Citizenship and Immigration Committee on Nov. 5th, 2012

[Angus Grant]

Okay, I'll stop right there. I'm happy to talk about the humanitarian waiver provision in the questions later.

[Lorne Waldman, President, Canadian Association of Refugee Lawyers]

Given that I have three minutes, I will make two brief points.

First, I want to take up the discussion from last time. I just want to make it clear that if the goal is to speedily remove foreigners from Canada, I don't think the provision in the subsection 64(2) amendment will be effective. It will create a whole series of other problems, other obstacles, and other challenges.

There are other legislative innovations Parliament could have chosen that would have been far more effective in achieving the objective. The real question is, why has it taken so long? In the examples you gave, if we were to analyze each one of them, we could easily explain to you why it takes so long. There are different reasons and different explanations. Of course historical examples aren't always helpful. Things have changed and policies have changed, especially in immigration over the course of the last few years. What happened 10 years ago is not any way indicative of what's happening today. The reality is different.

I do want to make a point, because I don't think many other witnesses will speak about it. I'd like to speak about the provision that allows for CSIS officers to conduct interviews. I make this point because CSIS officers now conduct interviews all the time, and they do it without having the legal authority. I don't think it's a bad idea that if CSIS officers are going to conduct interviews, they be given the authority to do so. My concern, however, is that when you embark upon this road, you have to realize that it's unprecedented to give CSIS officers the power to compel people to answer questions, because they've never had that power, and it's inconsistent with their role, some would say, as intelligence officers.

The other important fact is that if they are going to have this power, and given that applicants will be under a duty to answer questions truthfully, and if they don't answer questions truthfully they can be subject to prosecution under the act, it's vitally important, given all of the different disputes we have had over time as to what was said and what wasn't said in an interview, that there be a directive in the legislation, a requirement that the interviews be recorded.

There have been, in the past, many different situations. I've had clients and other counsel have had clients where there have been serious factual disputes about what was said and what wasn't said. If there's going to be a duty to answer questions truthfully and a person can be subject to prosecution for not answering questions truthfully, then there has to be a record kept of the interviews.

Given that I had three minutes, that's about all I can say.

[The Chair, Conservative, David Tilson]

You did well, Mr. Waldman. Thank you.

Mr. Collacott.

[Martin Collacott, Spokesperson, Centre for Immigration Policy Reform]

Thank you, Chair. I'm going to comment on two aspects of the bill that have attracted a lot of attention.

One is the provision that gives the minister the authority to use negative discretion on who may enter the country, and the other is the accelerated removal of individuals convicted of serious crimes.

With respect to the first, the arguments have been that this gives the minister too much power. Someone mentioned in an earlier session that all the opposition is in favour of positive discretion, but they don't like giving the minister the same authority in negative discretion, and yet this is the case with other democratic countries such as Australia, the U.S.A., and so on.

I don't quite understand where the minister gets too much authority because he's already responsible for all the decisions made in his department to begin with. I think the concern is that this will politicize the situation. Policy is already a consideration in all the decisions in the United States and Australia. They specifically mention foreign policy considerations. I don't think that's the concern of the opposition. It's that there will be partisan politicization in Canada. That's always a risk in decisions, but the minister is accountable to Parliament and has to answer for decisions, and he was challenged in the case of George Galloway coming in, for instance. I think there's already provision that he should be able to make those decisions, and if people don't like it, they can challenge it. I would say that any minister, whether from the current governing party or one of the other parties in the future, should have the same power.

Every country in the world refuses entry to all sorts of people all the time. That's their right as a sovereign nation. Therefore, I can't get too upset or too concerned about the amount of authority being given to the minister.

I'll move on quickly to one of the more contentious parts of the bill. It has to do with the accelerated removal of non-Canadians. One of the reasons it's so difficult to remove some of them, and I'll cite a few cases, is that many of them claim refugee status if they're ordered deported, and our refugee system is still in a very dysfunctional state.

Some of the more egregious examples have already been given in previous sessions. Mahmoud Mohammad Issa Mohammad was a convicted terrorist who entered Canada under a false name. His real identity was discovered, and he was ordered deported in December 1989. He claimed refugee status and that gave him access to all sorts of appeals and reviews. He's still here almost 24 years after being ordered out. The last objection I can remember to his being ordered removed was that if he were sent back to his native Lebanon, he'd not receive the same standard of health care he gets in Canada, to which the government replied that there's good health care available in Lebanon but he'd have to pay for it. I believe he's a client of Ms. Jackman's, so I can well understand why she would be sympathetic to lots of humanitarian and compassionate scope in the appeals. So far, his appeals and reviews are estimated to have cost Canadian taxpayers around $3 million.

You're probably all aware of the case of Leon Mugesera, who's a Rwandan deemed to have been a war criminal. We finally got him out of the country after 10 years. A more recent one is Jean Léonard Teganya, also a Rwandan war criminal who was finally deported, I think after another 10 years, because of all the appeals that are currently possible under the system.

A more garden-variety case was that of Van Thanh Nguyen, who was ordered deported in 1995 for a series of crimes, including the armed robbery of a milk store in Guelph, Ontario, during which he locked the store's elderly owners in a cooler after stripping them of their jewellery. He was ordered deported. He committed four more crimes. Now he's trying to stay in Canada on the basis that we gave him a kidney transplant, I guess it was, and the anti-rejection drugs are expensive and if he has to go back to Vietnam, he'll have to pay for all those drugs rather than have the Government of Ontario pay for part of them. I don't know if he has claimed refugee status yet, but that will certainly be a humanitarian and compassionate appeal, if he does have one.

I was going to speak at some length on the Charter of Rights and Freedoms, because that has been invoked several times. One of the reasons the refugee system is in such a mess is the bad wording of section 7, which says that everyone has the full right to Canadian justice, rather than specifying Canadians or Canadians and permanent residents.

A very senior official, Jack Manion, a former deputy minister of immigration, strongly advised the government not to put in everyone. The government told him at the time that there wasn't going to be a problem. Well, there was a problem.

There was an appeal in 1985, commonly called the Singh decision, whereby four refused refugee claimants said, “We're everyone”. Since that ruling by Justice Bertha Wilson, all refugee cases can be appealed, and the appellants get the full bells and whistles of Canadian law. That's partly why we have all these extensive appeals.

I'll wrap up with a couple of points.

One was the point made that there is no sufficient possibility of appeal now if people commit a crime for which they get six months—a serious criminal. I will make two comments. One is that while they would not be permitted to make an appeal to the IAD in this situation under the proposed legislation, they could certainly appeal to the criminal system. Of course, this will give a lot more work to criminal lawyers than to immigration lawyers, but clearly the criminal court takes into account more than just the straight crime. The very fact that sentences have been passed down for two years less one day so that they are not up for deportation shows that these things are considered. There is ample opportunity through the criminal system to make appeals of that sort.

The difference will be, and I think Mr. Matas pointed it out, that this can slow down the system just as much as an appeal to the IAD. The problem is that under the present system, if you appeal to the IAD and you are turned down, you can ask for leave to appeal to the Federal Court. That kind of situation, plus the H and C reviews, is why Mahmoud Mohammad Issa Mohammad is still here after almost 24 years. There are serious issues that have to be dealt with.

I have one final comment on the question of whether six months is too low a threshold. Various theoretical examples were cited as to when someone could be deportable because of what they considered a minor crime. I will cite to you a report from yesterday's Province, which is a Vancouver paper.

This was someone sentenced in the Supreme Court of British Columbia for speeding, driving recklessly and aggressively, and losing control of his vehicle. His car went airborne, came down and crashed, and killed another driver. He was charged with dangerous driving causing death. He had already had 17 infractions in some fairly serious cases. For this he got three months.

While it's all right to talk in theory about cases that might seem unfair, this is a concrete case. That's what he got: three months. I don't know whether he is a Canadian citizen; the issue of deportation didn't come up. There can be quite a gap between the examples of non-serious cases for which you can get six months and the reality of the situation, and that is spelled out by this particular case.

Chairman, I usually go over time, so I am going to behave myself today and stop now. I think I am still within my 10 minutes.

[The Chair, Conservative, David Tilson]

You are, and I thank you, sir.

The government is first, with Mr. Weston.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you, Chair. Thank you, gentlemen, for joining us today.

It always seems so challenging to try to balance these things. We're looking at humanitarian and compassionate issues and we are looking at security.

Since you spoke last, Mr. Collacott, I want to put my question to you.

As I have been listening to the various accounts of different cases, the ones that alarm me the most are those that relate to a country I have visited, Rwanda; cases of people who are war criminals, and you mentioned two of them, who are able to apply for humanitarian and compassionate consideration and then delay indefinitely their deportation from Canada.

That practice alarms me, because it calls into question our whole humanitarian and compassionate approach. It mocks it and suggests that Canadians may lose faith in areas in which we ought rightly to be giving people humanitarian and compassionate consideration in the judicial system, the immigration system, and elsewhere.

Can you elaborate on this matter of allowing war criminals to use the humanitarian and compassionate approach? This will be dispensed with under Bill C-43, and I would like you to comment on how that strikes you.

[Martin Collacott]

One of the means used particularly by refugee claimants to extend their stay here is to stay as long as they can with as many appeals as possible. They’re likely to have stronger grounds for a humanitarian and compassionate case the longer they stay here. They may marry a Canadian or very often their children are growing up in Canada and they try to use it as a justification for not being sent back.

It may sound harsh, but if they want to keep their family with them, the family can go back too. I can understand, in a way, the desire to be sympathetic towards children who weren’t involved in these things. The fact is, if someone comes here as a war criminal and is a serious case and we have to send them home, they've got the option of taking their family with them. I cannot see Mahmoud Mohammad Issa Mohammad being able to claim that he should be able to stay here—he's a convicted terrorist—because he'd have to pay for his own health care. I don't know what happened to that claim. He probably wasn't successful, but he is still here.

Some of these cases can tug at your heartstrings, but I think you have to be reasonable and balanced. Removing the H and C is perfectly reasonable when you look at the whole picture.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Let me switch to another place where this competes.

Ms. Seligman related to us a hypothetical case where somebody who has grown up in Canada goes across the border and uses false identification to get into a bar in the United States. They are then charged under a category that could attract 10 years’ maximum imprisonment in the United States. We have other cases. Some of them are high-profile cases where people have been charged and convicted of crimes that could attract the 10-year sentence. The change in Bill C-43 that I'm about to refer to would make it impossible for somebody who is charged with a crime that could result in a 10-year sentence or more to come in.

What do you think about that?

[Martin Collacott]

Are you talking about people who are refused entry, or are you talking about people who could be deported?

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

I’m talking about people who are deported.

[Martin Collacott]

Rather than those who are refused entry. I wasn't clear on which aspect. They've been charged with a sentence of—

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Something that can attract a sentence of 10 years.

[Martin Collacott]

It would have to be a charge that would, I believe, get 10 years in Canada. Although it's a charge overseas, it would have to be something quite serious in Canada for them to be subject to that. Am I correct in that, or the law?

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

That's right. Under Canadian law, you'd be punished with a sentence of 10 years or more.

[Martin Collacott]

Yes, it would have to be a pretty serious action.

If someone is sentenced to 10 years in some country for something they wouldn't be charged with in Canada, then that issue wouldn't arise. If someone committed a crime in another country for which they would get a 10-year sentence in Canada, that is pretty serious stuff. Again, if someone were convicted for that in Canada, they can appeal it.

Would you like to give me a concrete case?

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Lawyers like to look at these things and sometimes we get lost in the process.

What Canadians want to do is support an immigration system where we don't bring in people who are charged with crimes like kidnapping, assault, armed robbery, rape, and offences that attract a sentence of 10 years or more in Canada. We're changing the rules under Bill C-43 to keep those kinds of people out and to make sure that if they're here, they can be deported more quickly.

[Martin Collacott]

To me, the part about not granting them entry is pretty cut and dried: when they've been accused of something that could have a 10-year sentence in Canada. Removing them is perhaps a little more complicated because they're already here.

In general, if someone has been charged with a crime abroad for which they could be sentenced to 10 years in Canada, to me that's pretty serious and is grounds for having them removed.

[The Chair, Conservative, David Tilson]

Time has expired, Mr. Weston. I'm sorry.

Ms. Sitsabaiesan.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Thank you.

The government needs to address the lack of training, resources, and integration of information and monitoring technologies within the responsible public service agencies. Auditor General reports on Citizenship and Immigration, as well as on CBSA, over and over again have highlighted a lack of training, resources, and integration of information and monitoring technologies, which of course doesn't allow for the adequate enforcement of already existing legislation. Now we're also seeing funding cuts to the Canada Border Services Agency.

All of these problems put Canadians at risk. The government needs to address the lack of training, resources, and integration of information and monitoring technologies within the responsible public service agencies.

My question is for Mr. Waldman. What role has the government's inability to effectively track, detain, and remove serious non-citizen criminals through the appropriate federal agencies played in this issue?

[Lorne Waldman]

It's interesting that you make that point, and I think it's an extremely valid one. We're talking about the speedy removal of foreign nationals, the faster removal of foreign criminals act. Everyone agrees that foreign criminals who have committed serious offences should, if they deserve it, be removed speedily.

The difficulty is that many of the delays we see in the process have nothing to do with what happens at the Immigration and Refugee Board but are delays built in to the other stages in the process. Sometimes a person is convicted and it will take months and months before a report is written under section 44 of IRPA, because there are not enough officers to write reports. Then, if the person is a permanent resident, he's usually called in for an interview, at which he is given the opportunity of making a submission, which is then reviewed by a senior immigration officer.

The witnesses who spoke previously, Mr. Matas, I think it was, talked about all of the delays that are occasioned by the procedures that precede the actual admissibility hearing. Then, sometimes there are delays in admissibility hearings due to the unavailability of minister's representatives.

If you're talking about speedy removal, you need to make sure there are sufficient resources throughout the process. What we see persistently is that many of the delays are part and parcel of an inadequately resourced Canada Border Services Agency.

Before we start talking about eliminating appeal rights as a means of moving people through the system more quickly, the biggest delay, which happens sometimes, is in scheduling appeals. Why do we have delays in scheduling appeals? There aren't enough members to sit on appeals. If we want to have people removed quickly, that could be done if we had sufficient people to hear the appeals.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

We've had auditors general talk a lot about the lack of proper resourcing for CIC and CBSA. We're also learning this from you right now, and from previous witnesses as well who have said that not having members of the IRB available has been a problem with scheduling appeals. This is not the first time we've heard this.

[Lorne Waldman]

It's not only scheduling appeals; it's scheduling admissibility hearings.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Right, and resourcing the IRB better would also help.

[Lorne Waldman]

It's the immigration division too. It takes months and months. In Toronto, if you want to get a deportation hearing involving someone who's allegedly a terrorist, or an organized criminal, or something like that, it can take six months to a year before you get a hearing date scheduled. I have clients for whom we got reports a year ago, and we're only now getting notification of scheduling. If they're not detained, there are huge delays.

It's a bit hypocritical for the minister to say that we have to speedily remove all these dangerous people, when it takes them years to process...and get to the point where they can be removed.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

That's another area that needs proper resourcing.

You have led me right into my next question, which is, if the government had been diligent about harmonizing efforts and integrating resources at CIC and CBSA, and probably also the IRB, and about adequately equipping our law enforcement agencies, would we need this highly punitive legislation that's before us today?