Mr. Speaker, as you are aware, Bill C-316 is a private member's bill put forward by the member for Cambridge. In short, the bill proposes to give provincial court judges the power to order deportation at the time of sentencing.
On the surface the proposal seems to make sense. In spirit and intent the bill would simplify the bureaucratic process, eliminating the need for a deportation inquiry. Instead, a foreign born criminal would be ordered deported at the time of sentencing and hopefully be removed without incident following the completion of his or her sentence.
Both the Canadian Police Association and the Canadian Association of Chiefs of Police have called for this type of legislative change. There are a number of gaps in the present system through which foreign born criminals can disappear underground between the time they complete their sentences and the time they are called for the deportation inquiries.
The minister is sensitive to the concerns raised by the Canadian Police Association. He has discussed the possibility of such a change on two separate occasions. On November 1, 1994 the minister tabled a document entitled "Into the 21st Century: A Strategy for Immigration and Citizenship". In the document the minister raises a number of possibilities for legislative change:
A number of legislative changes will be considered to reinforce the control and enforcement provisions of the Act. For example, currently deportation orders can only be issued by an immigration official. Consideration is being given to authorizing judges to issue deportation orders at the time of sentencing, rather than requiring a separate step.
That can be found at page 59. He further referred to such a possibility in his speech at second reading of Bill C-44.
There may be other improvements that we can usher into the system and one such recommendation, for instance, coming from some of the police chiefs is to permit judges to not recommend deportations at the time of giving sentence but to order deportation at the time of sentencing so that the system is leaner, so that the issues of that individual are all dealt with at the right time, and that there is full due process for that individual's counsel and lawyer to react to that judge's ordering of a deportation rather than recommending and then having it go back to immigration and before an immigration appeal division and so on.
In light of the foregoing it is safe to say the minister supports the spirit and intent of Bill C-316. However, there have been a number of technical concerns raised not only by the Department of Citizenship and Immigration but also by the Department of Justice and the Solicitor General.
Take a look at some of the concerns from the Department of Citizenship and Immigration. This 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.
There are no fewer than three constitutional clauses that could be used to argue against the sentence. For instance, section 15 deals with equality under the law. It could be argued that two tiers of punishment would be available to judges if Bill C-316 came into effect, one for citizens and the other for non-citizens. We would have a case where two people commit the same crime, yet the punishment would be harsher for one than for the other.
Section 11 deals with double punishment. It could 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.
Section 12 deals with cruel and unusual punishment. It could be argued here that removing a permanent resident from Canada is tantamount to denying for life a person's right to be with family and friends, to earn a living or to communicate freely in the course of daily living.
Let us look at some of the concerns raised by the Department of Justice. There is a clear potential that even the simplest case could become mired in constitutional wrangling, which could stretch on for years and cost the taxpayers hundreds of thousands if not millions of dollars.
If the bill 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 the provincial crown attorneys and judges. We should not dilute federal responsibility for something as important as the deportation of violent offenders.
It would take both time and money to train lawyers and judges to deal with immigration cases. The international obligations that Canada has with respect to immigration matters are not well known to judges acting in criminal matters.
Plea bargaining could become a convenient way for people who should not be in the country to stay in the country. There would be also be more appeals to our overloaded courts.
Deportation can be a complex process requiring travel documents and international co-operation. These are affairs which 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.
Judges require proof beyond a reasonable doubt before they can issue any court order. Bill C-316 as it stands could not withstand a charter challenge. The federal court has established that deportation is not a form of punishment but rather is an administrative decision taken by Canada.
Let us look at some of the concerns raised by the Solicitor General. The purpose of the Transfer of Offenders Act is to accommodate non-Canadians serving sentences by making it possible, on the basis of an arrangement between states, to transfer offenders so they can serve time in their homeland. This act is not meant to support orders which may have been made by the court.
Bill C-316 proposes that the act be amended to allow Canada to remove any foreign criminal serving time in a Canadian prison. There is absolutely no incentive for foreign countries to pass treaties with Canada whereby we would transfer to them the cost of punishing offenders who have committed crimes in Canada.
The government wants to ensure that all dangerous foreign offenders are ordered removed. We also want to ensure that the humanitarian concerns, which are an important part of the immigration system, are consistently applied to all persons subject to removal orders.
Bill C-44 seeks to remove all appeal rights from the Immigration and Refugee Board by dangerous criminals hoping to delay or prevent their removal from Canada. It also would prevent the release of unescorted convicted criminals under deportation order from Canadian prisons until they can be removed from Canada.
Many of the proposals which this bill would seem to resolve have already been dealt with in Bill C-44. The system works, but it could work far better than it does at the present time. The hon. member for Cambridge is clearly pointing out that there is need for change. We are taking action, but we must weigh our options carefully. All too often there is a difference between what sounds good and what is practical.