Citizenship and Immigration Committee on Nov. 5th, 2012

[The Chair, Conservative, David Tilson]

Good afternoon, ladies and gentlemen. We will start the meeting.

This is the Standing Committee on Citizenship and Immigration, meeting number 57, Monday, November 5, 2012. This meeting is televised. Pursuant to the order of reference of Tuesday, October 16, 2012, we are examining Bill C-43, An Act to amend the Immigration and Refugee Protection Act.

For the first hour we have —

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

Mr. Chair, I have a point of order.

I would like to seek unanimous consent—

[The Chair, Conservative, David Tilson]

I'm just about to introduce our guests.

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

With all due respect to the guests, I'm hoping this will take less than a minute, if I may have consent.

[The Chair, Conservative, David Tilson]

Let's hear whether it's a point of order.

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

On October 31, 2012, the finance committee moved that clauses 308 to 314 of Bill C-45 be debated by the appropriate committees. I would like to move that right now.

[The Chair, Conservative, David Tilson]

No, we've agreed. I've called a subcommittee meeting, as you know, Ms. Sims, because you were given notice of it. You know we are discussing that immediately after this meeting. Why you would raise it now when you know it's going to be held in the subcommittee meeting, I'll never know.

It's not a valid point of order, and you're going to have to wait to talk about it in the subcommittee.

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

Thank you, Chair.

[The Chair, Conservative, David Tilson]

I'm going to introduce our guests.

We have Barbara Jackman, who is an immigration lawyer. She's been here before on Bill C-43.

We have Robin Seligman, who is an immigration lawyer as well. Hello again.

We have David Matas, who has also appeared before, on Bill C-31. Good afternoon to you, sir.

[David Matas, As an Individual]

Good afternoon, and thank you for having me back when I've already appeared before.

[The Chair, Conservative, David Tilson]

It's always a pleasure to see you, sir.

Ms. Jackman and Ms. Seligman, you have 10 minutes between you for a presentation, and then the members will have questions.

Thank you for coming.

[Robin Seligman, Immigration Lawyer, As an Individual]

Thank you very much, and thank you for having us.

I will speak for the first five minutes, and then Barb Jackman will speak for the second five minutes.

On Bill C-43,, the faster removal of foreign criminals act, let me start by saying that if this legislation was truly about removing foreign criminals, I would not be here today. The fact is that this legislation has very little to do with removing foreign criminals from Canada and has everything to do with taking away appeal rights and attacking permanent residents of Canada; yes, permanent residents of Canada, many who have lived here for a long time and have all of their family in Canada. These are not foreign criminals.

In addition, the criminality that this bill addresses can be relatively minor in nature to trigger the catastrophic result of permanently separating a permanent resident of Canada from their family in Canada, including being separated from their spouses and children indefinitely.

I will address the immigration appeal division aspect of it, i.e., taking away appeal rights from permanent residents of Canada. Barb Jackman will address restricting access to humanitarian and compassionate grounds, misrepresentation bars, and additional matters.

Bill C-43 takes away all appeal rights for permanent residents of Canada if convicted in Canada with quite a minor sentence, or even if that permanent resident is abroad and is convicted of, or has committed, an act outside Canada which, if done in Canada, would have a sentence of 10 years. This would include such offences as fraud, personation—that means using somebody else's identification—theft over, domestic matters. It does not matter if there's a conviction or what the actual sentence is abroad. A fine could trigger this section, and on its own, could make a permanent resident indeterminately separated from his family.

Let me use the example of someone who has come to Canada as a child and is now 50 years old. They are married, have children, grandchildren, and a home in Canada, and are working and supporting their family. They have never had any trouble with the law, but never applied for their Canadian citizenship. There are many people in Canada under those circumstances: Americans, Italians, Greeks, Portuguese. They just never became Canadians, although they came to Canada when they were small children.

On one occasion, this person makes a bad choice and gets into a fight, or drives dangerously, or commits theft under $5,000. If they get a sentence, even a conditional sentence of six months, no jail time is served, and they get a fine, or not even a fine, and they plead guilty—because it makes sense in terms of dealing with the criminal justice system and they would be advised to do so by most criminal lawyers. Approximately 80% of all criminal matters are pleaded to; otherwise, the system would grind to a halt. This has been given to me by the Criminal Lawyers' Association. This person would be deported from Canada without any right of appeal to the immigration appeal division, notwithstanding they have basically spent their entire life in Canada, and have no connections and sometimes don't even speak the language in their home country.

What the bill does is it takes away all appeal rights for this person. The immigration appeal division does not necessarily have to let the person stay in Canada, but at least it gives them a chance to consider all the circumstances of this person's case, such as how long they've been in Canada, the seriousness of the offence, if there's a pattern of criminality, family in Canada, what rehabilitation they've made. Then the immigration appeal division makes a fair and balanced decision.

Normally, in a case like the one I just described, the person would be allowed to stay in Canada and would be put on a stay of removal, basically probation for a certain period of time, usually three years to five years. If they break the law in any way, they would be deported automatically. I would hope and think that most Canadians would support this type of result.

I'm also going to provide for you samples of cases where people have obtained sentences of six months or more from the immigration appeal division. In many cases, the person has not been allowed to stay, and in the others the person has been allowed to stay. What I hope you will take the time to do is to read the types of cases and the types of people who are involved in these situations, who find themselves on the wrong side of the law. It may be a one-off situation of fraud and a situation where all of the person's family is in Canada. I don't think anybody would reasonably think that a person in those circumstances should be deported indeterminately and indefinitely from all their family in Canada.

I'll leave this with the clerk for you to look through.

[The Chair, Conservative, David Tilson]

We'll undertake to make that available for committee members, if they wish to see it.

[Robin Seligman]

Thank you, that would be great.

If that person commits the offence abroad and doesn't get convicted of anything, they would also be forever barred from returning to Canada or appealing their case to the immigration appeal division. These situations also apply to Canadian citizens who are sponsoring a spouse abroad.

[The Chair, Conservative, David Tilson]

You're now at five minutes, Ms. Seligman.

[Robin Seligman]

I'll have to cut it off.

I'll just say that I hope we don't take a zero tolerance approach: you do the crime, you do the time, an American-style approach. This is not the Canadian way.

[The Chair, Conservative, David Tilson]

Ms. Jackman.

[Barbara Jackman, Immigration Lawyer, As an Individual]

I want to open by saying in 1933 the Supreme Court of Canada recognized the fundamental principle in the prerogative of mercy case. Deportation is not a punishment. You are not to use deportation as a punishment, but that's what this legislation seems to be doing. You have six months, no second chances; one shot and you're out.

The United States put in a law like this. We have dozens of people in Windsor who've been kicked out of their homes. They've lived all their lives in the United States. They have a felony conviction. They're in Canada making refugee claims so they can be close to their families. Do you want the ones in Canada going over to the U.S. doing the same thing?

These are people, some of whom have lived all their lives in Canada. All we are saying is to have discretion. Leave the discretion there. This brings me to my second point.

Clause 9 and clause 17 of this amending legislation take away humanitarian and compassionate discretion and the discretion to issue a temporary resident permit to people who have been found to be inadmissible on security grounds, organized criminality, or war crimes. What you don't understand, or what I think you need to understand, in terms of that legislation is that for persons for whom there are reasonable grounds to believe they were members of a terrorist organization, or at some point in their youth they may have been involved in street gangs or something like that, and they have grown up and left it behind them, it leaves them without any remedy whatsoever on humanitarian grounds.

That is not a piecemeal change to the legislation. That is a fundamental change to our immigration history. From the time we got legislation in 1910 there has always been a broad discretion on the part of the minister or a body like the immigration appeal division to allow people to remain in Canada on humanitarian and compassionate grounds in recognition of the fact that hard and fast rules don't fit with the fact that people are human beings.

This legislation will mean that for the first time ever there will be classes of people who don't get any kind of discretion, who don't have access to any kind of discretion, who won't have anybody looking at their case. That is so out of keeping with our humanitarian tradition in terms of the way our legislation has always been structured.

Another point I want to cover is the misrepresentation bar. I want to cover it in the same way as with the other bars. If a person misrepresents, they are barred for five years under this legislation. Right now it's two years. The problem with these provisions is that they're all very broadly interpreted.

I'll use an example of a member of a terrorist organization. Mrs. Joseph Pararajasingham's husband was a member of Parliament in Sri Lanka who was assassinated. He was in a democratic party, but that party negotiated to try to end the war for the LTTE, the Liberation Tigers of Tamil Eelam. They were negotiating on the part of the LTTE because it was a banned organization. She's a terrorist because she was her husband's secretary, and her husband, although elected to a democratic party of the House of Parliament in Sri Lanka, was for a party that helped try to negotiate an end to the war, so she's barred. This legislation means that this woman, who must be close to 80 now, whose only two kids are in Canada and are Canadians has been branded a terrorist. It means that she doesn't have any way around it in terms of humanitarian discretion. She can't go to the minister and request a permit to stay or say, “Please let me stay on humanitarian grounds.”

On the misrepresentation bar, we had a case in which the dad was being sponsored. In his past history, back in the 1960s, he put that he'd worked as a Hindu priest in training. He left out that he'd worked as a mechanic part-time throughout those four or five years that he was a priest in training, because his principal occupation was priest in training. He misrepresented. It was not relevant at all to his sponsorship as a parent. It didn't matter where he worked, but he was barred on the misrepresentation. His only son can't sponsor him for five years under this legislation. This is extremely harsh legislation.

The rule in Canada has always been that you allow someone to look at the circumstances or the facts of the case, and then they make a decision on whether or not the person should be exempted. If you want to keep criminals out—

[The Chair, Conservative, David Tilson]

Perhaps you could wind up, Ms. Jackman, please.

[Barbara Jackman]

Okay.

If you want to keep serious criminals from hurting others, detain them while they're going through the removal proceeding. Don't throw the baby out with the bathwater.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you, Ms. Jackman.

Mr. Matas, we have your notes, and we thank you for coming again.

You have up to 10 minutes to make a presentation.

[David Matas]

As you can see from my notes, I want to talk only about one provision of the bill, clause 24.

The first point I would make is that the change proposed in clause 24 is anomalous in that it treats a foreign act where there is no conviction more seriously than a conviction in Canada. Moreover, the standard of proof is considerably less: reasonable grounds to believe or, in the case of a permanent resident, balance of probabilities instead of proof beyond a reasonable doubt.

The proposal made in the bill, which treats foreign acts on slender proof of criminality so much more seriously than Canadian convictions, rings a false note. One would have thought that Parliament would treat crimes in Canada at least as seriously as crimes abroad. With the proposed amendment, that is not the case.

The amendment would have the effect of keeping husbands and wives apart in cases where the marriage is genuine and there are children of the marriage, on the basis of evidence that the foreign spouse has committed an act which does not meet the standard of balance of probabilities, let alone proof beyond a reasonable doubt, or where there is a foreign conviction and the circumstances of the offence are such that no jail time was imposed. I ask, do we really want to do that?

A second serious concern the proposed amendment raises is the reduction from two years to six months for the appeal threshold. The bill assumes, as its title indicates, that the change would lead to faster removal of these people. That raises three questions: Would it be faster? Should these people be removed? Once removed, what does the taxpayer have to pay for their return?

The enactment of the bill would not remove humanitarian discussion from the system for those sentenced to six months or more. Rather, it would relocate it to officers reporting on admissibility and minister's delegates referring reports to the immigration division of the board.

This duty of officers to consider humanitarian discretion on reporting and referral is elaborated in the manual in detail. One part of it, for people who came to Canada before age 18 and have been here for 10 years and have no right of appeal, requires that the case go to headquarters. Okay, but once the report goes to headquarters, it can take quite some time to get out of headquarters. This bill of course increases that population.

Even for people not covered by this particular headquarters referral manual provision, processing the delays will become more substantial with the bill. Where there is an appeal to the appeal division of the board, the exercise of discretion to report and refer can be cursory. Where there's no appeal, the exercise of the discretion to report and refer will have to be considerably more careful and detailed. Moreover, the decisions to report, refer and remove are subject to judicial review in Federal Court. Where the judicial review succeeds but the person has been removed, the person is then brought back to Canada at government expense, and there's a statutory provision to that effect.

We have actually gone through this process before. It used to be that you had to have a public danger opinion before you lost the right of appeal, and that was changed to the two-year threshold. As a result of that change, there were some successful judicial reviews where people had been removed and then people were brought back at government expense.

These sorts of returns and payments by the government are only bound to increase with the decrease from two years to six months. Indeed, instead of calling this bill the faster removal of foreign criminals act, for some people we'd have to call it the faster removal and costly return of foreign criminals act.

There is an assumption built into the provision that Canada will be safer because of the change, because criminals will be removed more quickly. However, that assumption is misplaced in at least one respect, making Canada a more dangerous place.

The immigration appeal division of the board has a power the minister does not have to stay a removal order subject to terms and conditions. An immigration officer can either report or not report a person as inadmissible. The minister's delegate can either refer or not refer the person to an admissibility hearing. If there is no report or referral, the person is left to carry on as he or she was before without restraint or hindrance.

In contrast, the board, in addition to having the power to allow or dismiss an appeal, can stay an appeal. I quote in the written materials the sorts of conditions the board can impose. There's quite an extensive list of them.

They are useful conditions to impose on some people whose removal is too drastic a response to their behaviour, but simply letting them go on as they were before is too lax. The bill removes this option for a group of people who, because of the lesser nature of their offences and their strong ties to Canada, will in the exercise of the governmental discretion not to report or to refer, be allowed to stay. For this group, the protection from criminals that the legislation offers Canada is weakened.

Permanent resident criminals never exist in isolation. When they succeed in their appeals, the reason is mostly not just them. The reason is others: their spouses, their children, their parents, their employers, their voluntary associations, their places of worship, their communities. The board allows the appeals because Canadians will suffer from the removals. The proposed change ignores this dimension. How are the concerns of Canadians who want their friend, relative, employee, or co-worker to stay to be brought to bear? Not easily.

The appeal process exists for a reason. It may take longer because there are competing considerations that have to be weighed carefully, judiciously. At some point, haste makes waste. The stronger the reasons a person should stay and the weaker the reasons the person should be removed, the more is lost with the loss of the appeal process.

The proposal assumes that those appealing are delaying the removal through the appeal, and that abolition of the appeal would speed up their removal. However, there are many people with sentences of six months or more who now win their appeals. While they could still stay if there were a decision not to report or refer, that is, I acknowledge, less likely than the winning of an appeal. People who should not be removed will be removed regardless, because of the change in the law.

Once the board has the jurisdiction to hear an appeal, it can allow the appeal on humanitarian and compassionate grounds, taking into account the best interests of a child directly affected by the decision. There are a number of cases decided by the appeal division of the board where the person appealing was sentenced to six months or more, but the appeal was nonetheless allowed because of the best interests of a child who would otherwise be separated from a parent. In my brief, I quote one such case for you. The removal of appeals in cases like these will have an adverse impact on Canadian children, something that should give us pause.

In sum, my view is that this particular provision should not be there. It treats foreign offences more seriously than Canadian offences. It imposes hardship and cost on Canadians. It works against the best interests of children. It will not make Canada safer. It cuts down on the options available for dealing with offenders. The delays saved in the appeals will be lost by delays elsewhere in the system. It will lead to poorer quality decisions. In my view, the provision should be dropped.

Thank you very much.

[The Chair, Conservative, David Tilson]

Thank you very much, sir.

The government is first. Mr. Opitz.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Thank you, Mr. Chair.

I'll direct my first question to Ms. Jackman.

Do you think it's too much to ask people coming to Canada in the first place not to commit crimes in this country and not to victimize Canadians? I hear you talking about the rights of people coming here and then committing crimes, but I haven't heard you really talk about the victims of these crimes.

[Barbara Jackman]

The people I represent are the people being deported. Of course there's a concern about the victims.

The thing is, you're talking about a broad class of people. If someone comes in as an older teenager or an adult and commits crimes, I don't have a problem with deporting those people if they've committed serious crimes. I do have a problem if they came in at six months or two years of age, and they're being deported as an adult. They have spent their life in Canada. Their family is here. Everybody is here. They don't even know their home country. Those people didn't sign a contract when they came in. Their parents didn't get citizenship for them. There's no proactive stuff in any of the schools to teach them that they need to have citizenship.

The other thing that you should know, and which you probably don't know, is that the European Court of Human Rights said in Europe that they couldn't deport people who came to Europe as young children even if they were criminals in their adult life. As a result, states like France have laws where, if you came in under, I think, 10 or 15 years of age and you've lived in France for 10 years, you can't be deported because you're really a French person even if you're not actually a citizen. This law doesn't recognize that.

The other biggest kinds of cases that we see quite often involve people who have mental illnesses. People who develop these illnesses when they're in their late teens are being deported. They have no support outside Canada except for their family in Canada. You don't send somebody who is mentally ill off to a country on their own.

There are lots of reasons that some people should be allowed to stay.