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.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you.

Very quickly—I only have 30 seconds, Ms. Sytcheva—are you aware that in many other countries, such as the U.K., the U.S., New Zealand, and Australia, they already have provisions in place to bar individuals who would harm the public interest but who are otherwise not inadmissible? In fact, the provision in these countries is much broader and discretionary than under this proposed bill C-43.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you, Mr. Chair.

Thanks to both of you for appearing before us today.

We are here to discuss an act that's going to amend the Immigration and Refugee Protection Act. In fact, we are calling it the Faster Removal of Foreign Criminals Act. As you know, we are a very welcoming country, perhaps one of the most welcoming countries in the world—if not the most welcoming. Over the last five years, we've averaged about 253,000 new Canadians coming here from countries all over the world. In fact, last year the number was 265,000.

We have a responsibility to our citizens, which is that the people who we allow to walk our streets, shop in our communities, be around our children, and be in our schools are safe—that it is safe for our citizens. We do not have a responsibility to another country to take on those who would perpetrate criminal activity.

I have a question. I'm going to start with you, Ms. Taub, if I may. Do you think it is fair or unfair for us to require that in order to retain their permanent resident status—and potentially become Canadian citizens—permanent residents not commit a serious crime?

[Roxanne James, Conservative, Scarborough Centre, ON]

The minister was here last week, and I asked him a very simple question. I asked him how long he thought it would take an average Canadian to actually earn and save $3 million. It kind of sets the tone for how ridiculous it is to allow convicted criminals, foreign nationals, to remain in Canada at the expense of taxpayers.

I really do thank you for your presentation.

The next question I have is regarding the Canadian Association of Chiefs of Police and the Canadian Police Association. They are obviously strongly in favour of Bill C-43, saying it will make Canadians, including the vast majority of immigrants in Canada who are honest and law-abiding, much safer. Do you agree with that statement?

[Julie Taub]

Thank you.

I would just like to expand on my role here. I'm here as an immigration and refugee lawyer, but also in my capacity as an immigration lawyer. I have represented those who have been found to be criminally inadmissible to Canada, and I have gone to the Immigration Appeal Division to get a stay of removal for them, successfully in almost all cases. They give a conditional stay of removal, between two and five years depending on the severity of the crime, etc. Unfortunately, the majority of the clients I have represented reoffend or they breach their conditions. Then, when it's time to go back for another hearing, the minute I hear that they have reoffended and they've breached their conditions, I step away and I tell them, “I'm sorry, I can't represent you anymore.” I go through a lot of trouble, look at all the humanitarian and compassionate considerations, bring in their families, spend a lot of time, and I listen to their heart-felt apologies and promises, but time and time again they reoffend and they breach the conditions.

I have two or three clients left waiting for their hearings, and I have decided to remove myself from that area. This is based on the experience that I have had.

Now, I am here also as a naturalized Canadian, a mother and a grandmother, and a Canadian who's worried about the effects of criminality in Canada. I'm sure you've all heard the lists of all these people who've been in Canada, foreign nationals who have not been deported. One of the most outrageous examples would be Mugesera, the Rwandan war criminal who was found by the Supreme Court of Canada to be complicit in the genocide in Rwanda. He remains in Canada. They have still not been able to deport a war criminal implicit in genocide.

Then there's the classic case of Mahmoud Mohammad Issa Mohammad, a Palestinian terrorist who was found guilty but released in some kind of prisoner exchange. He made a bogus refugee claim, and then when his terrorist background was discovered, he was ordered deported in 1988. We're 2012. He's had appeal after appeal after appeal and he lives quite happily and contentedly in Toronto. His last appeal to Federal Court was based on health conditions—he claims he cannot get the same health care in his old age in his home country as he can here.

Then there's Masoud Boroumand. In 1985 he filed a refugee claim, and then was deported in 1993 after three heroin convictions, including being part of an international drug trafficking ring. Then he made another claim in 1994 and 1995, and they were rejected because they thought there'd be no risk for him to return to Iran. He got married and went underground for seven years. Nobody knew where he was. He reappeared, and when they finally found him, the IRB changed its position and decided that Iran was not so safe, so he was able to stay in spite of his many criminal convictions.

I'm not sure how many of you remember Charles Ng in the 1980s, the California murderer who came to Canada. He escaped California custody after having been convicted of murdering several women. He was a serial killer. He escaped to Calgary and made a refugee claim not based on his innocence, but based on the fact that he might face a death penalty if he would be returned to California. It had to go all the way up to the Supreme Court of Canada, five or six years, millions and millions of dollars, before he was finally extradited.

I have a long list, if anybody's interested. There's Singh Khosa, this Sikh permanent resident in Vancouver, who lost control of his car when he was street racing. It took seven years to deport him. Seven years. He killed somebody in that accident. A very rich man. He wasn't somebody poor. A spoiled young man racing his car in the streets of Vancouver.

These are the reasons I support this bill. I really support this bill because criminals remain in Canada who are not Canadian, and it's almost impossible to deport them. There's no choice with Canadian citizens.

I dare say that if we had Adolf Hitler in Canada, it would take years and years to deport him back to Germany. That's how bad the system has become.

As my friend has said, there is the mental illness issue. First of all, all criminal judges take mental illness into consideration; they must. They also take humanitarian, compassionate, and immigration issues into consideration before passing sentences; they must. Criminal lawyers are very knowledgeable about the mental incapacity full defence against any criminal charge.

As for not being able to afford this...two of my clients had mental issues, and I used to go to the Royal Ottawa to prepare them for the hearing. They were on legal aid, which is readily available. I've gotten mental assessments done that were fully paid for by legal aid, as were my fees. So those services are available to deal with issues of mental health.

There are those who ask, should we deport people for a DUI, driving under the influence? When somebody's charged the first time with a DUI, simply over the limit but there's been no accident, no bodily harm, they're not sentenced to prison. They're given a $600 fine. I have the Criminal Code of Canada here, and it says for a first offence, “to a fine of not less than six hundred dollars”; a second offence, “to imprisonment for not less than fourteen days”. They're still not deportable. For each subsequent offence, “to imprisonment for not less than ninety days”. We're not at six months yet. But if it causes bodily harm and it causes death, then it's going to be a sentence of more than six months, and then they are subject to deportation, as they should be.

I thought perhaps a representative from MADD Canada would be here, because I think they would have something to say to this issue about DUIs and deportation. I support them generously, and I did speak to one of the directors there. They had no idea this was going on. She told me that perhaps somebody could still have one of them come as a witness, that they fully support deportation of foreign nationals who are found guilty of a DUI causing bodily harm or death.

I support Bill C-43, and I think there are enough safeguards in place for the mentally ill. Lawyers are available under legal aid for both the criminal justice system and the immigration system. I have been very active in this field for many years.

[Irina Sytcheva, Manager, Policy and Community Relations, Schizophrenia Society of Ontario]

Thank you for having me here.

First things first. I will let you know who I am and about the organization I represent.

If I speak fast at any time, please do ask me to slow down.

I'm from the Schizophrenia Society of Ontario. We are a non-profit, charitable organization. Our constituency is individuals, families, and communities who are affected by schizophrenia and psychotic illnesses. In those terms, we are the largest organization representing that population in Ontario.

Through our justice and mental health program, we often hear about instances of individual clients and family members who come to us because they have a number of issues, not only mental health issues but also when they come in contact with the criminal justice system. Working with those cases, we become aware of a lot of the barriers and challenges people encounter when they're dealing with both of these situations.

In respect of Bill C-43, we also learned a while ago that compounding that is the immigration consequences of criminalization. So you're not only having to deal with the mental health system and the criminal justice system, you're also having to deal with the immigration consequences if you come into contact with the latter.

We often find that there is a general awareness of what mental health does and what mental illnesses mean for individuals.

I will take you through a very brief overview to contextualize why mental health is an important factor to consider in the context of this bill.

First and foremost, there is no such thing as a monolithic mental illness. There is a plethora of different conditions and symptoms, and everybody experiences it individually.

Mental illnesses are very prevalent, as I'm sure everybody here knows. They affect quite a huge chunk of the population. The most conservative statistic is one in five. About 2.5% could be considered serious mental illnesses, such as schizophrenia and bipolar disorder, conditions that are really quite devastating for both the individual and the family when folks are not doing well.

Mental illnesses are episodic in nature and are what we call invisible disabilities. When people come into the immigration system, when they're dealing with officials, it's really hard to pick up who has a mental illness and who does not, because, again, often it's not visible. People do not often disclose it because of the stigma and the shame they may feel are associated with their conditions.

What we also know about mental health is that for many of the immigrant and newcomer groups, their mental health is exacerbated not only by the trauma of coming here, for instance, as refugees, but also through dealing with the immigration process and the stress that comes about when they're filing applications and not understanding the process, not understanding the language. There are also unique circumstances where people come from different cultures and have a different understanding of what it is to be mentally ill. They may not fully understand how the Canadian mental health system works, and they may not fit into the same definitions of mental illnesses that we have, so they do not seek treatment or they hide the condition and hence often fall through the cracks of the mental health system. Unfortunately, they often do come into contact with the criminal justice system.

Over the last 10 years, we have witnessed the proportion of people with mental illnesses in the criminal justice system here in Canada skyrocket. You have only to look at our prison populations, in both the provincial jails as well as federal institutions, to see that a large number of individuals have either diagnosed or undiagnosed mental health issues.

We have a government that has put forward the first national mental health strategy, for which we applaud them, yet we still have a long way to go to understand how mental health and mental illnesses play a role in every single policy and legislative area in Canada.

To go back to mental illness and criminal involvement, the relationship between the two is quite complex, but what we do know is that after de-institutionalization back in the 1960s, the mental health services pulled out. What we see now is that more people are being picked up the criminal justice system because our mental health system and addiction systems are so fragmented and so uncoordinated among themselves.

Often, people come into contact with the law for what we call minor crimes, such as uttering threats or being a nuisance, or just being extremely visible in the community where they live and making people uncomfortable. Some of them do commit violent, serious crimes, but oftentimes it is associated with an untreated mental illness. When people get the treatment and support they need, they are able to function and to lead full, productive lives.

Within the criminal justice system, we have mechanisms for picking up and diverting those individuals who need extra support. We're not seeing that in the immigration system. Hence, we have very serious concerns about the implications of Bill C-43, in particular for our population of individuals and families who have very serious mental health issues and unique needs that often are not acknowledged in an immigration setting. They do not come into play when people are considering applications for permanent residency, refugee claims, or not being deported from Canada.

In 2010 we did research to look at these issues in more detail to understand what was going on and to try to come up with solutions to make sure that folks were not falling through the cracks in the system. What we found was that our immigration system does not consistently take into account the mental health conditions of the appellants and the deportees.

We also know that mental health needs are not being considered from the perspective of what's going to happen to individuals should they be deported to their countries of origin. People are often deported to countries where mental health systems are non-existent. The services are not available, are inaccessible, or are inadequate. At the same time, the stigma associated with mental health conditions in those countries is quite prevalent, and people are subject to human rights violations. We dealt with one case just recently. An individual was sent back to Jamaica and was set on fire. I'm putting it out there, because we see these things almost on a daily basis. It's really hard to disconnect what you see in the paper about the crime the person may have committed from the individual behind it and his or her family.

I'm going to walk you briefly through some of the major findings of our research as they pertain to the consideration of Bill C-43.

First, we're finding that people with mental health issues often do not have the same access to justice as many other individuals. That starts when they come into contact with the criminal justice system. Oftentimes they deal with lawyers, if they're able to access one, due to the cost and other considerations, who are not trained to represent individuals with mental illnesses. They do not understand how mental illness came into play in their conviction or when they committed the offence. They are often advised to plead to a greater charge, because the advice given by lawyers is that if they go down the mental health route, they may be in a mental health institution for much longer. Many individuals make the choice to do that, on the advice of the lawyer.

At the same time, we know that when they get to the immigration system, it's really hard to get quality legal representation from lawyers who really understand how to address a client's mental health concerns and how mental health plays a role. We find individuals who may have filed an application and mental health was never flagged. They get to the point where they have exhausted all other avenues and they are deported. Only after the fact does someone say, wait, it may have been a mental illness situation.

Another thing we've seen is that often people are asked to provide proof of their mental illness. They are requested to provide psychiatric assessments and to follow through with quite stringent medication regimens or a regimen of seeing a doctor. For anybody who has ever dealt with the mental health system, it's quite an insurmountable barrier, because often it takes about six to 18 months just to see a psychiatrist for one assessment. For immigration purposes, the cost associated with providing a psychiatric assessment is quite high. It ranges from $1,500 to $3,000. The lawyer does not pay that. The onus is put back on the individual.

Again, that evidence is not being considered in immigration circumstances, and people are not able to fully express what their needs are, what their circumstances may have been, why they committed the crime, or why they need special consideration under the immigration—

[The Chair, Conservative, David Tilson]

Good afternoon. Order, please.

This is the Standing Committee on Citizenship and Immigration, meeting 55, on Monday, October 29, 2012. This meeting is being televised. Pursuant to the order of reference of Tuesday, October 16, 2012, we are studying Bill C-43, An Act to amend the Immigration and Refugee Protection Act.

For the first hour, we have two witnesses before us, two guests.

We have Julie Taub, an immigration and refugee lawyer.

Good afternoon to you, Ms. Taub.

From the Schizophrenia Society of Ontario, we have Irina Sytcheva, the manager of policy and community relations.

Ms. Sytcheva and Ms. Taub, you each have 10 minutes to make presentations, which will be followed by questions from the committee.

Ms. Sytcheva, you may go first.

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

Thank you very much.

Minister, as I said, I really do appreciate your being here today. We don't often get the opportunity to sit with you in the same room at committee and ask you some questions directly. You have been very, very generous with your time today.

With the indulgence of the chair, I would like to veer from Bill C-43 slightly for a moment.

Minister, the question I have for you is this. At least two conservative MPs have sent taxpayer-funded newsletters to their constituents bragging about cuts to health care for vulnerable refugees. I asked about this during QP, and the reason I'm asking it again is because you were not here—

[Jason Kenney, Conservative, Calgary Southeast, AB]

Mr. Chairman, Ms. Sitsabaiesan raises some very important points.

I take seriously the recommendations of the Auditor General. My department has accepted them all and either has already started to implement or will implement the recommendations that she made.

I know the committee has been studying, prior to Bill C-43, the whole question of immigration security. I would point out that one of the real challenges we've had is the lack of biometric visas and the lack of an exit information system; these are the two biggest reasons explaining why we have had some unacceptable gaps in our immigration security system.

We have announced, in the context of the Beyond the Borders agreement with the Obama administration, our intention—and of course Parliament has given us the legislative authority—to introduce biometric visas next year, which will help us prevent readmission into Canada of deported criminals. Furthermore, an exit information system will massively improve our ability to police those who have overstayed in Canada, including those who may pose a security risk.

We're making big investments here. It's not just a rhetorical commitment; it's a big fiscal and policy commitment.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Yes, we have. In fact, let me tell you something honestly. The genesis of this bill was probably shortly after I became minister four years ago—four years ago this week. My goodness.

I was approached by members of the Vietnamese community in Calgary whom I knew who were outraged that a notorious gangster named Jackie Tran, who had multiple criminal convictions, had successfully delayed his deportation through precisely these IAD appeals.

Jackie Tran, like many sophisticated crime bosses, was smart enough to get other people, often young people, to do his dirty work for him, so he never got picked up on a major offence such as murder, although it was well known that his thugs were responsible for many gangland murders of the kind you just described. The community was being terrorized because he and his gang, the so-called “Fresh Off the Boat Killers”—their own name—were going around terrorizing Vietnamese shop owners and people in the community.

The community came to me and said to me, “Why are you allowing Jackie Tran to stay in Canada?” I went to the department and asked, “Why are we allowing Jackie Tran to stay in Canada?” They said, “Well, Minister, here's the case, and here's how he's been able to delay his removal by appealing to the IAD.” Maybe there was a technical problem and it got sent back; then they went to the Federal Court, and that got sent back. It went on for years. I think the case of Jackie Tran went on for nearly six years of delay.

So, Mr. Menegakis, the departmental officials will tell you that I've been bugging them about coming up with amendments like this now for the better part of four years, and it came out of what I learned about the Jackie Tran case, about the victims—the indirect murder victims—of his gang in Calgary.

This is why, for example, Sharon Rosenfeldt, president of Victims of Violence, has said that Victims of Violence supports Bill C-43 and is very pleased with the government’s announcement of changes to legislation that would make it easier for the government to remove dangerous foreign criminals from our country:

As an organization that works with victims of violent crimes and their families, we applaud this proposed change. We feel that streamlining the deportation of convicted criminals from Canada will make our country safer. Limiting access to the Immigration and Refugee Board’s Immigration Appeal Division...is an important proactive step in ensuring the safety of all Canadians.

I have a long list of other endorsements from similar organizations.

[Mylène Freeman, NDP, Argenteuil—Papineau—Mirabel, QC]

Great. Thank you very much.

What worries me is that Bill C-43 will certainly affect those 800 or so people. Can you confirm that it will not affect others?

[Jason Kenney, Conservative, Calgary Southeast, AB]

Yes, you're quite right.

I'll once again reinforce for the committee, Mr. Menegakis, that Bill C-43 does not propose to change the definition of what constitutes a serious crime under the Immigration Refugee Protection Act. It keeps the same definition.

I find there's a certain cognitive dissonance here. Some of the critics have been suggesting that a penal sentence of six months is insufficient to define a serious crime, but that has always been the law under IRPA. An op-ed written by our colleague Mr. Cotler from Mount Royal published a couple of days ago suggested that it was outrageous that we should lower the bar for serious criminality in IRPA to six months. We're not lowering the bar. We're maintaining the bar that Mr. Cotler himself voted for in 2002.

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

My second question is about the principle of non-refoulement to torture, a standard that no national legislation must contravene.

Do the provisions of Bill C-43 comply with that principle and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment? If so, how?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

Mr. Minister, I see this, very much so, as an anti-immigrant bill. You have this sensational attitude of trying to make immigrants look as if they are a bad thing.

We can talk about the bogus refugees. This is something that you create, which sends very strong negative images in the minds of Canadians. We can talk about the illegal queue-jumping, or the boat people, in which you stand on the back of a boat, and you have mandatory detention, for which you did have to flip-flop.

Thank goodness you did do the flip-flopping. And it was because there was pressure at the committee stage from different organizations, many different law firms and so forth, that ultimately led you to make those changes. That is the reality.

At the end of the day, in Bill C-43 you term permanent residents, 1.5 million-plus individuals living in Canada, who call Canada home...and we call them foreigners. This is an attack on “foreign” criminals.

Then the minister goes out, Mr. Chairperson, and identifies these sensational cases—the rapists, the murderers, the pedophiles. Those are the ones in which the minister chooses to send this powerful message to Canadians.

What kind of message is he really sending to Canadians? What about the individuals who...?

Maybe there's a family of four where Johnny, who just graduated from university, has six plants of marijuana. That's the serious crime that's going to have six months and no appeal, and Johnny is going to be deported—

[Jason Kenney, Conservative, Calgary Southeast, AB]

Well, no, I would not be open to scrapping our proposal to include some form of negative discretion, precisely because it seeks to deal with cases of individuals who are not otherwise inadmissible to Canada.

Let me begin by saying that I appreciate your generally constructive approach, Ms. Sims, and do hope that there will be a serious deliberative and legislative consideration of the bill. I regret that you characterize the government's willingness to amend immigration legislation in the past as “backtracking under pressure”. Perhaps it's just that we're actually open and flexible to improvements.

It was a radical idea that we could actually improve legislation through the deliberative process. That's certainly been I hope my hallmark as minister, and I hope it will be so on Bill C-43, which is why I have tabled with you these proposed guidelines.

Now, let me say that the committee may recommend that we codify these guidelines in the bill, or that they be codified in regulation. But you're going to have to understand that there are implications to that.

So why can't we—to respond to your question, first of all—just allow border officials to apply the inadmissibility law? Because very frequently...and, you said, to apply the law, for example, of inadmissibility against people who might commit hate crimes. There are no grounds upon which to deny entry to Canada of a foreign national who we believe may commit hate crimes in Canada if they are not otherwise inadmissible—that is to say, if they do not, for example, have a criminal record in their country of origin for crimes that would also be crimes in Canada.

Now, let's say they've committed fraud crimes in Germany or something. That's something the CBSA can consider. But going around in a foreign country—you can pick any number of countries—calling for the murder of gays or Jews or women is not a crime in many countries, and therefore does not constitute grounds for inadmissibility.

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

Thank you very much.

Minister, it's really good that you can be here for two hours today. I know you have a very busy schedule and a very active file that keeps you and the rest of us busy.

Minister, I believe all Canadians want a tough approach to non-citizens who commit serious, often violent crimes in our communities. Newcomer communities, the vast majority of whom are law abiding and follow the rules, would be among the first to agree with this sentiment.

As you know, I made it clear when this legislation was introduced that as a responsible opposition we are ready to work with the government to ensure that criminals of all backgrounds are not allowed to abuse our appeals process. But I want to make it clear to you today that our support in principle at second reading is not a blank cheque, and I am serving notice to you today that we expect the government to work with us to make sure that we protect Canadians and respect due process and the rule of law at the same time.

I will be blunt. We have serious concerns about the bill being proposed here. We are concerned with both its effectiveness in dealing with the issue of non-citizen criminality as well as its extraordinarily wide scope. In particular, Bill C-43 grants you sweeping new powers. The last thing your immigration system needs is to be criticized even more. The reality is we have a good independent system for determining admissibility, and we don't need it to be replaced at the whim of any minister.

What you've handed out here today, the handout we've just received—and just taking a cursory look at it, what struck me is that what you've handed out here are just guidelines. They will still be guidelines to you, with the discretion resting with you or with another minister.

Three times since I became the official opposition critic for immigration on refugee health cuts, on Bill C-31, and again on this legislation, you have introduced sweeping reforms only to have to backtrack under pressure. It is a clear sign that these reforms are being rushed through without proper consultation. We are hoping that on this piece of legislation you will be willing to listen to the stakeholders and the opposition to ensure that we have a piece of legislation at the end of the day that protects both Canadians and the rights of newcomers.

I notice, Minister, that your presentation gives some examples of some very egregious cases, which we agree with you we would want to have removed. However, I always hesitate when we make sweeping changes based on a few anomalies, instead of trying to attack those specific anomalies by fine-tuning the system.

On the note of consultation and listening to the opposition, my first question to you relates to your comments in the media last week when you promised to engage members of this committee on the section of this law that would allow you to bar foreign nationals from entering Canada for overly broad public policy considerations, which, I think even you must agree, captures almost everything in the world. While we appreciate the olive branch, my question is, why do we need this at all? Our border services already have the power to bar people who are a threat to our security or whose actions constitute crimes, including hate speech in Canada.

Would you be open to scrapping this ill-considered part of the legislation?