Citizenship and Immigration Committee on Nov. 7th, 2012

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

Mr. Goldman, allow me to interrupt you.

Under our criminal process, people like that have all the rights provided by the Charter, including the presumption of innocence. They can also plead the consequences of immigration if they are found guilty of a serious offence in Canada.

Canada provides people like that with a lot of rights. If they commit crimes and are not deported, I am afraid that Canadians will lose confidence in our system. The most serious consequence would be that the minister might not be able to maintain the generous policy any longer. What is your opinion?

[Rivka Augenfeld]

Without wanting to pull the rug from under my colleague's feet, I would like to answer that question.

Here is the problem. If the act is amended so as to catch very dangerous criminals, as you claim, it will end up catching people such as those Mr. Goldman described.

That net is too big and too wide. We want to catch the very dangerous criminals, of course. Everyone supports that. We do not want dangerous criminals. I too am opposed to people who have committed war crimes coming here. But the net ends up being too wide.

The net is cast too widely, and it captures people and gives them no relief, people you did not intend to capture. I don't think you would intend that Salma not be granted some kind of relief. She didn't do anything. She is not a criminal. Why are we punishing her in the same way we're punishing someone who committed terrible crimes against humanity?

As you said, we have to have a way here in Canada whereby we apply the law and we are generous, to make a distinction and to have measures of relief that can help a person like Salma while not giving years to some criminal who committed grave crimes against humanity.

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

Salma's case aside, I was scandalized to learn that 850 people appeal on humanitarian grounds each year in order to delay the process. What do you think about that?

[Richard Goldman]

I'd like to go back to your exact question, which was about the criminal justice system. It's my understanding, from reading court of appeal jurisprudence from different provinces including Alberta and Quebec, that the courts are not seeing it that way, in terms of being able to present immigration arguments at the sentencing stage. I'm not the world's greatest expert on criminal law, but I don't believe it's settled that across Canada you can make immigration-related arguments when it comes to sentencing.

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

It was made very clear by our previous witness, Mr. Goldman.

[Richard Goldman]

That's not my understanding. I'll leave it to the criminal law experts.

I would say that before the government goes ahead with a provision that would remove humanitarian discretion, you should make absolutely sure that this argument can be made in criminal courts across Canada. It's not my understanding that it can.

[The Chair, Conservative, David Tilson]

I'm sorry. We could go on, but our time has expired.

Go ahead, Madam Groguhé.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you, Mr. Chair.

I would first like to thank our witnesses for being here.

I would also like to congratulate you, both the Canadian Bar Association and the TCRI, for the quality of the presentations you provided in order to draw our attention to the potential concerns and problems you see with Bill C-43.

We feel that civil society and those of us who represent that civil society are striving to make sure that the laws that govern us can be just, fair and respectful not only of the Canadian Charter of Rights and Freedoms but also of the obligations we have accepted, as you mentioned, by signing certain international agreements.

Mr. Goldman, in your brief, you express concern at what you called a culture of exclusion in Canada. More specifically, you mention the exclusion of failed asylum claimants under article 1F of the Geneva Convention and of those seeking asylum on humanitarian grounds, even when Canada Border Services Agency officers confirm that they have never taken part in any crimes and that they represent no danger for Canada. Under Bill C-43, they have to be deported, even if that exposes them to torture.

Why is the situation like that, in your view? On that point specifically, what recommendations could you make to this committee?

[Richard Goldman]

Thank you very much.

I think we are going a little far in saying that refugee claimants like that could be deported even when they are in danger of being tortured. Actually, under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Canada would be required not to deport them.

It is true that, with the elimination of the pre-removal risk assessment… No, that’s right, it stays in place for people who are deemed inadmissible.

In any case, we would be going too far to say that those refugee claimants will be sent back if we know they are likely to be tortured. But it is definitely the case that they will not be able to apply for permanent residence on humanitarian grounds.

To show the kinds of grounds that we mentioned in our brief, namely links with Canada, not having committed acts of violence, and medical issues, our recommendation is not at all complicated: do not eliminate the right to apply on humanitarian grounds. For reasons of which I am unaware, some people seem to think that the act of applying on humanitarian grounds delays removal. I repeat that this is not the case. Nothing in the Immigration and Refugee Protection Act indicates that removal is suspended when an application is made on humanitarian grounds. That is not the case at all.

Making an application does not guarantee that it will be accepted. An immigration officer sits down, weighs the factors involved, assesses the person’s difficulties, any medical issues and the overriding interest of any child involved.

Our recommendation has nothing complicated in it. Leave that avenue open. Let immigration officers do their work as they have always done. Let them decide on the claims. Removals will not be suspended because, at the risk of repeating myself, an application on humanitarian grounds does not have that effect.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

The rise of the culture of exclusion shows that the notion of complicity is being given an ever-broader interpretation in Canada than the one given by international criminal courts.

What specific problem does this cause, in your opinion, especially in terms of access to international protection?

[Richard Goldman]

It is very clear if you look at the figures. In 1998, there were two cases and now there are between 80 and 100 each year. Clearly it is expanding.

I really recommend that you read a study by two professors at the University of British Columbia, Catherine Dauvergne and Asha Kaushal. It is called The Growing Culture of Exclusion: Trends in Canadian Refugee Exclusions. It examines the cases of a number of people who have done nothing violent, who may have had certain roles without knowing what was happening elsewhere in the movement they were part of, like Salma, for example. Clearly, anyone who is denied the protection they need becomes a potential case of refoulement to persecution.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you.

Our previous witnesses stressed the need for much wider consultation on Bill C-43. They also mentioned that Bill C-43 casts much too wide a net. One of the witnesses advocated a triage process for crimes and for criminals. What do you think about that?

[Richard Goldman]

I am in full agreement with that person. I know that we are not here to talk about the refugee status determination system, but, time and time again, we are presented with the fact that it sometimes takes 40 or 50 months to deport someone who has been denied asylum. My personal experience, and the experience of the members of our group, is that we often waited 15 months, for example, before being called to a pre-removal risk assessment.

The same thing goes for crime. The Canada Border Services Agency can conduct a triage to prioritize the sensational cases. A little earlier, we were talking about those sensational cases. It seems to me that all those cases are already covered by the two-year rule. Right now, there is a rule saying that, with a sentence of two years or more, there is no right to an appeal. So I imagine that serial killers, for example, had no right to an appeal, because they had already been sentenced to more than two years.

We are concerned that the threshold is going to be very low from now on. Earlier, I gave the example of someone breaking into his neighbour's house. Under section 348 of the Criminal Code, breaking and entering with intent to commit theft can result in a life sentence. If you break into a shopping centre to steal some DVDs, you can get up to ten years. But now, if you get six months, you can no longer have humanitarian grounds.

I feel that everyone agrees that foreign criminals should be deported as quickly as possible. The question is to define what constitutes a serious crime. As my colleague Rivka said, when we look at similar cases…

[The Chair, Conservative, David Tilson]

We have to move on.

[Richard Goldman]

—what some people call serious criminality does not always seem so serious to us.

[The Chair, Conservative, David Tilson]

Thank you.

We'll go to Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

I appreciate the comments from both witnesses. I want to pick up on the whole issue of humanitarian and compassionate grounds.

Salma's story is a very compelling one, I must say. And you just finished citing a couple of other examples.

It's worth emphasizing that all we're saying is that we should allow for that consideration to be given. That's really what we're talking about. We're not saying that they should be allowed to stay. We're saying that they should be allowed to have that opportunity for compassionate and humanitarian grounds. Is that correct?

[Richard Goldman]

That's correct, absolutely. We're talking about two very different situations in our brief. One is people who are asking for refugee status and are excluded under what we feel are overly broad exclusion provisions. We feel that they should have access to humanitarian considerations. We're presenting a real-world case to show that.

I heard in the previous presentation that there are war criminals and that we have to get rid of them right away. Somebody like Salma, who distributed pencils and coffee at meetings, has been labelled a war criminal. That's one situation. Maybe she won't be able to stay, but she should at least have the chance to have her humanitarian case considered.

The second case is the kid next door who breaks into your house, drinks some of your liquor, and gets a six-month sentence. He hasn't lived in Eritrea or Iran since he was three. We feel that he also should have access to a humanitarian appeal. That doesn't mean he'll end up staying in Canada.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I want to pick up on that particular example. There are some 1.5 million permanent residents. This bill potentially is going to have a profound impact on the lives of many of these people who call Canada their home. Thousands of those people came here as young children. When someone who came here at age three has committed a crime, even if it's a minor crime, is there not any sort of societal responsibility for that young person? In other words, should young people, say eight years old, be exempt, at the very least, from this legislation?

[Rivka Augenfeld]

I would argue that one really would have to look at this. There has to be some discretion to be able to look exactly at the humanitarian considerations.

I would submit to you that some children who came here at a very young age do not know that they are not citizens because it's their parents, for whatever reason, who didn't get citizenship for them, and now it's a little late. It's not that they didn't do anything. They did certain acts, but are the acts worthy of getting them sent back to a country where they know nobody? It also means that there is no chance of rehabilitation.

One of the things that we've been told by some of our friends who are experts in penal stuff and rehabilitation is that if you put a young person in jail and they know that at the end of the day they'll be deported, where does that leave them in terms of their enthusiasm for rehabilitation, when in fact proper rehabilitation could put them on the right road? They are barred from citizenship because their parents never thought it was important. It's not their fault.

On the other hand, when we try to look at some of these other cases that we've been describing, we're looking at people who never committed any crime. They didn't commit a crime. I think it's very easy for us sometimes, sitting here, and I include myself, to make judgments about what people should have done or would have done somewhere in a country where's there's a dictatorship, where there is repression, where there is oppression, persecution, and torture, and what people sometimes do, faced with that, as young people. Then they come here and are faced with the fact that they are doubly and triply victimized because of an association with other people who might have been doing things that this person was not aware of.

Salma is not alone. We're using her as an example, but, please, in the same way that sometimes examples from 20 years ago are used to justify things that we're doing now, this is not an isolated case. It's a particularly compelling one, but there are others. We see them. What we're pleading for is the discretion to allow the person's circumstances to be considered and not have her barred from this consideration, so that no matter what might happen to her as a result of getting returned, we're not going to be responsible if she's returned to torture or returned to a total mental breakdown, or whatever else might happen to her.

[The Chair, Conservative, David Tilson]

I'm sorry, Mr. Lamoureux.

Mr. Dykstra.

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

I'm intrigued by your example. I suppose we're all using them to make our points here on the bill, and I appreciate that. I think all of us have the ability to do that and should be allowed to use examples to explain what we're talking about.

Salma, the person you're talking about—which is not her real name, but I understand the need to protect her—wasn't a permanent resident. She was applying for refugee status. You're relating a case that you could have presented under Bill C-31, when we did our hearings on that bill. I'm not sure why you're presenting a case of a refugee on Bill C-43, which specifically deals with those who already have permanent residency. She doesn't have permanent residency. If she was coming from a foreign country and was applying to come to Canada, and if she had been convicted in her own country or charged and it was believed to be true, she would not be admissible to Canada, but she could actually go to the Federal Court to try that. She could also apply under H and C because she actually isn't in the country yet.

I'm not sure why you're bringing this case in under Bill C-43. She's applying for refugee status, so she's not a person who falls under this piece of legislation. She'd fall under Bill C-31.

[Richard Goldman]

She does. This legislation does many things.

One of the things it does is it takes away the right to apply on H and C grounds for permanent residence of people who are excluded under section 35. As it's explained in our brief, by being excluded from refugee protection under article 1F, she is automatically excluded under section 35. Our citations are there. The sections of the law are there. It's all there. The reason we didn't raise this when we came on Bill C-31 was that Bill C-31 didn't take away the right of people like Salma to apply on H and C grounds. This piece of legislation, under clauses 9 and 10 of Bill C-43, does take away her right to apply for permanent residence on H and C grounds. That's—

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

You're making my argument for me. She actually, then, has the opportunity under Bill C-31 to apply for H and C—

[Richard Goldman]

No, this takes that right away.