Citizenship and Immigration Committee on Oct. 29th, 2012

[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.

[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]

Perhaps you could wind up, Ms. Sytcheva.

[Irina Sytcheva]

All right.

Our biggest concern with Bill C-43 is the expansion of the serious criminality definition, which would make essentially anybody who had been convicted and had spent six months in jail unable to appeal on humanitarian and compassionate grounds.

What we're seeing right now, even with the two years, is that it's quite an unreasonable period of time, because often humanitarian and compassionate grounds are the only way for an individual to express his or her mental health concerns and put that information out there. In other instances, when you look, on paper, at what the charge may be, it really looks at what the offence is. It doesn't look at their circumstances. It doesn't look at the judge's discretion and the crown's discretion in the criminal justice system. It's really quite black and white.

[The Chair, Conservative, David Tilson]

I'm afraid we'll have to move on. Perhaps you can raise the issues in questions, Ms. Sytcheva.

Ms. Taub, you look familiar. I think you've been here before.

[Julie Taub, Immigration and Refugee Lawyer, As an Individual]

Yes, I have.

[The Chair, Conservative, David Tilson]

Welcome again.

You have up to ten minutes.

[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.

[The Chair, Conservative, David Tilson]

I thank both of you for your presentations, and all members of the committee will have questions.

Ms. James is first.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chair, and thank you to both of our guests.

I listened to both of your presentations. I'm going to direct my first set of questions to Ms. Taub. You mentioned a number of foreign nationals who committed serious crimes in Canada—

[Julie Taub]

There's a longer list.

[Roxanne James, Conservative, Scarborough Centre, ON]

I know there's a much longer list—unfortunately. One of the persons you did not mention was Clinton Gayle.

[Julie Taub]

Oh yes, I've got him on my list.

[Roxanne James, Conservative, Scarborough Centre, ON]

I want to touch on this first, because I think most of us remember the Toronto police officer Constable Todd Baylis, who died at the age of 24. My father was a police officer with Toronto as well, so it hit me hard, but I can tell you it did not hit me as hard as it did the families of Todd Baylis—I believe he also had a fiancée. I know the city grieves for him and for that loss.

You're familiar with Clinton Gayle. Todd Baylis was shot and murdered by the serial criminal and drug dealer Clinton Gayle while trying to disrupt or stop a crack cocaine drug deal. Clinton Gayle was still in Canada because he had appealed to the IAD. I think I know what your answer may be, but do you agree with the abilities of criminals like Clinton Gayle to be able to appeal the deportation, even though they have been convicted of serious crimes?

[Julie Taub]

I think there should be absolutely no appeals available for any non-Canadian who has been convicted of a serious crime. It is, first of all, an abomination to the victims of the crime, and it is an incredible waste of taxpayers' money.

We still haven't gotten rid of this war criminal Mugesera, and they spent millions and millions of dollars. I believe it cost $5 million to get rid of Charles Ng, the mass murderer from California back in the 1980s.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you.

You did touch on another particular case, Mahmoud Mohammad Issa Mohammad, who has been in Canada for 25 years. I have to tell you, I was a bit alarmed when you said that one of the reasons he is still fighting deportation is because he cannot get the same health care in another country as he can get here. I find this to be outrageous, first of all, to Canadian taxpayers—25 years. You didn't mention the figure, but it's actually $3 million that it has cost to keep him here for 25 years while he fights appeals, and I'm sure that number is probably even higher.

[Julie Taub]

I mentioned that Charles Ng was $5 million.

[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]

Absolutely. I really do.

I would like to add that there are some critics who say we are criminalizing immigrants. Well, nobody criminalizes somebody who commits a crime; they criminalize themselves. When somebody commits a crime, it isn't Immigration that criminalizes them. It's not the minister who criminalizes them, and it's not society. If you commit a crime, you have free will. You're an independent person. You criminalize yourself.

[Roxanne James, Conservative, Scarborough Centre, ON]

I have another question along this line. You mentioned the Rwanda war criminal—

[Julie Taub]

Mugesera.

[Roxanne James, Conservative, Scarborough Centre, ON]

Was he the one you mentioned had to go to the Supreme Court of Canada?

[Julie Taub]

Yes, all the way up.

[Roxanne James, Conservative, Scarborough Centre, ON]

And you say we're still not able to deport him.

[Julie Taub]

Even though the Supreme Court has.... It's something to do with...they can't get a guarantee that he won't face the death sentence or he won't be killed when he returns to Rwanda.