Debates of May 12th, 1995

Immigration Enforcement Improvement Act

[Mary Clancy, Liberal, Parliamentary Secretary to Minister of Citizenship and Immigration]

Mr. Speaker, let me begin by stating the obvious. There has always been crime in Canada. It is an unfortunate part of our society and of every society. Let us face it, there always will be an element within any population that disobeys the laws which govern the land.

However, we have the good fortune of being spared, for the most part, the violent criminal activity that goes on in other parts of the world. Despite what some newspapers and television shows would have us believe, we really are a peaceful and law-abiding people. But that does not mean that nothing bad happens here. Let us not delude ourselves, such incidents can occur and indeed already have.

Fortunately, we have a strong judicial system to deter crime. It is a system that I like to believe is impartial and fair. It is not perfect. Nothing is perfect in this world. But, in my opinion, the system works reasonably well.

Times do change. What may have been relevant 10 or 20 years ago may not be adequate to deal with the realities of the mid-1990s. New technologies are creating new types of criminal activity and new challenges for enforcement officials. The government recognizes that times change and that legislation must follow suit. Take, for example, the justice minister's proposed gun legislation. That is but one example of how the government is acting to curb crime. That is an example of good legislation; thoughtful legislation which weighs the pros and cons and comes up with a reasoned, rational and workable solution to a problem which faces us all.

It is with a similar intention that my hon. colleague and friend, the hon. member for Cambridge, has introduced his proposed legislation today. He is to be commended for his commitment to keeping the streets of his community and his country safe. No one here can doubt that his heart is in the right place. However, I cannot support the motion before the House today, for unlike the aforementioned legislation on gun control, Bill C-316 is not workable in its present form.

While on the surface some of its proposals may sound persuasive and may even make some sense in practice, they would simply cause more problems than they would fix.

We are all in agreement that we must deal firmly with violent criminals. We must deal firmly with those who come to this country to commit crime. Canada is a generous and welcoming place but we will not be used as fools. The Canadian government will protect Canadian citizens and institutions from becoming the target of foreign criminals.

When someone comes to our country and betrays our generosity and good nature with criminal activity we must not allow them to remain. The message is clear: Play by the rules or leave. However, Bill C-316 does not give us the tools we need to remove these people. If anything, it would complicate an already complex removal process.

First, the legislation raises some serious constitutional questions. The Supreme Court has established that deportation is not a form of punishment but rather an administrative decision taken by Canada. Bill C-316 seeks to change this. By making deportation a sentencing option, it suddenly becomes a criminal punishment. If this were to be the case, then there are no fewer than three constitutional clauses that could be used to argue against the sentence.

Section 15 of the charter is one example. It could be argued that two tiers of punishment would be available to judges if Bill C-316 came into effect, one for citizens, the other for non-citizens. There would be a case where people commit the same crime, yet the punishment would be more harsh for one than for the other. This goes against the fundamental idea that Canadian justice treats everyone fairly and equally.

It could also be argued that removal from Canada would represent a second form of punishment in addition to any other sentence. In effect, non-citizens would face the prospect of being punished twice for the same offence.

Finally, if deportation is seen as a criminal punishment, it could perhaps be construed as cruel and unusual punishment. It could be argued that removing a permanent resident from Canada is tantamount to denying for life that person's right to be with family and friends, to earn a living or to communicate freely in the course of daily living. This would put it in direct opposition to section 12 of the charter.

As you can see from this brief overview, the legislative provisions raise serious potential problems. If they are adopted, there is a strong possibility that even the most minor matter will give rise to constitutional free-for-alls that could last years and cost taxpayers hundreds of thousands of dollars, even millions.

Using measures that, in all likelihood, would slow down the enforcement of the law when the public is clamouring for better,

faster and more efficient government management of the country seems irresponsible.

We have to find a way to speed up the deportation process and not to paralyze the judicial system with excessive legal considerations.

I have touched on the constitutional arguments against this bill. Now let me discuss broader reasons that I cannot support it. If it were to pass we would be transferring the responsibility for removing potentially dangerous criminals from the federal immigration department, whose representatives are experts in the field, to provincial crown attorneys and judges. We should not dilute federal responsibility for something as important as the deportation of violent offenders.

I am not questioning the competence of provincial crown attorneys or judges, far from it. However these individuals already have exceptionally busy dockets and in many cases do not have the time or the expertise to deal with complex immigration cases.

As well, the international obligations Canada has with respect to immigration matters are not well known to judges acting in criminal matters. As a result it would take both time and money to train lawyers and judges to deal with immigration cases.

Furthermore, we must recognize that recommendations to the provincial court may take into consideration many factors which should not be part of a deportation hearing. Plea bargaining could become a convenient way for people who should not be in this country to stay in this country. Who is to say that deportation could actually be carried out?

Once a judge orders an offender removed, is it the court's responsibility to deport the individual? What would happen with the order of a judge that cannot be executed because the individual cannot be received outside Canada? Is the court to find a suitable country? Is the jurisdiction to be transferred back to the immigration department after the order has proven to be impossible to execute?

Deportation can be a complex process requiring travel documents and international co-operation. These are affairs that are best handled by the immigration department which will continue to be responsible for all other deportations of persons who have entered Canada illegally, have been convicted of serious crimes in other countries, or have otherwise violated the Immigration Act.

This is not the only part of the bill which neglects to take into account the fact that Canada cannot unilaterally remove people to other countries. The section concerning changes to the Transfer of Offenders Act also seems to forget that we need international co-operation to have an effective removal system.

The purpose of the act is to accommodate non-Canadians serving sentences by making it possible, on the basis of an arrangement between states, to transfer offenders so that they can serve time in their homeland. The act is not meant to support orders that may have been made by courts. In fact the act has nothing to do with the legal system. It is based on arrangements of an administrative nature between sovereign states.

Bill C-316 wants to change this. It proposes that the act be amended to allow Canada to remove any foreign criminal serving time in a Canadian prison. This just is not realistic. What would be the incentive of a foreign country to pass a treaty with Canada whereby we would transfer to them the cost of punishing offenders who have committed crimes here? The answer is simple. There is none.

The legislation may also be potentially unfair to a defendant in a deportation hearing. The government wants to ensure that all dangerous foreign offenders are ordered removed. We also want to ensure that humanitarian concerns which are an important part of the immigration system are consistently applied to all persons subject to removal orders.

I think we would all agree it is generally pretty easy to stand and criticize something. What is difficult is to work hard to find alternatives that do work. I am happy to say that we in government do not just sit and listen. We act.

Many of the proposals the bill would seem to resolve have already been dealt with in Bill C-44. As members know, the legislation was recently approved by the House and is currently before the Senate. Bill C-44 is good legislation. A serious criminal element, no matter how small, that has infiltrated our immigration system can be handled by Bill C-44.

In closing, the government is making progress in tackling the small number of criminals who have infiltrated our immigration program. The system works but it could work better. We recognize this and as a result we have taken action. I can assure members that we will continue with the progress, but we must take measured steps and weigh our options carefully. All too often there is a difference between what sounds good and what is practical.

We congratulate the hon. member for Cambridge for his initiative, but at this time Bill C-316 just does not fit the situation.

[Tom Wappel, Liberal, Scarborough West, ON]

Mr. Speaker, I am pleased to rise today to offer my thoughts on the bill presented by my friend and colleague from Cambridge, Bill C-316, an act to amend the Immigration Act and the Transfer of Offenders Act.

I congratulate the member for Cambridge, first, for bringing forward the bill that would amend the Immigration Act and, second, for being able to convince the appropriate House committee that the matter is of such urgency that it should be a votable item. This demonstrates that the issue the hon. member has brought forward is one of concern to a significant number of people across Canada.

I congratulate the hon. member because he has brought an interesting perspective to the debate in the sense that he is an immigrant to the country. He had to comply with the rules and regulations that were in place at the time he came to Canada. He knows what a privilege it is to be a Canadian citizen and how lucky those of us who were born in Canada are.

The hon. member did something that I could never do. He chose his country. In choosing that country he knew what the rules and regulations were. His hard work in this country has been rewarded by the fact that he is sitting in the most august House of Commons and is able to represent his constituents on matters of concern to them.

The issues raised by the hon. member in his private member's bill are issues of concern not only to the people of Cambridge but also to the people of Scarborough West. I say with some certainty that they are the concerns of many Canadians across the land.

The reason I say this is that in the 34th Parliament I was the immigration critic for the Liberal Party for a period of time. In that capacity I was asked by my leader to travel across the country and speak with Canadians about immigration issues, which I did. Time after time after time, regardless of whether it was in Victoria, Moose Jaw, Halifax, St. John's or Scarborough, one issue that was raised was that of people who arrive in Canada, are not citizens, do not appreciate the privilege of being here and commit heinous crimes.

In my own riding there was a situation where someone came from a country and pistol whipped a McDonald's employee for the pure pleasure of pistol whipping this person. It was clearly identified in the evidence. He committed armed robbery. He was obviously armed with the pistol that he assaulted the person with. He was committed to jail for a period of time. Then through a series of legal manoeuvres over a period of five years, extending through the first period of time that I was a member of Parliament, he succeeded in thwarting the immigration system and the deportation system. He was able to use every so-called legal manoeuvre to remain here in spite of the fact that subsequent to being released from jail for the armed robbery he was caught, charged and convicted of trafficking in drugs. He was still allowed to remain here through a series of legal technicalities.

After persistent pushing by the immigration department through a series of frustrating events involving the meshing of the judicial system and the immigration system, about which the parliamentary secretary was talking earlier and which caused delay and frustrated the department of immigration, the person was finally deported at the end of 1994. It was to the great relief of everyone concerned about the activities he had been involved in, including the immigration department, myself and my constituents who were personally attacked by the individual who was nothing but a downright, low-down criminal that should have been thrown out of the country upon his first conviction.

This is a private member's bill. We have heard from others that private members' bills are never perfect. I speak from experience of private members' bills that have been accepted by the House. We do not have departmental officials and departmental awareness of the issue on a day to day basis to help us. We come up with a germ of an idea. We see if people generally like it and we try to get it approved in principle so that it can be looked at in committee and amended if necessary. This is precisely what the hon. member has done.

Let us look at the bill in the very short time that I have left. The purpose of the bill is to provide the following:

If a person is convicted of an offence punishable by 10 or more years imprisonment and is or is seeking permission to remain in Canada but is not yet a citizen, the court may, on application by the prosecution, order, in addition to any other sentence, that the person and anyone dependent on the person be removed from Canada.

I would be hard pressed to find a constituent of Scarborough West who on principle would disagree that a person who has committed a crime in this country, punishable by more than 10 years in prison, should not be deported. The proposition is the correct one. It is supported by the vast majority of Canadians, certainly those with whom I have interchanged on the subject.

We get into technicalities and that is true. We get into potential constitutional arguments and that is true. How do we even deal with the problem if we are afraid to bring something forward because it might possibly in the future contravene some section of the charter? We cannot operate like that. We have to do the best we can.

For example, it was brought up, and legitimately so, that there could be some constitutional arguments, such as how does the crown know anything about the immigration system. One potential amendment one could suggest immediately upon a cursory review of the bill might be in subclause 3(2) of this bill, dealing with section 32.1 of the Immigration Act, whereby one could put an amendment that the crown, on the recommendation of the immigration department, could make an application to the court to have the person deported.

Where there is a will there is a way. It is that simple. Once we recognize that there is a principle that is worthy of proceeding with, it is simply a question of figuring out how to do it. If Bill

C-316 is the way, fine. If it is not the way, then we know the problem, we know what Canadians want, we know what the solution is, and it is the job of the people of this House to figure out the way to accomplish that solution.

That in itself is a reason for the hon. member to be commended. I agree with the parliamentary secretary that this government should be commended for having dealt with part of these issues in the bill that we recently passed in this House. I agree that that bill will help, but it is not by itself the answer.

I dare say, Mr. Speaker, I do not think you would be too hard pressed to find anyone in Canada who would not say as a starting principle that if you are not a citizen of the country and have committed a serious offence in which you could be sentenced to 10 years or more, out you go, and you had better have a mighty good reason to convince Canadians that you should stay.

The bill provides for that. It provides for an opportunity for the potential deportee to have counsel and to speak. It provides for the appeal mechanism. It also provides for the situation where someone perhaps came here at age five and for all intents and purposes is a Canadian, has forgotten for technical reasons to apply for Canadian citizenship, has not been involved with the law before and perhaps at age 30 commits an offence. The person for all intents and purposes is a Canadian citizen except technically. The bill deals with that. It provides that it would not apply to circumstances of that nature.

In brief and in closing, I simply want to congratulate the member again for identifying a problem that certainly irritates Canadians-Canadians who are tolerant, Canadians who are by and large either immigrants themselves or the descendants of immigrants, who tolerate and want immigration, who are happy to see immigration to this country and who realize that immigrants are a benefit to this country.

We know as surely as we stand here that for every person who is convicted of an offence and abuses the hospitality of the country, there are 10,000 who would come here tomorrow and never even get a parking ticket.

I say that we have to look at those people who are prepared to come here and abide by the laws of this country and have very little tolerance for those who abuse our hospitality.

[The Deputy Speaker]

The time provided for the consideration of Private Members' Business has now expired.

It being 2.23 p.m., the House stands adjourned until Monday at 11 a.m.

(The House adjourned at 2.23 p.m.) ,