Hon. Irwin Cotler (Mount Royal, Lib.):
Mr. Speaker, I am pleased to rise in relation to Bill C-43, An Act to amend the Immigration and Refugee Protection Act, legislation which will impact on the lives of many of my constituents in Mount Royal and which will also have an important impact on the Canadian immigration system overall.
In presenting the bill, the Minister of Citizenship and Immigration offered several justifications for the bill, some of which appear reasonable at first glance in their response to admittedly legislative gaps and policy concerns. In this regard the minister began by noting 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”.
He then continued, noting that the bill “would permit the temporary entry of persons with an inadmissible family member” before adding that the legislation also would provide “express 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”.
At first glance, all of these are supportable notions. 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. Nor do we want any convoluted or unclear process for ministerial decision making in this regard. Yet the bill goes above and beyond these simple and seemingly agreeable propositions. 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, granting powers to ministers in ways that may breach the charter and changing some of the protections currently afforded by both domestic and international law. In particular, the minister’s outline of the two major changes contained in Bill C-43 warrant individualized attention and critique from a juridical perspective. I will seek to organize my remarks around the same points that the minister adduces in support of these changes.
First, the minister noted that “the bill will create a new authority for the Minister of Citizenship who will be able to deny temporary resident status to foreign nationals for up to three years based on public policy considerations”. The problem is that there are no criteria respecting what are public policy considerations. What factors will be considered by the minister? When will the determination be made in the application process? What checks are in place to ensure this provision is neither misused nor abused. Indeed the minister himself acknowledged the delicacy, to use his own term, of this authority and invited colleagues and members of the opposition to suggest such criteria either by way of regulation, amendment, or otherwise support content into this rather vague and elastic term.
As a matter of fundamental fairness, persons must be informed of the case to meet and be allowed to present evidence in their favour. By allowing determination on unknown allegations, with a questionable if not elastic standard, namely that of public policy considerations, we are investing the minister with an authority that could end up being discriminatory and otherwise arbitrary and capricious in its application.
Simply because the minister contends that the power would be used sparingly does not mean that it passes constitutional muster. There must be some check, some appeal, some review of the exercise of authority and I am hopeful at committee this section may be amended, as the minister himself acknowledged and invited such amendment, to at least require notice to applicants of the considerations at issue when this section is invoked.
The second change held out by the minister is that “the bill seeks to lower the current threshold to bar access to the Immigration Appeal Division for serious criminality from a minimum sentence requirement of two years to a sentence of six months”.
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. One who obtains a sentence 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 access to an appeal of a decision that he or she should be put immediately on a plane back to another country, one where the person may not have been to in years, where the person may have no ties, simply because the minister has ordered the person deported.
In this regard, one must note the title of the bill, which is as prejudicial as it is presumptive and where the very title of the legislation is intended to be probative of the raison d’être of the legislation itself. I am speaking to the reference to swift departure of foreign criminals act.
This is not unlike the approach that was taken with respect to the Safe Streets Act. A title does not in and of itself validate legislation. By characterizing the legislation as being the “faster removal of foreign criminals act”, it does not make it necessarily pass constitutional muster. A title does not make constitutionally suspect legislation valid nor does it transform bad policy into good policy.
The people affected by this bill are permanent residents of our country and newcomers. They came here legally after going through a process that requires, among other things, a criminal background check.
An entire community will be affected by these measures, and it is unacceptable to characterize that community the way this bill does and the way the minister did during his presentation to the House.
New immigrants to Canada are active members of their society. They pay taxes and contribute positively to the country’s economy. They must be treated fairly and with respect. Indeed, immigrants, as all members of the House know, play an extremely important role in our country’s history. They are an integral part of our cherished multicultural mosaic. On a personal note, I am extremely proud to be able to represent one of the most ethnically diverse ridings in the country.
Simply put, the government has not presented the House with any evidence of a higher level of criminality among immigrants to Canada as compared to citizens. Nor has it presented evidence that somehow a sentence of six months plus a day is in and of itself “serious criminality”.
While my colleagues have listed some of the offences for which one might get a sentence of longer than six months, offences which a reasonable person would hardly view as serious, the bigger problem is that the assumption is that a sentence necessarily reflects severity. In a period when the government is intent on ushering in new and longer mandatory minimum sentences, it can hardly be said in the Canadian justice system that there is necessarily a correlation between the length of a sentence imposed by a judge and the severity, let alone the evil of the act itself.
There is a related note here that must be made with regard to sentencing. The minister noted:
We have noticed across the country that courts are often using two years less a day to penalize individuals for their crime. At the same time it obviously changes the aspect of that criminal conviction, because it is less than two years, and therefore the scope of the current legislation does not allow us to pursue those individuals for the purpose of getting them out of the country and deporting them.
The suggestion is that judges somehow sentence offenders to two years less a day so that one would not be deported under the current statutory scheme and that it is in fact the intention of the judiciary itself in these regards. However, the truth of the matter is that two years is a dividing line between offences served in provincial versus federal institutions.
In other words, a judge is not sentencing someone to two years less a day because he or she feels the offender should not be deported. That is not something for the judiciary to consider in a criminal case. Rather the two years less a day sentence allows for the criminal to be incarcerated in a provincial rather than a federal penitentiary.
Indeed, in this regard I would invite the government to submit any evidence it has that any judge has ever taken into account deportation risk in assessing the sentences. It is not a factor under the Criminal Code and surely the government would appeal such a verdict should it have been handed down in that manner. It is simply irresponsible to impute to the judiciary a motive in sentencing where there is no evidence in fact or in law that it has indeed adopted this as its modus operandi.
Returning to the bill before us, the premise is that we must remove foreign criminals faster. Yet, as I noted, the foreign criminals at issue here are really permanent residents and new Canadians. Their crimes may not be all that serious. If the government seeks to ascribe to them the level of “serious criminality”, they would be deprived of a remedy to challenge the summary deportations themselves.
When we think of serious criminality, we think of murder, sexual assault and other violent acts. I do not dispute that there are some committing these despicable acts who may be immigrants to Canada, as well as citizens committing such crime. However, the most serious of all crimes, mainly war crimes, crimes against humanity, let alone that unspeakable crime of genocide, is not something we see addressed in this proposed statute. I believe this point warrants some discussion in this matter.
In this regard, may I turn my attention to the war crimes and crimes against humanity program.
Since its inception in 1997, the war crimes program has provided a means of prosecuting international crimes domestically, under the principle of universal jurisdiction, which underpins our war crimes legislation and the implementation of our international treaty obligations.
In doing so, Canada sends a powerful message that not only will our country not serve as a base or sanctuary for war criminals but such war criminals are on notice that they will enjoy neither immunity nor impunity for their international criminality, which transcends borders and jurisdictions.
It is regrettable that the funding for this program has not changed since its inception in 1997. At a time when the government is talking 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, we see the problem with the bill now magnified in this regard to how the government treats war criminals, namely through their wholesale deportation. Yet this is not an appropriate alternative to domestic prosecution for war criminals, for they may never face justice in their home countries. Indeed, their home governments may provide protection from prosecution and they may even be rewarded for their criminality. It is our responsibility, both domestically and under international law, to break this cycle of impunity.
At a time when the government purports to be concerned with foreign criminals who enter our country, should this not be the time to reinvigorate the support and funding provided for the war crimes and crimes against humanity program?
These are the real foreign criminals, not Canadian permanent residents. For all the government has claimed that the opposition is soft on crime, why are the Conservatives arguably so soft on war criminals and war crimes?
Again, the point here is that deportation and removal are not necessarily solutions to the problem at hand, and in some cases, returning someone to their country of origin may make things worse.
Another flaw of the bill is that it does not make clear the Canadian obligation, as affirmed by our courts again and again, not to deport to situations of torture or terror. Problematic as it may be to return a permanent resident to a country with which he or she may not have had any contact for years and may no longer have any ties, it is much more problematic in cases of people who came as refugees to Canada before claiming their permanent residency status.
In this regard the removal of recourse to the immigration appeal division is particularly problematic. Indeed, it should be noted that we hold specific international legal obligations under the UN Convention against Torture, to which Canada is a signatory. Article 3 of that convention states:
1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
While I understand the concern and desire to limit paperwork and resources devoted to claims that will not succeed and I understand the concern that protracted levels of appeal at times burden our system, efficiency cannot replace fundamental rights, particularly those that are protected by treaty. Indeed, the rights at stake here are of the utmost, critical importance.
For permanent residents, such as those who came here as children and for whom Canada may be the only country they have ever known, the decision to return them could prove fatal. Decisions in this regard must not be made lightly, require a full and fair consideration of the facts and cannot be rushed in the interest of political expediency, nor can they ignore the very real dangers that exist.
Lest anyone question whether this is a very serious risk, look at what happened just last week in the case of Fatemeh Derakhshandeh Tosarvandan. While the Canada Border Services Agency has agreed to look at new evidence into the case of her failed refugee claim, there was a brief point where it appeared Canada would send this refugee claimant back to Iran, even though she could face death by stoning.
After repeated pleas by her lawyers and two scheduled deportations that were subsequently cancelled, officials finally notified her lawyer that they would grant her a pre-removal risk assessment.
These cases arise and it must be clear that in all circumstances that Canada, as a matter of law and policy, will not deport to torture or terror which, as the courts have also affirmed, includes deportation to the death penalty in any form.
To conclude my remarks in the time remaining, we all support the idea of creating an efficient and effective immigration process. We support what the minister has said about supporting the integrity of the process itself, but this must not come at the expense of our democratic values, our constitutional rights or international legal obligations. Our government must be open and accountable. Ministerial discretion in a democracy must be exercised with transparency, accountability, in compliance with the Constitution and not shielded by elastic and amorphous terms such as public policy considerations.
The government has yet to justify the primary legislative changes accomplished through the bill in any compelling way. Its advancement only continues to create prejudicial fallout for immigrants, and also prejudicial fallout with respect to the imputations to the judiciary of prejudicial decision-making, let alone breaches of the Charter of Rights and Freedoms.
I am all for immigration reform. Some of the minister’s reforms have been welcome. In past Parliaments I have stood with my Liberal colleagues in supporting some immigration legislation offered by the Conservatives, yet this legislation in its present form is constitutionally suspect. It will invite constitutional challenges at the taxpayers’ expense as the government seeks to advance that which breaches constitutional requirements for procedural fairness on the one hand and respect for our international obligations on the other.
What is enshrined in the charter and the related duty of procedural fairness are not merely privileges. They are rights that deserve protection and promotion, and the Canadian Parliament should be at the forefront of those seeking such protection for the benefit of all Canadians.
Mr. Jasbir Sandhu (Surrey North, NDP):
Mr. Speaker, I am also a product of the family reunification provisions of the Canada immigration act. I came to this country in 1980. Back then it took about three years to process an application. I was able to get into elementary school and high school. It benefited me as a person to learn the language at an early age.
In the last 10 years under the Conservative government the wait list has grown to the point where it takes eight or nine years for someone to sponsor parents and young people to this country. I would not have benefited under the Conservative government’s track record. I would not be where I am today had I not been able to come in a fairly short period of time. We have seen a freeze on parental applications and such.
Instead of vilifying newcomers to this country, should the government not be working to fix the immigration system?
Hon. Irwin Cotler:
Mr. Speaker, I can corroborate what the member said. My constituency office has – if I can borrow the expression – one of the largest immigration practices in this country. We deal all the time with issues relating to family reunification. We deal with issues with respect to temporary visa applications and applications respecting refugee status and the like. Regrettably, whenever we have these bottlenecks, the bottlenecks end up being prejudicial to the applicants and effectively prejudicial to Canada itself, because we delay and sometimes end up even denying access to our country to those who could make an ongoing and enduring contribution to our society.
I believe the government does want to address some of these concerns that are causing these roadblocks in process and the like. The minister has attempted to do that. Regrettably, with regard to this legislation, the emphasis has been put on reforms that not only do not address those roadblocks but at the end of the day will end up breaching requirements of procedural fairness domestically and also prejudicially affect our international obligations.
Mr. Dany Morin (Chicoutimi—Le Fjord, NDP):
Mr. Speaker, Bill C-43, An Act to amend the Immigration and Refugee Protection Act, concentrates more powers in the hands of the minister by giving him the authority to rule on the admissibility of temporary resident applicants. Furthermore, the minister can declare a foreign national to be inadmissible for various reasons. That worries me a bit. This concentration of power in the hands of the minister is a systematic pattern in the Conservatives’ bills.
Is my Liberal colleague as concerned as the NDP that this bill and others concentrate more powers in the hands of the minister?
Hon. Irwin Cotler:
Mr. Speaker, yes, that does worry me, and I expressed my concerns in my speech.
Not only does the Minister of Citizenship, Immigration and Multiculturalism have too much power, but so does the Minister of Public Safety. They have too much power without accountability.
I believe that the minister himself recognized that the text of the bill is problematic. He invited the opposition to propose amendments, and that is what we must do to improve the bill.
Mr. Robert Aubin (Trois-Rivières, NDP):
Mr. Speaker, I listened carefully to the presentation by my hon. colleague. I would like to congratulate him for his well-thought-out arguments.
I notice that Bill C-43—he can tell me whether or not he agrees with me—moves completely away from what we should be doing. It does focus on an existing problem, but one that only concerns a minority of refugees. It seems that they want to focus on the criminals when much more needs to be done to restore balance to this immigration bill.
I would like to hear what my colleague has to say about this shift, and whether or not he agrees with me.
Hon. Irwin Cotler:
Mr. Speaker, I agree.
I think the proposals included in this bill are hurting immigrants and communities.
Mr. Dany Morin (Chicoutimi—Le Fjord, NDP):
Mr. Speaker, I have a problem with the changes to the act. Currently, the minister has the obligation, following a request by a foreign national, to look at the humanitarian aspects of the situation of a foreign national deemed inadmissible on grounds of security or violations of human or international rights.
However, once Bill C-43 comes into force, the minister will no longer be responsible for taking into account humanitarian grounds. Yet in many cases, when individuals make a refugee claim or apply for permanent residence, humanitarian grounds are critical.
Could the Liberal member could tell us what he thinks of the fact that the minister will no longer be responsible for considering humanitarian grounds?
Hon. Irwin Cotler:
Mr. Speaker, that is why I gave the example of the Iranian woman. They were prepared to deport that immigrant, regardless of the problems deportation to a country where her life was in danger would cause.
I think it is necessary to keep humanitarian grounds in Canada’s immigration process, as suggested by the hon. member.
Mr. Robert Aubin:
Mr. Speaker, I want to be as clear as I can.
Does the hon. member feel that, with Bill C-43, the government is using a cannon to kill a fly and that, in so doing, is completely overlooking the imbalances found in this legislation?
Hon. Irwin Cotler:
Mr. Speaker, the problem is that the government has treated some groups, such as permanent residents and immigrants, as if they posed a threat to Canadian security.
We have to consider the true scale of this issue and not frame it as a criticism of permanent residents as if they were responsible for security breaches in Canada.
That is why there must be processes in place to protect their rights. We must give them the means to defend their rights. We must not give the minister excessive power to make a decision that would violate the Canadian Charter of Rights and Freedoms at the national level or our international obligations.