Citizenship and Immigration Committee on Nov. 28th, 2012

[The Chair, Conservative, David Tilson]

Indeed.

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

Much has been said about clause 24 at this committee as it redefines “serious criminality” to crimes punishable “by a term of imprisonment of at least six months”, which has the effect of precluding access to an appeal. Many witnesses raised serious concerns about the types of crimes that could fall into this new definition.

We know there is a major difference of opinion around this table and among the witnesses we heard about what constitutes a serious crime. I don't want to rehash that debate here at any length. Our major concern is that this clause limits due process for permanent Canadian residents, many who have been here their whole life and know nothing about the culture or language of the countries they would be deported to.

On the weekend the Ottawa Citizen ran a piece called “Canada's new exiles”. It details the case of a young Somali man being deported to Mogadishu, one of the most violent and dangerous places on earth, this despite having no connection to that troubled country. The piece goes on to point out, as many of our witnesses did, that it is not uncommon for immigrants and refugees who arrive as children to assume they are citizens, who never put their minds to the question until the government moves to deport them.

With all of this in mind, I am moving an amendment that seeks to mitigate some of the worst effects of this clause. It does two important things, which I will address separately.

First, we make a very modest proposal that we exempt conditional sentences from the terms of imprisonment, thereby ensuring that convictions that are not as serious as more egregious crimes, as is the case with conditional sentencing, do not get caught by this provision. This was a suggestion made by the Canadian Bar Association and others during their testimony.

In fact, the national president of the Canadian Somali Congress said to this committee last week, “We should definitely make an exception between conditional sentences and jail. In it's current form, the Bill does not do that. So you can have a situation where a permanent resident facing jail time may be sentenced by a judge in the community's interest to conditional sentences due to the fact that that person is gainfully employed. But because of the nature of conditional sentences, conditional sentences take longer to fulfill by their very nature. But ironically, that would actually lead to the capture of this person with this legislation because it would exceed six months.”

The second thing this amendment does is it seeks to restore access to an appeal for those convicted of crimes outside Canada or for those who have committed acts outside Canada. We believe it is the immigration appeal division that is the appropriate body to properly evaluate those cases. We know that in many countries simply being a member of an opposition political party can get you charged and convicted of a serious crime. Due process to evaluate these cases is essential in a free and democratic country like Canada.

I would ask members to seriously consider this modest amendment to clause 24. While we oppose the principle of denying due process, we believe this amendment significantly moderates clause 24.

[The Chair, Conservative, David Tilson]

Okay.

Ms. Sitsabaiesan.

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

Thank you, Mr. Chair.

I just want to add a little more to what my colleague has spoken about. I want to reiterate the fact that clause 24 redefines serious criminality to crimes punishable by a term of imprisonment of at least six months, which has the effect of precluding access to an appeal.

Access to an appeal is a very important piece of our immigration system and of a fair, transparent process. We have heard from many witnesses that they also agree that there exists a need for due process, and that eliminating the right to appeal for permanent residents is a grave concern in this legislation as it is presented.

We also heard from witnesses their concerns for individuals who would now be denied their due process. Two of the examples that came up again and again were individuals who came to Canada as children, lived most of their lives in Canada without any family connections to their country of birth, and some may not even speak the language of their country of birth, yet they could now be returned to that country without the opportunity of an appeal.

The second example that came up again and again was individuals who may have mental health issues who would fall through the cracks. It's also reasonable to exempt conditional sentences.

Once again, I am just reiterating things that we heard from witnesses. This very reasonable amendment would make it so that, for example, that child is not caught up in the provision.

It could have been me, if my father had not been with it enough to know the Canadian immigration and citizenship process, and Canadian laws. He knew that we weren't deemed naturalized citizens just by being here for a certain number of years and that we needed to apply for it. I could have been that child. It's not that I was going to be involved in criminal activities, but I am a person who was born outside this country and came here as a young child. I don't really know many people in my country of birth nor have I maintained those family connections. If I were to be sent back, I would be lost and would not be able to continue life in a very meaningful way.

Mr. Chair, I don't know what the member across is saying; I couldn't hear.

[The Chair, Conservative, David Tilson]

It's probably just as well. Go ahead.

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

I think it is important that individuals have access to an appeal. That's a star feature of ensuring due process and a fair judiciary and it's a very important piece of our immigration system. This amendment really does capture that and is a very fair amendment in that sense.

[The Chair, Conservative, David Tilson]

Thank you.

We'll have Mr. Dykstra and then Mr. Lamoureux.

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

I find it interesting, Rathika, that you would use yourself as an example. One, I don't think you would ever consider committing a serious crime, and two, you have been back to your country of origin.

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

I have never been there.

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

I thought you had been.

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

I have never been back since I left, just because of the war.

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

I remember when we talked about this in the summer when I had gone, and you said you thought you were going to go, so I'm sorry, I thought you had been there.

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

No, I have never been back for fear of my life.

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

The other aspect of this that needs to be noted, and perhaps Ms. Clarke or Ms. Sadek could confirm that under the Immigration and Refugee Protection Act, serious criminality is actually not changing.

I think there is a little confusion around the fact that, while the timeframe from two years to six months is changing in terms of what would be considered the timeframe of a sentence you would receive for a serious crime, the Immigration and Refugee Protection Act is not changing. It's remaining consistent with what has always been there. It doesn't include parole. The only thing that changes is the timeframe. Perhaps we could have staff confirm that what I've said is correct.

[The Chair, Conservative, David Tilson]

Ms. Clarke or Ms. Sadek?

[Jillan Sadek, Director, Case Review, Department of Citizenship and Immigration]

The definition of serious criminality is found in a different section of the Immigration and Refugee Protection Act, which is section 36. It has not been affected by the amendment to subsection 64(2). That definition remains the same and, actually, it doesn't necessarily require any time served in jail to meet the definition of serious criminality.

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

I'm not quite sure. During the testimony from witnesses there was an attempt to clarify and get folks to understand that this aspect of the Immigration and Refugee Protection Act actually was not changing. It remains consistent. It's the same as it was prior to this bill and it will be the same when this bill passes. This amendment actually isn't necessary.

[The Chair, Conservative, David Tilson]

Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Chair, I'm going to be supporting the amendment. I'm going to reserve my full comments until the next amendment, where I'll address both the NDP amendment and the one that I'll be proposing.

[The Chair, Conservative, David Tilson]

Okay.

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

I would like a recorded vote, please, Mr. Chair.

[The Chair, Conservative, David Tilson]

We will have a recorded vote on amendment NDP-8.

(Amendment negatived: nays 6; yeas 5 [See Minutes of Proceedings])

Mr. Lamoureux, would you move LIB-12.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Chair, I move that Bill C-43, in clause 24, be amended by replacing lines 6 and 7 on page 8 with the following: ment of at least six months that is not a conditional sentence and was not committed by a foreign national who proves by any means that he or she has habitually resided in Canada since the age of 13 or younger or has lawfully resided in Canada for more than 20 years.

In attempting to explain this, I'll try to stick to the script and then provide a few comments after that, Mr. Chair.

This change would exempt those living in Canada since the age of 13 or younger or those who have resided in Canada for at least 20 years from being affected by the deportation change of two years to six months. This not only addresses issues surrounding the punishment of long-term permanent residents, but it is modelled after the French legislation.

I'd like to point out that the government routinely references other European countries that have similar laws and it would make sense that we incorporate this one as well. It also removes conditional sentences from being considered.

First off, I would like to say that the Liberal Party does not agree with the change from two years to six months for deportation. The amendment we are putting forth is only to improve, if every so slightly, a severely flawed clause. I would like to point out that Richard Goldman sent correspondence last week citing the Alberta Court of Appeal decision. All of us should be very much concerned. The ruling that he attached indicates that Alberta does not consider immigration implications when regarding a decision. I think that's a very important thing to recognize as a committee. In fact the decision states in paragraph 23, “Furthermore, it would be a strange and unfortunate legal system wherein a non-citizen could expect to receive a lesser sentence than a citizen for the same crime. No such distinction should be countenanced.”

I bring this up because in deliberating the six-month sentence many government members incorrectly contend that all criminal courts take into consideration immigration when making a decision, and therefore, the deportation change to six months is seen as being warranted.

As many of you have now seen the correspondence, as it was sent to all committee members, this notion that immigration matters are considered across the board in Canada is incorrect, and I fear it will cause members to pass a clause that ultimately is based at the very least on a glaring falsehood.

If the government is truly intent on passing clause 24, I ask that they at least consider this amendment that would put us more in line with what France has in their legislation.

Further to that, Mr. Chairperson, I want to pick up on two observations I have made.

I believe not taking into consideration conditional sentences is a serious mistake. I sat on and chaired a youth justice committee and am very familiar with different forms of dispositions that are given to people. Quite frankly, conditional sentences are something which I think do have a role to play in our judicial system, which I respect as being independent. I believe it would be a mistake to incorporate conditional sentences in this because a judge has in essence taken into consideration the severity of a particular crime when he or she hands down a conditional sentence. I think we need to make note of that particular fact. I think other presenters have also noted that.

The other thing is that I modelled the whole 13 years and under 13 based on what was being suggested in France. I have personal opinions on that issue, but at the end of the day, I think we've had presenters who, and I would have thought most members of the committee would recognize that for young people who come to Canada at two years of age and have been living in Canada for 20 years or more, Canada for all intents and purposes is their home.

To consider deporting, because of what some might determine is a serious crime, someone who came to Canada as an infant.... An example I used quite often during the committee process is that of the 20-year-old man or woman who uses false identification to cross the border, for whom the ramifications of doing so ultimately could see that person deported.

I believe that would take place. If that's not the case, I would love to see an actual legal opinion saying that it is not the case. There is a discussion that we should be having here in committee before we start to say that anyone under the age of 13 is going to be deported because of what the government or some people might say is a serious crime.

We even passed legislation saying there would be a minimum sentence for six pots of marijuana. It has been pointed out that this is only for trafficking purposes. There are a number of young people who, in their teenage years, traffic some marijuana in high schools. We know it's going on there. Once they hit university, quite often they will stop; hopefully they find different ways to make income. We're not going to condone that sort of behaviour, but the reality is that it does happen. This would receive a minimum sentence.

Is it proper to deport someone in a situation like this, when they grew up in Canada? I think not, and equally I think not in the example I used in regard to using false identification in order to gain entry to the United States and have a drink to celebrate with their peers who have graduated from high school or a university.

I hope members will seriously contemplate supporting this particular amendment.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Lamoureux.

Mr. Dykstra.

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

I'm not going to speak for very long, Mr. Chair, but I want to point out the reason that we won't be supporting it. There are a couple of things.

I'm not sure why the age of 13 has been used. If another country had done it, I guess that would be one reason, but it's really arbitrary, and I'm not sure it's based on any evidence. You can rest assured there would be court cases galore for those who are 13 years and one day or 13 years and two days. Why wouldn't they be moved into this? Why was the age of 13 chosen? By not choosing an age, the clause in the bill itself treats all permanent residents the same and is fair.

We've made this argument a number of times. I know there are hypothetical extreme examples that come forward. I haven't heard yet of an actual case in which this occurred under the current legislation.

We want to be consistent. We want to make sure that those who commit a crime have an opportunity for appeal. They'll have at least that opportunity with the Federal Court.

It comes back to one specific piece, and most of us have reiterated it time and time again. Even the opposition would agree that if you're going to come to Canada, regardless of whether you come at the age of two years or at the age of 40, if you don't want to be removed from this country, then don't commit a serious crime. If it isn't a serious crime, you'll be given consideration, obviously, but if it's a serious crime, you will face the potential of deportation. I don't think it can be better explained than being as pragmatic as that.

The only other point I would add to this is that I don't know why it is, but at a certain point.... Both my parents were immigrants to this country, and they didn't seek citizenship immediately after they arrived here or after the period of time. But within seven or eight years of arriving in Canada, they both applied for Canadian citizenship.

I fail to understand why a person who has lived here for 30 or 40 years doesn't feel it necessary to get Canadian citizenship. I'd like to think that it's another option they would like to pursue so they wouldn't have to.... If the person wants to lead a life of crime, he or she would probably be better off to become a Canadian citizen, believe it or not. Otherwise, the person is going to remain a permanent resident and will face what could potentially happen for committing a serious crime.