Citizenship and Immigration Committee on Nov. 7th, 2012

[The Chair, Conservative, David Tilson]

We'll call the meeting to order.

This is the Standing Committee on Citizenship and Immigration, meeting number 58, on Wednesday, November 7, 2012. This meeting is televised. Pursuant to the order of reference of Tuesday, October 16, 2012, we will discuss Bill C-43, An Act to amend the Immigration and Refugee Protection Act.

Ladies and gentlemen, as you know, the bells will ring at 5:15. We have some business the committee will have to look at for five minutes, so this meeting will end at 5:10, which means the first group will have a total of 55 minutes. The second panel has just one witness who will have 45 minutes. That's how it's going to work. This first hour will end at 4:25.

We have two witnesses with us this afternoon, two lawyers with the Canadian Bar Association. We have Kerri Froc, who is a staff lawyer with law reform and equality; and we have Michael A. Greene, who is a member of the national immigration law section. Good afternoon to the two of you. Thank you for coming.

Mr. Lamoureux, we have all the way from Winnipeg, Manitoba a witness who is an immigration lawyer, Reynaldo Reis Visarra Jr. Pagtakhan.

Mr. Pagtakhan, I'll let you go first. You have up to 10 minutes to make a presentation.

[Reynaldo Reis Visarra Jr. Pagtakhan, Immigration Lawyer, As an Individual]

Thank you, Mr. Chair.

I would like to thank the committee for inviting me to appear. The last time I recall attending a House of Commons committee meeting was when my father served as a member of Parliament. It is humbling to contribute to the work you do in service to our country.

In my view, while not perfect, there are portions of Bill C-43 that deserve support, portions that should be amended to reflect greater fairness, portions that should be eliminated, and portions that members of Parliament should turn their minds to for their study.

The portion of the bill that deserves support is the provision that eliminates the right of permanent residents to appeal removals to the immigration appeal division for sentences of six months or more in prison. While some argue that this would unfairly penalize long-term permanent residents who may be deported for their actions, what is missed in this argument is that the permanent residents who face deportation are criminals. It should be stated that these individuals are not alleged criminals; they are not accused; they are not innocent. They have been convicted of a crime in a court of law.

Members of Parliament should keep in mind that to be found guilty of a crime, an individual not only has to commit a criminal act but also must have knowledge of what he or she is doing. Unless this combination of factors is found, there is no crime. Members of Parliament should also keep in mind that criminals could avoid deportation by simply being law-abiding. The Criminal Code of Canada is designed to codify what we Canadians view as criminal behaviour. These individuals have chosen the path of criminal behaviour.

In addition, these criminals were given due process as required by our court system. Members of Parliament should keep in mind that these criminals were initially presumed innocent. They were given the rights under the charter to defend themselves in a court of law and were found guilty by a jury or a judge. They lost their appeals, if they wished to file appeals.

Furthermore, we are not talking about criminals who have received only alternative sentences, fines, or probation. We are talking about criminals who have not only been sentenced to jail, but have been sentenced to at least six months in jail.

Nor are we talking about criminals who did not have the ability to argue their immigration status at the time of sentencing. There are numerous court decisions, including decisions from the courts of appeal in Ontario, B.C., Manitoba, Alberta, the Northwest Territories, and Nova Scotia, that mention immigration consequences as a relevant factor in sentencing.

For these reasons, to say that convicted criminals have not had their day in court is inaccurate.

As members of Parliament know, before a criminal is sentenced, judges must take into account certain principles. These principles are set out in section 718 of the Criminal Code. Under the Criminal Code, judges must take into account the possibility of rehabilitation and mitigating circumstances.

In fact, the Criminal Code specifically states that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate”. It also states that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders”.

Permanent residents who commit crimes, like Canadian citizens who commit crimes, know the crimes they are committing.

One portion of the bill that requires amendment, though, is the five-year bar that will be imposed on a foreign national for misrepresentation. Unlike with the criminal provisions, the misrepresentation bar can penalize the innocent. Under the law, the general rule is that an immigration misrepresentation can occur without an applicant's knowledge. In fact, misrepresentations have been found when the applicant is the victim of shady representatives who have acted without the applicant's knowledge. In these cases, Bill C-43 would penalize the innocent.

A simple amendment to Bill C-43 that would result in the bar of misrepresentation applying only to misrepresentations made knowingly would be fairer and more consistent with Canadian values.

The portion of Bill C-43 that should be removed is the section that would allow the minister to deny entry to temporary residents on the basis of public policy. This section is troubling in that the ministerial discretion opens up the possibility of decisions being made without clearer criteria. Canadians are entitled to know what actions could cause a person to be barred from coming to Canada.

In the departmental backgrounder that was published in June, the department cited the example where the minister could bar from entering Canada a foreign national who would promote violence against a religious group. If promoting violence is criminal, these individuals, when they enter Canada, should be arrested and should be charged. However, the decision on arrest should not be made by a political actor but by the professionals in the judicial system such as police and crown attorneys.

If the conduct of a foreign national is criminal, he or she should be arrested in Canada. If not, he or she should not be prevented from entering Canada.

The last aspect I would like to touch on are the parts of Bill C-43 that deal with employer compliance. I realize that clause 37 deals only with the ability to create regulations with respect to foreign workers and their employers, among others. I also realize that before these regulations are enacted, Canadians will have the ability to comment on these proposed regulations.

However, members of Parliament should be giving thought as to what sorts of conditions should be imposed on employers of foreign workers and the penalties for non-compliance. Over 180,000 foreign workers are in the country at any point in time. This is a large component of the workforce, and certainty is needed for both employers and employees. As a result, before enacting such regulations, widespread consultation with business, labour, and other groups will be necessary.

Thank you, Mr. Chair. I am open to questions from members.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Pagtakhan.

Ms. Froc and Mr. Greene, you have, between you, 10 minutes to make a presentation.

[Kerri Froc, Staff Lawyer, Law Reform and Equality, Canadian Bar Association]

Thank you, Mr. Chair and honourable members.

The Canadian Bar Association is pleased to appear before this committee today to address Bill C-43.

The Canadian Bar Association is a voluntary association of 37,000 lawyers across Canada whose primary objectives include improvement in the law and the administration of justice.

It is in the spirit of this mandate that the members of our immigration law section have analyzed Bill C-43 and made the comments that we have submitted to you in writing and will speak about today.

Michael Greene, a member and past chair of the immigration law section, is with me today, and I'll turn things over to him to address the substance of our comments on the bill.

[Michael Greene, Member, National Immigration Law Section, Canadian Bar Association]

Thank you to the committee for inviting us to address you today.

I'm Michael Greene. I practise immigration law in Calgary. I teach immigration law at the faculty of law at the University of Calgary. I was the national chair at the time of the introduction of IRPA. I appeared before this committee on very similar provisions, in fact, on the two year bar. That was part of the presentation we made at that time. You might guess we weren't in favour.

In any event, we recognize that in order to maintain public support for a robust immigration program, Canadians must feel confident that we are tough on those who would abuse our immigration system. The minister has been effective in this regard and we applaud his efforts particularly in going after citizenship fraud, permanent residence fraud, marriage fraud, and the activities of crooked consultants.

Unfortunately, we cannot support this legislation. In our opinion, Bill C-43 is an unnecessary exercise and comes at an unacceptable cost to basic Canadian values of justice, fairness, and compassion. While we believe it is a good thing to limit most forms of temporary inadmissibility to just the individual involved rather than their family members, our endorsements or positive comments essentially stop there.

Unlike most other immigration reforms proposed by this government, this bill was not the result of public consultations and was not subject to public consultations. In our opinion, this is a recipe for bad law.

We know that you're under considerable pressure to pass this bill through committee quickly. We urge you to take your time and consider the bill carefully. The problems in this bill, we believe, are substantial enough to warrant careful deliberation and debate.

We already have sufficient and effective tools to keep out foreign nationals with criminal backgrounds and to expeditiously evict those who commit serious crimes after their arrival. Much like the problem with citizenship fraud, the problem lies not with the law or the tools available to the department but rather in the setting of priorities and the allocation of resources to deal with those problems. The extensive delay cited by the minister in certain high profile cases have much more to do with restricted budgets and resources of the CBSA than with deficiencies in the process.

The recent elimination of 1,700 positions at the CBSA is likely to contribute rather than improve those delays. Examples of cases that have been given to show excessive delays in removal of permanent residents who commit offences are not representative of the vast majority of cases. While this legislation may be designed to capture the most egregious cases involving serious and unrepentant offenders, whose continued presence offends many Canadians, they will also capture much less serious offenders.

This legislation would break families apart and negatively affect the best interests of the children involved. Fairness and due process are not loopholes. They are fundamental cornerstones of Canada's system of justice.

The minister in his appearance said that he believes everyone should have their day in court, just not endless years of days in court. However, these are not multiple appeals against removal or denial of admission under the family class. There's only one single appeal. As long as the department and the decision-maker follow due process, their decisions cannot be reviewed. It is very rare for an IAD decision to be successfully challenged in court.

Moreover, once the IAD has rendered its decision, there is no right for the person to stay in Canada. They cease to be a permanent resident. If they challenge in court, they do not get to stay here. If the CBSA let's them stay, that's a different choice, but they do not get to stay while protracted appeals go on. It's only if the court issues their own stay that they would be allowed to stay. That would only be in meritorious cases.

I would like to highlight a few elements of our submission. First, I'll talk about the elimination of appeal rights for permanent residents with six-month sentences for crimes committed in Canada. We do not agree with Mr. Pagtakhan. The immigration appeal division, with respect, is not the problem. The tribunal review takes into account both concern for the safety of Canadians as well as concern for the immigrant and their families, their employers, their co-workers, and their communities.

Offenders who show a risk to reoffend do not succeed at these hearings. Those who are successful are almost always subject to terms and conditions that require good behaviour and rehabilitation. The failure to comply will result in their removal. The IAD's ability to impose terms and conditions on a stay order is an incredibly effective enforcement and rehabilitation tool that we've seen many times. The success of the IAD is often seen in the successful rehabilitation of one-time offenders as a result of this process.

The inclusion of conditional sentences in the calculation will target relatively minor offenders who have never spent a day in prison.

To be clear, the bar that has been set in this bill is not six months of incarceration; it's just a six-month punishment. That catches conditional sentences, which are normally considered by the courts to be very minor sentences; somebody is basically given house arrest. At the very least, we think that an amendment should be introduced to make it clear that it covers incarceration only.

The denial of access to IAD review to permanent residents whose inadmissibility is based solely on foreign convictions or offences would treat foreign convictions much more seriously than Canadian convictions, because there would be no regard for the sentence imposed, or even to whether there was a conviction. Foreign convictions and offences often involve processes that lack the procedural fairness that exists in Canada. In the way this is written, there is no consideration of the sentence received; it's simply how the offence might have been prosecuted in Canada.

For instance, using a false or fraudulent document is an offence under section 368 of the Criminal Code of Canada; it carries a maximum potential penalty of 10 years.

A 20-year-old permanent resident residing, let's say, in Windsor, borrows somebody else's birth certificate and goes across to Detroit and sneaks into a bar. That is presenting a false document, and that person has committed an offence. They could be caught, convicted, and given a minor fine and thereby become inadmissible without any right of appeal.

That's the way this section is drafted. We don't see any justification for including this here, for denying admission in this case.

It gets worse. The bill would deny a right to appeal when a person is merely believed to have committed an offence, even without the person's having gone through a judicial process and been convicted. They might never have been charged; it's purely the conclusion of an officer.

Neither of those powers was in the legislation before, just to be clear; they have been added. Foreign convictions and offences were not in the previous legislation, that is, as being automatic grounds.

I want to comment on the proposed ministerial power to exclude foreign nationals on public policy grounds. On this one I would agree with Mr. Pagtakhan. We believe this power is unlimited, unaccountable, un-Canadian, and unnecessary. It doesn't have a place in a free and democratic society that cherishes civil liberties and fundamental freedoms.

It's wrong to say that the minister is currently powerless. We have nine different inadmissibilities to Canada. We also have hate crime laws and anti-terrorism laws that specifically target people who promote violence against vulnerable groups in society. People with track records or an intention to engage in hateful rhetoric in Canada are inadmissible under existing immigration laws.

I also want to comment on increasing the inadmissibility from two years to five years. As Mr. Pagtakhan pointed out, one of the problems is unintentional misrepresentations, which the courts, up to the Federal Court of Appeal, have clarified. You can make a misrepresentation, let's say, about a child you didn't know existed. If you fill out your application and don't include a child, and you find out after the fact that you did have an illegitimate child, that can cause you to be inadmissible. This shouldn't be punished by five years' inadmissibility.

There are many other examples that are minor, somebody who embellishes a relationship history, for instance, but who is in a legitimate relationship.

Lastly, there are the restrictions on humanitarian and compassionate relief for certain inadmissibilities, including organized criminality. Again they're facially appealing but may work injustice in many cases.

Much of the problem with many of these laws is that they are designed for the really egregious cases that we can all agree are really offensive and in which people want those people out fast or want to keep them out. The problem is that they catch so many others.

People can commit organized crime just by acting in concert with somebody else in something such as a property offence like shoplifting. That can be considered, and the CBSA has gone after those people for, organized crime. It's not often that they do it, but I've seen it happen in property offences. These are not members of the Hells Angels. Just acting in concert with somebody else can be called organized criminality.

[The Chair, Conservative, David Tilson]

Perhaps you could conclude, Mr. Greene, please.

[Michael Greene]

With the greatest respect, we believe the bill has enough flaws and shortcomings that it should be withdrawn or should not proceed unless substantial amendments are made. We recommend it go through a more thorough consultative process so that different alternatives can be found.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Greene and Ms. Froc.

We appreciate the contribution of the three of you to this committee, and I know committee members have some questions.

We'll start with Mr. Opitz.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Mr. Chair, through you, I say thank you very much, witnesses, for being here today. We certainly appreciate your time, your effort, and the insight that you are going to provide for us through our questions and your answers.

I'll start with you, Mr. Greene.

In your submission, you're talking about criminality of permanent residents. When people come to Canada, should they even be considering committing crimes in this country? They're starting a new life in a new country. Why should these people be allowed to commit crimes?

[Michael Greene]

Well, they shouldn't and we have a criminal justice system to punish them. We also have a deportation system to get out the bad ones. I don't think we should abandon that. I think we should hold people accountable.

The problem with this kind of a broad-brush bill is that it doesn't distinguish between...there are always degrees in these cases.

I've been practising in this area for 25 years and I've done many of these kinds of cases. Typically, what we see and what the bill doesn't provide for is the long-term permanent resident. We see people who come here as children, often as infants, from different countries with different cultures. Their families have difficulty adjusting and the parents often work really hard and aren't around much. There's sometimes conflict because the parents want them to maintain their cultural values at home, but these kids are getting westernized. Sometimes they have trouble adjusting in school and they start to act out and they hang out with the wrong kids. Sometimes they drop out of school, sometimes not.

What I often see is these offences are committed when they are 18 to 21 years of age when these kids think they are invincible, like all kids do. They think they can do anything. They commit an offence and they get into the system. If they go through the IAD system and they show enough positive factors, they get terms and conditions imposed on them.

I've seen so many cases where the kids have turned their lives around. I've also seen cases where people didn't turn their lives around. At the appeal, it became painfully obvious that they hadn't turned their lives around and they got on a plane back home.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

We're not always talking about just the youth. That happens; there's some of that going on and we understand that, but we're also talking about serious criminality. For example, there is one who has 60 counts of fraud, forgery, conspiracy to commit fraud, obstructing a peace officer, failure to comply with court orders. It took over five years to remove him after the removal order was given.

There are so many more including, by the way, trafficking, murder, and so many other things, as we've heard in the last number of meetings, including the murder of a police officer. You did say in your submission that we have justice, fairness, and compassion in this country and I believe we do. This is one of the greatest countries on the planet and that's why people want to come here. In fact, in the tens of millions, they want to get in.

Are you aware, by the way, that many other countries, such as the U.K., the U.S., New Zealand, and Australia, already have provisions in place to bar individuals who would harm the public interest and who are otherwise not admissible? Some of those provisions in those countries are broader and more discretionary than under Bill C-43.

[Michael Greene]

These are two different points. When you talk about the serious ones, I want to say that we're not saying all criminals get to stay. We're not saying that at all. We are saying there should be a process.

The most serious fellows should get expedited and they should be made a priority. If you look at citizenship fraud, we saw this go on for decades. How many people lost their citizenship for fraud? Almost nobody, until the minister said he was going after that and putting the resources there to go after 2,500 cases to get them removed. I can tell you, that is sending shock waves around the world. We're delighted at his efforts to do that and we're appalled that nobody else did it before. That was simply a resources issue.

If you look at some of these serious offenders that the public is really upset about, some of the cases that have been cited by the minister, you prioritize them and you put them in a jail. If they are a danger to offend, you can detain them. We have that power to detain them. Believe me, they want their appeals to go a little faster if they are sitting in a remand centre somewhere.

There are tools out there already. The problem is that the cases that get cited in support of this bill tend to be the most egregious ones, forgetting what the effect is on probably the vast majority that aren't that egregious.

If you look at the Baylis case as an example, where the police officer was killed, that wasn't the fault of the IAD process. What happened is that the guy went through and he lost his appeal, was ordered deported, and he disappeared. Because he disappeared, he eventually emerged with a gun in his hand and killed somebody. That is appalling.

It shouldn't take that long, if you draw distinctions between the minor and the serious cases and go after the serious ones.

Another suggestion is that you could let an officer impose the terms and conditions of the minor cases, set up something like you do now with bail where there are mandatory terms and conditions. If they breach on the minor cases, then they're gone.

I'm sorry about that. I took you on a long answer.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Because you know I only get seven minutes.

[Michael Greene]

I'll just comment on your other comment about other countries. I'm not an expert on what happens in other countries. I can only say the one time I can recall the U.S. using this power is when they kept Farley Mowat out of the U.S. I don't know what his problem was, hate crime or whatever it was, maybe loving animals too much, but Farley Mowat was denied entry into the U.S. I don't know what other countries have—

[Ted Opitz, Conservative, Etobicoke Centre, ON]

I think they would tend to aim at somebody a little more serious than that.

[Michael Greene]

I would hope.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

We're talking about the people committing crimes here.

Have you ever spoken to victims' groups or any victims' organizations about Bill C-43 and what their views would be? You are talking about crimes that may not be as egregious, but if you defraud a senior citizen of their life savings, it may not be murder and it may not be a capital type of offence but that's pretty serious to that individual because you have harmed them, probably irreparably. Have you talked to any victims' organizations about this sort of thing?

[Michael Greene]

We get calls from victims, too, saying that someone has defrauded them. We see it in the case of marriage fraud. We see it in criminality, too. They say that the person doesn't deserve to be here and ask what then can do to get them out. Sometimes we direct them to the CBSA to make complaints. Sometimes we direct them to their MPs, to request them to prioritize the case, to put some pressure on to make this happen. It is appalling sometimes to see that action not being taken.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Sure, you've got calls, but have you actually reached out to any of these organizations?

[Michael Greene]

Let me think about that. I don't think the Canadian Bar Association, in fairness, has reached out to anybody on these things. We draw on the experience of all of our members is what happens.

[The Chair, Conservative, David Tilson]

I'm afraid that's it.

Ms. Sims.

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

I want to thank all of our witnesses for appearing before the citizenship and immigration committee. It is always a challenge in itself I've found. We do thank you for taking time out and coming to share your perspective with us. Thanks for your testimony.

We do share a number of concerns with the legislation before us, particularly the increased power that will be concentrated in the hands of the minister without any checks and balances. We also have been very clear that we're willing to work with the government to make sure non-citizens who commit serious and often violent crimes can be removed quickly. I think I heard you say that as well. There are ways that can be expedited.

We believe that if you look closely at the sensational cases put forward by my colleagues across the way and the minister, what comes to our attention is that the real problem appears to be a lack of training, coordination, resources, and border security.

In today's Toronto Star, there is a case of a Chinese national who was able to enter and stay in Canada despite being wanted for a grisly murder. This was not due to a lack of legislative tools to deport him; it was because of a breakdown in border security.

There is another case, which mentioned as well, that of Clinton Gayle. He brutally murdered Constable Todd Baylis. Our hearts go out to the family of Todd Baylis and to all the police in Toronto. Once again, a federal inquiry into the case revealed that serious errors led to the delay in removing this serious criminal. A former associate deputy minister even admitted that the department's priority at the time was to target unsuccessful refugee claimants who were on the run rather than criminals, because that way the deportation numbers were going to be higher. It all depends on what the goal is.

We believe the government needs to go back to the drawing board and address the lack of training, resources, and integration of information and monitoring technologies within the responsible public service agencies we currently have.

I'm going to address my first question to Michael and Kerri. In your brief to the committee, you conclude that many of the proposed amendments are both unnecessary and unjustified. With a mind to some of the sensational cases I just mentioned, could you talk about how the current system could be improved without eliminating the right to due process proposed in this bill?

[Michael Greene]

When you go into the emergency room at a hospital, there's a sign on the wall that basically says that it's not first come, first served. There's a prioritization, a triage.

I do a fair amount of appeal work in my own practice. What frustrates the heck out of me is that with the CBSA, partly because they're stretched perhaps, there is no triage. I don't see the kind of triage that I think needs to happen. All cases are treated the same. All you need to do is reorient your priorities in the CBSA hearings department, for instance, and say you're going to identify those more serious offences, maybe the ones that get more than a six-month sentence, and prioritize those for fast-tracking.

You could even take it to another level. If you wanted to treat it like you have treated refugee reforms, you could say that you will fast-track cases that meet certain criteria. The problem with it now is it doesn't draw any distinction between those egregious cases and the ones that aren't egregious.

I've got to say that we do have some concerns. The problem with basing this kind of legislation on egregious cases is that many of them are just not appropriate. The Clinton Gayle situation, for instance, is more of an enforcement problem than an appeal process. It happened under previous legislation. The minister brought up the Just Desserts case, which happened under previous legislation, where four people were charged in the offence and three of them were convicted. The three convicted were Canadian citizens and the one acquitted wasn't a Canadian citizen. It's not really a very good example of the failure of the appeal determination system.

The problem with the Khosa case which the minister referred to, which did take years to wind through the courts, is that it set a precedent for how the courts review administrative decisions in Canada. It is a fundamental case. I teach it in my law school class. It changed all the rules. It was a principle of law case. It wasn't Khosa stringing out endless appeals; in fact, he won the early level. It was the good department challenging the decisions, not the individual. That's not a good example of the failure of our system. Not that there aren't failures. We have failures in the criminal justice system. We have people who get acquitted on technicalities or because of excessive delay. We don't say we're going to cancel criminal trials and take away the right to criminal trial because some bad guys get away with it. We have to have more faith and we have to look at prioritizing.

The other suggestion I had is to look at the possibility of imposing conditions at the officer level. It would be a statutory amendment, but I think it could be done.

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

Thank you.

I read through your brief quickly. You mentioned a number of suggestions for amendments to the proposed legislation. Could you expand on these? Do you think we could change this bill to both preserve due process and deport dangerous criminals faster?

[Michael Greene]

Well, yes and no. As we've said in our brief, and we really do invite you to read it, the problem with this is that with a lot of the other initiatives the minister has made, there were extensive consultations, so a lot of thought and discussion went into that. In this case, the backgrounder said—there was a campaign promise made—the minister asked his department to review and make recommendations. It almost sounds as though he got a wish list from within the department from some sectors saying what they would like to see. He's done that. I don't know where it came from, but I do know that we weren't involved in the process.

Sometimes mechanisms take some time to develop and to test and to toss around. That's what should be happening. I'd prefer to see that.

There are improvements. We've talked about a few very specific ones in there. You can't do conditional sentences and you shouldn't be barring people for merely committing or for foreign convictions without a right of appeal. Leave them with the right of appeal. If they're bad guys, expedite them. Get them through fast.