Mr. Speaker, I must advise the House that I am going to share my time with the member for Rivière-du-Nord. We will each speak for 10 minutes.
I would like to start by saying that the title of the bill, quite obviously, is something that should give us pause. The reference to foreign criminals is something that seeps throughout the entire bill. It could, if we are not careful, help construct society's understanding of the contexts that are being discussed in the bill in a way that would separate those of us who are lucky to have full citizenship from those among us who are merely landed immigrants or permanent residents.
I would like to come back to that point when I discuss, a bit later, the cutting of appeal options in new categories of cases. However, I do want to put on record that one of the biggest problems is almost a discursive problem by the reference to foreign criminals in this undifferentiated way in the title.
The second big problem with the bill is that, in some ways, it combines two extremes in terms of the exercise of state power in this context.
One extreme is that it would give a full, at least in terms of the text, and unfettered discretion to the minister with the new section 22.1, which would allow him or her to refuse temporary residence visas on his or her own opinion of what are public policy considerations. There is nothing in the bill that talks about any constraints on that.
We had an answer earlier in the House when the parliamentary secretary suggested that the government might be open to giving a bit more substance to that, but at the moment it is not in the bill.
On the other hand, we have no discretion at all on other fronts in the bill in a way that adds to the repressive dimensions of its structure. Within section 64, which would change the threshold for no appeal rights after being determined to be inadmissible from two years to six months, removing the appeal as of right, there would be nothing in between. There would be no procedure for a leave to appeal. It would be all or nothing. If people have been convicted for an offence that has involved imprisonment of six months, then they have no right of appeal from the decision on admissibility to the Immigration Appeal Division.
On the other hand, in terms of no discretion, there is a new section 25 wording that would remove not just the right of the minister but the power of the minister to consider humanitarian and compassionate considerations in a category of cases.
Now, I want to be careful here when I add this in as a problem because those categories of cases are worded very broadly and they seem like the kind of cases when one would never want to exercise discretion to allow somebody to stay. “Security”, “organized criminality” and “violating human or international rights” are the words used.
However, even within those categories, they are so generally worded, “organized criminality” and “security”, that it is not difficult to imagine some circumstances in which there may be reason to lighten the severity of the law and allow somebody to stay. In fact, that is how the system has worked. On occasion the minister does exercise exactly that discretion for those reasons. The fact is that has been eliminated.
We have to look very carefully when this does hit the committee as to whether or not the use of extremes, nothing in between, has actually created a bill that would, down the road, show itself as producing a lot of hardship.
I am going to primarily address the question of the reduction of the elimination of the right to appeal to a broader category of persons and, also, the public policy discretion of the minister.
With respect to that public policy discretion, let me start here. The new section 22.1 says:
The Minister may, on the Minister’s own initiative, declare that a foreign national...may not become a temporary resident if the Minister is of the opinion that it is justified by public policy considerations.
He may do that or she may do that for up to 36 months.
That is it. That is all we have there.
It is not too difficult to imagine how, in the hands of a certain minister or in a certain period of time, this could be exercised very arbitrarily, if not abusively. There is nothing in the bill to constrain that, other than, I hope, the fact that there would be judicial review available, but judicial review is one of the worst possible ways to produce checks in any legal system because it requires time, money and good lawyers to actually get anywhere. We need to have a system of decision making within the bill itself that checks the minister in his or her decision making, and public policy consideration is just simply far too broad a mandate to give any one person to exercise in the context.
I will not go into specific examples, but we do know of at least a few examples where the Minister of Immigration has clearly not wanted somebody to enter the country for reasons that, under the surface, appear to be more about politics than they do about sound public policy. That clause has to be looked at in committee. It has to be beefed up if it is to be retained.
The next provision to look at is section 64 which, as everybody has noted, lowers the threshold for removing the right of appeal on an inadmissibility decision from two years imprisonment to six months. If a person has been in prison for six months, that is it in terms of them having any right of appeal. They would not have any.
We should think about some of the things in the Criminal Code that can attract six months, and they may not that often, such as stealing oysters, section 323, selling a betting pool, section 202, and the list goes on. There are lots of offences that can attract six months. We would like to think the system would never end up seeking to deport somebody for these kinds of offences, but the moment we go down from two years to six months, we actually enter that territory where these kinds of Kafkaesque possibilities are there.
What about more recently, the effects of mandatory minimum legislation in Bill C-10? We know now that with marijuana, for example, the growing of six plants can lead to a six months sentence. The sentence cannot exceed six months, but it can also be six months under the new Bill C-10, when that takes effect in the Criminal Code: six months, six plants, no appeal. Does that seem at all proportionate to the kind of more nuanced decision making that we would want our laws to recognize. We hope that would never be used as a basis by the system to seek to deport somebody in and of itself, but there is nothing protecting against that result the way it is written.
The biggest problem is that the lower the threshold, the more people will be caught by it. More people who have permanent residence and landed immigrant status will suddenly be put in this category of deportable, even though what they have done in the grand scheme of things is not nearly as serious as what used to be the case under the law.
We have to begin to reflect on how much ownership we have to take of those among us who get into criminal trouble, who do end up with sentences right at the edge of six months, eight months, nine months. Who is responsible? What society is responsible for dealing with that issue? Is it always the other country that has a formal nationality, a country that a person may not have seen in 30 years, a person who may have come here at age two or age three and does not even speak the language of the other country, for example, or is it the country where the person grew up and basically produced the condition under which the crime occurred? We are not responsible for it, but we are that person's brothers and sisters. How do we think about the fact that the lower the threshold is, the more likely it is that people among us will end up in the headlights of the minister or the department of administrative immigration for this kind of deportation.
In the general sense, the bill may not appear offensive to those on the other side or to many in society, but when we look at how minimal the trigger is for somebody to be deported with no right of appeal, we really have to question whether this is the way our society wants to go. Two years itself is already something that was a compromise. Why we have gone to six months has escaped me.