Bill C-43 (Historical)

Faster Removal of Foreign Criminals Act

An Act to amend the Immigration and Refugee Protection Act

This enactment amends the Immigration and Refugee Protection Act to limit the review mechanisms for certain foreign nationals and permanent residents who are inadmissible on such grounds as serious criminality. It also amends the Act to provide for the denial of temporary resident status to foreign nationals based on public policy considerations and provides for the entry into Canada of certain foreign nationals, including family members, who would otherwise be inadmissible. Finally, this enactment provides for the mandatory imposition of minimum conditions on permanent residents or foreign nationals who are the subject of a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security or who, on grounds of security, are named in a certificate that is referred to the Federal Court.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Okay, that's a good comment.

The other issue that concerns me is in terms of people who are inadmissible on very serious grounds, such as war criminals, human rights violators, and organized criminals, people who have been able to delay their deportation by applying on the humanitarian and compassionate grounds.

Can I get your comment on that, Mr. Pagtakhan? What do you think of the Bill C-43 provisions that will take away the humanitarian and compassionate grounds to delay a deportation for somebody who has committed—

[Ted Opitz, Conservative, Etobicoke Centre, ON]

We're talking about the people committing crimes here.

Have you ever spoken to victims' groups or any victims' organizations about Bill C-43 and what their views would be? You are talking about crimes that may not be as egregious, but if you defraud a senior citizen of their life savings, it may not be murder and it may not be a capital type of offence but that's pretty serious to that individual because you have harmed them, probably irreparably. Have you talked to any victims' organizations about this sort of thing?

[Ted Opitz, Conservative, Etobicoke Centre, ON]

We're not always talking about just the youth. That happens; there's some of that going on and we understand that, but we're also talking about serious criminality. For example, there is one who has 60 counts of fraud, forgery, conspiracy to commit fraud, obstructing a peace officer, failure to comply with court orders. It took over five years to remove him after the removal order was given.

There are so many more including, by the way, trafficking, murder, and so many other things, as we've heard in the last number of meetings, including the murder of a police officer. You did say in your submission that we have justice, fairness, and compassion in this country and I believe we do. This is one of the greatest countries on the planet and that's why people want to come here. In fact, in the tens of millions, they want to get in.

Are you aware, by the way, that many other countries, such as the U.K., the U.S., New Zealand, and Australia, already have provisions in place to bar individuals who would harm the public interest and who are otherwise not admissible? Some of those provisions in those countries are broader and more discretionary than under Bill C-43.

[Kerri Froc, Staff Lawyer, Law Reform and Equality, Canadian Bar Association]

Thank you, Mr. Chair and honourable members.

The Canadian Bar Association is pleased to appear before this committee today to address Bill C-43.

The Canadian Bar Association is a voluntary association of 37,000 lawyers across Canada whose primary objectives include improvement in the law and the administration of justice.

It is in the spirit of this mandate that the members of our immigration law section have analyzed Bill C-43 and made the comments that we have submitted to you in writing and will speak about today.

Michael Greene, a member and past chair of the immigration law section, is with me today, and I'll turn things over to him to address the substance of our comments on the bill.

[Reynaldo Reis Visarra Jr. Pagtakhan, Immigration Lawyer, As an Individual]

Thank you, Mr. Chair.

I would like to thank the committee for inviting me to appear. The last time I recall attending a House of Commons committee meeting was when my father served as a member of Parliament. It is humbling to contribute to the work you do in service to our country.

In my view, while not perfect, there are portions of Bill C-43 that deserve support, portions that should be amended to reflect greater fairness, portions that should be eliminated, and portions that members of Parliament should turn their minds to for their study.

The portion of the bill that deserves support is the provision that eliminates the right of permanent residents to appeal removals to the immigration appeal division for sentences of six months or more in prison. While some argue that this would unfairly penalize long-term permanent residents who may be deported for their actions, what is missed in this argument is that the permanent residents who face deportation are criminals. It should be stated that these individuals are not alleged criminals; they are not accused; they are not innocent. They have been convicted of a crime in a court of law.

Members of Parliament should keep in mind that to be found guilty of a crime, an individual not only has to commit a criminal act but also must have knowledge of what he or she is doing. Unless this combination of factors is found, there is no crime. Members of Parliament should also keep in mind that criminals could avoid deportation by simply being law-abiding. The Criminal Code of Canada is designed to codify what we Canadians view as criminal behaviour. These individuals have chosen the path of criminal behaviour.

In addition, these criminals were given due process as required by our court system. Members of Parliament should keep in mind that these criminals were initially presumed innocent. They were given the rights under the charter to defend themselves in a court of law and were found guilty by a jury or a judge. They lost their appeals, if they wished to file appeals.

Furthermore, we are not talking about criminals who have received only alternative sentences, fines, or probation. We are talking about criminals who have not only been sentenced to jail, but have been sentenced to at least six months in jail.

Nor are we talking about criminals who did not have the ability to argue their immigration status at the time of sentencing. There are numerous court decisions, including decisions from the courts of appeal in Ontario, B.C., Manitoba, Alberta, the Northwest Territories, and Nova Scotia, that mention immigration consequences as a relevant factor in sentencing.

For these reasons, to say that convicted criminals have not had their day in court is inaccurate.

As members of Parliament know, before a criminal is sentenced, judges must take into account certain principles. These principles are set out in section 718 of the Criminal Code. Under the Criminal Code, judges must take into account the possibility of rehabilitation and mitigating circumstances.

In fact, the Criminal Code specifically states that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate”. It also states that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders”.

Permanent residents who commit crimes, like Canadian citizens who commit crimes, know the crimes they are committing.

One portion of the bill that requires amendment, though, is the five-year bar that will be imposed on a foreign national for misrepresentation. Unlike with the criminal provisions, the misrepresentation bar can penalize the innocent. Under the law, the general rule is that an immigration misrepresentation can occur without an applicant's knowledge. In fact, misrepresentations have been found when the applicant is the victim of shady representatives who have acted without the applicant's knowledge. In these cases, Bill C-43 would penalize the innocent.

A simple amendment to Bill C-43 that would result in the bar of misrepresentation applying only to misrepresentations made knowingly would be fairer and more consistent with Canadian values.

The portion of Bill C-43 that should be removed is the section that would allow the minister to deny entry to temporary residents on the basis of public policy. This section is troubling in that the ministerial discretion opens up the possibility of decisions being made without clearer criteria. Canadians are entitled to know what actions could cause a person to be barred from coming to Canada.

In the departmental backgrounder that was published in June, the department cited the example where the minister could bar from entering Canada a foreign national who would promote violence against a religious group. If promoting violence is criminal, these individuals, when they enter Canada, should be arrested and should be charged. However, the decision on arrest should not be made by a political actor but by the professionals in the judicial system such as police and crown attorneys.

If the conduct of a foreign national is criminal, he or she should be arrested in Canada. If not, he or she should not be prevented from entering Canada.

The last aspect I would like to touch on are the parts of Bill C-43 that deal with employer compliance. I realize that clause 37 deals only with the ability to create regulations with respect to foreign workers and their employers, among others. I also realize that before these regulations are enacted, Canadians will have the ability to comment on these proposed regulations.

However, members of Parliament should be giving thought as to what sorts of conditions should be imposed on employers of foreign workers and the penalties for non-compliance. Over 180,000 foreign workers are in the country at any point in time. This is a large component of the workforce, and certainty is needed for both employers and employees. As a result, before enacting such regulations, widespread consultation with business, labour, and other groups will be necessary.

Thank you, Mr. Chair. I am open to questions from members.

[The Chair, Conservative, David Tilson]

We'll call the meeting to order.

This is the Standing Committee on Citizenship and Immigration, meeting number 58, on Wednesday, November 7, 2012. This meeting is televised. Pursuant to the order of reference of Tuesday, October 16, 2012, we will discuss Bill C-43, An Act to amend the Immigration and Refugee Protection Act.

Ladies and gentlemen, as you know, the bells will ring at 5:15. We have some business the committee will have to look at for five minutes, so this meeting will end at 5:10, which means the first group will have a total of 55 minutes. The second panel has just one witness who will have 45 minutes. That's how it's going to work. This first hour will end at 4:25.

We have two witnesses with us this afternoon, two lawyers with the Canadian Bar Association. We have Kerri Froc, who is a staff lawyer with law reform and equality; and we have Michael A. Greene, who is a member of the national immigration law section. Good afternoon to the two of you. Thank you for coming.

Mr. Lamoureux, we have all the way from Winnipeg, Manitoba a witness who is an immigration lawyer, Reynaldo Reis Visarra Jr. Pagtakhan.

Mr. Pagtakhan, I'll let you go first. You have up to 10 minutes to make a presentation.

[Angus Grant]

On the security issue, my response to that would be that we are ameliorating nothing except for the fact that we are eliminating the possibility of those who have been innocently found inadmissible under section 34 from having any avenue of recourse.

On that note, the one thing the bill really could have done and which would have been appreciated I think by all parties involved would have been to do something about the frankly scandalous delays that are associated with making decisions on ministerial relief. I understand the Minister of Public Safety is not going to appear before you in respect of Bill C-43. I wish that he were appearing, because frankly, he and all of the ministers who have preceded him, to be fair, have a very difficult question to answer, which is why they just plain don't make decisions on ministerial relief waivers. This is a profound problem and this is the single source of delays really in the process.

Mr. Waldman was talking about some cases that he's had where there have been speedy resolutions. I, too, have had cases where everything up to the point where it gets to the minister to decide has taken place within a year or a year and a half, or at most two years, and then it sits. It doesn't sit for a year or two; it sits for a decade. This, to reiterate, is a scandalous reality.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Do you agree with Bill C-43? I know you want to get a shot in on the long gun registry. That's already been passed.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you.

The Canadian Association of Chiefs of Police and the Canadian Police Association have come out strongly in favour of Bill C-43, saying that in their opinion, it will make Canadians, including the vast majority of immigrants in Canada, who are honest and law-abiding citizens, much safer.

Do you agree or disagree with the views of these police organizations?

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Lawyers like to look at these things and sometimes we get lost in the process.

What Canadians want to do is support an immigration system where we don't bring in people who are charged with crimes like kidnapping, assault, armed robbery, rape, and offences that attract a sentence of 10 years or more in Canada. We're changing the rules under Bill C-43 to keep those kinds of people out and to make sure that if they're here, they can be deported more quickly.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Let me switch to another place where this competes.

Ms. Seligman related to us a hypothetical case where somebody who has grown up in Canada goes across the border and uses false identification to get into a bar in the United States. They are then charged under a category that could attract 10 years’ maximum imprisonment in the United States. We have other cases. Some of them are high-profile cases where people have been charged and convicted of crimes that could attract the 10-year sentence. The change in Bill C-43 that I'm about to refer to would make it impossible for somebody who is charged with a crime that could result in a 10-year sentence or more to come in.

What do you think about that?

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you, Chair. Thank you, gentlemen, for joining us today.

It always seems so challenging to try to balance these things. We're looking at humanitarian and compassionate issues and we are looking at security.

Since you spoke last, Mr. Collacott, I want to put my question to you.

As I have been listening to the various accounts of different cases, the ones that alarm me the most are those that relate to a country I have visited, Rwanda; cases of people who are war criminals, and you mentioned two of them, who are able to apply for humanitarian and compassionate consideration and then delay indefinitely their deportation from Canada.

That practice alarms me, because it calls into question our whole humanitarian and compassionate approach. It mocks it and suggests that Canadians may lose faith in areas in which we ought rightly to be giving people humanitarian and compassionate consideration in the judicial system, the immigration system, and elsewhere.

Can you elaborate on this matter of allowing war criminals to use the humanitarian and compassionate approach? This will be dispensed with under Bill C-43, and I would like you to comment on how that strikes you.

[Angus Grant, Lawyer, Canadian Association of Refugee Lawyers]

Thank you very much.

Distinguished members of the committee, it's nice to be back here, and it's even nicer to be here in person. I testified last month via video and it's much nicer to be here in person.

Mr. Waldman and I are both going to speak to Bill C-43. I will begin by expanding on the comments I made last time around, on security provisions, although this time with particular reference to Bill C-43.

I have no doubt that the proponents of this bill believe, on some level, that the changes that it makes will increase Canadian security. I'm going to talk about security, with reference to sections 34, 35, and 37, although I'm going to focus on clause 34. While I have no doubt that is the case, the position I would like to put to you today, which is also the position of the Canadian Association of Refugee Lawyers, is that this will categorically not be the case, and I'll explain why.

Bill C-43 makes two principal changes to the security inadmissibility regime and to the regime for determining inadmissibility under section 35 and section 37. First, it eliminates the ministerial waiver provision, such as it was, and replaces it with a new provision that will be found at proposed section 42.1 of the IRPA.

The second thing it does, which is something that Ms. Jackman talked about, is that it categorically and with no exception eliminates the possibility for obtaining a humanitarian and compassionate review of an inadmissibility finding under these provisions.

I'll speak about both of these changes, but in turn I want to reiterate something I said to you last month, and that is there is no doubt it's unambiguous and categorical that section 34 of the IRPA captures people who we would all agree are innocent of any moral or legal wrongdoing. This is not, as I said, a controversial point. It is something the Supreme Court of Canada has recognized in Suresh, in talking about the waiver provision.

Frankly, as refugee lawyers, we have all been in hearing rooms where the issue of Canadian security has not arisen because it is a given that Canadian security per se is not of concern to these proceedings. The problem is that people get caught under other areas of these provisions that don't actually touch on the specific issue of Canadian security.

I don't think we should have a conversation today about the fact that this is solely about Canadian security per se, because it's about much more than that, and people who do not actually pose any threat to Canadian security get caught under these provisions.

The second preparatory remark I should make is that as we all know, the parameters for finding someone inadmissible under sections 34, 35 and 37 are extremely broad. Whereas in criminal law there is the requirement that to find someone guilty we have to establish that they are guilty beyond a reasonable doubt, in immigration law we don't even have to find that they have done an act on a balance of probabilities, in other words, a 50% plus 1% chance that the person committed an act that is proscribed by the IRPA. All we have to show is that there are reasonable grounds to believe that an individual committed an act or was a member of a group that committed an act that is proscribed by the bill.

We can believe, for example, that someone probably didn't do an act, that there is a greater than 50% chance that someone didn't do an act, but because all we have to have are reasonable grounds to believe that someone did it, i.e., that there is less than a 50% chance, then that person can be found inadmissible.

We know that wrongful convictions happen in criminal law with criteria of proof beyond a reasonable doubt. Think about how many people, then, could potentially be wrongfully found to be inadmissible when the standard of proof is so much lower.

With regard to the changes that are being made, first of all, the shift of the ministerial waiver provision that used to be at subsection 34(2) and will now be at proposed section 42, is essentially unchanged except for one bizarre provision that it's your task to consider and try to make sense of. This is proposed subsection 42.1(3) of the new IRPA, and it is under clause 18 of the bill.

The minister, in considering a ministerial waiver of inadmissibility will now have to make sense of the following provision:

(3) In determining whether to make a declaration, the Minister may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.

There are four things I want to say briefly about this provision. First, it doesn't make any sense, and I think you really need to grapple with this, because it's an important provision. It says that the minister must only take into account public security, but may look to things beyond public security. On its face, I think this is something that is going to make the judiciary apoplectic about what in the world this means. It's extremely poor legislative drafting, and it's going to cause a whole world of problems for anybody who is tasked with interpreting it.

I think I know what they were getting at in drafting the bill this way, and that is that the minister wants to have his cake and eat it too. He wants to say, “You can't force me to look at anything but security, but I don't want to be forced to look only at security because I recognize that many of these people are not actually security threats. I want to look at anything else I want to look at as well, to render my decision. I don't want to be bound by security, but I don't want you to be able to force me to look at things beyond security.” In an Orwellian way, this is the only way I can make sense of this provision.

The other thing that is remarkable about this provision is that it is being made and put forward to you at the exact time that the meaning of subsection 34(2) is under review by the Supreme Court of Canada. In the case of Agraira, which was argued just a couple of weeks ago, these exact considerations, the lawfulness of a ministerial waiver and the role that a waiver has to play within the larger inadmissibility regime, are before the court. The lawfulness of it is before the court. I would submit that it is an act of legislative bullying, almost, to suggest to the Supreme Court of Canada to legislate on an issue the lawfulness of which has not even been established yet.

That's all I'll say about the waiver provision.

I'm going to move on, very briefly, to the elimination of humanitarian and compassionate relief.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Clause 8 of Bill C-43 proposes giving new powers to the Minister of Citizenship, Immigration and Multiculturalism. One witness expressed concerns about these new powers.

What does your organization think about these new powers?

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you, Mr. Chair.

I would like to thank the witnesses for being here today.

Many witnesses have been very concerned about a number of provisions of Bill C-43. What aspects of this bill do you think contravene the Canadian Charter of Rights and Freedoms and the international conventions that Canada has signed?

Could you please give us more detail about that?