Citizenship and Immigration Committee on May 13th, 2008

[Richard Fadden]

As Ms. Finley noted, we looked into the possibility of addressing the problem simply by increasing the number of points given and by changing the way points are allocated internally. We concluded that the act itself needed to be changed to limit the number of applications that are processed every year. As you may already know, the act does not restrict the minister's authority to change the point system. There is nothing in the act preventing her from reviewing the point system once the new provisions have been implemented.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Could members please be quiet so I can put my questions?

[The Chair, Conservative, Norman Doyle]

That's a very good point. Mr. Carrier has asked for a little bit of quiet. He's being distracted.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

It makes it easier for me to ask my questions.

[The Chair, Conservative, Norman Doyle]

Go ahead, Mr. Carrier.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Regarding the existing Canada-Quebec Accord, the number of immigrants accepted is decided jointly at the request of the Quebec government. I want some assurances that your efforts to deal with the backlog will not delay the work you still need to do once these applications have been accepted by Quebec. Your department still has work to do to finish processing these applications.

Do you acknowledge that these applications still need to be processed expeditiously?

[Richard Fadden]

Yes, Mr. Chairman. My minister has discussed this matter with her Quebec counterpart. I've also spoken to Quebec's deputy minister. We have assured them that we intend to follow through on our plans and they took us at our word.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Fine then. Thank you.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Fadden.

Ms. Grewal.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Thank you, Mr. Chair.

Can you please tell us what the ministerial instructions can and cannot do? What criteria will the instructions look at in terms of the occupational categories? What sorts of consultations will take place prior to the issuance of any instructions? How will they provide any flexibility and faster processing while continuing to abide by IRPA's three fundamental goals?

[Richard Fadden]

As the minister said in her news release of April 8, the government has articulated a number of principles that will be used to formulate the ministerial instructions.

First, on the basis of input from federal agencies such as the Bank of Canada and HRSD, organized labour, employers, and the provinces, we will develop a list of priority occupations. The logic is that, by and large, there is not a national labour market in Canada. They're either provincial or regional labour markets. So the minister and the department will be placing a lot of emphasis on consulting with these various groups.

We don't know exactly how we're going to consult right now, but the proposed legislation already says that the instructions have to be reported to the House through the annual plan, and that plan calls for consultations with the provinces.

The intention is to complete consultations over the course of the summer and have some in-house review. The minister has to go to cabinet. Then the intention is to issue the instructions some time in mid-autumn.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

How can we be certain that ministerial instructions will not be discriminatory? What checks will prevent instructions from discriminating on the grounds of religion, ethnic origin, and country of origin?

[Richard Fadden]

As is the case with everything the department does, we're subject to the rules of the charter and the Canadian Human Rights Act. We've had no difficulty having members of the bar suggest to us when there's a potential problem. So we believe that while the department will not discriminate on these bases, because we respect the law and the charter, if there's ever a mistake in that area we will be taken to Federal Court very quickly.

But I want to be clear that a combination of consultations with the provinces, organized labour, the private sector, and civil society is not going to yield instructions that will discriminate on the basis of race, religion, or place of origin. It is inconceivable that all of these people would agree to it.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

I'll pass the rest of my time to Mr. Komarnicki.

[The Chair, Conservative, Norman Doyle]

Okay.

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

You've indicated that the administrative decision could be subject to Federal Court review, and there's been some confusion from some of the witnesses about at what stage or point that would happen. But Bill C-50, as it relates to the immigration portion, has to be charter-compliant. Is it correct that they could bring a challenge on the legislation itself if they chose to?

[Richard Fadden]

I think the rules are fairly clear. Any piece of legislation, regulation, ministerial instruction, or decision by a public servant has to be charter-compliant. The Federal Court Act says that without exception, all of these decisions, by whatever level, are subject to review by the Federal Court. So are the instructions themselves subject to judicial review? Yes, they are. Is their application by officers of the department subject to judicial review? Yes, it is.

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

So you have three stages or opportunities where that could happen, and in addition to that, the instruction that is issued by the minister would have to be subject to the general goals of the Immigration and Refugee Protection Act, which you referred to. It would have to have those in mind. Additionally, I think one of the sections talks about its having to support the attainment of the immigration goals established by the Government of Canada. So those would be additional goals that the instruction must meet.

[Richard Fadden]

I think that's correct, Mr. Chairman.

The basic control mechanism, other than the constitutional ones, is that the instructions that are issued by the minister have to be consistent with the annual plan the government tables in the House of Commons. That is the plan that indicates each year how many people are going to be admitted to Canada in the three categories of federal skilled workers, family reunification, and humanitarian entries. This bill will not change that at all. The annual plan, which sets out the numbers the department is to bring in and the various categories, remains absolutely the same. What this bill says is that the minister, when she issues instructions, has to take this annual plan, which is tabled in Parliament, into account. It has to be consistent with that plan.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Fadden.

Mr. Telegdi.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Thank you very much.

Mr. Fadden, are you familiar with the Dragan decision?

[Richard Fadden]

I'm not a lawyer, but I'm generally familiar, yes.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Have you read it?

[Richard Fadden]

No, I read a summary.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

You read the summary, and you saw how the department was downright hostile to the citizenship and immigration committee in 2002, when the act was being put in place.