House of Commons Hansard #142 of the 35th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was agreement.

Topics

Immigration ActGovernment Orders

1:15 p.m.

Some hon. members

Nay.

Immigration ActGovernment Orders

1:15 p.m.

The Deputy Speaker

In my opinion the yeas have it.

And more than five members having risen:

Immigration ActGovernment Orders

1:15 p.m.

The Deputy Speaker

Pursuant to Standing Order 76.1 (8), the division on the motion stands deferred.

The next question is on Motion No. 14. Is it the pleasure of the House to adopt the motion?

Immigration ActGovernment Orders

1:15 p.m.

Some hon. members

Agreed.

Immigration ActGovernment Orders

1:15 p.m.

Some hon. members

No.

Immigration ActGovernment Orders

1:15 p.m.

The Deputy Speaker

All those in favour of the motion will please say yea.

Immigration ActGovernment Orders

1:15 p.m.

Some hon. members

Yea.

Immigration ActGovernment Orders

1:15 p.m.

The Deputy Speaker

All those opposed will please say nay.

Immigration ActGovernment Orders

1:15 p.m.

Some hon. members

Nay.

Immigration ActGovernment Orders

1:15 p.m.

The Deputy Speaker

In my opinion the yeas have it.

And more than five members having risen:

Immigration ActGovernment Orders

1:15 p.m.

The Deputy Speaker

Pursuant to Standing Order 76.1(8), a recorded division on the proposed motion stands deferred.

Motions Nos. 15, 16 and 17 will be grouped for debate but voted on separately.

Immigration ActGovernment Orders

1:15 p.m.

Bloc

Maud Debien Bloc Laval East, QC

moved:

Motion No. 15

That Bill C-44 be amended by deleting Clause 13.

Motion No. 16

That Bill C-44 be amended by deleting Clause 14.

Motion No. 17

That Bill C-44 be amended by deleting Clause 15.

Mr. Speaker, just a few days after his appointment as Minister of Citizenship and Immigration, the present minister said in an interview with La Presse that he wanted a system with as little political intervention as possible. He added that in the judicial system, for instance, there was no political intervention. Once a judgment was made, that was it. He also said that he wanted to reduce political intervention and felt that a stronger appeal mechanism would be the answer.

However, a year later, we have Bill C-44, which in our opinion does the exact opposite of what the minister said he wanted to do, in November 1993. This bill puts excessively centralized powers in the hands of the minister and his officials.

During the hearings of the Standing Committee on Citizenship and Immigration, we heard this confirmed by many agencies. Bloc Quebecois amendments for deleting clauses 13 and 25 of Bill C-44 were supported by the Canadian bar association, the Canadian council for refugees, the Quebec immigration lawyers' association and the refugee lawyers association, for instance.

The present legislation allows permanent residents convicted of an offence for which a term of imprisonment of 10 years or more may be imposed to appeal to the Immigration Appeal Division. This appeal may be invoked to quash a deportation order or to stay execution of such an order on compassionate grounds.

Maintaining clauses 13 and 15 which reinforce the minister's powers of political intervention means that the minister and members of this House will be constantly asked to review immigration cases on compassionate grounds.

We are well aware of the pressures on elected representatives and especially on the Minister of Citizenship and Immigration. Public opinion, exacerbated and conditioned by a few sensational cases and the media's coverage of then, and, of course, political pressure from countries we do not want to offend for commercial or economic reasons are just a few examples.

Because of these pressures, it is easy to imagine what kind of decisions will be made: decisions based on a set of subjective, unpredictable factors that will vary from case to case, despite

their similarities. Are we prepared to take that risk? Certainly not. The system already lacks credibility. Why make it worse?

We can expect another problem if the new legislation is not amended. As we know, immigration officials no longer meet clients in their offices and no longer answer telephone calls directly. Unfortunately, all processing of immigration files has been centralized, and regional offices are now an empty shell. To politicize the process will deprive immigrants and their relatives of the opportunity to talk with the officers in charge of making decisions which will be critical for them.

Moreover, as was pointed out in the Auditor General's report in 1990, the Davis-Waldman report and by many public servants, there is an obvious lack of training among immigration officers. This may seriously jeopardize the fairness of the process.

We cannot endorse this desire to centralize and politicize the immigration decision-making process .Decisions will be made behind closed doors. Generalists lacking the necessary training would make the decisions now made by specialists. There is no guarantee that, under these conditions, in similar cases, decisions will not be different and therefore inconsistent. Why trivialize these decisions by turning them into administrative decisions whereas, at the present time, they are quasi-judicial and based on case law with a proven track record?

Moreover, Bill C-44 proposes that the immigration minister become a new court and replace the IRB when it comes to the evaluation of risks. Thus the minister would become party to every case before the appeal division. Is it because he recently lost certain cases that the minister now wants to give himself new powers?

Moreover, under clause 14 of Bill C-44, the government wants to give the minister the right to appeal to the appeal division any decision made by an adjudicator. The current act provides for the minister to appeal only in two specific cases, when a person was found admissible or not deportable. None of the arguments presented by the government as to why the act should be amended to allow the minister to interfere with the decisions made by the adjudicator has convinced us.

The government is interfering with the whole process. There does not seem to be any more limit on the type of appeal the minister may launch against a decision made by an adjudicator. This is another blatant example of the minister interfering with and taking over the appeal division operations.

Let us make sure that the wishes expressed last year by the minister, and with which we totally agree, are respected. Let us minimize political interference in the immigration process. It is in the spirit and for that purpose that the official opposition has moved these amendments. Let the IRB Appeal Division do its job and keep the minister and bureaucrats out of this quasi-judicial process, which still needs to be improved.

For all these reasons, clause 13 and 15 should be eliminated and replaced by sections 70 and 77 of Bill C-86, now in force.

Immigration ActGovernment Orders

1:25 p.m.

Reform

Art Hanger Reform Calgary Northeast, AB

Mr. Speaker, again very briefly, we oppose these amendments.

As I said before this bill is unenforceable. The specifics of this bill have been roundly criticized by all witnesses before the standing committee, albeit from different philosophical points of view. The direction the bill takes, that is to toughen up immigration law to protect Canadians and to make the department of immigration more accountable is acceptable to my party. In fact my party has pushed for changes in this direction. However, this bill as written will not result in real change. It will only result in an increased backlog with no additional enforcement staff. The intent is there but the means are lacking.

The Bloc amendment would remove the intent of the bill. That we cannot support.

My party is opposed to these amendments.

Immigration ActGovernment Orders

1:25 p.m.

York West Ontario

Liberal

Sergio Marchi LiberalMinister of Citizenship and Immigration

Mr. Speaker, two motions are trying to do two different things. I will take them one at a time.

The toughest decision with respect to Bill C-44 was to try to respond as best we could as a government to public concern. In trying to size it up correctly the public is very much in favour of newcomers coming to this country and joining in the building of this very exciting place called Canada. That has been part of our country's history and should remain part of the nation building exercise for many years to come.

The public has concern when there is no sense of balance. An overwhelming number of people come here as immigrants and refugees and play things by the book. They contribute. They sacrifice. They bleed just like anybody else. Then there are the few who come to Canada with very different intentions. They break the law in a serious way and then flaunt it through the system. That is what irks Canadians.

As the minister and a member of Parliament and as a Canadian, what I heard the public request was to try to have a proper context and balance. In that way we could address those who seriously and flagrantly abuse the system and make it worse for those who come to this country and respect the law. Regrettably because perceptions cut very deeply sometimes everyone is unfairly put in the same boat.

We try to zero in on the problem. It is difficult for any law to try to distinguish that. The bill deals with those individuals who have committed a crime punishable by 10 years or more and who also, I underline the word also, receive a certificate that they are deemed to be a public danger according to the four general categories of serious violence, sexual assault, weapons charges, and drugs. Those individuals and not others will not be given the opportunity of appealing their deportation to the immigration appeal division on humanitarian and compassionate grounds. It was the decision that those individuals, that narrow class, not be given the opportunity of going to the immigration appeal division but instead to make a written request for a written decision by officials in my department.

I hear what the Bloc and other members have said. When an immigration appeal division makes a decision on one of these individuals to stay the deportation or simply to overrule the deportation and it causes some consternation among the public, I wear the problem. If I were to tell the immigration appeal division what to do, members on the opposite side would be screaming for my resignation as they did for weeks on end respecting the CRTC. They have suggested that there needs to be an arm's length independence from our quasi-judicial boards. I concur with that.

In the end we are caught in the middle as public policy makers. We are blamed for decisions we did not take and we would be blamed if we sought to interfere in decisions.

The government and I chose to signal that category of individuals. They would no longer have the right on humanitarian and compassionate grounds before the immigration appeal division but would have the opportunity on a written decision with the department. They may appeal it to the Federal Court as in all cases.

Some people are suggesting that I will not only be wearing it but will be owning the problem. As a public policy maker and given the public feeling there was a need for greater consistency in decision making and a greater sense of accountability for decision making. I am prepared to take the risk of being seen to be owning the problem if it renders a more efficient system, there is a check and balance, the legislation is pinpointed to those who seriously commit criminal acts in the country, and there is a fair balance between the compassion and the generosity of Canada to invite newcomers to have a second lease on life.

There are those who seriously undermine our laws and are not citizens of the country of Canada. This country and this government do not preclude people from becoming citizens. We are a progressive country. After three years an individual can become a member of the most prestigious club the world over. It is called the Canadian family. For the narrow category that have tipped the scales there needs to be a price and a cost. That is what we are doing in clause 13 of Bill C-44.

The second motion that the Bloc suggests is that the government should not be able to appeal a decision of an immigration appeal division to turn a deportation order into a departure notice.

Let me explain why I believe the government should be able to appeal. It is not to politically intervene as my friend in the Bloc suggested. In a number of cases where the department has sought to deport a serious criminal the immigration appeal division has changed it from a deportation to a departure notice. There is a big difference between the two. Under a departure notice individuals would have to leave the country but are entitled to return. Under a deportation order persons are deported and cannot come into the country unless they have prior written consent from the minister.

Bill C-44 would allow a senior immigration officer, if a person was deported and returns without written permission, rather than going through an inquiry that can sometimes be lengthy-

Immigration ActGovernment Orders

1:30 p.m.

Reform

Randy White Reform Fraser Valley West, BC

Like Mendoza.

Immigration ActGovernment Orders

1:30 p.m.

Liberal

Sergio Marchi Liberal York West, ON

Correct. The bill would allow the senior immigration officer to turn that person around at the border without an inquiry. It is common sense. If we accept that someone cannot return unless they have permission after deportation and they come to the border without permission, why should we have an inquiry? Clearly it has already been determined. This would make it more efficient.

If an immigration appeal division disagrees and moves it from a deportation to a departure, why should a minister or the crown not say they respect the decision or it is right to make that decision but because of the seriousness of the crime perpetrated they would like to appeal the removal notice from a departure to a deportation? Deportation gives Canada the right to protect itself from such individuals.

It is not with the view of trying to be politically involved or intervening. It would simply be a right of any country to protect itself from those it deems to be a danger to the public and a notice may be switched from deportation to departure based on some consideration that is outweighed by the nature of the offence. That is the reason it is balanced, fair and measured.

Immigration ActGovernment Orders

1:35 p.m.

Bloc

Osvaldo Nunez Bloc Bourassa, QC

Mr. Speaker, this question was discussed at length in the Standing Committee on Citizenship and Immigration, and practically all the organizations voiced their opposition to politicizing the refugee status determination process and transferring the IRB's jurisdiction,

and more particularly that of its appeal division, to a politician, a minister.

There was unanimity among the lawyers who appeared before the committee to oppose the transfer of jurisdiction from a quasi-judicial organization to the executive, the political authority. I would like to mention some the organizations who came before the committee: the Canadian council of refugees, the refugees lawyers association, the Canadian bar association, the Immigration and Refugee Board. They were all against this transfer of jurisdiction from the IRB to the minister. I should also mention Amnesty International, the Quebec association of immigration lawyers, the Canadian labour congress, the Canadian ethnocultural council, the national action committee on the status of women, and the interchurch committee for refugees.

We proposed this motion mostly because we are against the cancellation by Bill C-44 of the right to appeal for equity reasons. The right to appeal in immigration matters dates back only to 1952. The Immigration Act of 1952 established a limited judicial appeal system managed by the Immigration Appeal Board.

In 1967, a piece of legislation formally instituted the Immigration Appeal Board as an independent tribunal in charge of hearing appeals filed on grounds involving questions of law or fact or mixed law and fact, by individuals under an expulsion order. In 1973, the right of appeal was restricted to permanent residents, visa holders and individuals claiming refugee status or Canadian citizenship.

Since 1989, refugee status determination is under the jurisdiction of the IRB, an independent quasi-judicial body. The Appeal Division of the IRB replaced the Immigration Appeal Board. We can see that, since 1952, immigration ministers and officials of that department have tended more and more to leave such matters to an increasingly quasi-judicial body.

However, Bill C-44, and particularly clause 4, goes against that legislative trend which started in 1952. A court of appeal must be able to rule on issues of law, fact, or both and equity, and I emphasize equity, towards refugees, visa holders, permanent residents and sponsors.

Clause 13 of Bill C-44 amends section 70 of the Immigration Act and deprives the appeal division of the IRB of the power to stay, for reasons of fairness, the execution of a deportation order, or to quash that decision in the case of crimes punishable by a term of imprisonment of ten years or more.

I take this opportunity to tell the minister why we wanted to exclude permanent residents who have lived in Canada for at least ten years. It is because such a provision also exists in Australia and in France. Therefore, we would not be the first country to do so.

The deportation decisions made by immigration officers, as opposed to an independent tribunal, may be technically flawed. For example, they may be flawed because of procedural technicalities, insufficient evidence, inconsistency or lack of accountability. Right now, the Appeal Division of the IRB is an appropriate and fair tool to dispose of an appeal on a deportation order, or to deny a sponsorship application.

I share the views expressed on page five of the excellent submission presented to the Standing Committee on Citizenship and Immigration by the National Immigration Law Section of the Canadian Bar Association, where it says: "The appeal division looks at errors in law and at all the circumstances of a case to determine if there exist reasons based on fairness. A mere examination to look for any error in law is not sufficient. The appellant and the minister are both represented. Oral as well as documentary evidence is presented before a public forum and is subject to cross-examination. The decision is then made by an independent tribunal and subject to judicial control. With the changes proposed in Bill C-44, it is the minister or an immigration officer who will make a discretionary and subjective examination. It will not be possible to review any factual error".

I would prefer to have the decision to send a person back to his or her country of origin, thus putting his or her life in danger, made by a tribunal after due process: presentation of evidence, cross-examination and oral arguments. Very often, we are confronted with complex questions of fact or law. Immigration officers responsible for the application of the legislation often do not have the resources, the training or the mandate to determine whether or not the expulsion of a permanent resident is justified.

Further on, the national section on immigration law of the Canadian Bar Association says: "One of the main advantages of an independent tribunal is that it guarantees that difficult decisions in expulsion matters are not made by politicians. What the minister is proposing in his statement is a unit, responsible to his office, which would review expulsion measures. Political decisions are unpredictable, inconsistent and dangerous. For all interested parties, access to the minister or his representative can become a major and unfair factor".

For these reasons, I support Motions Nos. 15, 16 and 17.

Immigration ActGovernment Orders

1:45 p.m.

The Deputy Speaker

Is the House ready for the question?

Immigration ActGovernment Orders

1:45 p.m.

Some hon. members

Question.

Immigration ActGovernment Orders

1:45 p.m.

The Deputy Speaker

The question is on Motion No. 15. Is it the pleasure of the House to adopt the motion?

Immigration ActGovernment Orders

1:45 p.m.

Some hon. members

Agreed.

Immigration ActGovernment Orders

1:45 p.m.

Some hon. members

No.

Immigration ActGovernment Orders

1:45 p.m.

The Deputy Speaker

All those in favour of the motion will please say yea.

Immigration ActGovernment Orders

1:45 p.m.

Some hon. members

Yea.

Immigration ActGovernment Orders

1:45 p.m.

The Deputy Speaker

All those opposed will please say nay.