Citizenship and Immigration Committee on Nov. 19th, 2012

[The Chair, Conservative, David Tilson]

Good afternoon, everyone. This is the Standing Committee on Citizenship and Immigration, meeting number 60, on Monday, November 19, 2012. This meeting is televised. We're studying Bill C-43, An Act to amend the Immigration and Refugee Protection Act.

We have two witnesses before us today. The first is the Ontario Council of Agencies Serving Immigrants, represented by Amy Casipullai—every time you come here I pronounce your name wrong and I'm sorry; you'd think I'd know—and Francisco Rico-Martinez. Good afternoon to both of you.

We also have Jacques Shore, who is a partner with Gowlings, which I assume is the law firm. Good afternoon to you too, sir.

We will let you go first, Mr. Shore. You have up to 10 minutes to make a presentation.

[Jacques Shore, Partner, Gowlings, As an Individual]

Good afternoon, and I thank you for inviting me to appear before this distinguished committee today. These remarks are presented to the committee in memory of my cousin, Lily Bergstein, who, along with her husband, Salomon Bergstein, witnessed the atrocities of the Second World War.

I am very pleased to be here this afternoon to support Bill C-43 in principle. I would like to take this opportunity to commend the government for tackling this difficult issue and for proposing some essential and long overdue changes.

With some amendments, I am confident that Bill C-43 can improve national security, public safety and ensure the fair treatment of non-citizens.

I am very pleased to be here this afternoon to support Bill C-43 in principle. I commend the government for tasking this difficult issue and making these changes which are long overdue.

I would like to concentrate my opening remarks on three specific measures.

First, I support clause 24, which removes the appeal rights for persons convicted of crimes and sentenced to imprisonment for six months or more. This will speed up deportation of those convicted of serious offences. Criminals should not slow down the Canadian justice system by relying on years of appeals and giving them the opportunity to reoffend.

This is not to say that a person should be automatically inadmissible to Canada if they have committed a serious crime. There is already a safety valve in the system to ensure that each person's individual circumstances are taken into account. Under subsection 25(1) and subsection 25.1(1) of the current version of the Immigration and Refugee Protection Act, the minister may allow a person to stay in Canada even if he or she has been deemed inadmissible. This effectively operates to prevent injustice within the system. Bill C-43 maintains this important power.

This brings me to my second point. Clause 18 amends section 42 by adding the criteria that the minister may take into account when deciding if certain persons should be allowed to stay in Canada. This clause only applies to persons deemed inadmissible because of a security risk because of human or international rights violations or organized criminality. As drafted, the minister would only be permitted to assess national security and public safety considerations when exercising this discretion. I believe this is appropriate as undesirable criminals should not be permitted to linger in Canada.

In exceptional cases the minister will, I believe in any case, still be able to determine if a person may enter or remain in Canada by considering additional factors in the context of the words in proposed subsection 42.1(3), which provides “but, in his or her analysis,”—that being the minister's—“is not limited to considering the danger that the foreign national presents to the public or the security of Canada”.

I am apprehensive of the potential impact this legislation could have on permanent residents who have spent most of their lives in Canada. I believe that those living in Canada who are permanent residents must value and recognize the privilege of living in our country. One may ask how someone with no real connection to their country of origin can be deported. Other witnesses have expressed views and members of this committee have raised their concern on this question. However, I must conclude that with this privilege of permanent residence must also come the responsibility to be law-abiding and the will to make a positive contribution to our society.

While the ability of the minister to exercise discretion in such cases is important, consideration should also be given in another vein to implement measures to prevent this sort of situation from arising. Perhaps it is time to consider instituting a program to encourage good citizenship that would also motivate long-time permanent residents to apply for citizenship. This could help prevent the unfortunate cases where young permanent residents become misguided and engage in unlawful activities. This could also ensure that they are aware of the risks if they lack citizenship, often due to the neglect of their parents or guardians.

It is the right time to re-emphasize Canada's citizenship guide and its reference to Canada's four pillars: freedom, democracy, human rights, and the rule of law. Our Canadian values should be viewed as paramount and should be emulated in the behaviour of those who seek to live in Canada as permanent residents and those who seek to become Canadian citizens.

My third point also deals with ministerial discretion. Specifically, I would like to discuss clause 8, which gives the minister the power to declare that a person may not become a temporary resident. Bill C-43 allows the minister to use his or her discretion if he or she is of the opinion that it is justified given public policy considerations. I believe this is a necessary provision. There are people who should not be allowed to come to Canada who nevertheless do not match any of the inadmissibility criteria established in the Immigration and Refugee Protection Act.

Bill C-43, if passed, could prevent people who have demonstrated track records of blatant lack of respect for our society's cherished values from coming to Canada. The minister has proposed guidelines for how to exercise the power. These indicate that individuals who promote terrorism, violence, or criminal activity, as well as certain foreign nationals from sanctioned countries and corrupt foreign officials, would be prevented from visiting Canada. These guidelines respect the need for certainty and restraint in the use of a discretionary power.

In line with this principle, I would suggest that the guidelines be incorporated into the text of Bill C-43 itself. The current use of public policy considerations in clause 8 is quite vague and could be clarified. Such a clarification would result in three key benefits. First, it would give guidance to the decision-maker, the minister. Second, it would provide clarity, enabling the public to fully understand the law and its stated criteria. Third, it would give a potential judicial narrowing to the scope of ministerial power.

Australia has adopted a similar approach. In the Australian Migration Act 1958, the minister is given discretion to refuse or cancel a visa based on very specific grounds. For example, this power can be exercised if there is a significant risk that the person would incite discord in the Australian community or would vilify a segment of the Australian community. This condition provides certainty and transparency and ensures that the objectives of the act are met.

Canada can reap the same benefits by specifying in clause 8 the factors to be considered by the minister.

In summary, ladies and gentlemen, Bill C-43 is a step in the right direction. It will prevent criminals from taking advantage of our overly generous appeals process. However, I would recommend amendments to clarify the role of ministerial discretion to justifiably refuse temporary resident status. With some minor changes, this bill could advance Canadian immigration law in a manner that serves to protect Canadian citizens and instills fairness in our immigration review process.

I thank you, honourable members of this committee, for giving me the time to speak with you today.

Thank you very much.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Shore.

Ms. Casipullai and Mr. Rico-Martinez, you have 10 minutes between you. Thank you for coming.

[Amy Casipullai, Senior Policy and Public Education Coordinator, Ontario Council of Agencies Serving Immigrants (OCASI)]

Mr. Chair and committee members, thank you for inviting us to share our views on Bill C-43 with you today. I will start off with an introduction and then I'll hand it over to my colleague Francisco. Francisco is OCASI's Toronto regional director, and he is here in that capacity.

We would like to focus our presentation on the impact on children and youth, particularly children and youth from racialized communities.

We are very concerned about clause 24 of Bill C-43, which takes away the right to appeal for a permanent resident who is convicted of a crime punishable by a sentence of six months.

Canada's visible minority population was over five million in 2006. That represents 16.2% of the total population. Canada's racialized population is younger than the rest of the Canadian population, and the recent census numbers from Stats Canada show that the prison population grew by 17% between 2006 and 2011.

In December 2011, Canada's Correctional Investigator said he was concerned about the sharp increase in the number of black inmates in federal prisons over the past decade, an increase of about 50%. Statistics on the disproportionate numbers of incarcerated black and aboriginal individuals are not easy to find. The most recent set of comprehensive figures that we could find were from a 2004 study by Corrections Canada, which confirms that black offenders are overrepresented in prison while Caucasian and Asian offenders are under-represented relative to the general population. Visible minority women are also overrepresented compared to Caucasian women.

The Corrections Canada study also found that visible minority offenders tend to be younger and that they are at a lower risk of reoffending.

Now I'll hand it over to Francisco.

[Francisco Rico-Martinez, Regional Director, Toronto, Ontario Council of Agencies Serving Immigrants (OCASI)]

We are basically focusing on youth and racialized youth because these are the people we serve in the different community-based organizations, and this has been an issue identified by our members.

A 2010 Toronto Star investigative series on Toronto police data for the period 2003 to 2008 found that black men ages 15 to 24 years are stopped and documented 2.5 times more than white males the same age. The finding echoed a similar analysis of data the Toronto Star conducted in 2002.

The overrepresentation of visible minorities in the prison system is rooted in factors of poverty, economic inequality, and historical prejudice. That includes the over-policing of young black men, a practice that results in racial profiling. The existence of racial profiling by police is well documented. It has been acknowledged to different degrees by various police services in Canada, including the Kingston police chief in 2005.

Racialization of poverty has been growing in Canada, including among the working poor. Racialized individuals do not have the same access to the labour market as everyone else has. This was documented in a recent report on Canada’s colour-coded labour market, published by the Canadian Centre for Policy Alternatives.

In their study, “Review of the Roots of Youth Violence”, Roy McMurtry and Alvin Curling have said that while poverty does not lead to violence, it can be one of the factors in play. They point out that poverty without hope, poverty with isolation, poverty with hunger and poor living conditions, poverty with racism, and poverty with numerous daily reminders of social exclusion can lead to the immediate risk factors for violence.

They note that lack of investment in services for those affected by these circumstances will have a deep impact on young people, leaving them with few choices for their day-to-day needs, even such needs as a quiet place to do homework. They note that these challenges can be exacerbated for those who have issues with language and cultural differences.

Clause 24 in Bill C-43 will have an unintended and disproportionate impact on black and other racialized permanent residents, particularly youth, a population that has been historically disadvantaged in Canada, and is already subject to routine suspicious scrutiny, negative stereotyping in media, and is often faced with longer sentences.

Corrections Canada's experience with visible minority offenders is described as follows in the study mentioned earlier:

In summary, visible minority offenders seem to be less “entrenched” in a criminal lifestyle than Caucasian offenders. They tend to have less extensive criminal histories, are incarcerated less often for offences against the person, and are lower in risk and need than Caucasian offenders. They also tend to have higher levels of education, less unemployment, and are less often single.

The study notably concludes that these circumstances may help in rehabilitation.

Bill C-10 has become law, and has introduced minimum sentencing. It will mean that even some non-violent crimes will carry a sentence of six months, making sure that those permanent residents will be deported from Canada.

Those who are subject to this provision can be deported regardless of how long they have lived in Canada. They will not have the right to appeal. There will be no consideration of the circumstances of the offence and potential for rehabilitation. There will be no consideration of the length of time they have lived here or their ties to family and community.

Individuals who have lived all their lives in Canada, particularly those who came as infants or young children, would lose families, friends and communities when they are deported to a place they barely know or remember from before. They will have no family or community connections over there. Unlike Canadian citizens, permanent residents will be punished twice for committing a crime.

We urge you to seriously rethink this bill, particularly the severe implications for young, visible minority Canadian residents. We strongly recommend that clause 24 be withdrawn, allowing the right to appeal to stand. We also encourage you to ensure that young Canadian residents are fully informed of the impact of Bill C-43 through avenues such as school curricula, as well as through other opportunities and campaigns, because this is going to have a serious impact in the communities that we serve.

Thank you very much.

[The Chair, Conservative, David Tilson]

Thank you, sir.

We will now have some questions, first from Ms. James.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chair and thank you to our guests, some of whom are back for another time.

I'll ask Mr. Rico-Martinez a couple of questions first. You've said we need to rethink this bill specifically because of young, visible minority residents; I believe I wrote that down correctly. You seem to be indicating there's an imbalance in our federal penitentiary system. I'm wondering whether you're making excuses for people who commit crime. When you say that we need to rethink it because of a specific group, I have a bit of a problem with that because you said they have few choices of where they can do homework, maybe their language or cultures are different, maybe their skin colour is different.

I simply want to let you know that I know lots of people who fit those categories, but they do not commit serious crimes. I'm wondering why you substantiate your viewpoints based on those specific things and why you're against this bill. That's the problem I have with your statements.

I'm wondering whether you're making excuses for people who commit crimes and why you think we need to make excuses for people who commit crimes because, again, lots of people who fit those descriptions have few choices, to do homework, maybe come from a background where they're not wealthy and have language or cultural differences.

[Francisco Rico-Martinez]

First, it is not my opinion. I was quoting the studies from which we took this information. Even though we are not experts in the penitentiary system, the over-population, all the situations there, we did our research to show you that the population we serve in our agencies, community-based organizations, are racialized communities and a lot of them face a lot of isolation and discrimination and many other barriers, such as poverty, etc.

The majority of people whom I serve don't have a problem like this, but once in a while there is a problem of a youth, a person who makes a mistake. We are not talking about the crime; we are talking about that particular individual and their need to not be removed from Canada. They need protection. They need education. They need many other things that we can provide here that they won't have over there. Plus, we are talking about them having the chance to be rehabilitated after making one mistake. This is one of the areas we want you to focus on.

We are asking to give them the chance—

[Roxanne James, Conservative, Scarborough Centre, ON]

Mr. Chair, I've got my answer, but I'd like to ask more questions in relation to that.

[The Chair, Conservative, David Tilson]

I think she wants to ask another question.

[Roxanne James, Conservative, Scarborough Centre, ON]

I understand what you're saying is that you based that on studies. Again, the study that says there might be a disproportionate number or whatever isn't a reason to excuse people who commit crimes.

I'm going to leave it at that and direct some of my questions to Mr. Shore now.

I saw in your bio, and you did mention it earlier, that you actually were a co-lead counsel for the Air India Victims Families Association with regard to the Air India bombing.

[Jacques Shore]

With regard to the inquiry, yes.

[Roxanne James, Conservative, Scarborough Centre, ON]

Yes, that would have been something to be involved with, so I commend you for doing that.

I was going to ask you if you've talked to victims' groups or victims of crime. I suppose that probably answers my question, but I'm wondering if you could speak to that. People who are not Canadian citizens who commit a serious crime, what is the impact on those families of the victims themselves? Sometimes the victims are no longer here; they're not alive.

[Jacques Shores]

Absolutely.

[Roxanne James, Conservative, Scarborough Centre, ON]

Can you speak to what the impact is on Canadians when something like this happens?

[Jacques Shore]

Thank you Ms. James.

My comments are observational. I have had the chance over the years to work with a number of groups and organizations that address issues on behalf of victims of crime, including the Canadian Coalition Against Terror.

There is a sense of frustration that the system is not working, when you look at individuals who have been victims of crime and when you see potential for reoffending by those who are here in Canada but do not do what is necessary to respect the system, to engage in the system in a meaningful way, as I shared in my remarks.

I have come across, as my colleagues on the panel have said, outstanding immigrants who come to Canada. We are a nation of immigrants. I do think individuals who come to Canada as permanent residents have a sense of responsibility.

You look at those who are victims of crime. In the specific instance that you mentioned, Ms. James, I am dealing with the tragedy, post-Air India bombing where there are families. We know very well there are individuals who have committed heinous crimes and are here. Our system hasn't been able to address them in the way they would want. I think this is a demonstration of the frustration, which is why I applaud the government for taking a step.

[Roxanne James, Conservative, Scarborough Centre, ON]

I listened to your opening remarks. You indicated that you agree with the provision to remove the right to appeal deportation. You're a lawyer so you obviously know the judicial system inside and out. I just want you to comment on the fact that people who are convicted or who are charged with a crime actually have the right to go through the judicial system and have the right to appeals.

[Jacques Shore]

There still is a ministerial ability to be able to address, in certain circumstances, those cases that should be reviewed. There are limits as a result of section 42.1 as proposed right now, but there are still opportunities for the minister, or those designated by the minister, to ensure that in instances where it would be a grave injury to send someone out of the country, they could do that.

There are safety valves for some of the categories. You are correct, Ms. James. I think we have a judicial system that is fair, that is exceptional when we look around the world at how fortunate we are. I would say that it gets to a point where once you have exhausted those appeal processes in the context of criminal trials, it should suffice.

[Roxanne James, Conservative, Scarborough Centre, ON]

We talked about the impact it has on victims of crime, but is there a cost associated with that?

[Jacques Shore]

I made reference to the frustrations. Again, it is purely observational through the years of work that I have done. Looking at the way we have only so much ability to address the backlog of cases, whether it is in the immigration appeal division, our courts, and ultimately the Federal Court of Canada, there's only so much one can do to end up with a system that ensures that justice is addressed within a timeframe that is acceptable.

[The Chair, Conservative, David Tilson]

Thank you Mr. Shore.

Ms. Sims.

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

Thank you very much and thanks to all three of you for giving up your time to participate in this critical debate. I certainly appreciate your contributions.

Having taught for years and dealt with students from diverse backgrounds and, over the last number of years, looking at research, Francisco, I certainly agree with the very factual information you put in front of us about certain students from diverse communities, from lower socio-economic communities, representing a higher proportion of those who are in our penitentiaries. That's a known figure. That's just a fact. That is not making excuses, but what it does to us as a government is it challenges us to look at some of the circumstances and conditions that cause that and it gives us pause to reflect.

From the work that OCASI does, and the vast majority of your work was with newcomers, I think we are in agreement that most new Canadians, people who come to Canada are law-abiding people who simply want to come to this country to make a better life for themselves and their children. They have all come here for different reasons and by different routes, but eventually they want a better life. As Jacques said, we are a country built by immigration and we're proud of that.

While on this side of the table we support the efforts to make sure violent, serious non-citizen criminals are removed from Canada quickly, we need to accept that they are a tiny minority.

In fact there is no evidence to suggest that permanent residents are any more prone to commit crime than citizens are. We really wish this government would make more effort to ensure the vast majority of law-abiding newcomers are treated fairly and can be reunited with their loved ones and provided the support system they need.

Sadly, we have a minister on the committee who seems keen on spending most of his time talking about immigrants as bogus—

[The Chair, Conservative, David Tilson]

Stop the clock for a minute.

Ms. Sims, it's your dime and you can talk about anything you like as long as it's on topic—

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

This is on topic.

[The Chair, Conservative, David Tilson]

Those sorts of comments could be left for debate when we debate the clauses. We're not in clause by clause. We're asking questions of witnesses, and you're making statements, which you're free to do, but I'm telling you that these guys over here are being held back. They're going to go at you, and I will not stop them if you continue to attack the minister.