The first issue is to deal with some of the claims about what this legislation is and what it will do. This is something I will try to clarify.
We've heard this legislation is about the backlog. I hope that by now it's perfectly clear that this legislation has absolutely nothing to do with the backlog. The legislation expressly provides that it's not retroactive and will not apply to the hundreds of thousands of cases in the backlog.
It's important for the committee to consider that there is a very serious problem with the backlog, but that this problem is not being resolved by the legislation. To understand the problem, the first thing you have to consider is how it is that a backlog of 900,000 cases developed. And one of the important things to clarify is, since when?
In 2002 the legislation was changed. This backlog has developed since 2002, because the backlog that existed prior to that has been cleared over the course of the last six years. This was done by the settlement of the class action dealing with all the people in the previous backlog.
We have a backlog that's been allowed to grow to 900,000. I suggest to you that this has occurred because of inaction on the part of immigration officials who stood by watching the backlog grow. There were mechanisms that would have allowed them to take action to stem the backlog, but they did nothing. So we now have to consider that we have a problem.
One of the major concerns I have with this legislation is that it will give the bureaucracy a great deal of new powers. I would submit that they haven't shown themselves competent to deal with the powers they have under the current legislation.
Secondly, we've heard it said that we need this legislation because a minister needs to have the power to be able to accelerate certain applicants and to make decisions about who gets processed when. An important point needs to be made here—that power already exists. We do not need this legislation to create that power. Take, for example, the existing provincial nominee program. The provincial nominees who are chosen by the provinces get priority over all other economic migrants, and this is done through a political direction made by the minister to the visa officers overseas.
I went to court two years ago on a case called Vaziri et. al v. Canada, in which I challenged the right of the minister to prioritize spousal sponsorships over parental sponsorships. I said that there had to be a regulation. I lost. The Federal Court said that the Minister of Immigration has the power to make political decisions about who gets prioritized and in what order. So this legislation has nothing to do with the need of the minister to prioritize certain types of applications over others.
Third, the minister has said that this legislation has nothing to do with individual applications. Unfortunately, as a lawyer, I can tell you that the wording of the legislation does not bear this out. If you look at the legislation and you understand the basic principles of statutory interpretation, it is clear that the legislation gives the minister the power to make individual decisions about individual applications.
Now, this minister may say that she has no intention of doing this. But we learned the hard way, in the debate over the last Immigration Act, that what a minister says doesn't help us much when we go to the Federal Court years later.
There was a case called Cha v. Canada, in which we said to the Federal Court, “The minister said that this was going to happen.” The Federal Court just looked at us and said, “Well, that's very nice.” The court pointed out that the minister may say whatever she wants at the time. But the court's job years later is to interpret the legislation, and when they do so, it's based on the wording. So the court will consider what the minister says, but they're not going to distort the wording of the legislation in order to interpret it in the way the minister suggested.
There is lots more I could say. I want to talk about what the legislation does and what the concerns are.
The main power of the legislation given to the minister, aside from the power to interfere in individual applications, is the power to change the rules retroactively through the issuance of instructions.
Now, why is that a problem? There are two reasons. First of all, our immigration system, over the course of the last forty years, has been built upon a transparent, non-discriminatory point system. This point system allows individuals to know the criteria at the time they apply. If they meet the criteria, under the current legislation they have a right to get a decision based on that criteria, and, if they qualify, a right to a visa. This is very important, because it means we have clear, transparent rules for which the government of the time is politically accountable.
If the minister has the power to retroactively change the rules, it means the rules no longer have any meaning, because they can be changed years later. There's no political accountability at all, and no transparency, because people who apply will have no way of knowing from the moment they apply until the moment they get the visa whether they're going to qualify.
The last point I want to make, given that I've probably spoken longer than I'm supposed to, is the concern I have about what this bill does in terms of political accountability and the role of Parliament. The concern here is simply this: now, important changes to the regulations are debated here in committee. They're publicized in advance so that people get notification of the changes, and there's an open debate and political accountability at the end of the process. But if this bill goes through, the minister will have the power to make changes without any accountability, except for what occurs after the fact, and there will be no political discussion.
Let's assume the bill is passed, which it likely will be now, sometime before the end of this current session, and becomes law on June 30. On July 2, the minister can issue an instruction. Parliament will not be sitting; Parliament likely won't sit again until October, so fundamental and very significant changes could be made to the immigration system with no debate for four or five months. It completely undermines the role of Parliament in the political process and it's contrary to the spirit in which this government was elected, when the government said they wanted to make Parliament more involved in the political process.
What this bill really does is undermine the role of Parliament and this committee. I think it sets a very dangerous precedent, because if they can pass legislation that allows them to issue instructions in immigration, what's to stop them tomorrow from doing it in environment or in something else? Then we can have government by instruction instead of government by regulation, which is a serious undermining of the role that Parliament plays in the political process.
Those are my opening comments.