Debates of Dec. 12th, 1994

Immigration Act

[Sergio Marchi, Liberal, York West, ON]

Mr. Speaker, with all due respect that is exactly what I am doing. I am speaking to the first group of amendments. I am not talking about the day parole or the unattended escort. That I know will be debated at the very end. I am debating the motion put forward by the Bloc which would not allow the senior immigration officer to remove an individual with two contraventions but would have to move the person through an inquiry.

We should try to make the system more efficient. Yes, an individual must be given full rights under the law but where there has been a contravention of the act I do not think an individual should be permitted to stay just because there are two contraventions. If there was one minor contravention that individual would have been removed. I do not see the logic of the current legislation. That is why I oppose the series of amendments in group one.

[Maud Debien, Bloc, Laval East, QC]

Mr. Speaker, I would also like to talk about the motions introduced by my colleague for Bourassa. Of course I will not list them all. I would simply like to say that the motions which are being debated seek to

amend Bill C-44, and in particular clause 3(2) and (4.01) and, of course, the corresponding references.

I would like to take a few minutes to talk about the general scope of those motions, particularly with respect to subsection (4.01), which confers a wider jurisdiction to the senior immigration officer at the expense of the adjudicator and this transfer of authority seems unjustified to us.

Indeed senior immigration officers who are in fact officials of the Department of Citizenship and Immigration would be given greater powers at the expense of the fair treatment provided for by the quasi-judicial mechanism, that is, the power of the adjudicator.

Subsection (4.01) confers and re-inforces what was already provided for in the act, namely the concept of expeditious justice without any procedural guarantees and without the presence of a lawyer or a counsellor.

Besides being authorized to make exclusion orders against certain persons already referred to in section 19 of the act, under Bill C-44, the senior immigration officer will be allowed to make an exclusion order against all classes of inadmissible persons, to order an inquiry and to allow such persons to leave Canada forthwith.

Obviously, in our opinion, the government is slowly dismantling the arbitration structure for the benefit of its officials. We should be concerned about that and reject the measures proposed to that end. This is the precise purpose of the motions that the hon. member for Bourassa explained so well.

[The Deputy Speaker]

Is the House ready for the question?

[Some hon. members]

Question.

[The Deputy Speaker]

The question is on Motion No. 1. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[The Deputy Speaker]

All those in favour will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker]

In my opinion, the nays have it.

And more than five members having risen:

[The Deputy Speaker]

Pursuant to Standing Order 76(8), the division on the proposed motion stands deferred.

Motions Nos. 13 and 14 will be grouped for debate but voted upon separately.

[Osvaldo Nunez, Bloc, Bourassa, QC]

moved:

Motion No. 13

That Bill C-44, in Clause 12, be amended by replacing line 21, on page 11, with the following:

"years or more may be imposed and the person was sentenced to a term of imprisonment of two years or more and the".

Motion No. 14

That Bill C-44, in Clause 12, be amended by adding after line 23, on page 11, the following new section:

"12.1 The Act is amended by adding the following after subsection 53(1):

"(1.1) Paragraphs (1)( a ) to ( d ) do not apply to a person a ) who was admitted to permanent residence in Canada before attaining the age of ten years where it is demonstrated that the person has no emotional or other ties to the country to which it is proposed the person be removed, or b ) who has been admitted to permanent residence in Canada and has resided in Canada for ten years or more since being admitted.''.''

Mr. Speaker, the second group of motions being debated concerns the deportation of permanent residents who have been convicted of an offence for which a term of imprisonment of ten years or more may be imposed. Clause 12 of Bill C-44 describes the circumstances under which convention refugees may be removed.

The bill provides that any person who has been convicted of an offence under any act of Parliament for which a term of imprisonment of 10 years or more may be imposed may be sent back to his or her country of origin. Maximum terms of ten years or more are handed out for offences, many of which are listed in the Criminal Code, such as use of a forged passport, theft exceeding $1,000, unauthorized use of a computer, counterfeiting stamps, and so on.

Clause 12 does not differentiate between serious or major crimes and minor crimes that have no serious consequences for Canadian society. In other words, the bill does not take into account the actual duration of the sentence imposed on an individual for a given offence. This amendment will prevent potential injustices that would result from the application of this provision.

Our amendment will prevent individuals who committed minor offences from being sent back to their country of origin. It ensures that the bill recognizes the seriousness of the offences in question and the actual duration of the sentence imposed on permanent residents convicted of offences considered serious.

We think that the maximum sentence should be reduced from ten years to two and that only the actual duration instead of the maximum sentence should count.

Our second amendment to this clause is to prevent the deportation of permanent residents who have resided in Canada for a long time.

As it stands, the bill does not provide any protection to permanent residents established in Canada for a long time who, therefore, have little or no emotional ties to their country of origin. This is presently the case of many people in Canada.

Let us not forget that there are many people in Canada who have been living here for many years without having acquired Canadian citizenship. Some residents do not want to lose their original citizenship while others are not even aware that they are not Canadian citizens because they were admitted to Canada when very young.

Our amendments will protect these people's most fundamental rights. As a result, those admitted to permanent residence in Canada before attaining the age of 10 years and those who have resided in Canada for 10 years or more are exempted from this section.

Unfortunately, the Liberal majority on the Standing Committee on Citizenship and Immigration did not take into consideration the numerous contributions and recommendations proposed by the organizations and individuals who appeared before the committee. They were very concerned about this situation, and we deplore the fact that although this majority on the Standing Committee on Citizenship and Immigration invited organizations and individuals from across Canada, the committee and the Liberal majority did not take into consideration their very worthwhile contributions to the committee's discussions.

Many of the briefs, particularly the one from the Quebec immigration lawyers' association, suggest creating a non-deportable class. Our amendments, in this motion, reflect this concern which we share entirely.

We also tabled this amendment because of family considerations. You may have heard of the European Convention on Human Rights. There is a European Commission of Human Rights. The European Court of Human Rights has ruled that deportation orders interfere with the law and with respect for family life under section 8 of the convention, arguing that it must be demonstrated that government decisions likely to restrict family rights are necessary in a democratic society, that is, justified by a very sound social need, and that these restrictions must be proportional to the legitimate objective sought.

We think that this provision of Bill C-44 goes against all the precedents established by the European Court of Human Rights.

Canada contracted obligations that are largely similar to the European Convention on Human Rights when it ratified the International Covenant on Civil and Political Rights. Canada has always maintained that sections 7 and 15 of the Canadian Charter protect the rights of families.

In April 1994, we received a report from Waldman and Davis called "The Quality of Mercy". This bill in general and especially the provisions concerning individuals punishable by a jail term of ten years or more are not at all in keeping with this quality of mercy or with the legal precedents established in other countries. On the contrary, it violates existing provisions that have been accepted in other democratic societies. I do not think that the bill reflects the quality of mercy suggested in the report by Waldman and Davis.

[Philip Mayfield, Reform, Cariboo—Chilcotin, BC]

Mr. Speaker, my intervention will be very brief.

In speaking to Motions Nos. 13 and 14 concerning the conditions of expulsion I believe members of the Bloc Quebecois Party fail to understand what the Canadian people have been saying. Canadians have been putting pressure upon not only the government but upon representatives to Parliament like myself.

As the member representing the Bloc speaks, it would seem we are talking about dealing with people who broke regulations and failed to understand the seriousness of what may have happened and their situation in Canada.

As we look at the bill these are matters of serious intent. The bill is attempting to deal with excluding people from Canada who have committed serious offences. These motions in amendment would erode the intent of the bill. Members of the Reform Party are in favour of much of the bill, but we have great difficulty with the inability of enforcement. For that reason we will be opposing the bill as a whole but we have no intention of weakening the content. We are therefore opposing these two motions.

[Sergio Marchi, Liberal, Minister of Citizenship and Immigration]

Mr. Speaker, I suppose during third reading we will be able to debate the whole question of the position of the Reform Party. It is supporting the intent of the bill in many clauses but voting against it because there is an assumption or preposition that somehow the intent will not be realized. That is probably better suited for third reading debate.

I will address the two motions under the second group. They would seek to change clause 12 of Bill C-44. It is unfair to suggest, as the Bloc critic has done, that the committee was

blind or deaf to a number of the representations made with respect to clause 12. There was introduced at committee stage an amendment that would seek to clarify the intent and the purpose of Bill C-44.

Clause 12 suggests the following: When there are execution or removal orders against certain residents who have committed certain crimes, we are trying to suggest that individuals who have committed the crime may be punishable by 10 years or more as well as having received a certificate from the minister or his or her designate based on the seriousness of the crime.

When you get a certificate essentially there are four categories to that crime, either the violence of the crime, crimes related to sexual assault, crimes related to weapons charges and crimes related to drug peddling and the importation of drugs. When a certificate is given to an individual for those serious crimes that are punishable by 10 years or more we are suggesting not only that we have the ability to remove an individual but to also remove the humanitarian and compassionate grounds from the IAB and move that over to the department.

The Bloc amendment would amend that thinking to individuals who have been sentenced to a period of imprisonment of two years or more. The effect of that amendment would restrict the government's ability to remove those individuals and would push more of the emphasis to our courts. I think it has to be stated quite openly that many individuals who have committed a crime punishable by 10 years or more in the end receive much less than the two years which is the threshold being suggested by my hon. friend in the Bloc.

I think we should try to keep the focus on immigration as opposed to moving it squarely over to the court system. A number of decisions for a variety of reasons such as plea bargaining or keeping the person in a provincial prison would assume less than two years rather than two years or more because that is the threshold at which time the person would be in a federal penitentiary, are reasons why the judge may say less than two years so that the person may be kept at a provincial penitentiary for a variety of reasons. There are other concerns that the court system may recognize that do not account for immigration concerns.

The amendment would not only lessen the threshold to a very low threshold, which I think is unfair if the person has committed a serious crime and has been certificated as being a danger to the public based on those four categories, but it would also shift the onus of these individuals on to the court system which I think would be a mistake and which would render immigration arguments certainly secondary to other arguments that the judge may feel quite legitimate nonetheless. I believe that it would be a mistake on our part if we were to support Motion No. 13.

The second amendment would try to amend the same clause and try to define in law who may be deported or who may not. The Bloc has suggested that permanent residents before the age of 10 and who have no ties to their country of origin not be subject to deportation. They also say that anyone who has been a permanent resident for over 10 years, regardless of the crime, may not be deported.

I have difficulty with this on two fronts. First, when the Bloc suggests a person before the age 10, why 10? What if the person were nine or eleven or twelve? It is arbitrary. To put arbitrarily arrived at figures in law I would suggest is very restrictive. I do not think it would be the appropriate thing to do. I do not know how the Bloc arrived at the age of 10, but I do not think we should have laws that restrict our ability to remove individuals who face serious crimes based on an arbitrary figure or individuals who have been here more than 10 years.

The Bloc is saying if you are here more than 10 years you are considered perhaps to be more of a citizen. What if an individual clocks in at nine years in this country?

Is the Bloc therefore agreeing that regardless of the crime the person who spent nine years is not worthy of that compassionate consideration, but someone who stayed here an extra 12 months would be? I think that is the area that is going to constitute many problems if we put those arbitrary figures into legislation.

I think it would be more appropriate that those kinds of considerations be dealt with under humanitarian and compassionate reasoning where there is the flexibility to concern ourselves with rather than writing it into law.

Second, and fundamentally flawed, is the thinking that somehow the years of residence in one's country at all times, if we accept this amendment, outweighs the seriousness of the crime. I do not think we should accept that kind of reasoning. What I think Canadians are saying is that we are trying to seek an equitable balance.

We are not saying that immigration equals criminality, for goodness sake. We are not saying that. We are saying that there are the few who make it difficult for the many, and that we have to zero in on the few so that we can protect the many, and zero in on the few so that we can protect the integrity of the system.

If we accept the amendments of the Bloc, then we are saying that according to the arbitrary figure of 10, that supersedes any criminal activity in this country. Instead, I believe it is the reverse. There are certain crimes that are absolutely repugnant. If the landed resident was here 10 years, 20 years, 30 years, it still does not give that person the right to simply dismiss a serious crime against young children, or murder, or an aggravated sexual assault that turns people's stomachs. We should not simply rest on the case that just because the person has been here

for 10 years that the crime is all of a sudden forgotten. We have to stand up for certain values and send certain signals.

That is where I think putting the arbitrary figure of 10 into law creates more problems than it solves. I believe that those considerations should be under humanitarian and compassionate grounds and not the letter of the law.

[Maud Debien, Bloc, Laval East, QC]

Mr. Speaker, in spite of the explanations provided by the minister, I think it is important to reiterate the objectives of the motions to which the hon. member for Bourassa referred earlier.

The purpose of Motions Nos. 13 and 14 tabled by the Bloc Quebecois to amend Bill C-44 is twofold. Motion No. 14 would add two categories of individuals to the list of those who cannot be deported for criminal behaviour. Motion No. 13 would amend Bill C-44 to take into account the seriousness of the crimes committed and the sentences actually handed down to permanent residents.

Let us first look at Motion No. 14. Paragraph ( a ) seeks to exclude from the deportation process persons who were admitted to permanent residence in Canada before attaining the age of ten years, where it is demonstrated that the persons have no emotional, family or other ties to their country of origin.

Some permanent residents arrived in Canada as children. For all sorts of reasons, these people never sought to obtain Canadian citizenship. Now, they are adults and work here; they also have a family here, but no longer in their country of origin. These people are, in essence, Canadians or Quebecers. We think that sending them back to their country of origin makes no sense and is inhumane.

These people grew up in Canada and developed their talents, as well as their flaws, here. They are a product of Canadian society. It would be too easy to get rid of criminals by sending them back to their country of origin, which they left as young children. Moreover, deportation could be too harsh a sentence for the offence committed. Not only would these people have to serve a sentence for their crime or crimes, but they would also have to keep living abroad afterwards, far from their family and friends, in a country which is often foreign to them.

Second, the Bloc Quebecois is proposing an amendment to paragraph ( b ) so that permanent residents who have resided in Canada for ten years or more cannot be removed from Canada. This addition is similar to the other amendments and would make Bill C-44 more compassionate for people who have been in Canada for a long time.

By adopting this amendment from the Bloc Quebecois, Canada would not be the first country to act this way. For example, Australia which is often compared to Canada because of its British tradition and liberal immigration policies, already has legislation in this area. Hence, children who settled in Australia before they were ten years old cannot be sent back to their country of origin.

France's immigration policy is reputed to be much more restrictive than ours. However, it has passed legislation to prevent immigrants who have been permanent residents for more than ten years from being expelled.

The government must go beyond partisanship and go along with the Bloc. For compassionate and humanitarian considerations, we must amend Bill C-44 and pass Motion No. 14.

We must also amend the bill by adopting Motion No. 13. To determine the seriousness of the crime, the actual sentence must be taken into consideration, and not only the maximum penalty for a particular type of offence.

In its current form, Bill C-44 only takes into account the nominal sentence, that is the maximum penalty for the type of offence committed, and not the sentence imposed by the judge. Indeed, even though under the Criminal Code a term of imprisonment of ten years may be imposed for a particular offence, the principles of sentencing are applied by the courts in determining the sentence.

For example, a person convicted of breaking into a private residence can receive a life sentence. Offences such as aiding and abetting the issuance of fraudulent credit cards are punishable by a ten-year sentence and could justify the deportation of the accused.

In our legal system, sentences are generally much less severe than the maximum sentence. In some cases, it may not be a term of imprisonment or a fine, but only a suspended sentence, probation or community work. A person could therefore receive a very light sentence and still be forced to leave the country.

Moreover, if our amendment is not adopted, this provision of Bill C-44 could violate the Geneva Convention. The manual of High Commissioner for Refugees says, and I quote: "With regard to the nature of the crime presumed to have been committed, all relevant factors, including extenuating circumstances, must be considered".

Bill C-44 must reflect these remarks. We must adopt the amendment before us to avoid legal complications. The Canadian government cannot refuse to take into account the actual sentence imposed, which is indicative of the seriousness of the crime.

As for the sentence of two years less one day, everybody knows that it is the cut-off point for sentences served in a provincial penitentiary and those served in a federal institution. In Canada, the courts consider the nature of the crime before imposing a term of imprisonment of two years or more. In our legal system, there is a clear difference between a sentence of two years or more and a sentence of less than two years in terms

of the seriousness of the crime. Our amendment reflects this legal reality.

I encourage all members to vote in favour of Motions No. 13 and 14 for simple common sense reasons. As we have just seen, the purpose of Motion No. 13 is to take into account the actual sentence imposed by the judge and not only the maximum sentence of ten years for certain types of crimes. As for Motion No. 14, it is designed to prevent the deportation of de facto Canadians.

[The Deputy Speaker]

Is the House ready for the question?

[Some hon. members]

Question.

[The Deputy Speaker]

The vote is on Motion no. 13. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[The Deputy Speaker]

All those in favour will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker]

All those opposed will please say nay.