Citizenship and Immigration Committee on Nov. 5th, 2012

[Rick Dykstra, Conservative, St. Catharines, ON]

I am enjoying very much the presentation today. I'm not trying to interrupt and take you in a different direction—

[Barbara Jackman]

Yes, that's fine.

[Rick Dykstra, Conservative, St. Catharines, ON]

—but I do want to challenge you.

You're both lawyers. You both understand that your responsibility is the best interests of your client, regardless of what your personal feelings towards the client may be. Why in heaven's name would a lawyer representing the individual, who knows that this individual has mental health issues, make a determination to not bring that up as an issue to be presented in court so that the judge understands in a clearer and more compassionate way that the individual has mental health problems? What do they fear more?

[Barbara Jackman]

It could be an indefinite sentence. These guys aren't immigration lawyers. They're criminal defence counsel, and they don't plead. They don't raise it a lot of times.

[Robin Seligman]

They plead. About 80% of the cases are pleaded to, and it's criminal.

[Rick Dykstra, Conservative, St. Catharines, ON]

I want to come back to that, because I have a question on the issue of pleading.

[David Matas]

I wonder if I could interject here.

The immigration threshold has an impact on sentencing. I've seen it with the two years. Now you get two years less a day, because the consequence of two years would be no appeal. In fact, if you don't know the immigration process and you don't raise it in sentencing, it's grounds for a sentencing appeal, and you get appeal courts reducing sentences. That's going to happen with the six months.

This is another perverse effect of the legislation. The legislation will lead to reductions in criminal sentences. Is that what you want?

[Rick Dykstra, Conservative, St. Catharines, ON]

It's actually in opposition to what Robin has indicated in terms of the pleading of cases. Look, I appreciate a system that has compassion. It needs to have it. It has to have it. Every single justice system that doesn't is one all of us would work against. I have no doubt about that in my mind. The fact is, though, that cases should be heard. Lawyers have made a determination with the crown that pleading cases can reduce the sentence of an individual so that the person doesn't face the ramifications of what he or she potentially should be facing.

You make the point about the crowding up of the courts. I don't think I can disagree with you on that, but I have to say that if the crowding up of courts leads to a system where cases are heard, cases are presented, and cases are judged, how can that be a bad thing in terms of whether we should expedite the issue by trying to plead a case?

[Robin Seligman]

We're not criminal lawyers, just to let you know. We're immigration lawyers. We're not the ones arguing and raising those cases in criminal court.

[Rick Dykstra, Conservative, St. Catharines, ON]

I was just pointing out that this was the argument being made.

[Robin Seligman]

Yes, but I have spoken to very senior criminal counsel, and they have all confirmed that the system would grind to a halt. The system is predicated on the fact that 80% of cases will be pleaded to.

The benefit and the beauty of the immigration appeal division is that they can look at all the circumstances, not only the mental illness, if it comes up at that time. They can look at the best interests of children, the length of time they've been in Canada, and all those things. Really, it's not the area a criminal court should be looking at.

[Barbara Jackman]

You're going to say, and you're right, there is humanitarian discretion, but not for security-related or organized criminality, the street gang things. There won't be any humanitarian discretion for those cases, but there is for the criminals. What David's trying to point out is it takes a long time. We end up in court, and I'll tell you, it's a lot easier to challenge an immigration officer's decision than it is to challenge the immigration appeal division.

I have one guy who has been found to be a danger. He has been detained the entire time. I've been to court four times, and I'm on my fifth time. I've won the previous four times.

[The Chair, Conservative, David Tilson]

Our time has come to an end. I'm sorry, Mr. Dykstra.

[Rick Dykstra, Conservative, St. Catharines, ON]

I had a question for David, but I understand.

[The Chair, Conservative, David Tilson]

I'm sorry.

[Rick Dykstra, Conservative, St. Catharines, ON]

Just a clarification—

[The Chair, Conservative, David Tilson]

The hour is over.

Mr. Matas, Ms. Seligman, Ms. Jackman, thank you very much for your presentation. It's been helpful, and I'm sure the committee members will listen to your words.

We will suspend.

[The Chair, Conservative, David Tilson]

I call the meeting to order.

In the next hour we have Mr. Martin Collacott, who is representing the Centre for Immigration Policy Reform. Mr. Collacott has appeared before this committee many times, and on Bill C-31 dealing with backlog and security issues.

The other two witnesses are Mr. Lorne Waldman, who is the president of the Canadian Association of Refugee Lawyers, and Mr. Angus Grant, who is a lawyer with that group.

I welcome the three of you to the immigration committee. We look forward to hearing your presentations.

Mr. Waldman and Mr. Grant, you have 10 minutes between you.

[Angus Grant, Lawyer, Canadian Association of Refugee Lawyers]

Thank you very much.

Distinguished members of the committee, it's nice to be back here, and it's even nicer to be here in person. I testified last month via video and it's much nicer to be here in person.

Mr. Waldman and I are both going to speak to Bill C-43. I will begin by expanding on the comments I made last time around, on security provisions, although this time with particular reference to Bill C-43.

I have no doubt that the proponents of this bill believe, on some level, that the changes that it makes will increase Canadian security. I'm going to talk about security, with reference to sections 34, 35, and 37, although I'm going to focus on clause 34. While I have no doubt that is the case, the position I would like to put to you today, which is also the position of the Canadian Association of Refugee Lawyers, is that this will categorically not be the case, and I'll explain why.

Bill C-43 makes two principal changes to the security inadmissibility regime and to the regime for determining inadmissibility under section 35 and section 37. First, it eliminates the ministerial waiver provision, such as it was, and replaces it with a new provision that will be found at proposed section 42.1 of the IRPA.

The second thing it does, which is something that Ms. Jackman talked about, is that it categorically and with no exception eliminates the possibility for obtaining a humanitarian and compassionate review of an inadmissibility finding under these provisions.

I'll speak about both of these changes, but in turn I want to reiterate something I said to you last month, and that is there is no doubt it's unambiguous and categorical that section 34 of the IRPA captures people who we would all agree are innocent of any moral or legal wrongdoing. This is not, as I said, a controversial point. It is something the Supreme Court of Canada has recognized in Suresh, in talking about the waiver provision.

Frankly, as refugee lawyers, we have all been in hearing rooms where the issue of Canadian security has not arisen because it is a given that Canadian security per se is not of concern to these proceedings. The problem is that people get caught under other areas of these provisions that don't actually touch on the specific issue of Canadian security.

I don't think we should have a conversation today about the fact that this is solely about Canadian security per se, because it's about much more than that, and people who do not actually pose any threat to Canadian security get caught under these provisions.

The second preparatory remark I should make is that as we all know, the parameters for finding someone inadmissible under sections 34, 35 and 37 are extremely broad. Whereas in criminal law there is the requirement that to find someone guilty we have to establish that they are guilty beyond a reasonable doubt, in immigration law we don't even have to find that they have done an act on a balance of probabilities, in other words, a 50% plus 1% chance that the person committed an act that is proscribed by the IRPA. All we have to show is that there are reasonable grounds to believe that an individual committed an act or was a member of a group that committed an act that is proscribed by the bill.

We can believe, for example, that someone probably didn't do an act, that there is a greater than 50% chance that someone didn't do an act, but because all we have to have are reasonable grounds to believe that someone did it, i.e., that there is less than a 50% chance, then that person can be found inadmissible.

We know that wrongful convictions happen in criminal law with criteria of proof beyond a reasonable doubt. Think about how many people, then, could potentially be wrongfully found to be inadmissible when the standard of proof is so much lower.

With regard to the changes that are being made, first of all, the shift of the ministerial waiver provision that used to be at subsection 34(2) and will now be at proposed section 42, is essentially unchanged except for one bizarre provision that it's your task to consider and try to make sense of. This is proposed subsection 42.1(3) of the new IRPA, and it is under clause 18 of the bill.

The minister, in considering a ministerial waiver of inadmissibility will now have to make sense of the following provision:

(3) In determining whether to make a declaration, the Minister may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.

There are four things I want to say briefly about this provision. First, it doesn't make any sense, and I think you really need to grapple with this, because it's an important provision. It says that the minister must only take into account public security, but may look to things beyond public security. On its face, I think this is something that is going to make the judiciary apoplectic about what in the world this means. It's extremely poor legislative drafting, and it's going to cause a whole world of problems for anybody who is tasked with interpreting it.

I think I know what they were getting at in drafting the bill this way, and that is that the minister wants to have his cake and eat it too. He wants to say, “You can't force me to look at anything but security, but I don't want to be forced to look only at security because I recognize that many of these people are not actually security threats. I want to look at anything else I want to look at as well, to render my decision. I don't want to be bound by security, but I don't want you to be able to force me to look at things beyond security.” In an Orwellian way, this is the only way I can make sense of this provision.

The other thing that is remarkable about this provision is that it is being made and put forward to you at the exact time that the meaning of subsection 34(2) is under review by the Supreme Court of Canada. In the case of Agraira, which was argued just a couple of weeks ago, these exact considerations, the lawfulness of a ministerial waiver and the role that a waiver has to play within the larger inadmissibility regime, are before the court. The lawfulness of it is before the court. I would submit that it is an act of legislative bullying, almost, to suggest to the Supreme Court of Canada to legislate on an issue the lawfulness of which has not even been established yet.

That's all I'll say about the waiver provision.

I'm going to move on, very briefly, to the elimination of humanitarian and compassionate relief.

[Rick Dykstra, Conservative, St. Catharines, ON]

Mr. Chairman, I have a point of order.

Mr. Grant, I know you have only a bit of time. You said you had four points to make with respect to section 18. I heard one, and you really did a good job describing it. What were the other three?

[Angus Grant]

I'm happy to elaborate on those in response to questions. I'm going through it quickly because I thought I had 10 minutes, and now I realize I have only five. But I'm happy to elaborate on the four reasons.

[Rick Dykstra, Conservative, St. Catharines, ON]

Sorry, Mr. Chair.

[The Chair, Conservative, David Tilson]

Actually, you have three left.

[Angus Grant]

I have three minutes. Oh, I've had seven. So I'll wrap up—

[The Chair, Conservative, David Tilson]

Two of you are sharing 10 minutes. You have three minutes left between the two of you.