C-43: The Government Gets it Wrong, and Immigrants Pay the Price
In introducing Bill C-43 — the Faster Removal of Foreign Criminals Act — the Minister of Citizenship and Immigration offered several justifications for this legislation, including, first, that the bill “would narrow the breadth of the inadmissibility provision for espionage, to focus on activities carried out against Canada or that are contrary to the interests of Canada.”
Second, that the bill “would permit the temporary entry of persons with an inadmissible family member,” and third, “that it would provide authority for the Minister of Public Safety to grant Ministerial relief on the Minister’s own initiative” and thus would, as a whole “strengthen the integrity of the system and protect the safety of Canadians.”
These justifications, on first impression, appear warranted. We do not want to exclude those who spied or worked on behalf of allies. We do not want to deny someone entry if he or she is innocent of any wrongdoing but have an inadmissible family member. And we do not want any convoluted or unclear process for ministerial decision-making in this regard. Indeed, if the bill only did these three things, it would perhaps even enjoy the unanimous support of the House.
However, the legislation goes beyond this, both granting powers to minister in ways that may breach the Charter, and changing some of the protections currently afforded to immigrants and permanent residents by both domestic and international law.
Indeed, the very title of the legislation — “The Faster Removal of Foreign Criminal Act” — suggests that Canada is overrun with foreign terrorists, escaped convicts, war criminals and the like. This self-justifying title for Bill C-43 masks the fact that it will end up targeting Canadian permanent residents and new immigrants, communities not shown to engage in any more criminality than Canadian Citizens.
Yet, this misleading title is but the tip of the iceberg for this highly problematic piece of legislation, reflective of the Government’s pattern of prejudicial and prosecutorial approaches to immigration reform. Regrettably, the Harper Government is undermining the humanitarian and rule of law ethos that informed our immigration policy for decades, while serving to erode Canada’s reputation as a welcoming home to new immigrants.
Simply put, bill C-43 is seriously flawed in several particulars. First, it grants the Minister of Immigration new and ambiguous powers to bar people from entry to Canada for a period of three years on the grounds of “public policy.” This reform is likely to lead to further politicization of our immigration system. Second, the new measures for faster deportation of residents will invite Charter challenges, particularly as the bill lowers the sentence for which a person can be deported from a two year sentence to six months — thus shifting the focus of deportation away from serious criminality towards petty crimes.
Third, the removal of humanitarian and compassionate considerations as a factor for Ministerial review of deportation orders may not only be in breach of the Charter, but may also run afoul of our legal obligations under international law. Finally, the charged rhetoric for the fast-tracking and deportation of foreign criminals in Canada used to justify these measures is likely to further stigmatize new immigrants, and unnecessarily so. I will now address each of these flaws individually.
First, under the current Immigration and Refugee Protection Act, the Minister of Citizenship and Immigration can bar someone from entering Canada on clearly defined rules of inadmissibility, such as on the grounds of threatening our national security, engaging in war crimes, and being convicted of serious criminality.
These rules are well-defined to allow front line immigration officers to invoke objective criteria taking into account the merits of each individual case, without politicization of the process. Regrettably, the rule changes under C-43 would grant the Ministers of Immigration and Public Safety new powers to refuse entry on the amorphous grounds of “public policy considerations.” This change would carve out a sphere of un-accountable ministerial discretion, contrary to Canada’s Constitutional and administrative practices.
As a matter of fundamental fairness, persons affected by a government decision should be informed of the reasons leading up to that decision and allowed to present evidence in their favour; they must know the case to meet. Yet, C-43 denies this right denying also any appellate review. Indeed, this authority could also become discriminatory or otherwise arbitrary and capricious in its application. Even in the best of all cases, where no harm may result from the use of this provision, the possible abuse of this standard is cause for serious concern.
Second, C-43 also seeks to make it easier for the government to deport residents who have been convicted of petty crimes. Under our current immigration laws, any crime for which one would serve a sentence in a federal penitentiary — that is, a crime with a prison term of two years and above — is deemed to be serious enough to warrant deportation. Bill C-43 lowers the minimum prison term, allowing the deportation of those who receive a prison sentence of six months or more.
It is troubling enough that the government speaks of anything netting longer than a six month sentence as “serious criminality,” let alone the denial of remedial relief in this regard. Yet, one who is sentenced for making a recording in a movie theatre — an offence which can net a two year sentence under section 432 of the Criminal Code — is hardly one who should be denied appeal of a decision deporting them to another country, one where the person may not have been to in years, where the person may have no ties, and where his or her life may even be in danger.
With these changes, this government is not only in pursuing a flawed policy, but a constitutionally suspect one, which will invite constitutional challenges, with more costs to the Canadian people, and with taxpayer money being used to fund these Government appeals.
Moreover, the government has failed to provide any evidentiary basis to justify these proposals. Instead, it has used the occasion to once again attack our judiciary for being “soft” on “foreign” criminals. The Minister of Immigration and Citizenship has pointed to the sentencing of some convicted criminals to a sentence of two years less a day as one of the reasons to change this aspect of the law. Yet, the real reason for this practice is to allow judges to make a determination at sentencing as to whether a person will serve their term in their home province or be transferred to a federal penitentiary. There is no evidence that members of the judiciary are seeking to keep foreign criminals in Canada instead of seeking out deportation; indeed, immigration status is not an aspect judges are asked to consider when determining a sentence.
Third, C-43 bars the Minister of Public Safety from considering humanitarian and compassionate grounds when reviewing a case of inadmissibility on national security grounds. This change may not only be contrary to our international law obligations — as where a person deemed inadmissible or deportable will be subject to torture and other inhumane and degrading punishment — but it may also violate our Charter.
Indeed, Canada has been a leader in championing reforms to advance human rights and the rule of law in countries where alleged war criminals are sent to stand trial for their crimes. The Case of Leon Mugesera is a good example where Canada’s insistence on the abolition of the death penalty in Rwanda before his deportation successfully reformed that country’s practices. Not allowing for the consideration of such factors in deportation deprives Canada of this ability to affect positive change, and represents a retreat from defending the values for which our country has stood around the world.
Moreover, at a time when the government talks about getting tough on foreign criminals, it is not — regrettably — addressing the problem of foreign war criminals here in Canada and ensuring that they are brought to justice here in Canada, rather than focus on the deportation remedy, as a result of this they never face justice in their home countries and may even be rewarded for their criminality. It is our responsibility, both domestically and under international law to break this cycle of impunity. These are the real foreign criminals; not Canadian permanent residents.
For all that the Government has claimed that the Opposition is soft on crime, the question is “why are the Conservatives so soft on war crimes and war criminals?”
By the Minister’s own admission, Bill C-43 needs improvement. It is my hope that at Committee, the Government will accept Opposition advice and amendment so that we can improve this bill, undo this Government’s targeting of new immigrants to this country, and foster a new-found era of respect for our Constitution, Charter¸ and the rule of law.