Citizenship and Immigration Committee on Oct. 24th, 2012

[The Chair, Conservative, David Tilson]

Good afternoon.

This is the Standing Committee on Citizenship and Immigration, meeting number 54, on Wednesday, October 24, 2012. This meeting is 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.

Before I introduce our witnesses, I've been advised that a concurrence motion has been introduced in the House, so we may have a vote sometime this afternoon.

Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Chairperson, if I could, I have had the opportunity to talk to Ms. Sims, and I believe the New Democratic Party would support what I am going to suggest.

Mr. Chairperson, I would ultimately ask if we could have the committee canvassed on the budget bill, which is Bill C-45—

[The Chair, Conservative, David Tilson]

Let's do that another time, Mr. Lamoureux. We have the minister here.

I know you've got a notice of motion. You need 48 hours. You don't have 48 hours, so we're not going to proceed with that today.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Is there any chance that we could see if there is unanimous consent to have it—

[The Chair, Conservative, David Tilson]

No. We're not going to proceed with that today, Mr. Lamoureux. You need 48 hours' notice, and you don't have that yet.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

We couldn't ask for unanimous consent from the committee?

[The Chair, Conservative, David Tilson]

I don't think so.

I am advising that we could have a vote within the hour. We will now meet with our guests. The Honourable Jason Kenney is the Minister of Citizenship, Immigration and Multiculturalism.

Good afternoon, Minister Kenney. You have a number of witnesses. I think we've met them all in the past, but at the appropriate time I'll let you introduce your colleagues.

You have up to 20 minutes to make a presentation to the committee.

Thank you, sir, for coming.

[Jason Kenney, Conservative, Minister of Citizenship]

Thank you, Mr. Chairman.

We do have a number of officials here, from both the Department of Citizenship and Immigration and Public Safety Canada.

Thank you.

Honourable colleagues, thank you very much for the opportunity to speak to the Standing Committee on Citizenship and Immigration about Bill C-43. This piece of legislation is part of the major effort we are making to strengthen the integrity of our generous immigration system.

As you know, under the current government, Canada has the highest rate of immigration in our history and the highest per capita rate in the developed world. The vast majority of new Canadians, of course, arrive with every intention to abide by the laws of Canada and to fully integrate into society. They in particular have no sympathy for foreign nationals who arrive in Canada and who are convicted of serious crimes.

This is why our government made a campaign commitment to streamline the process of removing foreign criminals who have been convicted of serious criminality under our justice system.

The government has also recognized that some amendments have to be made to the Immigration and Refugee Protection Act in terms of admissibility to Canada. This is a complex but significant aspect of the Immigration and Refugee Protection Act.

The goal of the amendments is to allow entry to Canada to honest people who are going to contribute to the prosperity of our country and to deny entry to those who perhaps represent a threat to our security or our public health.

I am pleased to present to you Bill C-43, Faster Removal of Foreign Criminals Act, which responds to those objectives that we committed to in the last election, and indeed in the throne speech.

Through this important legislation we are delivering on a campaign commitment to streamline the process to deport convicted foreign criminals.

Currently, a permanent resident or foreign national may be ordered deported if they could receive a maximum sentence in Canada of at least 10 years for their crime or if they receive an actual sentence of more than six months. But there's a fundamental problem with the status quo. As long as the sentences for such convicted criminals are less than two years, permanent residents can appeal their deportation from Canada to the Immigration Appeal Division of the IRB, and if they lose that appeal, they can appeal that through an application for judicial review to the Federal Court. This adds, in many cases, up to three years of delays in deportation for serious convicted foreign criminals.

Chairman, I believe that even foreign criminals convicted of serious crime deserve their day in court, but they do not deserve endless years in court while they delay their deportation from Canada. I believe that even foreign criminals convicted of serious crime deserve due process, but they should not be able to endlessly abuse Canada's fair legal process.

That's why, under this act, any permanent resident who receives a sentence in Canada of six months or more would no longer be able to appeal their deportation to the IAD, the appeals division of the IRB. This legislation would also bar those who have committed serious crimes outside Canada that would be punishable in Canada from accessing the appeals division.

It is important to note that serious criminality is already defined under the Immigration and Refugee Protection Act as a conviction for which a sentence of more than six months has been imposed. There was some confusion about this during the debate on second reading in the House.

I emphasize that this bill does not change the definition of serious criminality in the Immigration and Refugee Protection Act. It continues to be a conviction for which a sentence of more than six months has been imposed. The changes we propose are therefore consistent with other provisions currently in our immigration legislation.

To those who argue that any of this is somehow unfair, that we're punishing people for so-called minor crimes, whatever that means, or mistakes they've made in the past, we say that residency in Canada is a privilege, not a right. One of the few things we ask for you to maintain that privilege is that you not commit a serious crime in Canada. If, as a foreign citizen, you come to Canada with the privilege of residency and you commit a serious crime, let's be clear, you lose the privilege of staying in this country.

Mr. Chairman, as you know, I regularly meet with members of our diverse culture communities, and they feel this particularly strongly. I'll just say as an aside that it's no accident that I made the commitment to this legislation during the last election in Vancouver's Chinatown at a press conference that I think was attended entirely by members of the ethnocultural media. We have seen massive support for this idea from new Canadians because overwhelmingly they're the folks who play by the rules, who come here and treasure the residency that typically leads to citizenship, and frankly, they have no patience for those who come here and abuse Canada's generosity by victimizing Canadians, and very often victimizing new Canadians.

I'd like to suggest to the critics of this bill that I'd like to hear them, for once, talk about the victims of these crimes. I'd like for them to contemplate or even acknowledge the sad reality that many Canadians, including many new Canadians, have been victimized, even through violent crimes, by foreign nationals who were delaying their deportation thanks to the kinds of delay tactics that this bill seeks to close.

Some critics, including the opposition, ask us to consider the hardships that criminals and their families will face. But do those critics ever stop to think about the hardships faced by the victims of crime?

One immigration lawyer expressed concern about the “monumental effect” that the removal of foreign criminals would have on immigrant communities. Frankly, I think that idea is insulting to immigrants. As I mentioned earlier, the vast majority of immigrants, like other born and bred Canadians, are law-abiding, hard-working, honest and proud. In fact, we accept more than a quarter of a million new permanent residents per year, of whom fewer than 1,000 are convicted of serious criminality and appeal to the IRB. That means that this bill will affect less than 1% of all permanent residents, 0.3% of them, to be precise.

Unfortunately, there are countless examples of foreign criminals who have been given sentences of under two years and have managed to parlay that delay into a long, drawn-out removal process that lasts for years, including some of the worst offenders imaginable.

Take the outrageous example of Cesar Guzman, a Peruvian national who was issued a deportation order after being convicted of sexually assaulting a senior citizen. This predator was only sentenced to 18 months in prison, so he was able to use his appeal to the Immigration Appeal Division. He should, however, have been sent packing back to Peru as soon as he had finished serving his 18-month sentence, but because of the avenue of appeal that was open for him, he delayed his deportation for nearly four years.

Mr. Chairman, when Canadians read about cases like this they are understandably upset that we permit such delays to occur. Worst of all, many convicted foreign criminals have used the time they've bought appealing their deportation to reoffend, and sometimes to commit even more heinous crimes.

The fact that these foreign criminals can walk freely on our streets when they should have been sent home at the earliest opportunity disturbs the vast majority of Canadians. I can think of no better and more tragic case that typifies this problem than that of the murder of Toronto Police Constable Todd Baylis, who was killed by a foreign national who was delaying his deportation. There were operational mistakes on that file, but the fact that he was able to make an IAD appeal and delay his deportation contributed to the fact that Jamaican citizen Clinton Gayle was in Canada to kill police Constable Todd Baylis. We can never let that sort of thing happen again.

Under Bill C-43, if you commit a serious crime, you will get your day in court, but you won't get endless years in our courts.

There are other measures of the bill that seek to facilitate legitimate travel to Canada by people who do not pose any kind of a risk, which I think was skipped over in the debate on second reading. For example, previously, if low-risk travellers were accompanied by a family member who was inadmissible for grounds other than security or criminality, such as health, the entire family would be found inadmissible and would have to return to their home country. This bill proposes to improve the system so that only the inadmissible individual would be denied entry into Canada. All other accompanying family members would be allowed to enter. It doesn't penalize family members for one member's inadmissibility.

Yet another key change would give the Minister of Citizenship and Immigration new authority to deny entry—and I'll just focus on this—in exceptional cases to foreign nationals who mean harm to Canadians, such as individuals who encourage or incite hatred that could lead to violence. There has been some controversy on this provision. In the bill, we propose that the minister would have the ability to deny entry to foreign nationals based on public policy grounds. We drew that legislative proposal from our study of analogous provisions in peer democracies like Australia, New Zealand, the United States, the United Kingdom, and many western European countries that have various forms of what we would call negative discretion.

Colleagues, let me explain the rationale. Quite frequently, members of Parliament and members of the public come to us and ask why we would admit to Canada a foreign national who has a long record of promoting hatred, and even inciting violence. To give you one example, last year the Council of Quebec Gays and Lesbians protested the effort of Mr. Hazma Tzortzis and Mr. Abdur Raheem Green, British nationals who were seeking to come to Canada to speak at a conference. These two individuals have a long record of vicious hatred, including calling for the death of gays and lesbians, Jews, violence against women, etc. Indeed, the Quebec National Assembly passed a unanimous motion calling upon me as the minister to deny entry into Canada of these individuals. This is one of many examples.

In fact, when I was a member of the opposition, I had proposed that we deny entry to Canada of Fred Phelps, a man who goes around promoting violent hatred against gays and lesbians. I also did so with respect to Sheikh Abdul Rahman Al-Sudais, a Saudi national who called for the destruction of all of the Jewish people.

Now, here's the problem we have, Mr. Chairman. If you believe the admission of such people to Canada is a problem—and that's a debatable question, for sure—and if you believe that such foreigners should not be permitted to spread potentially violent hatred in Canada, you have to recognize that the current law doesn't give us the tools to deny them entry, unless they are inadmissible on national security grounds. Let me be clear: promoting hatred against Jews is not a crime in Saudi Arabia. There are many countries in which crimes that exist in Canada do not exist in other countries, such as the promotion of violence or hatred against vulnerable groups.

This raises a very serious question as to whether or not Canadians and Parliament believe there should be some reasonable, discrete, limited, flexible tool that we can use in extraordinary cases where, for reasons like this, we want to keep out a foreign national who might otherwise be admissible. On what grounds you apply that power and in which cases and so forth are all legitimate questions for debate, which is why I'm tabling before the committee, Mr. Chairman, proposed guidelines for the exercise of this power of negative discretion.

I share now with committee members that this would focus on those who are involved in promoting terrorism, violence, or criminal activity, such as promoting or glorifying terrorist violence; promoting or glorifying a listed entity under a listed terrorist entity; counselling, encouraging, or inciting others to commit terrorist activity or terrorist violence; inciting hatred that is likely to lead to violence against a specific group; or promoting, counselling, encouraging, or inciting serious criminal activity. Additionally, this would give us the authority to deny admission to a foreign national of a country against which Canada has imposed sanctions under the United Nations Act or the Special Economic Measures Act, where that foreign national is a former or current senior official of the government of that country or of any entity owned or controlled by or acting on behalf of the government, or an associate or a relative of an official or person set out in paragraph 36(1)(a), or of a foreign national who is a politically exposed foreign person listed in regulations to the Freezing Assets of Corrupt Foreign Officials Act.

The latter section responds to calls from the opposition, from the Liberal and New Democratic parties, following the arrival of certain members of the family of Mr. Ben Ali, the former Tunisian dictator. Members of his family managed to get admission to Canada, and members of the public and opposition asked, “Why are you allowing the dictator's family to seek refuge in Canada?” The answer was that they're not otherwise technically inadmissible under sections 34, 35, and 36 of IRPA. These are the inadmissibility provisions, and we can't deny them admission if they don't have a criminal conviction or they're not members of a terrorist organization.

There may be cases where we want to bar, for example, senior regime members. We had sanctions on the Burmese regime. This would have given us the authority, for example, to deny members of the junta from Burma, at the time, from entering Canada.

We have sanctions now on the Iranian regime. We may want a broader power to deny admission to Canada of senior members of that regime. This would give us those tools.

As I conclude, Mr. Chairman, I would invite the committee to give these issues very serious, sober-minded consideration. I would say to my friends in the opposition, who aspire to form government some day, that they may have to grapple with these problems, too.

I think all of us, as parliamentarians, need to very soberly reflect on what are the appropriate criteria, if any, to deny admission to foreign nationals in such exceptional circumstances. And how do we have a flexible tool that can respond to these situations?

Finally, Mr. Chairman, thank you for your attention. There are many other provisions of the bill that I didn't get into—some of which are technical, but all of which are important—and I and my officials stand ready to respond to your questions.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Minister.

I've just been advised there will be no vote, so we can stay.

Mr. Opitz, you have the floor.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Thank you, Mr. Chair.

Good afternoon, Minister. Thank you for appearing with us again today.

I applaud what you're doing here because this is a very difficult topic, especially when it comes to victims. You're right, victims have not often been identified as part of this, like Todd Baylis, which is the extreme example of somebody who has been affected by criminal behaviour by somebody from overseas who shouldn't have been here and who should have been removed far earlier, if the process at that time had allowed it.

This is something that really needs to be brought forward. Minister, I think our friends in the Liberal Party unwisely voted against this bill at second reading. They argued that it's actually not fair that permanent residents should have to obey the law and not commit crimes as one of the requirements to gain the privilege of becoming a Canadian citizen.

Sir, how would you respond to that?

[Jason Kenney, Conservative, Calgary Southeast, AB]

What was the last part of the question?

[Ted Opitz, Conservative, Etobicoke Centre, ON]

That it's not fair for permanent residents who must obey the law and not commit crimes as one of the requirements to gain the privilege of becoming a Canadian citizen—

[Jason Kenney, Conservative, Calgary Southeast, AB]

Look, I think this is pretty cut and dried. I don't think this is complicated. If you come to Canada as a permanent resident, we welcome you. We're the most welcoming country in the world, and this government has maintained the most welcoming posture of any developed country in the world. We have, in fact, since we came to office, admitted nearly 1.8 million permanent residents in the last six years, and we have welcomed about 1.3 million citizens. It's unprecedented in the world and in our history, certainly in relative terms, at least.

In our generosity, we ask very little of people who come to join us in Canadian society. One of the very few things we ask is that in enjoying the privilege of residency in Canada, you not commit a serious crime. Nearly 100% of immigrants find no difficulty in avoiding committing a serious crime. Frankly, I think it's insulting to suggest that this is some kind of a burden placed on new Canadians or placed on permanent residents. I don't think it's a burden to avoid committing a serious crime.

There's some suggestion here that this constitutes a diminution of due process or natural justice. Nothing could be further from the truth. Every foreign national who's charged with a crime in Canada, every permanent resident who is charged with a crime, will get their day in a criminal court. If a judge deems they have committed a sufficiently serious offence to receive a penalty of six months or more, they are currently, under IRPA, considered serious foreign criminals and subject to deportation. We are simply saying we'll move forward with the removal, rather than allowing people to buy several years of delay, during which we see too many recidivists, too many repeat crimes, too many new victims claimed.

Moreover, I would point out that if you get that conviction at a Canadian criminal trial court, you can appeal that conviction to an appeals court, and if there are grounds, you could further appeal it to the Supreme Court. Similarly, under what we are proposing, once that conviction is established in law, they will no longer have this appeal to the IAD of the Immigration and Refugee Board. Let me point out that it's not only the IAD appeal. That's taking us about 18 months right now, because we have so many of these cases, so that buys them 18 months. If they lose there, then they make an application for judicial review of the negative IAD decision to the Federal Court, and that buys another eight or nine months, maybe a year. So we're often talking about two and a half to three years of bought time to stay in Canada. Having eliminated that, under Bill C-43 serious convicted foreign criminals will still be able to make an application for a pre-removal risk assessment. If that decision is negative, they'll be able to seek leave to the Federal Court for review of their negative PRA.

Frankly, I suspect a lot of Canadians think the streamlined system we're proposing here is still too generous for people who have violated the privilege of staying in Canada and have committed serious crimes. But we are, of course, committed to our fair legal system and our international obligations of non-refoulement, for example.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

I agree, and democracy is followed.

I know in the citizenship guide on the website people are reminded that Canada essentially stands on four pillars: freedom, democracy, human rights, and the rule law. I know they're educated about this prior to even coming here, because that information is out there for all to read and for all to educate themselves on before they attempt to come to Canada. It's not like it's a surprise, if you come here and you're a former criminal.

Now, one provision of the bill that seems to have been completely missed by the media, and perhaps altogether ignored by our friends in the opposition—you touched on it, but I'd like you to expand on it a bit—is the change for family members travelling with individuals who are inadmissible on grounds other than the most serious ones.

Sir, can you please expand further on how the system worked before, and then how this is an improvement that will help legitimate travellers to Canada?

[Jason Kenney, Conservative, Calgary Southeast, AB]

Yes, thanks, Mr. Opitz.

The “inadmissible family member” proposal includes two elements: it is, first, to facilitate the temporary entry of foreign nationals who have accompanying family members who are inadmissible under certain provisions of IRPA; and second, it's to restrict the temporary entry of foreign nationals who have non-accompanying family members who are inadmissible on security grounds. What we're making here are some subtle changes.

For example, you're a family—let's say in India—hoping to visit Canada, come to a family wedding, and it turns out that one member of the family has a medical condition that might represent an excessive burden on the Canadian health care system. Right now, we would look at that application and because it is a group and one of them is inadmissible, they all are inadmissible. This new power will allow us to sever the inadmissible individual and say, “I'm sorry, but you're medically inadmissible”, but say to the other folks, “You're welcome to come into Canada”. That facilitates the entering into Canada of people who are not a problem.

On the other hand—

[The Chair, Conservative, David Tilson]

Perhaps you could wind up, Mr. Minister.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Sorry. Sure.

Just on the other side, I would say if you're the wife of a dictator and you're seeking to come to Canada, we're going to attach you, in a sense, to his inadmissibility and deny you entry.

[The Chair, Conservative, David Tilson]

Thank you.

Ms. Sims.

[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?

[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, Minister. You've answered my question. I really need to....

I have a very short time. I don't mean to be rude.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Sure. Sorry.

[The Chair, Conservative, David Tilson]

Ms. Sims, you have about 30 seconds.

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

I would like to know—maybe as the day goes on—why the need to concentrate more arbitrary power in your hands? Instead, could we not look at expediting the judicial process for removal without such broad new powers?

[Jason Kenney, Conservative, Calgary Southeast, AB]

Again, if the committee wants to recommend that we codify in the bill something like the language I've proposed in these guidelines, I would be very interested to receive that recommendation. But you need to understand that if we do that, then it becomes a very rigid tool and it becomes highly litigious.

There will be cases undoubtedly that do not fall within this. When you look more closely at this, you may think these criteria are too narrow. They are radically more narrow than the criteria for negative discretion that exist in our peer democracies.

Essentially, our proposal to allow for negative discretion on public policy grounds at the minister's discretion is designed to replicate the analogous power that exists in the U.K., Australia, the U.S., and New Zealand, where we have seen no significant abuse of that power.