Citizenship and Immigration Committee on Nov. 7th, 2012

[The Chair, Conservative, David Tilson]

Thank you, Mr. Greene.

Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

I appreciate the presentations from all the witnesses.

I did want to pick up on a point in regard to the bill as a whole. We believe it is fundamentally flawed and in fact it should never have passed second reading. We need to go back to the drawing board. Just listening to you specifically, Mr. Greene, what you're saying with the idea of no consultations and so forth reinforces that. We are the only party that actually voted for it to not even come to the committee because we believe it is so fundamentally flawed.

I want to pick up on something you made reference to. I talked about this on Monday, and I'm going to repeat it. This is just a quote I took from another presenter, with regard to the criminal act. It states:

Using a false or fraudulent document under Criminal Code s. 368 carries a maximum potential in penalty of ten years. A 20 year old permanent resident convicted of using fake identification to get into a bar while visiting the US is inadmissible for foreign conviction. It doesn’t matter that the US court issued only a $200 fine. IRPA s. 36(1)(b) does not require a threshold sentence, only a foreign conviction.

Some would suggest to you that it doesn't even actually require that conviction.

Using this in a real-life example, someone who maybe was born in another country comes to Canada when they're two or three years old. They'd be in Canada for a number of years. When they're 19 years old, maybe they've graduated from high school, they cross the border and they use false ID in order to get served alcohol, because the age across the border is 20 or 21 in order to be served alcohol. They get caught. They're going to be deported. The rest of the family can stay, but they're going to be deported, even though they've been in Canada, for all intents and purposes, all of their natural life, having come here at age two or three.

We're not talking about the exceptional case. When the minister introduced the bill, he mentioned five reasons why the bill was before us. It was just one horrific story after another horrific story. He labelled the bill the faster removal of foreign criminals act. It's a scary message that I believe is sent to 1.5 million permanent residents who call Canada home.

Do you believe that this bill would be better off if the minister went back to the drawing board, consulted with different stakeholders, and attempted to reintroduce a much more modified piece of legislation? Would it be better to see that done as opposed to having to go through the charade of trying to come up with amendments to try to put a band-aid on the legislation itself?

[Michael Greene]

Yes. It's probably not a charade, but it's a difficult exercise to try to fix it. I think it's fundamentally flawed, and we have recommended that it go back to the drawing board. We're prepared to work with the government.

As we said at the outset, it's so important to keep public faith in immigration. We don't want to happen here what happened in the United States, which is where people have lost faith in the enforcement and so they won't support meaningful immigration reform.

The minister has done some incredible things with modernizing and improving the system, but he can't do them without public support. I know that's why he wants to do this kind of thing, but this is the wrong way to do it.

In fact, focusing on these extreme cases, the egregious cases, can be counterproductive, I think, because it can make people think there's a bigger problem than there really is. A lot of the cases he cited are very old and they're pre-IRPA. They're not even under this legislation. It's a bit dangerous to do that because you risk making people think we have a big problem with immigration, that we should just stop immigration.

There was a recent poll which showed there's been a shift and a greater percentage of the population is concerned about immigration levels. I'm wondering about whether the alarmism that comes in this kind of thing is contributing to that.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Chair, I have a very quick question for Mr. Pagtakhan.

I appreciated your comments in regard to misrepresentation. Could you cite an example or two in terms of what you'd think of as unintentional misrepresentation?

[Reynaldo Reis Visarra Jr. Pagtakhan]

Mr. Lamoureux, beyond the unintentional misrepresentation, the big problem is the misrepresentation when a consultant does it without the knowledge of the applicant. There were a number of cases that were decided in the Federal Court recently where a misrepresentation was held, where a fake English language test result was put in by a consultant. Those people were found to have made a misrepresentation. Their applications were denied. Under the new legislation, that would generate a five-year bar. That's not fair.

The difference in some of these provisions is that here is where innocent people can be penalized. There is no right of appeal for these innocent people who are being penalized. If you take out this misrepresentation bar for the innocent and you put it onto people who have knowingly put in fake documents to try to jimmy their way into this country, those are the people you should be targeting. The law of misrepresentation, as Mr. Greene has indicated, is broad and it affects people who have—

[The Chair, Conservative, David Tilson]

Thank you. I'm sorry to interrupt you, sir, but we have to move on.

Mr. Weston.

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

Thank you, Chair.

This has been an extraordinary day. I thank all of our witnesses today. You have presented yourselves clearly, sincerely and with balance. It's hard to deny the credibility of a witness who on the one hand finds problems with the act, but on the other hand compliments the minister for other things that he has done. In all cases, we thank you.

I'm very proud to be on this committee and to share with my colleagues the process of opening Canada's doors to so many people from around the world. Our numbers really tell the story, 250,000 people coming, of a very generous refugee system.

It's often said that it's the immigrants themselves who are the most ardent in support of the kinds of measures the minister is proposing here.

Let me just put a very basic question to you. Is it not a reasonable thing to ask that permanent residents not commit a serious crime in order to retain their permanent resident status or to obtain citizenship?

Let me go to you, Mr. Greene, first.

[Michael Greene]

Of course, it's reasonable. We should expect that.

The only thing I'd say is that things aren't black and white. Our criminal justice system is a good example of that. We expect people to obey the law. If they don't obey the law, there are consequences. The consequences depend on how serious the violation is, whether it's a one-off or whether it's a pattern. The same thing should apply to immigration.

I talk to people and your average person—I come from Calgary and you can imagine I hear it all the time—thinks it should be zero tolerance, but zero tolerance doesn't really work. Human beings are far more complex than that. When you get somebody who comes as an infant and they're here for 20 years or 30 years before this kind of thing happens, it's a little harder to apply zero tolerance to them.

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

Let me switch to you, Mr. Pagtakhan.

Isn't it reasonable to expect an immigrant not to commit a serious crime in order to retain his or her status, or to obtain citizenship?

[Reynaldo Reis Visarra Jr. Pagtakhan]

Absolutely. We all expect people to be law-abiding and there are consequences for breaking the law.

One of the things that is sometimes lost in this discussion is that even though there may not be an immigration appeal for some of these individuals if they are convicted of a penalty of more than six months in jail or more than six months of incarceration, they have the ability to say, “Look. I could be deported. I don't have an appeal. Please take that into account when you sentence me.” The courts of appeal in Manitoba, Ontario, Nova Scotia, the Northwest Territories, and other jurisdictions have said that this is a consideration. There have been many cases, the case of Arganda in Manitoba, more recently, where the courts of appeal have actually reduced the sentence to preserve a right of appeal.

The immigrant who commits the crime, the convicted criminal, has the ability to argue at their sentence when a criminal judge, a Court of Queen's Bench judge, can take into account the victim impact statement, can take into account the issues of all the things they should be taking into account in sentencing, and also the particular circumstances of the individual. When you take into account all of those things, that is essentially what the immigration appeal does. It's not that we're taking away the rights to state what a circumstance of the individual criminal is. They can do that and the courts of appeal will recognize that.

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

Something that shocked me was that there are some 850 people who, on an annual basis, are making an appeal to the IAD in order to delay their deportation. It's not just a question of individual cases, where we've put some focus in the testimony today, but the volume.

Mr. Pagtakhan, what do you think of that number? Does that surprise you? Is it a significant number in your mind?

[Reynaldo Reis Visarra Jr. Pagtakhan]

There are lots of people who commit crimes. Eight hundred fifty might not be a significant number. I'm not too sure of what the volume is in terms of other cases. I'm not too sure that's an alarm bell in terms of the number who are appealing. I haven't seen the statistics as to what that number would be if you reduced it to the six months from the two years less a day.

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

Okay, that's a good comment.

The other issue that concerns me is in terms of people who are inadmissible on very serious grounds, such as war criminals, human rights violators, and organized criminals, people who have been able to delay their deportation by applying on the humanitarian and compassionate grounds.

Can I get your comment on that, Mr. Pagtakhan? What do you think of the Bill C-43 provisions that will take away the humanitarian and compassionate grounds to delay a deportation for somebody who has committed—

[Reynaldo Reis Visarra Jr. Pagtakhan]

I don't want to say that some crimes are more serious than others, but those types of crimes are really high on the level of seriousness. Taking away an appeal on humanitarian and compassionate considerations for that is a very big thing that you're taking away, but if you're going to take it away from anyone, you take it away from war criminals and terrorists, from those types of people. The nature of that crime is such that you would ask what humanitarian ground, really, you are going to assert. Here's the humanitarian ground: “I blew up a whole bunch of people, but this is a really good reason that I should stay.” l'm having trouble figuring out what the humanitarian ground would be.

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

I put this to both our witnesses. As a fellow lawyer and someone who cares about due process and who has argued these humanitarian and compassionate things in other arenas before, I want to maintain confidence in our immigration system, the confidence that we are bringing in good people, so that all Canadians can support a minister who wants to continue to bring in such an enormous number of people each year, confident that we're bringing in good people who are building the country and not alarming the country.

Do you have any last comment, Mr. Greene?

[Michael Greene]

On the war criminal front, the thing I'd point out is that there are shades of grey. It's egregious, yes. If somebody has been blowing people up, there's no question: we don't want them and we should get them out fast, or keep them out in the first place. But—

[The Chair, Conservative, David Tilson]

We have to move on. I'm sorry.

[Michael Greene]

Okay. I'll just say that Nelson Mandela would not have a right of appeal under this legislation, just to use an extreme example.

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

He wouldn't need one. He's been accepted into this country.

[The Chair, Conservative, David Tilson]

Order. Ms. Sitsabaiesan has the floor.

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

Thank you, Mr. Chair. Thank you as well to our witnesses today.

We agree that non-citizens who commit serious crimes in Canada should be dealt with quickly; however, we're very concerned that this Conservative bill will concentrate more arbitrary power in the hands of the minister without checks and balances.

I was reading through your brief to the committee, and I see that you feel the same way, Mr. Greene.

What are the implications of an enormous transfer of discretionary power from the judiciary to the political office of the Minister of Immigration, as proposed under this bill?

[Michael Greene]

By the way, these are not my personal views. I'm presenting the Canadian Bar Association's views. Quite an extensive consultation went into this among the members of the bar.

In any event, we have been concerned about this in a number of pieces of legislation. Just so you know, the process of review of the relevant factors will still happen. It happens now with people who get more than the two-year sentence. It happens by an officer.

The problem with it is that it's difficult for officers to make these decisions, because nobody wants to put their career on the line and make a bad decision; whereas an independent judicial...that's their job. Somebody who is a board member has to weigh the factors. For an officer, it would be a career limiting move to let somebody stay and then have that person reoffend.

We think it's a bad idea to transfer those powers. That's why they created the immigration appeal board in the first place in the 1970s, to take that discretion away from officers and create a more effective system.

Most people working in the system think it is effective. I think the real problem people are concerned about is delays because of volume. I don't know whether 850 a year is a huge volume, but it causes the system to back up, especially if it's not resourced.

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

Thank you.

The minister has underlined half a dozen cases of extreme, repeat, non-citizen criminals who have gone on to reputedly commit serious crimes during the delay of their deportation. A couple of these cases have already been mentioned today.

Clearly many of the sensational cases show serious problems with border security. We need to stop criminals and terrorists before they arrive in Canada; however, the Conservatives' cuts to border services will mean that Canadian officials will have to try to do their best, of course, but with less now.

I'm going to ask you a few questions and then give you the rest of my time to answer them.

Is removing the right to an appeal the only way to prevent these cases? Do you have any suggestions on how the Canada Border Services Agency might be better equipped to prevent serious criminals from entering Canada in the first place? How do the cuts to CBSA impede these efforts?

The rest of my time is yours.

[Michael Greene]

I don't think we have a problem with preventing serious criminals from coming here. None of the examples, at least of those I've seen that the minister has given, involves somebody who got in who shouldn't have gotten in. They're all of people who have committed offences after they got here.

I think the tools are already there. Also, they're improving the use of biometrics. It's going to be much harder for a person—somebody who has been deported, let's say—to adopt a false name or false ID and come back, because the minister is bringing in some other proposals to make this more effective.

I've already commented about this enough. I have made the point that you can do triage. You can have the officers impose conditions on the less serious offences, so that you save the more serious ones to go to full hearings.

[The Chair, Conservative, David Tilson]

You have one minute.