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.

[Roxanne James, Conservative, Scarborough Centre, ON]

That's fine. I'll give another example.

Another person lost control of a vehicle and killed a pedestrian while street racing. I'm not going to mention the name, because you probably won't know this person either. He was given a conditional sentence of two years less a day and ordered deported from Canada in April 2003, but was not deported until April 2009. It took seven years to deport him due to multiple levels of immigration appeals.

This is the point we're trying to address. These people do not belong in Canada. They have committed serious crimes.

I listened intently to your speech. I have to say that I am actually very alarmed that you believe fraud, impersonation, and theft under $5,000 are a “minor sentence”, as you put it.

The reason I say this is that I actually have another example. Joselito Arganda came to Canada from the Philippines in 1995. I bring this to your attention because you mentioned specifically fraud and theft. This person was sentenced to two years in prison in 2007 for a wide variety of crimes, among them forgery, credit card fraud, possession of counterfeit money, and possession of goods obtained by crime. He reoffended after leaving prison, and was sentenced again, in 2009, for possession of property obtained by crime and for failing to comply with court orders. The following year, he was sentenced for possession of a weapon.

I'm alarmed that you think fraud and theft under $5,000 would be a minor offence.

Then, in the same conversation this first hour, you've indicated that you're very concerned that some of these people who may be deported may be the sole supporter of their family. I'm thinking of this particular person. If he was the sole supporter of his family, then it was through fraud, theft, impersonation, forgery, and so on.

I just have to put that on the table, because I'm very alarmed.

In the opening statement, you talked about Bill C-43, and the major problem you have is that we're taking away the appeal rights of permanent residents. I just have to ask this question: Do you think it's too much to ask permanent residents to not commit serious crimes here in Canada?

[Robin Seligman, Immigration Lawyer, As an Individual]

Thank you very much, and thank you for having us.

I will speak for the first five minutes, and then Barb Jackman will speak for the second five minutes.

On Bill C-43,, the faster removal of foreign criminals act, let me start by saying that if this legislation was truly about removing foreign criminals, I would not be here today. The fact is that this legislation has very little to do with removing foreign criminals from Canada and has everything to do with taking away appeal rights and attacking permanent residents of Canada; yes, permanent residents of Canada, many who have lived here for a long time and have all of their family in Canada. These are not foreign criminals.

In addition, the criminality that this bill addresses can be relatively minor in nature to trigger the catastrophic result of permanently separating a permanent resident of Canada from their family in Canada, including being separated from their spouses and children indefinitely.

I will address the immigration appeal division aspect of it, i.e., taking away appeal rights from permanent residents of Canada. Barb Jackman will address restricting access to humanitarian and compassionate grounds, misrepresentation bars, and additional matters.

Bill C-43 takes away all appeal rights for permanent residents of Canada if convicted in Canada with quite a minor sentence, or even if that permanent resident is abroad and is convicted of, or has committed, an act outside Canada which, if done in Canada, would have a sentence of 10 years. This would include such offences as fraud, personation—that means using somebody else's identification—theft over, domestic matters. It does not matter if there's a conviction or what the actual sentence is abroad. A fine could trigger this section, and on its own, could make a permanent resident indeterminately separated from his family.

Let me use the example of someone who has come to Canada as a child and is now 50 years old. They are married, have children, grandchildren, and a home in Canada, and are working and supporting their family. They have never had any trouble with the law, but never applied for their Canadian citizenship. There are many people in Canada under those circumstances: Americans, Italians, Greeks, Portuguese. They just never became Canadians, although they came to Canada when they were small children.

On one occasion, this person makes a bad choice and gets into a fight, or drives dangerously, or commits theft under $5,000. If they get a sentence, even a conditional sentence of six months, no jail time is served, and they get a fine, or not even a fine, and they plead guilty—because it makes sense in terms of dealing with the criminal justice system and they would be advised to do so by most criminal lawyers. Approximately 80% of all criminal matters are pleaded to; otherwise, the system would grind to a halt. This has been given to me by the Criminal Lawyers' Association. This person would be deported from Canada without any right of appeal to the immigration appeal division, notwithstanding they have basically spent their entire life in Canada, and have no connections and sometimes don't even speak the language in their home country.

What the bill does is it takes away all appeal rights for this person. The immigration appeal division does not necessarily have to let the person stay in Canada, but at least it gives them a chance to consider all the circumstances of this person's case, such as how long they've been in Canada, the seriousness of the offence, if there's a pattern of criminality, family in Canada, what rehabilitation they've made. Then the immigration appeal division makes a fair and balanced decision.

Normally, in a case like the one I just described, the person would be allowed to stay in Canada and would be put on a stay of removal, basically probation for a certain period of time, usually three years to five years. If they break the law in any way, they would be deported automatically. I would hope and think that most Canadians would support this type of result.

I'm also going to provide for you samples of cases where people have obtained sentences of six months or more from the immigration appeal division. In many cases, the person has not been allowed to stay, and in the others the person has been allowed to stay. What I hope you will take the time to do is to read the types of cases and the types of people who are involved in these situations, who find themselves on the wrong side of the law. It may be a one-off situation of fraud and a situation where all of the person's family is in Canada. I don't think anybody would reasonably think that a person in those circumstances should be deported indeterminately and indefinitely from all their family in Canada.

I'll leave this with the clerk for you to look through.

[The Chair, Conservative, David Tilson]

I'm going to introduce our guests.

We have Barbara Jackman, who is an immigration lawyer. She's been here before on Bill C-43.

We have Robin Seligman, who is an immigration lawyer as well. Hello again.

We have David Matas, who has also appeared before, on Bill C-31. Good afternoon to you, sir.

[The Chair, Conservative, David Tilson]

Good afternoon, ladies and gentlemen. We will start the meeting.

This is the Standing Committee on Citizenship and Immigration, meeting number 57, Monday, November 5, 2012. This meeting is televised. Pursuant to the order of reference of Tuesday, October 16, 2012, we are examining Bill C-43, An Act to amend the Immigration and Refugee Protection Act.

For the first hour we have —

[Sharon Rosenfeldt]

I agree to a certain point.

I mentioned in my brief the amount of $31.4 billion. What I might suggest is to take a look at how many individuals are coming into our country and offending and reoffending, which is quite a high number, and look at the breakdown financially. What Bill C-43 would do is definitely strengthen that process and possibly free up some of the money that is going into protecting them from deportation and it could be used for training.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Okay, thank you very much.

Thank you both for being here.

Ms. Rosenfeldt, I myself have been a victim of a serious crime and can understand and relate to you and many members of your organization.

I'm going to ask a question about functionality.

We know from multiple Auditor General's reports that over and over again, in both CIC and CBSA auditors general have highlighted a lack of training, resources, integration of information, and monitoring of technologies. We're also seeing funding cuts now to the Canada Border Services Agency. I think all of these problems put Canadians at risk.

In response to the Auditor General's recommendations, the minister said that the department accepts the recommendations and will implement the recommendations that were made by the auditors general. We have not seen them in Bill C-43. It seems to me that providing CBSA with the training and tools they need is actually to provide preventive methods to keep us all safe.

Would you agree that allocating resources to CBSA and CIC allows them to do their jobs with the utmost success they could achieve to keep us all safe?

[Sharon Rosenfeldt]

Certainly, I, too, was surprised as I was doing some research into Bill C-43. I was very surprised at how lax the whole process has been over the years. I definitely would agree that through Bill C-43 we would definitely reap the benefits, as law-abiding citizens of Canada.

I think that's why a number of immigrants choose to come to Canada, because it is a very safe country. Despite the many times I have appeared before committees and talked about violent crime and such, we do have a lovely country, and that is what attracts immigrants to Canada.

I would certainly not like to see the provisions in Bill C-43 not taken seriously.

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

You've touched on a matter that you've discussed before when you have been in front of this committee and which you touched on earlier in your testimony, and that is the question of interviewing people. You mentioned several things, including the fact that the large volume makes it hard to interview all of those who would immigrate to Canada.

As someone who has practised law, I was really surprised that in fact we couldn't compel people who were considered to be a security risk to be interviewed by CSIS.

Would you like to comment on the fact that Bill C-43 will make it possible for the first time to compel someone already flagged as a security problem to have a CSIS interview?

[James Bissett]

I agree entirely with that.

The problem is, if they appear at a port of entry claiming to be persecuted in their own country, we have no idea that they've been convicted and sentenced to 10 years' imprisonment. No criminal check would have been done. They just arrive at the port of entry and claim persecution, so we let them in.

If the board found that they were in fact a genuine refugee, then the process would start for their landed immigrant status. Then we might discover three or four years later that this is a person who in fact has a criminal record, and a very serious one. Then we would start the deportation proceedings.

Again, unless Bill C-43 passes, this person would have full access to appeals and humanitarian review and could seek leave to appeal to the Federal Court and do what many others have done to stall and delay.

[James Bissett]

Thank you very much, Mr. Chairman. It's always a pleasure to appear before the committee.

I've had a lot of experience in immigration and refugee issues, almost 36 years. The most difficult area of immigration management has always been enforcing laws relating to the apprehension and removal of those who enter the country illegally, or remain here after their legal status has expired, or they have been convicted of serious crimes.

I believe the measures in Bill C-43 should receive full support. It's a long overdue and modest first step, I would say, toward reform of a system of removal that has proven to be quite ineffective. I have many examples of this, but perhaps the most recent one has been the Rwandan who was removed from Canada just this week, accused of genocide and crimes against humanity. We first found out about him in 2002, and it has taken since that time to finally remove him after many reviews of his case and many appeals.

The most glaring example of abuse of our system is the case of Mahmoud Mohammad Issa Mohammad. I think I've mentioned him before in front of this committee. He was an assassin and a terrorist for the Popular Front for the Liberation of Palestine. He attacked an Israeli aircraft that was on the tarmac in Athens and used a machine gun and threw grenades. He killed a Jewish businessman and wounded a stewardess before he was overtaken. He came to Canada in 1987. When we found out he was here, we ordered his deportation. He is still here. His case is still before the courts.

A Globe and Mail report a couple of years ago indicated that so far his case had cost Canadian taxpayers $3 million. I doubt very much if we'll ever get rid of this guy. This is not a suspected terrorist.This is a convicted terrorist.

We should put Bill C-43 in the context of an immigration system that currently is undermined by the difficulty to remove people who have been ordered deported, and indeed to keep out some of the really bad guys who get into the country. There are a number of reasons for this, and I'll mention a few of them in the time I have.

Part of the problem, unfortunately, relates to section 7 of the Canadian Charter of Rights and Freedoms, which indicates that everyone is entitled to due process. It makes no distinction between Canadian citizens and legal residents. Anyone who arrives in the country or even in our international waters gets charter protection.

Charter obligations however well meaning they might be, certainly inhibit the fast removal of foreign criminals and security risks ordered deported, since all of these people have a recourse to a variety of reviews and appeals. They can keep their cases going not only for months, but for years, in most, if not all, cases at taxpayers' expense.

As Mr. Neve mentioned previously, we have obligations under the UN convention with regard to removing people to countries where they might be mistreated or tortured. This is another instrument that prevents us from removing some of the very bad people in the country who should be removed. Germany and the United Kingdom have overcome that by entering into an agreement with the source country to ensure that consular officers from Germany or England can visit the jails and ensure that these people are not being mistreated.

Another factor is the high volume of immigration that we've been receiving in the last 10 or 15 years. It means that very few immigrants are even seen or interviewed now by these officers overseas. It's all done on paper. Many of the immigrants who are coming here are coming from countries where fraud, deception and forgery are almost endemic, so we're letting in a lot of people who probably shouldn't be here.

We also have an asylum system that's unique in the world, that allows anyone from any country in the world to simply walk into the country and claim persecution. All they have to do is claim it and they are automatically admitted. They are then entitled to a quasi-judicial tribunal that sometimes might take two to three years to take place. If, by chance, they are refused—they have to be real refugees—the difficulty of removing them is really immense.

The last report of the Auditor General indicated that there were over 40,000 failed asylum seekers, their whereabouts unknown.

Under-resourced enforcement personnel is another factor. There simply aren't enough enforcement officers in the Canada Border Services Agency to track down some of these very serious cases. They do their best, but there are few resources devoted to that. In the past, the enforcement of immigration has not been something that has been vigorously pursued in the country.

In the last few years, we've also had a very high volume of foreign temporary workers entering Canada. Most of them are not given a criminal check. They simply come in. Most are not interviewed. There simply are too many of them. On December 31 last year, there were over 300,000 temporary foreign workers in the country. If they leave their employment, nobody knows their whereabouts or what they're doing. That's another weakness in our system. We have no exit system, no exit control, and no system to track people who come into the country as temporary workers or visitors, as many countries do. That makes the enforcement of immigration laws very problematic.

I'm going to end by saying that immigration, in my view, is one of the most important issues Canada has to face. It's one of the great and important issues of our time, not only for Canada but for many other countries in the world. There are mass migration movements taking place. Millions of people are on the move, and they are going to keep moving. Indeed, that whole migration movement will increase if climate change and violence continue in many parts of the world. We have to be in a position to deal with that and to manage the numbers effectively.

It's an iron rule of migration that people will move if they want to improve their standard of living, flee violence, or have a better future for their children. But if it's done in a chaotic manner, and the wrong people are let into the country, the whole system can be undermined.

In my view, if we can't determine who should get in, who should be kept out, and who should be removed, in effect, we have lost our sovereignty. That's why Bill C-43, despite its failure to address many of the issues I have raised, is, I hope, a first step in a basic reform of the system so that we can let in the people we want, keep out the people we don't want, and remove the people who have committed crimes or security violations in our country.

Thank you.

[Sharon Rosenfeldt]

You can tell my age; I was wondering where my glasses were and they're on my head.

Good afternoon, ladies and gentlemen of the standing committee. I wish to thank you for inviting our organization, Victims of Violence, to present to you today.

We are here appearing in support of Bill C-43, An Act to amend the Immigration and Refugee Protection Act, or the short title, the faster removal of foreign criminals act.

I will briefly tell you about our organization. Our mission is to promote a more balanced justice system through legislative action and public awareness.

Victims of Violence was founded in 1984 to advance the rights of crime victims and enhance the safety of all law-abiding Canadians by addressing problems in Canada's criminal justice system.

Through the tireless efforts of many volunteers, most of them victims of violent crime, much progress has been made toward fulfilling our mission. Victims of Violence has worked with government for three decades to ensure that public safety and the rights of victims receive due consideration.

Victims of Violence has worked with hundreds of individual victims, helping them navigate through the bureaucracy to find justice in the criminal justice system. Our work on behalf of victims of crime sometimes overlaps into different ministries such as the case today.

The government's action to date is that they have indeed listened to victims and to law-abiding Canadians who want our laws to differentiate between the majority of offenders for whom rehabilitation is a realistic option and the repeat offenders for whom the justice and correctional system is a revolving door, which does include foreign individuals who repeatedly break our laws.

We feel that in the long run the measures in Bill C-43 won't put more foreign criminals in jail, but rather they will keep the right people in Canada. That is what crime victims have been asking for.

Is Bill C-43 the be-all and end-all to society and immigration and refugee problems? Of course not. Is this all that victims want or need? No, but it is one necessary and important part of the equation.

Building an effective immigration system is a key component of any and all safe communities in Canada. Therefore, power must be exercised usefully, that is, to promote the greatest well-being of its citizens.

We feel that reasonable laws enhance the good of all and they serve the interest of all, while unreasonable laws are biased and they give all possible power of rights to a small part of the population while leaving all the misery and suffering to the other persons. Today we call those other persons victims as it relates to foreign individuals committing serious crimes in Canada.

Traditional justice systems invariably have not been ideal from the point of view of the victim; however, modern society has sought to provide extended protection to the victim through criminal laws and systems of social security.

We see Bill C-43 as a long-awaited piece of legislation which in part is designed to facilitate and make easier the entry into Canada for legitimate visitors and immigrants, while giving government stronger legal tools to not admit into Canada those who may pose a risk to our country. Most important to crime victims is the removal from Canada of those who have committed serious crimes and have been convicted of such crimes by our fair judicial system.

We agree with Minister Kenney, who states that the vast majority of new Canadians will never commit a serious crime and they, therefore, have no tolerance for the small minority who do, who have lost the privilege to stay in Canada.

We also agree with Minister Kenney on due process and natural justice in the rule of law. We also agree with Minister Kenney that even serious convicted foreign criminals should get their day in court and that they should benefit from due process.

He agrees, as we do, that they should not be deported without consideration by the Immigration and Refugee Board. However, Minister Kenney does not agree that they should get endless years in court and be able to abuse our fair process.

Victims of Violence is in agreement with the minister. With this bill, an end would be put to that abuse.

We feel that this bill sets a clear agenda to act decisively, as it is the right thing to do for our country and its law-abiding citizens. It sends a message that the rules of engagement have changed in Canada, and it won't be business as usual for individuals to come to Canada and break our laws.

I wish to bring to the attention of the committee an issue that has not been addressed in any of the research that I've done in relation to Bill C-43.

I would like to ask the committee to consider the costs that crime has on victims. The costs of violent and serious crime not only consists of taxpayers' dollars but the loss of human life, loss of family, loss of law and order, and the loss of faith in the criminal justice system.

In 2008 the Department of Justice released a report which estimated the costs of crime. The report stated that the tangible costs of crime, which included police, court, corrections, health care, victims' costs, etc., were approximately $31.4 billion, while the intangible costs, which included pain and suffering, loss of life, etc., were over double that, at $68.2 billion.

If I may, I wish to seek permission from the committee to table the report. I do not have it with me, but I will ensure that the clerk will receive a copy to be distributed.

In closing, we believe that Bill C-43 provides Canada's immigration system the vehicle to address the very real and immediate needs now facing the Ministry of Citizenship, Immigration and Multiculturalism, and to prepare the system for possible new challenges anticipated in the future. We strongly believe that if all the amendments in Bill C-43 are supported and implemented, the safety of Canadians will be further enhanced.

All Canadians have a right to live in safe communities. Threats to that right should be addressed swiftly and effectively by the Ministry of Citizenship, Immigration and Multiculturalism.

Thank you very much.

[Tom Stamatakis]

I'm not sure I'm in a position to comment on that. I think the more information you have, including on the kinds of crimes that are being committed by these individuals, it would better inform not only the committee but also everyone else who's been discussing Bill C-43 or other issues related to immigration policy.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you.

Bill C-43 also stipulates that permanent residents who commit a crime for which they are sentenced to six months' imprisonment or longer lose the right to appeal. This is a right they have right now, the right to appeal their removal order to the Immigration and Refugee Board of Canada.

We have heard testimony from various groups in this committee that various circumstances warrant a stay of a removal order, even for residents convicted of crimes. These circumstances include when the resident has lived most of their lives in Canada and has weak or no connections to their country of birth; the resident is suffering from mental health problems that have contributed to their committing the crime; and the resident's family's circumstances in Canada warrant a conditional stay of the removal order based on humanitarian and compassionate grounds.

How does your organization view the elimination of appealing a removal order for residents sentenced to imprisonment for six months or longer? Should the law give all permanent residents, including those convicted of crimes, the right of appeal to the IRB?

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you very much. Thank you to both of you for your presentations.

At the last meeting on Monday, the committee heard testimony from Mr. Andrew Brouwer. He's a representative from the Canadian Council for Refugees. Mr. Brouwer expressed his deep concern over many aspects of Bill C-43, including provisions that would leave people considered inadmissible on grounds of security and human or international rights violations without a mechanism to establish their innocence or to have their compelling personal circumstances considered on humanitarian and compassionate grounds.

This question is for you, Mr. Neve. Could you please share with the committee how you think the proposed amendments to eliminate access to an appeal process for people considered inadmissible on grounds of security or human rights violations could impact refugees and permanent and temporary residents in Canada?

[Ted Opitz, Conservative, Etobicoke Centre, ON]

I hear what you're saying, by the way. A lot of my personal friends are police officers, and I've been on ride-alongs with them. I know what they face, especially in some of the tougher areas.

Now, sir, I was shocked to learn that for several years criminals who have been inadmissible on the most serious grounds, and that includes people such as war criminals, human rights violators, and those in organized crime, have been able to delay their deportation from Canada by simply applying on humanitarian and compassionate grounds. This is in fact contrary to Canada's no safe haven policy.

I have a three-part question, but I'll do them one at a time.

Do you agree or disagree with the provision in Bill C-43 to no longer allow these most serious criminals to use humanitarian and compassionate grounds to delay their deportation? We'll start with that one. Would you like me to repeat that?