members. Do they have the budget to do it?