Justice Committee on Nov. 23rd, 2011

[Françoise Boivin, NDP, Gatineau, QC]

This may come up another day, some other time in another amendment proposal, to correct the form. It does not create a problem of substance.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

We will resume our study of clause-by-clause.

We're at clause 206, and I believe the NDP—

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

It's clause 205.

[The Chair, Conservative, Dave MacKenzie]

I'm sorry.

We're at clause 205.

Mr. Harris.

(On clause 205)

[Jack Harris, NDP, St. John's East, NL]

Clause 205 is the introductory clause to the Immigration and Refugee Protection Act. The purpose of the act being amended is “to protect public health and safety and to maintain the security of Canadian society”.

We don't have any major objection to this particular amendment, but we do have a problem with the amendments to that act and we will deal with them as we go through. I'll just say at the outset that we're concerned that the Immigration and Refugee Protection Act changes were initially designed, or at least the government's intention was announced that the purpose of this was to protect applicants for work permits in Canada from potential exploitation.

Our view is that the way to protect foreign workers from exploitation is to ensure the laws within Canada that should be protecting workers ought to be robust and enforceable. The perceived wrong was really about a political response to something that happened in Toronto back in 2006, with the potential for issuing work permits to strippers—or exotic dancers, I think is the term that's used for certain people entering into Canada for that purpose—and the potential abuse of the law. The reality, of course, was that there were apparently only four permits given in the year this was raised as a political issue. So this seems to us to be a political response.

The real objection to the changes comes in the broad nature of the instructions that are essentially non-transparent and give untrammelled discretion to the minister to issue instructions in relation to this matter with respect to work permits—not only instructions that may be given by the minister, but instructions that would not necessarily be public.

They won't be in regulations. They wouldn't be gazetted. They wouldn't be made public. And it could happen by the minister's own issuance of same. The instructions still offer the opinion of the officer as to what the minister's instructions are, as opposed to an evidence-based decision.

In our amendments we are also proposing some independent evaluation of those, as we have done in other sections of the act. I understand there may be some rulings about that, but we will be able to nevertheless demonstrate that what we seek is to improve this legislation. If it cannot be improved by adding some independent adjudication or clarity with respect to what instructions we're talking about here, we would therefore be opposed to them.

Having said that, Mr. Chair, we will support clause 205. I don't know if my colleagues want to say anything else.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Harris.

I'm not sure you're right on the reason for the bill, but I think you're wrong on the date. I think it was somewhere in 2004 or 2005.

Having heard the intervention, shall....

Mr. Cotler, I'm sorry.

[Irwin Cotler, Liberal, Mount Royal, QC]

I have a small point, Mr. Chairman.

Maybe I shouldn't be staying up at night reading these things, but this clause starts the section by modification to the Immigration and Refugee Act, and in particular the clause specifies the objectives of the act, which includes in (h) to protect the health and safety of Canadians and to maintain the security of Canadian society.

The change adds the word “public” before “health”, and I have no problem with that, but it removes the words “of Canadians”. So now it reads “to protect public health and safety”—removes the words “of Canadians”—“and to maintain the security of Canadian society”.

Now it may be that the words “of Canadians” didn't mean anything initially and therefore their removal doesn't mean anything now, but I was struck by the fact that they were removed. I am going to ask the witnesses if they could assist us in why they might have been removed, and maybe there's no consequence to the fact that they were.

[Philippe Massé, Director, Temporary Resident Policy and Program, Department of Citizenship and Immigration]

Good afternoon.

The intent of the removal of “of Canadians” was to make the objective not specific to Canadians but to any person who would be present in Canada. So it's to actually make it more general, to include both Canadians and any foreign person who would be here temporarily.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Chairman, I have no problem with that. I thought that's what it might have intended, but I think we should know, because that does change the scope of the act just by removing those two words.

That's all.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Actually, I was going to attempt to answer Mr. Cotler's question. The officials have done that, and I agree that it does broaden the protection offered by the act.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

(Clause 205 agreed to)

(On clause 206)

Mr. Harris, I believe you have an amendment, NDP-56.

[Jack Harris, NDP, St. John's East, NL]

Yes. Amendment NDP-56 amends clause 206 on page 101, by replacing lines 8 to 10 with the following:

the refusal is justified on the evidence and by the public policy considerations that are specified in the instructions given by the Minister.

[The Chair, Conservative, Dave MacKenzie]

Now, do you want to move the other two motions? If you do, I have some comments.

[Jack Harris, NDP, St. John's East, NL]

They are on the same clause, I guess, so perhaps I should do that, so that we can speak to all three of them, as we did yesterday when we were doing this.

NDP-57 adds after line 13 on page 101 the following:

A foreign national who is refused authorization to work in Canada in accordance with this section shall, on application, be given a hearing, conducted by an independent adjudicator appointed by the Minister, to determine the merits of the refusal and, if the adjudicator is satisfied that the refusal is not justified, he or she may authorize the foreign national to work or study in Canada if the conditions referred to in subsection (1.1) are met.

NDP-58 replaces line 19 with the following:

Before instructions are given by the Minister in accordance with subsection (1.2), the Minister shall submit, for approval, any proposed instructions to the Standing Committee on Citizenship and Immigration of the House of Commons or, in the event that there is not a Standing Committee on Citizenship and Immigration, the appropriate committee of the House. The instructions, once approved, shall be published in

And the follow-up is the Canada Gazette.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Harris. I do have a ruling for you on NDP-57. Part 5 of Bill C-10 amends the Immigration and Refugee Protection Act to allow officers to refuse to authorize foreign nationals to work in Canada in some cases. This amendment seeks to amend the bill so that the minister would appoint an independent adjudicator who would conduct a hearing to determine the merits of a refusal.

The House of Commons Procedure and Practice, second edition, states at pages 767 and 768:

Since an amendment may not infringe upon the financial initiative of the Crown, it is inadmissible if it imposes a charge on the public treasury, or if it extends the objects or purposes or relaxes the conditions and qualifications specified in the royal recommendation.

In the opinion of the chair, the appointment of an independent adjudicator would entail expenses not currently provided for and would require a royal recommendation. Therefore, I rule the amendment inadmissible. That's on NDP-57.

On NDP-58, part 5 of Bill C-10 amends the Immigration and Refugee Protection Act to allow the Minister of Citizenship and Immigration to give instructions regarding considerations taken into account by officers when refusing to authorize foreign nationals to work in Canada.

This amendment proposes to seek parliamentary approval for the instructions. As the House of Commons Procedure and Practice, second edition, states on page 766:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

In the opinion of the chair, seeking approval of the instructions by a committee of the House is a new concept beyond the scope of Bill C-10. It is therefore inadmissible.

Mr. Harris, do you wish to speak to NDP-56?

[Jack Harris, NDP, St. John's East, NL]

Yes, I do, Chair.

I'll be speaking for about five minutes, and my colleague will speak after that. I'm going to put my stopwatch on and try to keep track of the time, although I know we're being a little bit flexible.

I will point out that these amendments to the Refugee Protection Act were first introduced in 2007. That is the year I was referring to earlier. You may be correct that the incidents we talked about happened earlier, in 2005. In 2006 the Honourable Diane Finley, who was then Minister of Citizenship and Immigration, announced the amendments to the act to help prevent, as she said, vulnerable foreign workers, including strippers, from being exploited or abused.

From the background information I have there were actually only four individuals in 2006 who were given permits to enter Canada as exotic dancers. So I don't know how big a problem we're trying to identify here to deal with. If it's specific to that, the wording itself is extremely broad, if we consider that as being the stated purpose of the legislation.

We have a concern here that the government has used this as an opportunity to significantly broaden the powers of the minister, as well as the immigration officials who have to make determinations. The Canadian Bar Association, for example, stated that the undefined scope of the legislation and the potential applicability to any work permit or any situation is a matter of concern. The conflict between the public statement focus on exotic dancers and trafficked persons and the unrestrained language of the legislation is an obvious incongruity that begs explanation.

A whole series of questions are outlined in the brief of the Canadian Bar Association as concerns that the minister is being given an opportunity to give very broad instructions that will not be seen by anyone before they are put into effect. They do get published eventually in the Canada Gazette, but they're not subject to any parliamentary scrutiny beforehand. Hence there's our suggestion in another amendment, which was ruled out of order, that this be given the appropriate parliamentary oversight.

As I said at the outset in talking about clause 205, if the purpose is to protect people from being exploited in Canada, the laws of Canada should protect them. We want to see greater protection for workers. People who come to Canada to work in general are often in vulnerable industries. Exotic dancers are obviously the clear exception to this, but there are many industries, whether it be the textile industry.... Sometimes it's a situation where a family might have them come to work and they don't necessarily have language skills. There is an awful lot of opportunity for vulnerable workers to be exploited within Canada.

The solution is not to prevent workers from coming. They may be necessary workers in Canada. If the working conditions themselves are potentially exploitive or bad, the answer is that there has to be better protection for workers by having strong Canadian laws to ensure that workplaces are not unsafe; that workers are not able to be exploited; and that the enforcement is sufficient to ensure that people cannot and will not be exploited if they come to Canada to work.

So we don't believe in the broad nature of this. We don't think the minister ought to be given this broad power to issue instructions that then become a separate code under which the opinion of the immigration officer is given effect.

My colleague Madam Boivin would like to use the remainder of the time.

[The Chair, Conservative, Dave MacKenzie]

I believe there are about three minutes left.

[Françoise Boivin, NDP, Gatineau, QC]

That is fine, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

You used up two of them in your opening.

[Françoise Boivin, NDP, Gatineau, QC]

That is fine, since in any event Mr. Harris has addressed the main elements of the objections that prompted us to propose this amendment.

Once again, I want to clarify something. Sometimes, people think we introduce a few amendments just for the joy of introducing them. But when we look at what the amendment adds and combine it with the section as proposed by the government, it gives the following text: "Despite subsection (1.1), the officer shall refuse to authorize the foreign national to work in Canada if the refusal is justified on the evidence and by the public policy considerations that are specified in the instructions given by the Minister."

The only thing we are adding is from the standpoint of natural justice and with that objective. I think that in Canada's characteristics, questions of natural justice are still important. We are simply adding the worlds "on the evidence and by the public policy considerations", this is the only addition to this clause we are proposing. It seems self-evident to me. When a decision is to be made in a situation like this, in addition to public policy, the evidence has to be included in the instructions given by the Minister. Therefore, in terms of the evidence needed under clause 206, there has to be...

Once again, this is not something cosmic, it does not completely change the system, it will not shake Canada to its foundations. If we are really going to protect exploited people, we want a hearing to be held. It has to be based on the evidence that would be presented to the officer who is to make the decision. That is self-evident.

I am also sorry that we could not be talking about an independent adjudicator. It seems that this would change the effect of the bill. For an officer to make a decision that is then reassessed by an officer in the same department seems to me to be a somewhat redundant and not particularly transparent situation.

So in other words, I bow to the decision by the committee chair, who I would also note is doing a good job. It is not easy to do what we are doing here and it is less easy still for the committee chair.

This is not a huge amendment. It is being presented simply to provide clarification. It is covered by the completely reasonable principles that apply to administrative law and fairness.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Madam Boivin.

(Amendment negatived)

(Clause 206 agreed to)

[The Chair, Conservative, Dave MacKenzie]

On clause 207, I do not see any amendments.

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Clause 207 relates once again to the instructions.

[The Chair, Conservative, Dave MacKenzie]

I believe we will suspend now that the bells are ringing. We will come back to clause 207 as soon as the vote is finished.